If the Issuer or the Co-Issuer fails to pay such amounts forthwith upon such demand, the Trustee, as Trustee of an express trust, and at the expense of the Issuer, may
institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer and the Co-Issuer or any other obligor upon the Notes and
collect the amounts adjudged or decreed to be payable in the manner provided by law out of the Collateral.
If an Event of Default occurs and is continuing, the Trustee shall proceed to protect and enforce its rights and the rights of the Noteholders by such Proceedings (x) as
directed by a Majority of the Controlling Class or (y) in the absence of direction by a Majority of the Controlling Class, as determined by the Trustee acting in good faith; provided, that (a) such direction must not conflict with any
rule of law or with any express provision of this Indenture, (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, (c) the Trustee has received security or indemnity satisfactory to
it, and (d) notwithstanding the foregoing, any direction to the Trustee to undertake a sale of Collateral may be given only in accordance with the preceding paragraph, in connection with any sale and liquidation of all or a portion of the
Collateral, the preceding sentence, and, in all cases, the applicable provisions of this Indenture. Such Proceedings shall be used for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Trustee by this Indenture or by law. Any direction to the Trustee to undertake a Sale of Collateral Interests related to a Serviced Real
Estate Loan pursuant to this Article 5 shall be forwarded to the Special Servicer, and the Special Servicer shall conduct any such Sale in accordance with the terms of the Servicing Agreement.
In the case where (x) there shall be pending Proceedings relative to the Issuer or the Co-Issuer under the Bankruptcy Code, any bankruptcy, insolvency, reorganization or
similar law enacted under the laws of the Cayman Islands, or any other applicable bankruptcy, insolvency or other similar law, (y) a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or the Co-Issuer, or their respective property, or (z) there shall be any other comparable Proceedings relative to the Issuer or the Co-Issuer, or the creditors or property of the
Issuer or the Co-Issuer, regardless of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration, or otherwise and regardless of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.3, the Trustee shall be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or
bad faith) and of the Noteholders allowed in any Proceedings relative to the Issuer, the Co-Issuer or other obligor upon the Notes or to the creditors or property of the Issuer, the Co-Issuer or such other obligor;
(ii) unless prohibited by applicable law and regulations, to vote on behalf of the
Noteholders in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or of a Person performing similar functions in comparable Proceedings; and
(iii) to collect and receive (or cause the Note Administrator to collect and receive) any
amounts or other property payable to or deliverable on any such claims, and to distribute (or cause the Note Administrator to distribute) all amounts received with respect to the claims of the Noteholders and of the Trustee on their behalf;
the Secured Parties, and any trustee, receiver or liquidator, custodian or other similar official is hereby authorized by each of the Noteholders to make payments to the Trustee (or the Note Administrator on its behalf), and, in the event
that the Trustee shall consent to the making of payments directly to the Noteholders, to pay to the Trustee and the Note Administrator such amounts as shall be sufficient to cover reasonable compensation to the Trustee and the Note
Administrator, each predecessor trustee and note administrator, and their respective agents, attorneys and counsel, and all other reasonable expenses and liabilities incurred, and all advances made, by the Backup Advancing Agent and each
predecessor backup advancing agent.
Nothing herein contained shall be deemed to authorize the Trustee to authorize, consent to, vote for, accept or adopt, on behalf of any Noteholder, any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Noteholder in any such Proceeding except, as aforesaid, to vote
for the election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes or
the production thereof in any trial or other Proceedings relative thereto, and any action or Proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, shall be applied
as set forth in Section 5.7.
Notwithstanding anything in this Section 5.3 to the contrary, the Trustee may not sell or liquidate the Collateral or institute Proceedings in furtherance thereof
pursuant to this Section 5.3 unless the conditions specified in Section 5.5(a) are met and any sale of Collateral related to Serviced Real Estate Loans contemplated to be conducted by the Special Servicer under this Indenture
shall be effected by the Special Servicer pursuant to the terms of the Servicing Agreement, and the Trustee shall have no liability or responsibility for or in connection with any such sale by the Special Servicer.
Section 5.4 Remedies.
(a) If an Event of Default has occurred and is continuing, and the Notes have been declared due and payable
and such declaration and its consequences have not been rescinded and annulled, the Issuer and the Co-Issuer agree that the Trustee, or, with respect to any sale of any Collateral Interests related to Serviced Real Estate Loans, the Special
Servicer, may, after notice to the Note Administrator and the Noteholders, and shall, upon direction by a
Majority of the Controlling Class, to the extent permitted by applicable law, exercise one or more of the following rights, privileges and remedies:
(i) institute Proceedings for the collection of all amounts then payable on the Notes or
otherwise payable under this Indenture (whether by declaration or otherwise), enforce any judgment obtained and collect from the Collateral any amounts adjudged due;
(ii) sell all or a portion of the Collateral or rights of interest therein, at one or more
public or private sales called and conducted in any manner permitted by law and in accordance with Section 5.17 (provided that any such sale related to a Serviced Real Estate Loan shall be conducted by the Special Servicer pursuant to
the Servicing Agreement);
(iii) institute Proceedings from time to time for the complete or partial foreclosure of
this Indenture with respect to the Collateral;
(iv) exercise any remedies of a secured party under the UCC and take any other appropriate
action to protect and enforce the rights and remedies of the Secured Parties hereunder; and
(v) exercise any other rights and remedies that may be available at law or in equity;
provided, however, that no sale or liquidation of the Collateral or institution of Proceedings in furtherance thereof pursuant to this
Section 5.4 may be effected unless either of the conditions specified in Section 5.5(a) are met.
The Issuer shall, at the Issuer’s expense, upon request of the Trustee or the Special Servicer, obtain and rely upon an opinion of an Independent investment banking firm as
to the feasibility of any action proposed to be taken in accordance with this Section 5.4 and as to the sufficiency of the proceeds and other amounts expected to be received with respect to the Collateral to make the required payments
of principal of and interest on the Notes and other amounts payable hereunder, which opinion shall be conclusive evidence as to such feasibility or sufficiency.
(b) If an Event of Default as described in Section 5.1(e) shall have occurred and be continuing, the
Trustee may, and at the request of the Holders of not less than 25% of the Aggregate Outstanding Amount of the Controlling Class shall, institute a Proceeding solely to compel performance of the covenant or agreement or to cure the
representation or warranty, the breach of which gave rise to the Event of Default under such Section, and enforce any equitable decree or order arising from such Proceeding.
(c) Upon any Sale, whether made under the power of sale hereby given or by virtue of judicial proceedings,
any Noteholder, Preferred Shareholder, the Collateral Manager, the Servicer or the Special Servicer or any of their Affiliates may bid for and purchase the Collateral or any part thereof and, upon compliance with the terms of Sale, may hold,
retain, possess or dispose of such property in its or their own absolute right without accountability; and
any purchaser at any such Sale may, in paying the purchase money, turn in any of the Notes in lieu of Cash equal to the amount which shall, upon distribution of the net proceeds of such sale,
be payable on the Notes so turned in by such Holder (taking into account the Class of such Notes). Such Notes, in case the amounts so payable thereon shall be less than the amount due thereon, shall either be returned to the Holders thereof
after proper notation has been made thereon to show partial payment or a new note shall be delivered to the Holders reflecting the reduced interest thereon.
Upon any Sale, whether made under the power of sale hereby given or by virtue of judicial proceedings, the receipt of the Note Administrator or of the Officer making a sale
under judicial proceedings shall be a sufficient discharge to the purchaser or purchasers at any sale for its or their purchase money and such purchaser or purchasers shall not be obliged to see to the application thereof.
Any such Sale, whether under any power of sale hereby given or by virtue of judicial proceedings, shall (x) bind the Issuer, the Co-Issuer, the Trustee, the Note
Administrator, the Noteholders and the Preferred Shareholders, shall operate to divest all right, title and interest whatsoever, either at law or in equity, of each of them in and to the property sold and (y) be a perpetual bar, both at law and
in equity, against each of them and their successors and assigns, and against any and all Persons claiming through or under them.
(d) Notwithstanding any other provision of this Indenture or any other Transaction Document, none of the
Advancing Agent, the Trustee, the Note Administrator or any other Secured Party, any other party to any Transaction Document, the Holder of the Notes and the holders of the equity in the Issuer and the Co-Issuer or third party beneficiary of
this Indenture may, prior to the date which is one year and one day, or, if longer, the applicable preference period (plus one day) then in effect (including any period established pursuant to the laws of the Cayman Islands) after the payment
in full of all Notes, institute against, or join any other Person in instituting against, the Issuer, the Co-Issuer or any Permitted Subsidiary any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or
other proceedings under federal or State bankruptcy or similar laws of any jurisdiction. Nothing in this Section 5.4 shall preclude, or be deemed to stop, the Advancing Agent, the Trustee, the Note Administrator, or any other Secured
Party or any other party to any Transaction Document (i) from taking any action prior to the expiration of the aforementioned one year and one day period, or, if longer, the applicable preference period (plus one day) then in effect
(including any period established pursuant to the laws of the Cayman Islands) period in (A) any case or proceeding voluntarily filed or commenced by the Issuer or the Co-Issuer or (B) any involuntary insolvency proceeding filed or commenced
by a Person other than the Trustee, the Note Administrator or any other Secured Party or any other party to any Transaction Document, or (ii) from commencing against the Issuer or the Co-Issuer or any of their respective properties any legal
action which is not a bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceeding.
Section 5.5 Preservation of Collateral.
(a) Notwithstanding anything to the contrary herein, if an Event of Default shall have occurred and be
continuing when any of the Notes are Outstanding, the Trustee and
the Note Administrator, as applicable, shall (except as otherwise expressly permitted or required under this Indenture) retain the Collateral, collect and cause the collection of the proceeds
thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Notes in accordance with the Priority of Payments and the provisions of Articles 10, 12 and 13 and shall
not sell or liquidate the Collateral, unless either:
(i) the Note Administrator, pursuant to Section 5.5(c), determines (based upon
information delivered to it in accordance with this Indenture) that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to discharge in
full the amounts then due and unpaid on the Notes, Company Administrative Expenses due and payable pursuant to the Priority of Payments, the Collateral Manager Fees due and payable pursuant to the Priority of Payments and amounts due and
payable to the Advancing Agent, the Backup Advancing Agent and the Trustee, in respect of unreimbursed Interest Advances and Reimbursement Interest, for principal and interest (including accrued and unpaid Deferred Interest), and, upon
receipt of information from Persons to whom fees are expenses are payable, all other amounts payable prior to payment of principal on the Notes due and payable pursuant to Section 11.1(a)(iii) and the Holders of a Majority of the
Controlling Class agrees with such determination; or
(ii) a Supermajority of each Class of Notes (each voting as a separate Class) directs the
sale and liquidation of all or a portion of the Collateral.
In the event of a sale of a portion of the Collateral pursuant to clause (ii) above, the Special Servicer, on behalf of the Trustee, shall sell those items of
Collateral identified by requisite Noteholders pursuant to a written direction, received by the Special Servicer, in form and substance satisfactory to the Trustee and all proceeds of such sale shall be remitted to the Note Administrator for
distribution in the order set forth in Section 11.1(a). The Note Administrator shall give written notice of the retention of the Collateral by the Custodian to the Issuer, the Co-Issuer, the Collateral Manager, the Trustee, the
Servicer, the Special Servicer and the Rating Agencies. So long as such Event of Default is continuing, any such retention pursuant to this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i)
or (ii) above exist.
(b) Nothing contained in Section 5.5(a) shall be construed to require a sale of the Collateral
securing the Offered Notes if the conditions set forth in this Section 5.5(a) are not satisfied. Nothing contained in Section 5.5(a) shall be construed to require the Trustee to preserve the Collateral securing the Offered
Notes if prohibited by applicable law.
(c) In determining whether the condition specified in Section 5.5(a)(i) exists, the Collateral
Manager shall obtain bid prices with respect to each Collateral Interest from two dealers (Independent of the Collateral Manager and any of its Affiliates) at the time making a market in such Collateral Interests that, at that time, engage in
the trading, origination or securitization of loans or participation interests in loans similar to the Collateral Interests (or, if only one such dealer can be engaged, then the Collateral Manager shall obtain a bid price from such dealer or,
if no such dealer can be engaged, from a pricing service). The Collateral Manager shall compute the anticipated proceeds of sale or liquidation on the basis of the lowest
of such bid prices for each such Collateral Interest and provide the Trustee, the Special Servicer and the Note Administrator with the results thereof. For the purposes of determining issues
relating to the market value of any Collateral Interest and the execution of a sale or other liquidation thereof, the Special Servicer may, but need not, retain at the expense of the Issuer and rely on an opinion of an Independent investment
banking firm of national reputation or other appropriate advisors (the cost of which shall be payable as a Company Administrative Expense) in connection with a determination as to whether the condition specified in Section 5.5(a)(i)
exists.
The Note Administrator shall promptly deliver to the Noteholders and the Servicer, and the Note Administrator shall post to the Note Administrator’s Website, a report
stating the results of any determination required to be made pursuant to Section 5.5(a)(i).
Section 5.6 Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or under any of the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or
the production thereof in any trial or other Proceeding relating thereto, and any such action or Proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust. Any recovery of judgment in respect of the
Notes shall be applied as set forth in Section 5.7.
In any Proceedings brought by the Trustee (and in any Proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) in
respect of the Notes, the Trustee shall be deemed to represent all the Holders of the Notes.
Section 5.7 Application of Amounts Collected.
Any amounts collected by the Note Administrator with respect to the Notes pursuant to this Article 5 and any amounts that may then be held or thereafter received by
the Note Administrator with respect to the Notes hereunder shall be applied subject to Section 13.1 and in accordance with the Priority of Payments set forth in Section 11.1(a)(iii), at the date or dates fixed by the Note
Administrator.
Section 5.8 Limitation on Suits.
No Holder of any Notes shall have any right to institute any Proceedings (the right of a Noteholder to institute any proceeding with respect to this Indenture or the Notes
is subject to any non-petition covenants set forth in this Indenture or the Notes), judicial or otherwise, with respect to this Indenture or the Notes, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of an Event of
Default;
(b) except as otherwise provided in Section 5.9, the Holders of at least 25% of
the then Aggregate Outstanding Amount of the Controlling Class shall have made written request to the Trustee to institute Proceedings in respect of such Event of Default in its
own name as Trustee hereunder and such Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(c) the Trustee for 30 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such Proceeding; and
(d) no direction inconsistent with such written request has been given to the Trustee
during such 30-day period by a Majority of the Controlling Class; it being understood and intended that no one or more Holders of Notes shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this
Indenture or the Notes to affect, disturb or prejudice the rights of any other Holders of Notes of the same Class or to obtain or to seek to obtain priority or preference over any other Holders of the Notes of the same Class or to enforce any
right under this Indenture or the Notes, except in the manner herein or therein provided and for the equal and ratable benefit of all the Holders of Notes of the same Class subject to and in accordance with Section 13.1 and the
Priority of Payments.
In the event the Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Holders of the Controlling Class, each representing
less than a Majority of the Controlling Class, the Trustee shall not be required to take any action until it shall have received the direction of a Majority of the Controlling Class.
Section 5.9 Unconditional Rights of Noteholders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture (except for Section 2.7(d) and 2.7(m)), the Holder of any Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of and interest on such Note as such principal, interest and other amounts become due and payable in accordance with the Priority of Payments and Section 13.1, and, subject
to the provisions of Sections 5.4 and 5.8 to institute Proceedings for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder; provided, however, that the right of such Holder to institute proceedings for the enforcement of any such payment shall not be subject to the 25% threshold requirement set forth in Section 5.8(b).
Section 5.10 Restoration of Rights and Remedies.
If the Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Noteholder, then (and in every such case) the Issuer, the Co-Issuer, the Trustee, and the Noteholder shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.
Section 5.11 Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee, the Note Administrator or to the Noteholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.12 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein or a waiver of a subsequent Event of Default. Every right and remedy given by this Article 5 or by law to the Trustee, or to the Noteholders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee, or by the Noteholders, as the case may be.
Section 5.13 Control by the Controlling Class.
Subject to Sections 5.2(a) and (b), but notwithstanding any other provision of this Indenture, if an Event of Default shall have occurred and be continuing
when any of the Notes are Outstanding, a Majority of the Controlling Class shall have the right to cause the institution of, and direct the time, method and place of conducting, any Proceeding for any remedy available to the Trustee and for
exercising any trust, right, remedy or power conferred on the Trustee in respect of the Notes; provided that:
(a) such direction shall not conflict with any rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction; provided, however, that, subject to Section 6.1, the Trustee need not take any action that it determines might involve it in liability (unless
the Trustee has received indemnity satisfactory to it against such liability as set forth below);
(c) the Trustee shall have been provided with indemnity satisfactory to it; and
(d) notwithstanding the foregoing, any direction to the Trustee to undertake a Sale of
Collateral shall be performed by the Special Servicer on behalf of the Trustee, and must satisfy the requirements of Section 5.5.
Section 5.14 Waiver of Past Defaults.
Prior to the time a judgment or decree for payment of the amounts due has been obtained by the Trustee, as provided in this Article 5, a Majority of each and every
Class of Notes (voting as a separate Class) may, on behalf of the Holders of all the Notes, waive any past Default in respect of the Notes and its consequences, except a Default:
(a) in the payment of principal of any Note;
(b) in the payment of interest in respect of the Controlling Class;
(c) in respect of a covenant or provision hereof that, under Section 8.2, cannot be
modified or amended without the waiver or consent of the Holder of each Outstanding Note adversely affected thereby; or
(d) in respect of any right, covenant or provision hereof for the individual protection or
benefit of the Trustee or the Note Administrator, without the Trustee’s or the Note Administrator’s express written consent thereto, as applicable.
In the case of any such waiver, the Issuer, the Co-Issuer, the Trustee, and the Holders of the Notes shall be restored to their respective former positions and rights
hereunder, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture,
but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto. Any such waiver shall be effectuated upon receipt by the Trustee and the Note Administrator of a written waiver by such Majority of each
Class of Notes.
Section 5.15 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 5.15 shall not apply to any suit instituted by (x) the Trustee, (y) any Noteholder, or group of Noteholders, holding in the aggregate more than 10% of the Aggregate Outstanding Amount
of the Controlling Class or (z) any Noteholder for the enforcement of the payment of the principal of or interest on any Note or any other amount payable hereunder on or after the Stated Maturity Date (or, in the case of redemption, on or after
the applicable Redemption Date).
Section 5.16 Waiver of Stay or Extension Laws.
Each of the Issuer and the Co-Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force (including but not limited to filing a voluntary petition under Chapter 11 of the Bankruptcy Code and by the voluntary
commencement of a proceeding or the filing of a petition seeking winding up, liquidation, reorganization or other relief under any bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or
hereafter in effect), which may affect the covenants, the performance of or any remedies under this Indenture; and each of the Issuer and the Co-Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 5.17 Sale of Collateral.
(a) The power to effect any sale (a “Sale”) of any portion of the Collateral pursuant to Sections
5.4 and 5.5 shall not be exhausted by any one or more Sales as to any portion of such Collateral remaining unsold, but shall continue unimpaired until all amounts secured by the Collateral shall have been paid or if there are
insufficient proceeds to pay such amount until the entire Collateral shall have been sold. The Special Servicer may, upon notice to the Securityholders, and shall, upon direction of a Majority of the Controlling Class, from time to time
postpone any Sale by public announcement made at the time and place of such Sale; provided, however, that if the Sale is rescheduled for a date more than three Business Days after the date of the determination by the Note
Administrator pursuant to Section 5.5(a)(i), such Sale shall not occur unless and until the Note Administrator has again made the determination required by Section 5.5(a)(i). The Trustee hereby expressly waives its rights to
any amount fixed by law as compensation for any Sale; provided that the Special Servicer shall be authorized to deduct the reasonable costs, charges and expenses incurred by it, or by the Trustee or the Note Administrator in
connection with such Sale from the proceeds thereof notwithstanding the provisions of Section 6.7.
(b) The Notes need not be produced in order to complete any such Sale, or in order for the net proceeds of
such Sale to be credited against amounts owing on the Notes.
(c) The Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest
in any portion of the Collateral in connection with a Sale thereof, which, in the case of any Collateral Interests, shall be upon request and delivery of any such instruments by the Special Servicer. In addition, the Special Servicer, with
respect to Collateral Interests, and the Trustee, with respect to any other Collateral, is hereby irrevocably appointed the agent and attorney in fact of the Issuer to transfer and convey its interest in any portion of the Collateral in
connection with a Sale thereof, and to take all action necessary to effect such Sale. No purchaser or transferee at such a Sale shall be bound to ascertain the Trustee’s or Special Servicer’s authority, to inquire into the satisfaction of
any conditions precedent or to see to the application of any amounts.
(d) In the event of any Sale of the Collateral pursuant to Section 5.4 or Section 5.5,
payments shall be made in the order and priority set forth in Section 11.1(a) in the same manner as if the Notes had been accelerated.
(e) Notwithstanding anything herein to the contrary, any Sale by the Trustee of any portion of the
Collateral Interests shall be executed by the Special Servicer on behalf of the Issuer, and the Trustee shall have no responsibility or liability therefor.
Section 5.18 Action on the Notes.
The Trustee’s right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the application for or obtaining of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies of the Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Trustee against the Issuer or the Co-Issuer or by the levy
of any execution under such judgment upon any portion of the Collateral or upon any of the Collateral of the Issuer or the Co-Issuer.
ARTICLE 6
THE TRUSTEE AND NOTE ADMINISTRATOR
Section 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(i) each of the Trustee and the Note Administrator undertakes to perform such duties and
only such duties as are set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee or the Note Administrator; and any permissive right of the Trustee or the Note Administrator
contained herein shall not be construed as a duty; and
(ii) in the absence of manifest error, or bad faith on its part, each of the Note
Administrator and the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and the Note Administrator, as the case may
be, and conforming to the requirements of this Indenture; provided, however, that in the case of any such certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee or the Note Administrator, the Trustee and the Note Administrator shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements of this Indenture and shall
promptly notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee or the Note Administrator within 15 days after such notice from the Trustee or
the Note Administrator, the Trustee or the Note Administrator, as applicable, shall notify the party providing such instrument and requesting the correction thereof.
(b) In case an Event of Default actually known to a Trust Officer of the Trustee has occurred and is
continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling Class (or other Noteholders to the extent provided in Article 5), exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.
(c) If, in performing its duties under this Indenture, the Trustee or the Note Administrator is required to
decide between alternative courses of action, the Trustee and the Note Administrator may request written instructions from the Collateral Manager as to courses of action desired by it. If the Trustee or the Note Administrator does not
receive such instructions within two (2) Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action. The Trustee and the Note Administrator shall act in accordance with
instructions received after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. The Trustee and the Note Administrator shall be entitled to
request and rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith and shall not be subject to any liability if it acts in accordance with such advice.
(d) No provision of this Indenture shall be construed to relieve the Trustee or the Note Administrator from
liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that neither the Trustee nor the Note Administrator shall be liable:
(i) for any error of judgment made in good faith by a Trust Officer, unless it shall be
proven that it was negligent in ascertaining the pertinent facts; or
(ii) with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Issuer, the Collateral Manager, and/or a Majority of the Controlling Class relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee or the Note
Administrator in respect of any Note or exercising any trust or power conferred upon the Trustee or the Note Administrator under this Indenture.
(e) No provision of this Indenture shall require the Trustee or the Note Administrator to expend or risk its
own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not reasonably assured to it unless such risk or liability relates to its ordinary services under this Indenture, except where this Indenture provides otherwise.
(f) Neither the Trustee nor the Note Administrator shall be liable to the Noteholders for any action taken or
omitted by it at the direction of the Issuer, the Co-Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Controlling Class, the Trustee (in the case of the Note Administrator), the Note Administrator (in the case of the
Trustee) and/or a
Noteholder under circumstances in which such direction is required or permitted by the terms of this Indenture.
(g) Neither the Trustee nor the Note Administrator shall have any obligation to verify the compliance by the Issuer, the EU/UK Retention Holder
or the Retention Holder with Credit Risk Retention Rules or the EU/UK Risk Retention Letter.
(h) Neither the Trustee nor the Note Administrator (including in its capacity as Calculation Agent) shall have any (i) responsibility or
liability for the selection of an alternative rate as a successor or replacement benchmark to Term SOFR and shall be entitled to rely upon any designation of such a rate by the Designated Transaction Representative and (ii) liability for any
failure or delay in performing its duties under this Indenture as a result of the unavailability of a “Term SOFR” rate as described in the definition thereof. The Note Administrator and the Trustee shall be
entitled to rely upon the notices provided by the Designated Transaction Representative facilitating or specifying the Benchmark Replacement, Benchmark Replacement Date, Benchmark Replacement Conforming Changes and such other administrative
procedures with respect to the calculation of any Benchmark Replacement.
(i) For all purposes under this Indenture, neither the Trustee nor the Note Administrator shall be deemed to
have notice or knowledge of any Event of Default, unless a Trust Officer of either the Trustee or the Note Administrator, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such an Event of
Default or Default is received by the Trustee or the Note Administrator, as applicable at the respective Corporate Trust Office, and such notice references the Notes and this Indenture. For purposes of determining the Trustee’s and Note
Administrator’s responsibility and liability hereunder, whenever reference is made in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the
Trustee or Note Administrator, as applicable, is deemed to have notice as described in this Section 6.1.
(j) The Trustee and the Note Administrator shall, upon reasonable prior written notice, permit the Issuer,
the Collateral Manager and their designees, during its normal business hours, to review all books of account, records, reports and other papers of the Trustee relating to the Notes and to make copies and extracts therefrom (the reasonable
out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee or the Note Administrator, as applicable, by such Person).
Section 6.2 Notice of Default.
Promptly (and in no event later than three (3) Business Days) after the occurrence of any Default actually known to a Trust Officer of the Trustee or after any declaration
of acceleration (or any rescission thereof) has been made or delivered to the Trustee pursuant to Section 5.2, the Trustee shall transmit by mail to the 17g‑5 Information Provider and to the Note Administrator (who shall post such
notice the Note Administrator’s Website) and the Note Administrator shall deliver to the Collateral Manager, all Holders of Notes as their names and addresses appear on the Notes Register, and to Preferred Share Paying Agent, notice of such
Default, unless such Default shall have been cured or waived.
Section 6.3 Certain Rights of Trustee and Note Administrator.
Except as otherwise provided in Section 6.1:
(a) the Trustee and the Note Administrator may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Issuer or the Co-Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order, as the case may be;
(c) whenever in the administration of this Indenture the Trustee or the Note Administrator
shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee and the Note Administrator (unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer’s Certificate;
(d) as a condition to the taking or omitting of any action by it hereunder, the Trustee
and the Note Administrator may consult with counsel and the advice of such counsel or any Opinion of Counsel (including with respect to any matters, other than factual matters, in connection with the execution by the Trustee or the Note
Administrator of a supplemental indenture pursuant to Section 8.3) shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in reliance thereon;
(e) neither the Trustee nor the Note Administrator shall be under any obligation to
exercise or to honor any of the rights or powers vested in it by this Indenture at the request or direction of any of the Noteholders pursuant to this Indenture, or to make any investigation of matters arising hereunder or to institute,
conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders unless such Noteholders shall have offered to the Trustee and the Note Administrator, as applicable indemnity
acceptable to it against the costs, expenses and liabilities which might reasonably be incurred by it in compliance with such request or direction;
(f) neither the Trustee nor the Note Administrator shall be bound to make any
investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note or other paper documents and shall be entitled to rely conclusively
thereon;
(g) each of the Trustee and the Note Administrator may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through agents or attorneys, and upon any such appointment of an agent or attorney, such agent or attorney shall be conferred with all the same rights, indemnities, and
immunities as the Trustee or Note Administrator, as applicable;
(h) neither the Trustee nor the Note Administrator shall be liable for any action it takes
or omits to take in good faith that it reasonably and prudently believes to be authorized or within its rights or powers hereunder;
(i) neither the Trustee nor the Note Administrator shall be responsible for the accuracy
of the books or records of, or for any acts or omissions of, the Depository, any Transfer Agent (other than the Note Administrator itself acting in that capacity), Clearstream, Luxembourg, Euroclear, any Calculation Agent (other than the Note
Administrator itself acting in that capacity) or any Paying Agent (other than the Note Administrator itself acting in that capacity);
(j) neither the Trustee nor the Note Administrator shall be liable for the actions or
omissions of the Issuer, the Co-Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Trustee (in the case of the Note Administrator) or the Note Administrator (in the case of the Trustee); and without limiting the
foregoing, neither the Trustee nor the Note Administrator shall be under any obligation to verify compliance by any party hereto with the terms of this Indenture (other than itself) or to verify or independently determine the accuracy of
information received by it from the Servicer or Special Servicer (or from any selling institution, agent bank, trustee or similar source) with respect to the Real Estate Loans;
(k) to the extent any defined term hereunder, or any calculation required to be made or
determined by the Trustee or Note Administrator hereunder, is dependent upon or defined by reference to generally accepted accounting principles in the United States in effect from time to time (“GAAP”), the Trustee and Note
Administrator shall be entitled to request and receive (and rely upon) instruction from the Issuer or the accountants appointed pursuant to Section 10.12 as to the application of GAAP in such connection, in any instance;
(l) neither the Trustee nor the Note Administrator shall have any responsibility to the
Issuer or the Secured Parties hereunder to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Collateral Manager on its behalf);
(m) the Trustee and the Note Administrator shall be entitled to all of the same rights,
protections, immunities and indemnities afforded to it as Trustee or as Note Administrator, as applicable, in each capacity for which it serves hereunder and under the Future Funding Agreement, the Future Funding Account Control Agreement and
the Securities Account Control Agreement (including, without limitation, as Secured Party, Paying Agent, Authenticating Agent, Calculation Agent, Transfer Agent, Custodian, Securities Intermediary, Backup Advancing Agent and Notes Registrar);
(n) in determining any affiliations of Noteholders with any party hereto or otherwise,
each of the Trustee and the Note Administrator shall be entitled to request and conclusively rely on a certification provided by a Noteholder;
(o) except in the case of actual fraud (as determined by a non-appealable final court
order), in no event shall the Trustee or Note Administrator be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee or Note
Administrator has been advised of the likelihood of such loss or damage and regardless of the form of action;
(p) neither the Trustee nor the Note Administrator shall be required to give any bond or
surety in respect of the execution of the trusts created hereby or the powers granted hereunder;
(q) neither the Trustee nor the Note Administrator shall be responsible for any delay or failure in performance resulting from
acts beyond its control (such acts include but are not limited to acts of God, strikes, lockouts, riots and acts of war); provided that such delay or failure is not also a result of its own negligence, bad faith or willful misconduct;
(r) except as otherwise expressly set forth in this Indenture, Computershare Trust Company, National Association, acting in
any particular capacity hereunder will not be deemed to be imputed with knowledge of (i) Computershare Trust Company, National Association acting in a capacity that is unrelated to the transactions contemplated by this Indenture, or (ii)
Computershare Trust Company, National Association acting in any other capacity hereunder, except, in the case of either clause (i) or clause (ii), where some or all of the obligations performed in such capacities are performed
by one or more employees within the same group or division of Computershare Trust Company, National Association or where the groups or divisions responsible for performing the obligations in such capacities have one or more of the same
Authorized Officers; and
(s) nothing herein shall require the Note Administrator or the Trustee to act in any manner that is contrary to applicable
law.
Section 6.4 Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, other than the Certificate of Authentication thereon, shall be taken as the statements of the Issuer and the Co-Issuer, and
neither the Trustee nor the Note Administrator assumes any responsibility for their correctness. Neither the Trustee nor the Note Administrator makes any representation as to the validity or sufficiency of this Indenture, the Collateral or the
Notes. Neither the Trustee nor the Note Administrator shall be accountable for the use or application by the Issuer or the Co-Issuer of the Notes or the proceeds thereof or any amounts paid to the Issuer or the Co-Issuer pursuant to the
provisions hereof.
Section 6.5 May Hold Notes.
The Trustee, the Note Administrator, the Paying Agent, the Notes Registrar or any other agent of the Issuer or the Co-Issuer, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Issuer and the Co-Issuer
with the same rights it would have if it were not Trustee, Note Administrator, Paying Agent, Notes Registrar or such other agent.
Section 6.6 Amounts Held in Trust.
Amounts held by the Note Administrator hereunder shall be held in trust to the extent required herein. The Note Administrator shall be under no liability for interest on
any amounts received by it hereunder except to the extent of income or other gain on investments received by the Note Administrator on Eligible Investments.
Section 6.7 Compensation and Reimbursement.
(a) The Issuer agrees:
(i) to pay the Trustee and Note Administrator on each Payment Date in accordance with the
Priority of Payments reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee or note administrator of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the Trustee and Note
Administrator in a timely manner upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee or Note Administrator in connection with its performance of its obligations under, or otherwise in
accordance with any provision of this Indenture;
(iii) to indemnify the Trustee or Note Administrator and its Officers, directors,
employees and agents for, and to hold them harmless against, any loss, liability or expense (including any expenses incurred in connection with the enforcement of this indemnity) incurred without negligence, willful misconduct or bad faith on
their part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder or under the Servicing Agreement or the Preferred Share Paying Agency Agreement; and
(iv) to pay the Trustee and Note Administrator reasonable additional compensation together
with its expenses (including reasonable counsel fees) for any collection action taken pursuant to Section 6.13.
(b) The Issuer may remit payment for such fees and expenses to the Trustee and Note Administrator or, in the
absence thereof, the Note Administrator may from time to time deduct payment of its and the Trustee’s fees and expenses hereunder from amounts on deposit in the Payment Account in accordance with the Priority of Payments.
(c) The Note Administrator, in its capacity as Note Administrator, Paying Agent, Calculation Agent, Transfer
Agent, Custodian, Securities Intermediary, Backup Advancing Agent and Notes Registrar, hereby agrees not to cause the filing of a petition in bankruptcy against the Issuer, the Co-Issuer or any Permitted Subsidiary until at least one year and
one day (or, if longer, the applicable preference period (plus one day) then in effect) after the
payment in full of all Notes issued under this Indenture. This provision shall survive termination of this Indenture.
(d) The Trustee and Note Administrator agree that the payment of all amounts to which it is entitled pursuant
to Sections 6.7(a)(i), (a)(ii), (a)(iii) and (a)(iv) shall be subject to the Priority of Payments, shall be payable only to the extent funds are available in accordance with such Priority of Payments, shall be
payable solely from the Collateral and following realization of the Collateral, any such claims of the Trustee or Note Administrator against the Issuer, and all obligations of the Issuer, shall be extinguished. The Trustee and Note
Administrator will have a lien upon the Collateral to secure the payment of such payments to it in accordance with the Priority of Payments; provided that the Trustee and Note Administrator shall not institute any proceeding for
enforcement of such lien except in connection with an action taken pursuant to Section 5.3 for enforcement of the lien of this Indenture for the benefit of the Noteholders.
The Trustee and Note Administrator shall receive amounts pursuant to this Section 6.7 and Section 11.1(a) only to the extent that such payment is made in
accordance with the Priority of Payments and the failure to pay such amounts to the Trustee and Note Administrator will not, by itself, constitute an Event of Default. Subject to Section 6.9, the Trustee and Note Administrator shall
continue to serve under this Indenture notwithstanding the fact that the Trustee and Note Administrator shall not have received amounts due to it hereunder; provided that the Trustee and Note Administrator shall not be required to
expend any funds or incur any expenses unless reimbursement therefor is reasonably assured to it. No direction by a Majority of the Controlling Class shall affect the right of the Trustee and Note Administrator to collect amounts owed to it
under this Indenture.
If on any Payment Date, an amount payable to the Trustee and Note Administrator pursuant to this Indenture is not paid because there are insufficient funds available for
the payment thereof, all or any portion of such amount not so paid shall be deferred and payable on any later Payment Date on which sufficient funds are available therefor in accordance with the Priority of Payments.
Section 6.8 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee and a Note Administrator hereunder which shall be (i) a corporation, national bank, national banking association or trust company, organized and doing
business under the laws of the United States of America or of any State thereof, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $200,000,000, subject to supervision or
examination by federal or State authority, and in each case, having an office in the United States and (ii) (a) with respect to the Note Administrator, has a long-term senior unsecured debt rating or an issuer credit rating of at least “Baa3”
by Moody’s and “BBB(high)” by DBRS Morningstar, provided that with respect to CTCNA, it will be eligible so long as it has a rating of “BBB” by any other NRSRO, which may include Moody’s, (b) with respect to the Trustee and the Backup
Advancing Agent, each having a long-term counterparty risk rating of “A2(cr)” by Moody’s or a long-term senior unsecured debt rating or an issuer credit rating of at least “A2” by Moody’s and “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)); provided that with respect to the Backup Advancing Agent, it may maintain a long-term senior unsecured debt rating or an issuer credit rating of at least “Baa3”
by Moody’s and “BBB(low)” by DBRS Morningstar (or if not rated by DBRS, an equivalent (or higher) rating by any other NRSRO, including Moody’s) for so long as the Trustee is eligible pursuant to this Section 6.8, or (c) with respect to
each of (a) and (b) above, any other rating as to which the Rating Agency Condition has been satisfied from time to time. If such corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 6.8, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee or the Note Administrator shall cease to be eligible in accordance with the provisions of this Section 6.8, the Trustee or the Note Administrator, as applicable,
shall resign immediately in the manner and with the effect hereinafter specified in this Article 6.
Section 6.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Note Administrator or the Trustee and no appointment of a successor Note
Administrator or Trustee, as applicable, pursuant to this Article 6 shall become effective until the acceptance of appointment by such successor Note Administrator or Trustee under Section 6.10.
(b) Each of the Trustee and the Note Administrator may resign at any time by giving written notice thereof to
the Issuer, the Co-Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Noteholders, the Note Administrator (in the case of the Trustee), the Trustee (in the case of the Note Administrator), and the Rating Agencies. Upon
receiving such notice of resignation, the Issuer and the Co-Issuer shall promptly appoint a successor trustee or trustees, or a successor Note Administrator, as the case may be, by written instrument, in duplicate, executed by an Authorized
Officer of the Issuer and an Authorized Officer of the Co-Issuer, one copy of which shall be delivered to the Note Administrator or the Trustee so resigning and one copy to the successor Note Administrator, Trustee or Trustees, together with
a copy to each Noteholder, the Servicer, the parties hereto and the Rating Agencies; provided that such successor Note Administrator and Trustee shall be appointed only upon the written consent of a Majority of the Notes (or if there
are no Notes Outstanding, a Majority of Preferred Shareholders) or, at any time when an Event of Default shall have occurred and be continuing or when a successor Note Administrator and Trustee has been appointed pursuant to Section 6.10,
by Act of a Majority of the Controlling Class. If no successor Note Administrator and Trustee shall have been appointed and an instrument of acceptance by a successor Trustee or Note Administrator shall not have been delivered to the Trustee
or the Note Administrator within 30 days after the giving of such notice of resignation, the resigning Trustee or Note Administrator, as the case may be, the Controlling Class of Notes or any Holder of a Note, on behalf of himself and all
others similarly situated, may petition any court of competent jurisdiction for the appointment of a successor Trustee or a successor Note Administrator, as the case may be, at the expense of the Issuer. No resignation or removal of the Note
Administrator or the Trustee and no appointment of a successor Note Administrator or Trustee will become effective until the acceptance of appointment by the successor Note Administrator or Trustee, as applicable.
(c) The Note Administrator and Trustee may be removed at any time by Act of a Supermajority of the Notes,
upon not less than 30 days’ written notice (or if there are no Notes Outstanding, a Majority of Preferred Shareholders) or when a successor Trustee has been appointed pursuant to Section 6.10, by Act of a Majority of the Controlling
Class, with copies of such notice delivered to the parties hereto.
(d) If at any time:
(i) the Trustee or the Note Administrator shall cease to be eligible under Section 6.8
and shall fail to resign after written request therefor by the Issuer, the Co-Issuer, or by any Holder; or
(ii) the Trustee or the Note Administrator shall become incapable of acting or there shall
be instituted any proceeding pursuant to which it could be adjudged as bankrupt or insolvent or a receiver or liquidator of the Trustee or the Note Administrator or of its respective property shall be appointed or any public officer shall
take charge or control of the Trustee or the Note Administrator or of its respective property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case (subject to Section 6.9(a)), (a) the Issuer or the Co-Issuer, by Issuer Order, may remove the Trustee or the Note Administrator, as applicable, or (b) subject
to Section 5.15, a Majority of the Controlling Class or any Holder may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee or the Note Administrator, as
the case may be, and the appointment of a successor thereto.
(e) If the Trustee or the Note Administrator shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of the Trustee or the Note Administrator for any reason, the Issuer and the Co-Issuer, by Issuer Order, subject to the written consent of the Collateral Manager, shall promptly appoint a successor Trustee or
Note Administrator, as applicable, and the successor Trustee or Note Administrator so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee or the successor Note Administrator, as the case may be.
If the Issuer and the Co-Issuer shall fail to appoint a successor Trustee or Note Administrator within 30 days after such resignation, removal or incapability or the occurrence of such vacancy, a successor Trustee or Note Administrator may be
appointed by Act of a Majority of the Controlling Class delivered to the Collateral Manager and the parties hereto, including the retiring Trustee or the retiring Note Administrator, as the case may be, and the successor Trustee or Note
Administrator so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee or Note Administrator, as applicable, and supersede any successor Trustee or Note Administrator proposed by the Issuer and the
Co-Issuer. If no successor Trustee or Note Administrator shall have been so appointed by the Issuer and the Co-Issuer or a Majority of the Controlling Class and shall have accepted appointment in the manner hereinafter provided, subject to Section
5.15, the Controlling Class or any Holder may, on behalf of itself or himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee or Note Administrator.
(f) The Issuer and the Co-Issuer shall give prompt notice of each resignation and each removal of the
Trustee or Note Administrator and each appointment of a successor Trustee or Note Administrator by mailing written notice of such event by first class mail, postage prepaid, to the Rating Agencies, the Preferred Share Paying Agent, the
Collateral Manager, the parties hereto, and to the Holders of the Notes as their names and addresses appear in the Notes Register. Each notice shall include the name of the successor Trustee or Note Administrator, as the case may be, and the
address of its respective Corporate Trust Office. If the Issuer or the Co-Issuer fail to mail such notice within ten days after acceptance of appointment by the successor Trustee or Note Administrator, the successor Trustee or Note
Administrator shall cause such notice to be given at the expense of the Issuer or the Co-Issuer, as the case may be.
(g) The resignation or removal of the Note Administrator in any capacity in which it is serving hereunder,
including Note Administrator, Paying Agent, Authenticating Agent, Calculation Agent, Transfer Agent, Custodian, Securities Intermediary, Backup Advancing Agent and Notes Registrar, shall be deemed a resignation or removal, as applicable, in
each of the other capacities in which it serves. The Note Administrator shall not be deemed to resign or be removed as Note Administrator in the event the Note Administrator is no longer acting as the Backup Advancing Agent.
Section 6.10 Acceptance of Appointment by Successor.
Every successor Trustee or Note Administrator appointed hereunder shall execute, acknowledge and deliver to the Collateral Manager, the Servicer, and the parties hereto
including the retiring Trustee or the retiring Note Administrator, as the case may be, an instrument accepting such appointment. Upon delivery of the required instruments, the resignation or removal of the retiring Trustee or the retiring Note
Administrator shall become effective and such successor Trustee or Note Administrator, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations of the retiring Trustee or Note
Administrator, as the case may be; but, on request of the Issuer, the Co-Issuer, a Majority of the Controlling Class, the Collateral Manager or the successor Trustee or Note Administrator, such retiring Trustee or Note Administrator shall, upon
payment of its fees, indemnities and other amounts then unpaid, execute and deliver an instrument transferring to such successor Trustee or Note Administrator all the rights, powers and trusts of the retiring Trustee or Note Administrator, as
the case may be, and shall duly assign, transfer and deliver to such successor Trustee or Note Administrator all property and amounts held by such retiring Trustee or Note Administrator hereunder, subject nevertheless to its lien, if any,
provided for in Section 6.7(d). Upon request of any such successor Trustee or Note Administrator, the Issuer and the Co-Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Trustee or Note Administrator all such rights, powers and trusts.
No successor Trustee or successor Note Administrator shall accept its appointment unless (a) at the time of such acceptance such successor shall be qualified and eligible
under this Article 6, (b) such successor shall have a long-term unsecured debt rating satisfying the requirements set forth in Section 6.8, and (c) the Rating Agency Condition is satisfied.
Section 6.11 Merger, Conversion, Consolidation or Succession to Business of Trustee
and Note Administrator.
Any corporation or banking association into which the Trustee or the Note Administrator may be merged or converted or with which it may be consolidated, or any corporation
or banking association resulting from any merger, conversion or consolidation to which the Trustee or the Note Administrator, shall be a party, or any corporation or banking association succeeding to all or substantially all of the corporate
trust business of the Trustee or the Note Administrator, shall be the successor of the Trustee or the Note Administrator, as applicable, hereunder; provided that with respect to the Trustee, such corporation or banking association shall
be otherwise qualified and eligible under this Article 6, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any of the Notes have been authenticated, but not delivered, by
the Note Administrator then in office, any successor by merger, conversion or consolidation to such authenticating Note Administrator may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor
Note Administrator had itself authenticated such Notes.
Section 6.12 Co-Trustees and Separate Trustee.
At any time or times, including, but not limited to, for the purpose of meeting the legal requirements of any jurisdiction in which any part of the Collateral may at the
time be located, for enforcement actions, or where a conflict of interest exists, the Trustee shall have power to appoint, one or more Persons to act as co‑trustee jointly with the Trustee or as a separate trustee with respect to of all or any
part of the Collateral, with the power to file such proofs of claim and take such other actions pursuant to Section 5.6 herein and to make such claims and enforce such rights of action on behalf of the Holders of the Notes as such
Holders themselves may have the right to do, subject to the other provisions of this Section 6.12.
Each of the Issuer and the Co-Issuer shall join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint
a co-trustee. If the Issuer and the Co-Issuer do not both join in such appointment within 15 days after the receipt by them of a request to do so, the Trustee shall have power to make such appointment on its own.
Should any written instrument from the Issuer or the Co-Issuer be required by any co-trustee, so appointed, more fully confirming to such co-trustee such property, title,
right or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Issuer or the Co-Issuer, as the case may be. The Issuer agrees to pay (but only from and to the extent of the Collateral) to the
extent funds are available therefor under the Priority of Payments, for any reasonable fees and expenses in connection with such appointment.
Every co-trustee, shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms:
(a) all rights, powers, duties and obligations hereunder in respect of the custody of securities, Cash and
other personal property held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised solely by the Trustee;
(b) the rights, powers, duties and obligations hereby conferred or imposed upon the Trustee in respect of any
property covered by the appointment of a co-trustee shall be conferred or imposed upon and exercised or performed by the Trustee or by the Trustee and such co-trustee jointly in the case of the appointment of a co-trustee as shall be provided
in the instrument appointing such co-trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Trustee shall be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed by a co-trustee;
(c) the Trustee at any time, by an instrument in writing executed by it, with the concurrence of the Issuer
and the Co-Issuer evidenced by an Issuer Order, may accept the resignation of, or remove, any co-trustee appointed under this Section 6.12, and in case an Event of Default has occurred and is continuing, the Trustee shall have the
power to accept the resignation of, or remove, any such co-trustee without the concurrence of the Issuer or the Co-Issuer. A successor to any co-trustee so resigned or removed may be appointed in the manner provided in this Section 6.12;
(d) no co-trustee hereunder shall be personally liable by reason of any act or omission of the Trustee
hereunder, and any co-trustee hereunder shall be entitled to all the privileges, rights and immunities under Article 6, as if it were named the Trustee hereunder;
(e) except as required by applicable law, the appointment of a co-trustee or separate trustee under this Section
6.12 shall not relieve the Trustee of its duties and responsibilities hereunder; and
(f) any Act of Securityholders delivered to the Trustee shall be deemed to have been delivered to each
co-trustee.
Section 6.13 Direction to enter into the Servicing Agreement.
The Issuer hereby directs the Trustee and the Note Administrator to enter into the Servicing Agreement. Each of the Trustee and the Note Administrator shall be entitled to
the same rights, protections, immunities and indemnities afforded to each herein in connection with any matter contained in the Servicing Agreement.
Section 6.14 Representations and Warranties of the Trustee.
The Trustee represents and warrants for the benefit of the other parties to this Indenture and the parties to the Servicing Agreement that:
(a) the Trustee is a national banking association with trust powers, duly and validly existing under the laws
of the United States of America, with corporate power and authority to execute, deliver and perform its obligations under this Indenture and the Servicing Agreement, and is duly eligible and qualified to act as Trustee under this Indenture
and the Servicing Agreement;
(b) this Indenture and the Servicing Agreement have each been duly authorized, executed and delivered by the
Trustee and each constitutes the valid and binding
obligation of the Trustee, enforceable against it in accordance with its terms except (i) as limited by bankruptcy, fraudulent conveyance, fraudulent transfer, insolvency, reorganization,
liquidation, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and by general equitable principles, regardless of whether considered in a proceeding in equity or at law, and (ii)
that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
(c) neither the execution, delivery and performance of this Indenture or the Servicing Agreement, nor the
consummation of the transactions contemplated by this Indenture or the Servicing Agreement, (i) is prohibited by, or requires the Trustee to obtain any consent, authorization, approval or registration under, any law, statute, rule,
regulation, or any judgment, order, writ, injunction or decree that is binding upon the Trustee or any of its properties or Collateral or (ii) will violate the provisions of the Governing Documents of the Trustee; and
(d) there are no proceedings pending or, to the best knowledge of the Trustee, threatened against the Trustee
before any Federal, state or other governmental agency, authority, administrator or regulatory body, arbitrator, court or other tribunal, foreign or domestic, which could have a material adverse effect on the Collateral or the performance by
the Trustee of its obligations under this Indenture or the Servicing Agreement.
Section 6.15 Representations and Warranties of the Note Administrator.
The Note Administrator represents and warrants for the benefit of the other parties to this Indenture and the parties to the Servicing Agreement that:
(a) the Note Administrator is a national banking association with trust powers, duly and validly existing
under the laws of the United States of America, with corporate power and authority to execute, deliver and perform its obligations under this Indenture and the Servicing Agreement, and is duly eligible and qualified to act as Note
Administrator under this Indenture and the Servicing Agreement;
(b) this Indenture and the Servicing Agreement have each been duly authorized, executed and delivered by the
Note Administrator and each constitutes the valid and binding obligation of the Note Administrator, enforceable against it in accordance with its terms except (i) as limited by bankruptcy, fraudulent conveyance, fraudulent transfer,
insolvency, reorganization, liquidation, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and by general equitable principles, regardless of whether considered in a proceeding
in equity or at law, and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be
brought;
(c) neither the execution, delivery and performance of this Indenture of the Servicing Agreement, nor the
consummation of the transactions contemplated by this Indenture or the Servicing Agreement, (i) is prohibited by, or requires the Note Administrator to obtain any consent, authorization, approval or registration under, any law, statute, rule,
regulation, or any judgment, order, writ, injunction or decree that is binding upon the Note Administrator or any of
its properties or Collateral or (ii) will violate the provisions of the Governing Documents of the Note Administrator; and
(d) there are no proceedings pending or, to the best knowledge of the Note Administrator, threatened against
the Note Administrator before any Federal, state or other governmental agency, authority, administrator or regulatory body, arbitrator, court or other tribunal, foreign or domestic, which could have a material adverse effect on the Collateral
or the performance by the Note Administrator of its obligations under this Indenture or the Servicing Agreement.
Section 6.16 Requests for Consents.
In the event that the Trustee and Note Administrator receives written notice of any offer or any request for a waiver, consent, amendment or other
modification with respect to any Collateral Interest (before or after any default) or in the event any action is required to be taken in respect to a Loan Document, the Note Administrator shall promptly forward such notice to the Issuer, the
Servicer and the Special Servicer. The Special Servicer shall take such action as required under the Servicing Agreement as described in Section 10.10(f), except with respect to any Administrative Modifications and Criteria-Based
Modifications, which will be analysed, processed and executed solely by the Collateral Manager.
Section 6.17 Withholding.
(a) If any amount is required to be deducted or withheld from any payment to any Noteholder or other payee,
such amount shall reduce the amount otherwise distributable to such Noteholder or payee. The Note Administrator is hereby authorized to withhold or deduct from amounts otherwise distributable to any Noteholder or other payee sufficient funds
for the payment of any tax that is legally required to be withheld or deducted (but such authorization shall not prevent the Note Administrator from contesting any such tax in appropriate proceedings and legally withholding payment of such
tax, pending the outcome of such proceedings). The amount of any withholding tax imposed with respect to any Noteholder or other payee shall be treated as Cash distributed to such Noteholder or payee at the time it is deducted or withheld by
the Issuer or the Note Administrator, as applicable, and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respect to a distribution, the Note Administrator may in its sole
discretion withhold such amounts in accordance with this Section 6.17. The Issuer and the Co-Issuer agree to timely provide to the Note Administrator accurate and complete copies of all documentation received from Noteholders
pursuant to Sections 2.7(f) and 2.11(c). Solely with respect to FATCA compliance and reporting, nothing herein shall impose an obligation on the part of the Note Administrator to determine the amount of any tax or withholding
obligation on the part of the Issuer or in respect of the Notes. In addition, initial purchasers and transferees of Definitive Notes after the Closing Date will be required to provide to the Issuer, the Trustee, the Note Administrator, or
their agents, all information, documentation or certifications reasonably required to permit the Issuer to comply with its tax reporting obligations under applicable law, including any applicable cost basis reporting obligation. For the
avoidance of doubt, the Note Administrator will have no responsibility for the preparation of any tax returns or related reports on behalf of or for the
benefit of the Issuer or any noteholder, or the calculation of any original issue discount on the Notes.
(b) For the avoidance of doubt, the Note Administrator shall reasonably cooperate with Issuer, at Issuer’s
direction and expense, to permit Issuer to fulfill its obligations under FATCA and the Cayman FATCA Legislation; provided that the Note Administrator shall have no independent obligation to cause or maintain Issuer’s compliance with
FATCA or the Cayman FATCA Legislation and shall have no liability for any withholding on payments to Issuer as a result of Issuer’s failure to achieve or maintain FATCA or Cayman FATCA Legislation compliance.
Section 6.18 Register of Participation Holders
Pursuant to each related Participation Agreement and Section 3.25(b) of the Servicing Agreement, the Note Administrator shall maintain the register for the
Participation holders under such Participation Agreement on behalf of the Issuer, for so long as the related Participation is owned by the Issuer. The Note Administrator shall maintain the register of Participation holders and facilitate
transfers in accordance with the terms of the related Participation Agreement and as compensation therefor shall be entitled to the Participation Fee payable in accordance with the Servicing Agreement.
ARTICLE 7
COVENANTS
Section 7.1 Payment of Principal and Interest.
The Issuer and the Co-Issuer shall duly and punctually pay the principal of and interest on each Class of Notes in accordance with the terms of this Indenture. Amounts
properly withheld under the Code or other applicable law by any Person from a payment to any Noteholder of interest and/or principal shall be considered as having been paid by the Issuer and the Co-Issuer, and, with respect to the Preferred
Shares, by the Issuer, to such Preferred Shareholder for all purposes of this Indenture.
The Note Administrator shall, unless prevented from doing so for reasons beyond its reasonable control, give notice to each Securityholder of any such withholding
requirement no later than ten days prior to the related Payment Date from which amounts are required, as directed by the Issuer (or the Collateral Manager on its behalf) to be withheld, provided that, despite the failure of the Note
Administrator to give such notice, amounts withheld pursuant to applicable tax laws shall be considered as having been paid by the Issuer and the Co-Issuer, as provided above.
Section 7.2 Maintenance of Office or Agency.
The Co-Issuers hereby appoint the Note Administrator as a Paying Agent for the payment of principal of and interest on the Notes and where Notes may be surrendered for
registration of transfer or exchange and the Issuer hereby appoints Corporation Service Company
in New York, New York, as its agent where notices and demands to or upon the Issuer in respect of the Notes or this Indenture may be served.
The Issuer may at any time and from time to time vary or terminate the appointment of any such agent or appoint any additional agents for any or all of such purposes; provided, however, that the Issuer will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served, and, subject to any laws or regulations applicable thereto, an office or agency outside of the United States where Notes may be presented and surrendered for payment; provided, further,
that no paying agent shall be appointed in a jurisdiction which subjects payments on the Notes to withholding tax. The Issuer shall give prompt written notice to the Trustee, the Note Administrator, the Rating Agencies and the Noteholders of
the appointment or termination of any such agent and of the location and any change in the location of any such office or agency.
If at any time the Issuer shall fail to maintain any such required office or agency in the Borough of Manhattan, The City of New York, or outside the United States, or
shall fail to furnish the Trustee and the Note Administrator with the address thereof, presentations and surrenders may be made (subject to the limitations described in the preceding paragraph) at and notices and demands may be served on the
Issuer and Co-Issuer and Notes may be presented and surrendered for payment to the appropriate Paying Agent at its main office and the Issuer and the Co-Issuer hereby appoint the same as their agent to receive such respective presentations,
surrenders, notices and demands.
Section 7.3 Amounts for Note Payments to be Held in Trust.
(a) All payments of amounts due and payable with respect to any Notes that are to be made from amounts
withdrawn from the Payment Account shall be made on behalf of the Issuer and the Co-Issuer by the Note Administrator or a Paying Agent (in each case, from and to the extent of available funds in the Payment Account and subject to the Priority
of Payments) with respect to payments on the Notes.
When the Paying Agent is not also the Notes Registrar, the Issuer and the Co-Issuer shall furnish, or cause the Notes Registrar to furnish, no later than the fifth calendar
day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders of Notes and of the certificate numbers of individual Notes held by each such Holder together
with wiring instructions, contact information, and such other information reasonably required by the paying agent.
Whenever the Paying Agent is not also the Note Administrator, the Issuer, the Co-Issuer, and such Paying Agent shall, on or before the Business Day next preceding each
Payment Date or Redemption Date, as the case may be, direct the Note Administrator to deposit on such Payment Date with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due pursuant to the terms of
this Indenture (to the extent funds are then available for such purpose in the Payment Account, and subject to the Priority of Payments), such sum to be held for the benefit of the Persons entitled thereto and (unless such Paying Agent is the
Note Administrator) the Issuer and the Co-Issuer shall promptly notify the Note
Administrator of its action or failure so to act. Any amounts deposited with a Paying Agent (other than the Note Administrator) in excess of an amount sufficient to pay the
amounts then becoming due on the Notes with respect to which such deposit was made shall be paid over by such Paying Agent to the Note Administrator for application in accordance with Article 11. Any such Paying Agent shall be deemed
to agree by assuming such role not to cause the filing of a petition in bankruptcy against the Issuer, the Co-Issuer or any Permitted Subsidiary for the non-payment to the Paying Agent of any amounts payable thereto until at least one year
and one day (or, if longer, the applicable preference period (plus one day) then in effect) after the payment in full of all Notes issued under this Indenture.
The initial Paying Agent shall be as set forth in Section 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order of the
Issuer and Issuer Order of the Co-Issuer and at the sole cost and expense (including such Paying Agent’s fee) of the Issuer and the Co‑Issuer, with written notice thereof to the Note Administrator; provided, however, that so long as any Class of the Notes are rated by a Rating Agency and with respect to any additional or successor Paying Agent for
the Notes, either (i) such Paying Agent has a long-term unsecured debt rating or an issuer credit rating of at least “A2” by Moody’s and “A” by DBRS Morningstar (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)) and a short-term debt rating of “P-1” by Moody’s or (ii) the Rating Agency Condition has been satisfied with respect to the employment of such Paying Agent. In the event that such successor Paying Agent ceases to have a long-term debt rating of “Aa3” or higher by Moody’s, a long-term unsecured debt rating of at least “A” by DBRS Morningstar (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)) and a short-term debt rating of at least “P-1” by Moody’s, the Issuer and the Co-Issuer shall promptly
remove such Paying Agent and appoint a successor Paying Agent. The Issuer and the Co-Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and
examination by federal and/or state and/or national banking authorities. The Issuer and the Co-Issuer shall cause the Paying Agent other than the Note Administrator to execute and deliver to the Note Administrator an instrument in which such
Paying Agent shall agree with the Note Administrator (and if the Note Administrator acts as Paying Agent, it hereby so agrees), subject to the provisions of this Section 7.3, that such Paying Agent will:
(i) allocate all sums received for payment to the Holders of Notes in accordance with the
terms of this Indenture;
(ii) hold all sums held by it for the payment of amounts due with respect to the Notes for
the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(iii) if such Paying Agent is not the Note Administrator, immediately resign as a Paying
Agent and forthwith pay to the Note Administrator all sums held by it for the payment of Notes if at any time it ceases to satisfy the standards set forth above required to be met by a Paying Agent at the time of its appointment;
(iv) if such Paying Agent is not the Note Administrator, immediately give the Note
Administrator notice of any Default by the Issuer or the Co-Issuer (or any other obligor upon the Notes) in the making of any payment required to be made; and
(v) if such Paying Agent is not the Note Administrator at any time during the continuance
of any such Default, upon the written request of the Note Administrator, forthwith pay to the Note Administrator all sums so held by such Paying Agent.
The Issuer or the Co-Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order
direct the Paying Agent to pay, to the Note Administrator all sums held by the Issuer or the Co-Issuer or held by the Paying Agent for payment of the Notes, such sums to be held by the Note Administrator in trust for the same Noteholders as
those upon which such sums were held by the Issuer, the Co-Issuer or the Paying Agent; and, upon such payment by the Paying Agent to the Note Administrator, the Paying Agent shall be released from all further liability with respect to such
amounts.
Except as otherwise required by applicable law, any amounts deposited with the Note Administrator in trust or deposited with the Paying Agent for the payment of the
principal of or interest on any Note and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Issuer on request; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment of such amounts and all liability of the Note Administrator or the Paying Agent with respect to such amounts (but only to the extent of the amounts so paid to the Issuer or the Co-Issuer, as
applicable) shall thereupon cease. The Note Administrator or the Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the Issuer or the Co-Issuer, as
the case may be, any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Notes have been called but have not been surrendered for redemption or whose right
to or interest in amounts due and payable but not claimed is determinable from the records of the Paying Agent, at the last address of record of each such Holder.
Section 7.4 Existence of the Issuer and Co-Issuer.
(a) So long as any Note is Outstanding, the Issuer shall, to the maximum extent permitted by applicable law,
maintain in full force and effect its existence and rights as an exempted company incorporated with limited liability under the laws of the Cayman Islands and shall obtain and preserve its qualification to do business as a foreign limited
liability company in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Notes or any of the Collateral; provided that the Issuer shall be entitled
to change its jurisdiction of registration from the Cayman Islands to any other jurisdiction reasonably selected by the Issuer so long as (i) such change is not disadvantageous in any material respect to the Holders of the Notes or the
Preferred Shares, (ii) it delivers written notice of such change to the Note Administrator for delivery to the Holders of the Notes or Preferred Shares, the Preferred Share Paying Agent and the Rating Agencies and (iii) on or prior to the
fifteenth (15th) Business Day following delivery of such notice by the Note Administrator to the Noteholders, the Note Administrator shall not have received written notice from a
Majority of the Controlling Class or a Majority of Preferred Shareholders objecting to such change. So long as any Rated Notes are Outstanding, the Issuer will maintain at all times at least
one director who is Independent of the Collateral Manager and its Affiliates.
(b) So long as any Note is Outstanding, the Co-Issuer shall maintain in full force and effect its existence
and rights as a limited liability company organized under the laws of Delaware and shall obtain and preserve its qualification to do business as a foreign limited liability company in each jurisdiction in which such qualifications are or
shall be necessary to protect the validity and enforceability of this Indenture or the Notes; provided, however, that the Co-Issuer shall be entitled to change its jurisdiction of
formation from Delaware to any other jurisdiction reasonably selected by the Co-Issuer so long as (i) such change is not disadvantageous in any material respect to the Holders of the Notes, (ii) it delivers written notice of such change to
the Note Administrator for delivery to the Holders of the Notes and the Rating Agencies and (iii) on or prior to the fifteenth (15th) Business Day following such delivery of such notice by the Note Administrator to the Noteholders, the Note
Administrator shall not have received written notice from a Majority of the Controlling Class objecting to such change. So long as any Rated Notes are Outstanding, the Co‑Issuer will maintain at all times at least one director who is
Independent of the Collateral Manager and its Affiliates.
(c) So long as any Note is Outstanding, the Issuer shall ensure that all corporate or other formalities
regarding its existence are followed (including correcting any known misunderstanding regarding its separate existence). So long as any Note is Outstanding, the Issuer shall not take any action or conduct its affairs in a manner that is
likely to result in its separate existence being ignored or its Collateral and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding. So long as any Note is
Outstanding, the Issuer shall maintain and implement administrative and operating procedures reasonably necessary in the performance of the Issuer’s obligations hereunder, and the Issuer shall at all times keep and maintain, or cause to be
kept and maintained, separate books, records, accounts and other information customarily maintained for the performance of the Issuer’s obligations hereunder. Without limiting the foregoing, so long as any Note is Outstanding, (i) the Issuer
shall (A) pay its own liabilities only out of its own funds; (B) use separate stationery, invoices and checks; (C) hold itself out and identify itself as a separate and distinct entity under its own name; (D) not commingle its assets with
assets of any other Person; (E) hold title to its assets in its own name; (F) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any
financial statement of any other Person; provided, however, that the Issuer’s assets may be included in a consolidated financial statement of its Affiliate provided that (1) appropriate notation shall be made on such consolidated
financial statements to indicate the separateness of the Issuer from such Affiliate and to indicate that the Issuer’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (2)
such assets shall also be listed on the Issuer’s own balance sheet; (G) not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit or assets as being
available to satisfy the obligations of others; (H) allocate fairly and reasonably any overhead expenses, including for shared office space; (I) not have its obligations guaranteed by any Affiliate; (J) not pledge its assets to secure the
obligations of any other Person; (K) correct any known misunderstanding regarding its separate identity; (L) maintain adequate capital in light of its contemplated business purpose, transactions and
liabilities; (M) not acquire any securities of any Affiliate of the Issuer; and (N) not own any asset or property other than property arising out of the actions permitted to be performed
under the Transaction Documents; and (ii) the Issuer shall not (A) have any subsidiaries (other than a Permitted Subsidiary and, in the case of the Issuer, the Co-Issuer); (B) engage, directly or indirectly, in any business other than the
actions required or permitted to be performed under the Transaction Documents; (C) engage in any transaction with any shareholder that is not permitted under the terms of the Servicing Agreement; (D) pay dividends other than in accordance with
the terms of this Indenture, its governing documents and the Preferred Share Paying Agency Agreement; (E) conduct business under an assumed name (i.e., no “DBAs”); (F) incur, create or assume any indebtedness other than as expressly permitted
under the Transaction Documents; (G) enter into any contract or agreement with any of its Affiliates, except upon terms and conditions that are commercially reasonable and substantially similar to those available in arm’s-length transactions; provided
that the foregoing shall not prohibit the Issuer from entering into the transactions contemplated by the Company Administration Agreement or the Registered Office Agreement with the Company Administrator, the Preferred Share Paying Agency
Agreement with the Share Registrar and any other agreement contemplated or permitted by the Servicing Agreement or this Indenture; (H) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of,
any Person, except that the Issuer may invest in those investments permitted under the Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit
the same to remain outstanding in accordance with such provisions or (I) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such
activities as are expressly permitted pursuant to any provision of the Transaction Documents.
(d) So long as any Note is Outstanding, the Co-Issuer shall ensure that all limited liability company or
other formalities regarding its existence are followed, as well as correcting any known misunderstanding regarding its separate existence. The Co-Issuer shall not take any action or conduct its affairs in a manner, that is likely to result
in its separate existence being ignored or its Collateral and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding. The Co-Issuer shall maintain and implement
administrative and operating procedures reasonably necessary in the performance of the Co-Issuer’s obligations hereunder, and the Co-Issuer shall at all times keep and maintain, or cause to be kept and maintained, books, records, accounts and
other information customarily maintained for the performance of the Co-Issuer’s obligations hereunder. Without limiting the foregoing, the Co-Issuer shall not (A) have any subsidiaries, (B) have any employees (other than its managers), (C)
join in any transaction with any member that is not permitted under the terms of the Servicing Agreement or this Indenture, (D) pay dividends other than in accordance with the terms of this Indenture, (E) commingle its funds or Collateral
with those of any other Person, or (F) enter into any contract or agreement with any of its Affiliates, except upon terms and conditions that are commercially reasonable and substantially similar to those available in arm’s-length
transactions with an unrelated party.
Section 7.5 Protection of Collateral.
(a) The Note Administrator, at the expense of the Issuer, upon receipt of any Opinion of Counsel received
pursuant to Section 7.5(d) shall execute and deliver all such
Financing Statements, continuation statements, instruments of further assurance and other instruments, and may take such other action as may be necessary or advisable or desirable to secure
the rights and remedies of the Secured Parties hereunder and to:
(i) Grant more effectively all or any portion of the Collateral;
(ii) maintain or preserve the lien (and the priority thereof) of this Indenture or to
carry out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any Grant made or to be made by
this Indenture (including, without limitation, any and all actions necessary or desirable as a result of changes in law or regulations);
(iv) cooperate with the Servicer and the Special Servicer with respect to enforcement on
any of the Collateral Interests or enforce on any other instruments or property included in the Collateral;
(v) instruct the Special Servicer to preserve and defend title to the Collateral Interests
and preserve and defend title to the other Collateral and the rights of the Trustee, the Holders of the Notes in the Collateral against the claims of all persons and parties; and
(vi) pursuant to Sections 11.1(a)(i)(1) and 11.1(a)(ii)(1), pay or cause
to be paid any and all taxes levied or assessed upon all or any part of the Collateral.
The Issuer hereby designates the Note Administrator as its agent and attorney-in-fact to execute any Financing Statement, continuation statement or other instrument
required pursuant to this Section 7.5. The Note Administrator agrees that it will from time to time execute and cause such Financing Statements and continuation statements to be filed (it being understood that the Note Administrator
shall be entitled to rely upon an Opinion of Counsel described in Section 7.5(d), at the expense of the Issuer, as to the need to file such Financing Statements and continuation statements, the dates by which such filings are required
to be made and the jurisdictions in which such filings are required to be made).
(b) Neither the Trustee nor the Note Administrator shall (except in accordance with Section 10.12(a),
(b) or (c) and except for payments, deliveries and distributions otherwise expressly permitted under this Indenture) cause or permit the Custodial Account or the Custodian to be located in a different jurisdiction from the
jurisdiction in which the Custodian was located on the Closing Date, unless the Trustee or the Note Administrator, as applicable, shall have first received an Opinion of Counsel to the effect that the lien and security interest created by
this Indenture with respect to such property will continue to be maintained after giving effect to such action or actions.
(c) The Issuer shall (i) pay or cause to be paid taxes, if any, levied on account of the beneficial
ownership by the Issuer of any Collateral that secure the Offered Notes and timely file all tax returns and information statements as required, (ii) take all actions necessary or advisable to prevent the Issuer from becoming subject to any
withholding or other taxes or assessments and to allow the Issuer to comply with FATCA and the Cayman FATCA
Legislation, and (iii) if required to prevent the withholding or imposition of United States income tax, deliver or cause to be delivered a United States IRS Form W‑9 (or the applicable IRS
Form W‑8, if appropriate) or successor applicable form, to each borrower, counterparty or paying agent with respect to (as applicable) an item included in the Collateral at the time such item is purchased or entered into and thereafter prior to
the expiration or obsolescence of such form.
(d) For so long as the Notes are Outstanding, on or about September 2026 and every 60 months thereafter, the
Issuer (or the Collateral Manager on its behalf) shall deliver to the Trustee and the Note Administrator, for the benefit of the Trustee, the Collateral Manager, the Note Administrator and the Rating Agencies, at the expense of the Issuer, an
Opinion of Counsel stating what is required, in the opinion of such counsel, as of the date of such opinion, to maintain the lien and security interest created by this Indenture with respect to the Collateral, and confirming the matters set
forth in the Opinion of Counsel, furnished pursuant to Section 3.1(d), with regard to the perfection and priority of such security interest (and such Opinion of Counsel may likewise be subject to qualifications and assumptions similar
to those set forth in the Opinion of Counsel delivered pursuant to Section 3.1(d)).
Section 7.6 Notice of Any Amendments.
Each of the Issuer and the Co-Issuer shall give notice to the 17g‑5 Information Provider of, and satisfy the Rating Agency Condition with respect to, any amendments to its
Governing Documents.
Section 7.7 Performance of Obligations.
(a) Each of the Issuer and the Co-Issuer shall not take any action, and will use commercially reasonable
efforts not to permit any action to be taken by others, that would release any Person from any of such Person’s covenants or obligations under any Instrument included in the Collateral, except in the case of enforcement action taken with
respect to any Defaulted Collateral Interest in accordance with the provisions hereof and as otherwise required hereby.
(b) The Issuer or the Co-Issuer may, with the prior written consent of the Majority of the Notes (or if there
are no Notes Outstanding, a Majority of Preferred Shareholders), contract with other Persons, including the Servicer, the Special Servicer, the Note Administrator, the Collateral Manager or the Trustee, for the performance of actions and
obligations to be performed by the Issuer or the Co-Issuer, as the case may be, hereunder by such Persons and the performance of the actions and other obligations with respect to the Collateral of the nature set forth in this Indenture.
Notwithstanding any such arrangement, the Issuer or the Co-Issuer, as the case may be, shall remain primarily liable with respect thereto. In the event of such contract, the performance of such actions and obligations by such Persons shall
be deemed to be performance of such actions and obligations by the Issuer or the Co-Issuer; and the Issuer or the Co-Issuer shall punctually perform, and use commercially reasonable efforts to cause the Servicer, the Special Servicer, the
Collateral Manager or such other Person to perform, all of their obligations and agreements contained in this Indenture or such other agreement.
(c) Unless the Rating Agency Condition is satisfied with respect thereto, the Issuer shall maintain the
Servicing Agreement in full force and effect so long as any Notes remain Outstanding and shall not terminate the Servicing Agreement with respect to any Collateral Interest except upon the sale or other liquidation of such Collateral Interest
in accordance with the terms and conditions of this Indenture.
(d) If the Co-Issuers receive a notice from the Rating Agencies stating that they are not in compliance with
Rule 17g-5, the Co-Issuers shall take such action as mutually agreed between the Co-Issuers and the Rating Agencies in order to comply with Rule 17g-5.
Section 7.8 Negative Covenants.
(a) The Issuer and the Co-Issuer shall not:
(i) sell, assign, participate, transfer, exchange or otherwise dispose of, or pledge,
mortgage, hypothecate or otherwise encumber (or permit such to occur or suffer such to exist), any part of the Collateral, except as otherwise expressly permitted by this Indenture or the Servicing Agreement;
(ii) claim any credit on, make any deduction from, or dispute the enforceability of, the
payment of the principal or interest payable in respect of the Notes (other than amounts required to be paid, deducted or withheld in accordance with any applicable law or regulation of any governmental authority) or assert any claim against
any present or future Noteholder by reason of the payment of any taxes levied or assessed upon any part of the Collateral;
(iii) (A) incur or assume or guarantee any indebtedness, other than the Notes and this
Indenture and the transactions contemplated hereby; (B) issue any additional class of securities, other than the Notes, the Preferred Shares, the ordinary shares of the Issuer and the limited liability company membership interests of the
Co-Issuer; or (C) issue any additional shares of stock, other than the ordinary shares of the Issuer and the Preferred Shares;
(iv) (A) permit the validity or effectiveness of this Indenture or any Grant hereunder to be
impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to this Indenture or the Notes, except as
may be expressly permitted hereby; (B) permit any lien, charge, adverse claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the
Collateral or any part thereof, any interest therein or the proceeds thereof, except as may be expressly permitted hereby; or (C) take any action that would permit the lien of this Indenture not to constitute a valid first priority security
interest in the Collateral, except as may be expressly permitted hereby;
(v) amend the Servicing Agreement, except pursuant to the terms thereof;
(vi) amend the Preferred Share Paying Agency Agreement, except pursuant to the terms
thereof;
(vii) to the maximum extent permitted by applicable law, dissolve or liquidate in whole
or in part, except as permitted hereunder;
(viii) make or incur any capital expenditures, except as reasonably required to perform
its functions in accordance with the terms of this Indenture and, in the case of the Issuer, the Preferred Share Paying Agency Agreement;
(ix) become liable in any way, whether directly or by assignment or as a guarantor or
other surety, for the obligations of the lessee under any lease, hire any employees or pay any dividends to its shareholders, except with respect to the Preferred Shares in accordance with the Priority of Payments and Cayman Islands law;
(x) maintain any bank accounts other than the Accounts and the bank account in the
Cayman Islands in which (inter alia) the proceeds of the Issuer’s issued share capital and the transaction fees paid to the Issuer for agreeing to issue the Securities will be kept;
(xi) conduct business under an assumed name, or change its name without first delivering
at least 30 days’ prior written notice to the Trustee, the Note Administrator, the Noteholders and the Rating Agencies and an Opinion of Counsel to the effect that such name change will not adversely affect the security interest hereunder of
the Trustee or the Secured Parties;
(xii) take any action that would result in it failing to qualify as a Qualified REIT
Subsidiary or other disregarded entity of KREF Sub-REIT for U.S. federal income tax purposes (including, but not limited to, an election to treat the Issuer as a “taxable REIT subsidiary,” as defined in Section 856(l) of the Code), unless (A)
based on an Opinion of Counsel of Dechert LLP, Hunton Andrews Kurth LLP or another nationally-recognized tax counsel experienced in such matters, the Issuer will be treated as a Qualified REIT Subsidiary or other disregarded entity of a REIT
other than KREF Sub-REIT, or (B) the Issuer has received a No Trade or Business Opinion;
(xiii) except for any agreements involving the purchase and sale of Collateral Interests
having customary purchase or sale terms and documented with customary loan trading documentation, enter into any agreements unless such agreements contain “non-petition” and “limited recourse” provisions; or
(xiv) amend their respective organizational documents without satisfaction of the Rating
Agency Condition in connection therewith.
(b) Neither the Issuer nor the Trustee shall sell, transfer, exchange or otherwise dispose of Collateral,
or enter into or engage in any business with respect to any part of the Collateral, except as expressly permitted or required by this Indenture or the Servicing Agreement.
(c) The Co-Issuer shall not invest any of its collateral in “securities” (as such term is defined in the
1940 Act) and shall keep all of the Co-Issuer’s collateral in Cash.
(d) For so long as any of the Notes are Outstanding, the Co-Issuer shall not issue any limited liability
company membership interests of the Co-Issuer to any Person other than KREF Sub-REIT or a wholly-owned subsidiary of KREF Sub-REIT.
(e) The Issuer shall not enter into any material new agreements (other than any Collateral Interest
Purchase Agreement or other agreement contemplated by this Indenture) (including, without limitation, in connection with the sale of Collateral by the Issuer) without the prior written consent of the Holders of at least a Majority of the
Notes (or if there are no Notes Outstanding, a Majority of Preferred Shareholders) and shall provide notice of all new agreements (other than any Collateral Interest or other agreement specifically contemplated by this Indenture) to the
Holders of the Notes. The foregoing notwithstanding, the Issuer may agree to any material new agreements; provided that (i) the Issuer (or the Collateral Manager on its behalf) determines that such new agreements would not, upon
becoming effective, adversely affect the rights or interests of any Class or Classes of Noteholders and (ii) subject to satisfaction of the Rating Agency Condition.
(f) As long as any Offered Note is Outstanding, the Retention Holder may not transfer (whether by means of
actual transfer or a transfer of beneficial ownership for U.S. federal income tax purposes), pledge or hypothecate any of the Retained Securities, any retained or repurchased Notes or ordinary shares or other equity interests of the Issuer to
any Person (except to an affiliate that is wholly-owned by KREF Sub-REIT and is disregarded for U.S. federal income tax purposes or a Subsequent REIT or any entity that is wholly owned by a Subsequent REIT and disregarded for U.S. federal
income tax purposes) unless the Issuer receives an opinion of Dechert LLP, Hunton Andrews Kurth LLP or another nationally recognized tax counsel experienced in such matters that such transfer, pledge or hypothecation will not cause the Issuer
to be treated as a foreign corporation engaged in a trade or business within the United States for U.S. federal income tax purposes or otherwise to become subject to U.S. federal income tax on a net basis, which opinion may be conditioned on
compliance with certain restrictions on the investment or other activities of the Issuer and the Collateral Manager, the Servicer and the Special Servicer on behalf of the Issuer (such opinion, a “No Entity-Level Tax Opinion”) (or has
previously received a No Trade or Business Opinion) which opinion may be conditioned, in each case, on compliance with certain restrictions on the investment or other activities of the Issuer and the Collateral Manager, the Servicer and the
Special Servicer on behalf of the Issuer.
(g) Any financing arrangement pursuant to Section 7.8(f) shall prohibit any further transfer
(whether by means of actual transfer or a transfer of beneficial ownership for U.S. federal income tax purposes) of the Retained Securities and Issuer’s ordinary shares, including a transfer in connection with any exercise of remedies under
such financing unless the Issuer receives a No Entity-Level Tax Opinion.
Section 7.9 Statement as to Compliance.
On or before January 31 in each calendar year, commencing in 2023 or immediately if there has been a Default in the fulfillment of an obligation under this Indenture, the
Issuer shall deliver to the Trustee, the Note Administrator and the 17g-5 Information Provider an Officer’s Certificate given on behalf of the Issuer and without personal liability stating, as to each signer thereof, that, since the date of the
last certificate or, in the case of the first certificate, the Closing Date, to the best of the knowledge, information and belief of such Officer, the Issuer has fulfilled all of its obligations under this Indenture or, if there has been a
Default in the fulfillment of any such obligation, specifying each such Default known to them and the nature and status thereof.
Section 7.10 Issuer and Co-Issuer May Consolidate or Merge Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or
substantially all of its Collateral to any Person, unless permitted by the Governing Documents and Cayman Islands law and unless:
(i) the Issuer shall be the surviving entity, or the Person (if other than the Issuer)
formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the Collateral of the Issuer are transferred shall be an entity incorporated or formed and existing under the laws of the Cayman Islands
or such other jurisdiction approved by a Majority of each and every Class of the Notes (each voting as a separate Class), and a Majority of Preferred Shareholders; provided that no such approval shall be required in connection with
any such transaction undertaken solely to effect a change in the jurisdiction of registration pursuant to Section 7.4; and provided, further, that the surviving entity shall
expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the Note Administrator, and each Noteholder, the due and punctual payment of the principal of and interest on all Notes and other amounts payable
hereunder and under the Servicing Agreement and the performance and observance of every covenant of this Indenture and the Servicing Agreement on the part of the Issuer to be performed or observed, all as provided herein;
(ii) the Rating Agency Condition shall be satisfied;
(iii) if the Issuer is not the surviving entity, the Person formed by such consolidation
or into which the Issuer is merged or to which all or substantially all of the Collateral of the Issuer are transferred shall have agreed with the Trustee and the Note Administrator (A) to observe the same legal requirements for the
recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer with respect to its Affiliates and (B) not to consolidate or merge with or into any other Person or
transfer or convey all or substantially all of the Collateral or all or substantially all of its Collateral to any other Person except in accordance with the provisions of this Section 7.10, unless in connection with a sale of the
Collateral pursuant to Article 5, Article 9 or Article 12;
(iv) if the Issuer is not the surviving entity, the Person formed by such consolidation
or into which the Issuer is merged or to which all or substantially all of the Collateral of the Issuer are transferred shall have delivered to the Trustee, the Note Administrator, the Servicer, the Special Servicer, the Collateral Manager
and the Rating Agencies an Officer’s Certificate and an Opinion of Counsel each stating that such Person is duly organized, validly existing and in good standing in the jurisdiction in which such Person is organized; that such Person has
sufficient power and authority to assume the obligations set forth in Section 7.10(a)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly
authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in
accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); that, immediately following the event which causes such Person to become the successor to the Issuer, (A) such Person has good and marketable title, free and clear of any
lien, security interest or charge, other than the lien and security interest of this Indenture, to the Collateral securing, in the case of a consolidation or merger of the Issuer, all of the Notes or, in the case of any transfer or conveyance
of the Collateral securing any of the Notes, such Notes, (B) the Trustee continues to have a valid perfected first priority security interest in the Collateral securing, in the case of a consolidation or merger of the Issuer, all of the
Notes, or, in the case of any transfer or conveyance of the Collateral securing any of the Notes, such Notes and (C) such other matters as the Trustee, the Note Administrator, the Servicer, the Special Servicer, the Collateral Manager or any
Noteholder may reasonably require;
(v) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing;
(vi) the Issuer shall have delivered to the Trustee, the Note Administrator, the
Preferred Share Paying Agent and each Noteholder, an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Article 7 and
that all conditions precedent in this Article 7 provided for relating to such transaction have been complied with;
(vii) the Issuer has received an opinion from Dechert LLP, Hunton Andrews Kurth LLP or an
opinion of other nationally recognized U.S. tax counsel experienced in such matters that the Issuer or the Person referred to in clause (a) either will (a) be treated as a Qualified REIT Subsidiary or (b) be treated as a foreign corporation
not engaged in a trade or business within the United States for U.S. federal income tax purposes or otherwise not subject to U.S. federal income tax on a net basis;
(viii) the Issuer has received an opinion from Dechert LLP, Hunton Andrews Kurth LLP or
an opinion of other nationally recognized U.S. tax counsel experienced in such matters that such action will not adversely affect the tax treatment of the
Noteholders as described in the Offering Memorandum under the heading “Certain U.S. Federal Income Tax Considerations” to any material extent; and
(ix) after giving effect to such transaction, the Issuer shall not be required to
register as an investment company under the 1940 Act.
(b) The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or
substantially all of its Collateral to any Person, unless no Notes remain Outstanding or:
(i) the Co-Issuer shall be the surviving entity, or the Person (if other than the
Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the Collateral of the Co-Issuer are transferred shall be a company organized and existing under the laws of Delaware or such
other jurisdiction approved by a Majority of the Controlling Class; provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of formation
pursuant to Section 7.4; and provided, further, that the surviving entity shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, the
Note Administrator, and each Noteholder, the due and punctual payment of the principal of and interest on all Notes and the performance and observance of every covenant of this Indenture on the part of the Co‑Issuer to be performed or
observed, all as provided herein;
(ii) the Rating Agency Condition has been satisfied;
(iii) if the Co-Issuer is not the surviving entity, the Person formed by such
consolidation or into which the Co-Issuer is merged or to which all or substantially all of the Collateral of the Co-Issuer are transferred shall have agreed with the Trustee and the Note Administrator (A) to observe the same legal
requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B) not to consolidate or merge with or
into any other Person or transfer or convey all or substantially all of its Collateral to any other Person except in accordance with the provisions of this Section 7.10;
(iv) if the Co-Issuer is not the surviving entity, the Person formed by such
consolidation or into which the Co-Issuer is merged or to which all or substantially all of the Collateral of the Co-Issuer are transferred shall have delivered to the Trustee, the Note Administrator and the Rating Agencies an Officer’s
Certificate and an Opinion of Counsel each stating that such Person is duly organized, validly existing and in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume
the obligations set forth in Section 7.10(b)(i) above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and
performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only
to bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights generally and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); such other matters as the Trustee, the Note Administrator or any Noteholder may reasonably require;
(v) immediately after giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing;
(vi) the Co-Issuer shall have delivered to the Trustee, the Note Administrator, the
Preferred Share Paying Agent and each Noteholder an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this Article 7 and
that all conditions precedent in this Article 7 provided for relating to such transaction have been complied with and that no adverse tax consequences will result therefrom to the Holders of the Notes or the Preferred Shareholders;
and
(vii) after giving effect to such transaction, the Co-Issuer shall not be required to
register as an investment company under the 1940 Act.
Section 7.11 Successor Substituted.
Upon any consolidation or merger, or transfer or conveyance of all or substantially all of the Collateral of the Issuer or the Co-Issuer, in accordance with Section
7.10, the Person formed by or surviving such consolidation or merger (if other than the Issuer or the Co-Issuer), or the Person to which such consolidation, merger, transfer or conveyance is made, shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer or the Co-Issuer, as the case may be, under this Indenture with the same effect as if such Person had been named as the Issuer or the Co-Issuer, as the case may be, herein. In the event of
any such consolidation, merger, transfer or conveyance, the Person named as the “Issuer” or the “Co-Issuer” in the first paragraph of this Indenture or any successor which shall theretofore have become such in the manner prescribed in this Article
7 may be dissolved, wound-up and liquidated at any time thereafter, and such Person thereafter shall be released from its liabilities as obligor and maker on all the Notes and from its obligations under this Indenture.
Section 7.12 No Other Business.
The Issuer shall not engage in any business or activity other than issuing and selling the Notes pursuant to this Indenture and any supplements thereto, issuing its
ordinary shares and issuing and selling the Preferred Shares in accordance with its Governing Documents, and acquiring, owning, holding, disposing of and pledging the Collateral in connection with the Notes and such other activities which are
necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith. The Co-Issuer shall not engage in any business or activity other than issuing and selling the Offered Notes pursuant to this
Indenture and any supplements thereto and such other activities which are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith.
Section 7.13 Reporting.
At any time when the Issuer and/or the Co-Issuer is not subject to Section 13 or 15(d) of the Exchange Act and is not exempt from reporting pursuant to Rule 12g3-2(b) under
the Exchange Act, upon the request of a Holder or beneficial owner of a Note, the Issuer and/or the Co-Issuer shall promptly furnish or cause to be furnished “Rule 144A Information” (as defined below) to such Holder or beneficial owner, to a
prospective purchaser of such Note designated by such Holder or beneficial owner or to the Note Administrator for delivery to such Holder or beneficial owner or a prospective purchaser designated by such Holder or beneficial owner, as the case
may be, in order to permit compliance by such Holder or beneficial owner with Rule 144A under the Securities Act in connection with the resale of such Note by such Holder or beneficial owner. “Rule 144A Information” shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto). The Note Administrator shall reasonably cooperate with the Issuer and/or the Co-Issuer in mailing or otherwise distributing
(at the Issuer’s expense) to such Noteholders or prospective purchasers, at and pursuant to the Issuer’s and/or the Co-Issuer’s written direction the foregoing materials prepared by or on behalf of the Issuer and/or the Co-Issuer; provided, however, that the Note Administrator shall be entitled to prepare and affix thereto or enclose therewith reasonable disclaimers to the effect that such Rule 144A Information was not assembled by the
Note Administrator, that the Note Administrator has not reviewed or verified the accuracy thereof, and that it makes no representation as to such accuracy or as to the sufficiency of such information under the requirements of Rule 144A or for
any other purpose.
Section 7.14 Calculation Agent.
(a) The Issuer and the Co-Issuer hereby agree that for so long as any Notes remain Outstanding there shall
at all times be an agent appointed to calculate the Benchmark rate in respect of each Interest Accrual Period in accordance with the terms of Schedule B attached hereto (the “Calculation Agent”). The Issuer and the Co-Issuer
initially have appointed the Note Administrator as Calculation Agent for purposes of determining the Benchmark rate for each Interest Accrual Period. The Calculation Agent may be removed by the Issuer at any time upon at least thirty (30)
days’ notice delivered to the Calculation Agent. If the Calculation Agent is unable or unwilling to act as such or is removed by the Issuer, or if the Calculation Agent fails to determine the rate using the Benchmark or the Interest
Distribution Amount for any Class of Notes for any Interest Accrual Period, the Issuer shall promptly appoint as a replacement Calculation Agent a leading bank which does not control or is not controlled by or under common control with the
Issuer or its affiliates. To the extent the Calculation Agent is removed without cause, the expenses incurred in connection with transferring the Calculation Agent’s responsibilities under this Indenture will be required to be reimbursed by
the Issuer. The Calculation Agent may not resign its duties without a successor having been duly appointed. If no successor Calculation Agent shall have been appointed within thirty (30) days after giving of a notice of resignation, the
resigning Calculation Agent or a Majority of the Holders of the Notes, on behalf of itself and all others similarly situated, may petition a court of competent jurisdiction for the appointment of a successor Calculation Agent.
(b) As soon as practicable after the Reference Time, but in no event later than 11:00 a.m. (New York time)
on the next succeeding Business Day immediately following each
Benchmark Determination Date, the Calculation Agent shall calculate the Benchmark for the related Interest Accrual Period and shall communicate such information to the Note Administrator, who
shall include such calculation on the next Monthly Report following such Benchmark Determination Date. The Calculation Agent shall notify the Issuer, the Co-Issuer and the Collateral Manager before 5:00 p.m. (New York time) on each Benchmark
Determination Date if it has not determined and is not in the process of determining the Benchmark and/or the Interest Distribution Amounts for each Class of Notes, together with the reasons therefor. The determination of the Note Interest
Rates and the related Interest Distribution Amounts, respectively, by the Calculation Agent shall, absent manifest error, be final and binding on all parties.
Section 7.15 REIT Status.
(a) KREF Holdings shall not take any action that results in the Issuer failing to qualify as a Qualified
REIT Subsidiary or other disregarded entity of KREF Sub-REIT for U.S. federal income tax purposes, unless (A) based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary or other disregarded entity of a REIT
other than KREF Sub-REIT, or (B) the Issuer has received a No Trade or Business Opinion.
(b) Without limiting the generality of Section 7.16, if the Issuer is no longer a Qualified REIT Subsidiary
or other disregarded entity of a REIT, prior to the time that:
(i) any Collateral Interest would cause the Issuer to be treated as engaged in a trade
or business within the United States for U.S. federal income tax purposes or to become subject to U.S. federal income tax on a net basis,
(ii) restructuring of a Collateral Interest that could cause the Issuer to be treated as
engaged in a trade or business within the United States for U.S. federal income tax purposes or to become subject to U.S. federal income tax on a net basis,
(iii) the Issuer would acquire the real property underlying any Collateral Interest
pursuant to a foreclosure or deed-in-lieu of foreclosure, or
(iv) any Real Estate Loan is modified in such a manner that could cause the Issuer to be
treated as engaged in a trade or business within the United States for U.S. federal income tax purposes or to become subject to U.S. federal income tax on a net basis,
the Issuer will either (x) organize one or more Permitted Subsidiaries and contribute the subject property to such Permitted Subsidiary, (y) contribute such Collateral Interest to an existing
Permitted Subsidiary, or (z) sell such Collateral Interest in accordance with Section 12.1.
(c) At the direction of 100% of the Preferred Shareholders (including any party that will become the
beneficial owner of 100% of the Preferred Shares because of a default under any financing arrangement for which the Preferred Shares are security), the Issuer may operate as a foreign corporation that is not engaged in a trade or business
within the United States for U.S. federal income tax purposes, provided that (i) the Issuer receives a No Trade or Business Opinion; (ii) this Indenture and the Servicing Agreement, as applicable, are amended or
supplemented (A) to adopt written tax guidelines governing the Issuer’s origination, acquisition, disposition and modification of Real Estate Loans designed to prevent the Issuer from being
treated as engaged in a trade or business within the United States for U.S. federal income tax purposes, (B) to form one or more “grantor trusts” to the hold Real Estate Loans and (C) to implement any other provisions deemed necessary (as
determined by the tax counsel providing the opinion) to prevent the Issuer from being treated as a foreign corporation engaged in a trade or business within the United States for U.S. federal income tax purposes or otherwise becoming subject to
U.S. federal withholding tax or U.S. federal income tax on a net basis; (iii) the Preferred Shareholder shall pay the administrative and other costs related to the Issuer converting from a Qualified REIT Subsidiary to operating as a foreign
corporation, including the costs of any opinions and amendments; and (iv) the Preferred Shareholder agrees to pay any ongoing expenses related to the Issuer’s status as a foreign corporation not engaged in a trade or business within the United
States for U.S. federal income tax purposes, including but not limited to U.S. federal income tax filings required by the Issuer, the “grantor trusts” or any taxable subsidiaries or required under FATCA.
Section 7.16 Permitted Subsidiaries.
Notwithstanding any other provision of this Indenture, the Collateral Manager on behalf of the Issuer shall, following delivery of an Issuer Order to the parties hereto, be
permitted to sell to a Permitted Subsidiary at any time any Sensitive Asset for consideration consisting entirely of the equity interests of such Permitted Subsidiary (or for an increase in the value of equity interests already owned). Such
Issuer Order shall certify that the sale of a Sensitive Asset is being made in accordance with satisfaction of all requirements of this Indenture. The Custodian shall, upon receipt of a Request for Release with respect to a Sensitive Asset,
release such Sensitive Asset and shall deliver such Sensitive Asset as specified in such Request for Release. The following provisions shall apply to all Sensitive Asset and Permitted Subsidiaries:
(a) For all purposes under this Indenture, any Sensitive Asset transferred to a Permitted Subsidiary shall
be treated as if it were an asset owned directly by the Issuer.
(b) Any distribution of Cash by a Permitted Subsidiary to the Issuer shall be characterized as Interest
Proceeds or Principal Proceeds to the same extent that such Cash would have been characterized as Interest Proceeds or Principal Proceeds if received directly by the Issuer and each Permitted Subsidiary shall cause all proceeds of and
collections on each Sensitive Asset owned by such Permitted Subsidiary to be deposited into the Payment Account.
(c) To the extent applicable, the Issuer shall form one or more Securities Accounts with the Securities
Intermediary for the benefit of each Permitted Subsidiary and shall, to the extent applicable, cause Sensitive Asset to be credited to such Securities Accounts.
(d) Notwithstanding the complete and absolute transfer of a Sensitive Asset to a Permitted Subsidiary, the
ownership interests of the Issuer in a Permitted Subsidiary or any property distributed to the Issuer by a Permitted Subsidiary shall be treated as a continuation of its ownership of the Sensitive Asset that was transferred to such Permitted
Subsidiary (and shall be treated as having the same characteristics as such Sensitive Asset).
(e) If the Special Servicer on behalf of the Trustee, or any other authorized party takes any action under
this Indenture to sell, liquidate or dispose of all or substantially all of the Collateral, the Issuer (or the Collateral Manager on its behalf) shall cause each Permitted Subsidiary to sell each Sensitive Asset and all other Collateral held
by such Permitted Subsidiary and distribute the proceeds of such sale, net of any amounts necessary to satisfy any related expenses and tax liabilities, to the Issuer in exchange for the equity interest in such Permitted Subsidiary held by
the Issuer.
Section 7.17 Repurchase Requests.
If the Issuer, the Trustee, the Note Administrator, the Collateral Manager, the Servicer or the Special Servicer receives any request or demand that a Collateral Interest
be repurchased or replaced arising from any Material Breach of a representation or warranty made with respect to such Collateral Interest, any Material Document Defect or any Combined Loan Repurchase Event (any such request or demand, a “Repurchase
Request”) or a withdrawal of a Repurchase Request from any Person other than the Servicer or Special Servicer, then the Collateral Manager (on behalf of the Issuer), the Trustee or the Note Administrator, as applicable, shall promptly
forward such notice of such Repurchase Request or withdrawal of a Repurchase Request, as the case may be, to the Servicer (if related to a performing Real Estate Loan) or Special Servicer, and include the following statement in the related
correspondence: “This is a “Repurchase Request/withdrawal of a Repurchase Request” under Section 3.19 of the Servicing Agreement relating to KREF 2022-FL3 Ltd. and KREF 2022-FL3 LLC, requiring action from you as the “Repurchase Request
Recipient” thereunder.” Upon receipt of such Repurchase Request or withdrawal of a Repurchase Request by the Collateral Manager, Servicer or Special Servicer pursuant to the prior sentence, the Servicer or the Special Servicer, as applicable,
shall be deemed to be the Repurchase Request Recipient in respect of such Repurchase Request or withdrawal of a Repurchase Request, as the case may be, and shall be responsible for complying with the procedures set forth in Section 3.19 of the
Servicing Agreement with respect to such Repurchase Request.
Section 7.18 Servicing of Real Estate Loans and Control of Servicing Decisions.
The Real Estate Loans (other than the Non-Serviced Real Estate Loans) will be serviced by the Servicer or, with respect to Specially Serviced Loans, the Special Servicer,
in each case pursuant to the Servicing Agreement, subject to the consultation, consent and direction rights and those in respect to Administrative Modifications and Criteria-Based Modifications of the Collateral Manager, as set forth in the
Servicing Agreement, subject to those conditions, restrictions or termination events expressly provided therein. Nothing in this Indenture shall be interpreted to limit in any respect the rights of the Collateral Manager under the Servicing
Agreement and none of the Issuer, Co-Issuer, Note Administrator and Trustee shall take any action under this Indenture inconsistent with the Collateral Manager’s rights set forth under the Servicing Agreement.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders.
(a) Without the consent (or deemed consent) of the Holders of any Notes or any Preferred Shareholders,
without prior notice to the Holder of any Notes or any Preferred Shareholders and without satisfaction of the Rating Agency Condition, the Issuer, the Co-Issuer, when authorized by Board Resolutions of the Co-Issuers, the Advancing Agent, the
Trustee and the Note Administrator, at any time and from time to time subject to the requirement provided below in this Section 8.1, may enter into one or more indentures supplemental hereto, in form satisfactory to the parties
thereto, for any of the following purposes:
(i) conform this Indenture to the provisions described in the Offering Memorandum (or
any supplement thereto);
(ii) correct any defect or ambiguity in this Indenture in order to address any manifest
error, omission or mistake in any provision of this Indenture;
(iii) conform this Indenture to any Rating Agency Test Modification;
(iv) to modify or add to any of the provisions of the Indenture any technical,
administrative or operational changes (including changes to the timing and frequency of determining rates and making payments of interest, rounding of amounts or tenors, and other administrative matters) that the Collateral Manager decides,
from time to time, may be appropriate to adjust the Benchmark in a manner substantially consistent with or conforming to market practice (or, if the Collateral Manager decides that adoption of any portion of such market practice is not
administratively feasible or if the Collateral Manager determines that no market practice exists, in such other manner as the Collateral Manager determines is reasonably necessary);
(v) provide for the Notes of each Class to bear interest based on the applicable
Benchmark Replacement from and after the related Benchmark Replacement Date; and/or at the direction of the Designated Transaction Representative, to make Benchmark Replacement Conforming Changes;
(vi) evidence the succession of any Person to the Issuer or the Co-Issuer and the
assumption by any such successor of the covenants of the Issuer or the Co-Issuer, as applicable, herein and in the Notes;
(vii) add to the covenants of the Issuer, the Co-Issuer, the Note Administrator or the
Trustee for the benefit of the Holders of the Notes or the Preferred Shareholders or to surrender any right or power herein conferred upon the Issuer or the Co-Issuer, as applicable;
(viii) convey, transfer, assign, mortgage or pledge any property to or with the Trustee,
or add to the conditions, limitations or restrictions on the authorized amount, terms and purposes of the issue, authentication and delivery of the Notes;
(ix) evidence and provide for the acceptance of appointment hereunder of a successor
Trustee or a successor Note Administrator and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of
Sections 6.9, 6.10 and 6.12;
(x) correct or amplify the description of any property at any time subject to the lien
of this Indenture, or to better assure, convey and confirm unto the Trustee any property subject or required to be subject to the lien of this Indenture (including, without limitation, any and all actions necessary or desirable as a result of
changes in law or regulations) or to subject any additional property to the lien of this Indenture;
(xi) modify the restrictions on and procedures for resales and other transfers of Notes
to reflect any changes in applicable law or regulation (or the interpretation thereof) or to enable the Issuer and the Co-Issuer to rely upon any exemption or exclusion from registration under the Securities Act, the Exchange Act or the 1940
Act (including, without limitation, (A) to prevent any Class of Notes from being considered an “ownership interest” under the Volcker Rule or (B) to prevent the Issuer or the Co-Issuer from being considered a “covered fund” under the Volcker
Rule) or to remove restrictions on resale and transfer to the extent not required thereunder;
(xii) accommodate the issuance or settlement of the Notes in book-entry form through the
facilities of DTC, Euroclear or Clearstream, Luxembourg or otherwise;
(xiii) take any action commercially reasonably necessary or advisable as required for
the Issuer to comply with the requirements of FATCA (or the Cayman FATCA Legislation); or to prevent the Issuer from failing to qualify as a Qualified REIT Subsidiary or other disregarded entity of a REIT for U.S. federal income tax purposes
or from otherwise being treated as a foreign corporation engaged in a trade or business in the United States for U.S. federal income tax purposes, or to prevent the Issuer, the holders of the Notes, the Preferred Shareholders, or the Trustee
from being subject to withholding or other taxes, fees or assessments or from otherwise being subject to U.S. federal, state, local or foreign income or franchise tax on a net basis;
(xiv) amend or supplement any provision of the Indenture to the extent necessary to
maintain the then-current ratings assigned to the Notes;
(xv) authorize the appointment of any listing agent, transfer agent, paying agent or
additional registrar for any Class of Notes required or advisable in connection with the listing of any Class of Notes on any stock exchange, and otherwise to amend this Indenture to incorporate any changes required or requested by any
governmental authority, stock exchange authority, listing agent, transfer agent, paying agent or additional registrar for any Class of Notes in connection therewith;
(xvi) evidence changes to applicable laws and regulations;
(xvii) modify, eliminate or add to any of the provisions of this Indenture in the event
the Credit Risk Retention Rules, the EU Securitization Laws or the UK Securitization Laws (as applicable) are amended or repealed, in order to modify or eliminate the risk retention requirements in the event of such amendment or repeal; provided
that (a) in relation to the Credit Risk Retention Rules, the Trustee has received an opinion of counsel or (b) in relation to the EU Securitization Laws and UK Securitization Laws, the EU/UK Retention Holder consents thereto and (c) in each
case, the Sponsor or the EU/UK Retention Holder (as applicable) certifies to the Trustee that it has received written legal advice, in each case, to the effect the action is consistent with and will not cause a violation of the Credit Risk
Retention Rules, the EU Securitization Laws or the UK Securitization Laws (as applicable);
(xviii) reduce the minimum denominations required for transfer of the Notes; provided
that such denominations are not reduced below the minimum denomination necessary to maintain an exemption from the registration requirements of the Securities Act or the 1940 Act;
(xix) modify the provisions of this Indenture with respect to reimbursement of
Nonrecoverable Interest Advances if the Collateral Manager determines that the commercial mortgage securitization industry standard for such provisions has changed, in order to conform to such industry standard;
(xx) modify the procedures set forth in this Indenture relating to compliance with Rule 17g-5 of the Exchange Act; provided that the change would not materially increase the obligations of the Collateral Manager, the Note Administrator, the Trustee, any paying agent, the Servicer or the Special Servicer (in each case, without
such party’s consent) and would not adversely affect in any material respect the interests of any Noteholder or Holder of the Preferred Shares; provided, further, that the Collateral Manager must provide a copy of any such
amendment to the 17g-5 Information Provider for posting to the 17g-5 Website and provide notice of any such amendment to the Rating Agencies;
(xxi) at the direction of 100% of the Preferred Shareholders (including any party that
shall become the beneficial owner of 100% of the Preferred Shares because of a default under any financing arrangement for which the Preferred Shares are security), modify the provisions of this Indenture to adopt restrictions provided by tax
counsel in order to prevent the Issuer from being treated as a foreign corporation that is engaged in a trade or business within the United States for U.S. federal income tax purposes or otherwise becoming subject to U.S. federal withholding
tax or U.S. federal income tax on a net basis;
(xxii) following the addition of the Cayman Islands to the EU AML Restricted List, to
make any amendments necessary to effect a change in the Issuer’s jurisdiction of incorporation (whether by merger, reincorporation, transfer of assets or otherwise);
(xxiii) make any change to any other provisions with respect to matters or questions
arising under this Indenture; provided that the party requesting the supplemental indenture represents that it believes the required action will not adversely affect in any material respect the interests of any Noteholder not
consenting thereto and (A) such party has obtained an opinion of counsel to such effect or such party has obtained an officer’s certificate of the Collateral Manager to such effect; and
(xxiv) providing for and/or facilitating the exchange of Exchangeable Notes for Exchanged Notes to the extent permitted by
this Indenture and to extend to such Exchanged Notes (to the extent explicitly provided herein) the benefits and provisions of this Indenture;
provided that (subject to further provisions on modification and amendment of this Indenture) such action will not adversely affect the tax treatment of the Notes as indebtedness,
constitute an event required the beneficial owner of the Offered Notes to recognize gain or loss for U.S. federal income tax purposes or cause the Issuer to be subject to U.S. federal tax on a net income basis.
The Note Administrator and Trustee are each hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Note Administrator and Trustee shall not be obligated to enter into any such supplemental indenture which affects the Note Administrator’s or Trustee’s own rights, duties, liabilities or
immunities under this Indenture or otherwise, except to the extent required by law.
(b) [Reserved]
(c) In the event that any or all restrictions and/or limitations under the Credit Risk Retention Rules, the
or EU Securitization Laws or the UK Securitization Laws or any other regulations relating to risk retention requirements in securitization transactions are withdrawn, repealed or modified to be less restrictive on the Sponsor and/or the EU/UK
Retention Holder, as applicable, then at the request of the Sponsor and/or EU/UK Retention Holder, as applicable, in each case certifying to the Trustee that it has received written legal advice to the effect the action is consistent with and
will not cause a violation of the Credit Risk Retention Rules, or the EU Securitization Laws or the UK Securitization Laws, the Issuer, the Co-Issuer, the Trustee and the Note Administrator agree to modify any corresponding terms of this
Indenture in accordance with Section 8.1(a)(xvii) to reflect any such withdrawal, repeal or modification.
Section 8.2 Supplemental Indentures with Consent of Securityholders.
Except as set forth below, the Note Administrator, the Trustee and the Co‑Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or
change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of any Class of Notes or the Preferred Shares under this Indenture only with (x) the written consent of the Holders of
at least Majority in Aggregate Outstanding Amount of the Notes of each Class materially and adversely affected thereby (excluding any Notes owned by the Seller, the Collateral Manager or any of their Affiliates as identified in the Beneficial
Holder Information Form submitted along with the related Noteholder’s consent) and the Holder of Preferred Shares if materially and adversely affected thereby, by Act of said Securityholders
delivered to the Trustee, the Note Administrator and the Co-Issuers, and (y) satisfaction of the Rating Agency Condition, notice of which may be in electronic form. In connection with any such indentures supplemental hereto, the Collateral
Manager may determine whether the Holders of any Class of Notes or the Preferred Shares (evaluated individually on a Class-by-Class basis) will be material and adversely affected by an indenture supplemental. The consent of the Holders of the
Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. The Note Administrator and the Trustee shall not be liable for any such determination made in good faith and may rely conclusively on any Officer’s
Certificate or opinion accepted in good faith.
Notwithstanding the foregoing, any supplemental indenture to add or modify any of the provisions of this Indenture with respect to (a) the definitions of “Controlling
Class,” “Majority” and “Supermajority” and (b) the Eligibility Criteria, the Acquisition Criteria or the Offered Note Protection Tests, other than with respect to a Rating Agency Test Modification, shall require, in each case, the consent of
the Holders of at least 66-2/3% of the Aggregate Outstanding Amount of the Notes of each Class.
Without the consent of (x) all of the Holders of each Outstanding Class of Notes materially adversely affected and (y) all of the Holders of the Preferred Shares materially
adversely affected thereby, no supplemental indenture may:
(a) change the Stated Maturity Date of the principal of or the due date of any installment of interest on
any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect
thereto, change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply proceeds of any Collateral to the payment of principal of or interest on Notes or of
distributions to the Preferred Share Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity Date thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the
Notional Amount of Preferred Shares of the Holders thereof whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults
hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Collateral except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with
respect to any part of the Collateral or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred
Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose
consent is required to request the Trustee to preserve the Collateral or rescind any election to preserve the Collateral pursuant to Section 5.5 or to sell or liquidate the Collateral pursuant to Section 5.4 or 5.5;
(f) modify any of the provisions of Section 8.1 and this Section 8.2, except to increase
any percentage of Outstanding Notes whose holders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Note affected
thereby;
(g) modify the definition of the term “Outstanding,” “Reinvestment Period,” “Replenishment Period” or the
provisions of Section 11.1(a) or Section 13.1;
(h) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the
amount of any payment of interest on or principal of any Note on any Payment Date or of distributions to the Preferred Share Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other
date) or to affect the rights of the Securityholders to the benefit of any provisions for the redemption of such Securities contained herein;
(i) modify any of the provisions of this Indenture in such a manner as to affect the requirement that the
Issuer be treated as a Qualified REIT Subsidiary or other disregarded entity of a REIT for U.S. federal income tax purposes unless the Issuer has received a No Trade or Business Opinion;
(j) reduce the permitted minimum denominations of the Notes below the minimum denomination necessary to
maintain an exemption from the registration requirements of the Securities Act or the 1940 Act; or
(k) modify any provisions regarding non-recourse or non-petition covenants with respect to the Issuer and
the Co-Issuer,
provided that the holders of each Class of Notes and Preferred Shares will be deemed to be materially adversely affected by any supplemental indenture with respect to clauses (b)
and (f) above.
The Trustee and Note Administrator shall be entitled to rely upon an Officer’s Certificate of the Issuer (or the Collateral Manager on its behalf) in determining whether or
not the Securityholders would be materially or adversely affected by such change (after giving notice of such change to the Securityholders). Such determination shall be conclusive and binding on all present and future Securityholders.
Neither the Trustee nor the Note Administrator shall be liable for any such determination made in good faith.
Section 8.3 Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any supplemental indenture permitted by this Article 8 or the modifications thereby of the trusts created
by this Indenture, the Note Administrator and Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent thereto have been satisfied (which Opinion of Counsel may rely upon an Officer’s Certificate as to whether or not the Securityholders would be materially and adversely affected by such supplemental
indenture). The Note Administrator and Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects its own rights, duties or immunities under this Indenture or otherwise.
The Sponsor’s written consent shall be required prior to any amendment to this Indenture by which the Sponsor is adversely affected.
The Servicer and Special Servicer will not be bound by any amendment or supplement to this Indenture that affects their respective rights and obligations unless the
Servicer or Special Servicer, as applicable, gives prior written consent to the Note Administrator, the Trustee and the Issuer to such amendment. The Issuer, the Trustee and the Note Administrator shall give written notice to the Servicer and
Special Servicer of any amendment made to this Indenture pursuant to its terms. In addition, the Servicer and Special Servicer’s written consent shall be required prior to any amendment to this Indenture by which it is adversely affected.
The Collateral Manager will be bound to follow any amendment or supplement to this Indenture of which it has received written notice at least ten (10) Business Days prior
to the execution and delivery of such amendment or supplement; provided, however, that with respect to any amendment or supplement to this Indenture which may, in the judgment of the Collateral Manager adversely affect the
Collateral Manager, the Collateral Manager, as applicable, shall not be bound (and the Issuer agrees that it shall not permit any such amendment to become effective) unless the Collateral Manager, as applicable, gives written consent to the
Issuer to such amendment. The Issuer and the Note Administrator shall give written notice to the Collateral Manager, the Servicer and the Special Servicer of any amendment made to this Indenture pursuant to its terms. In addition, the
Collateral Manager’s written consent shall be required prior to any amendment to this Indenture by which it is adversely affected.
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.
At the cost of the Issuer, the Note Administrator shall provide to each Noteholder, each holder of Preferred Shares and, for so long as any Class of Notes shall remain
Outstanding and is rated, the Note Administrator shall provide to the 17g-5 Information Provider and the Rating Agencies a copy of any proposed supplemental indenture at least fifteen (15) Business Days prior to the execution thereof by the
Note Administrator, and following execution shall
provide to the 17g-5 Information Provider and the Rating Agencies a copy of the executed supplemental indenture.
Neither the Trustee nor the Note Administrator may enter into any such supplemental indenture (i) if such action would adversely affect the tax treatment of the Holders of
the Offered Notes as indebtedness, cause the Issuer to be a taxable entity or constitute an event requiring a beneficial owner of an Offered Note to recognize gain or loss for U.S. federal income tax purposes, and (ii) unless the Trustee and
the Note Administrator has received an Opinion of Counsel from Dechert LLP, Hunton Andrews Kurth LLP or other nationally recognized U.S. tax counsel experienced in such matters that the proposed supplemental indenture will not cause the Issuer
to be treated as a foreign corporation that is engaged in a trade or business within the United States for U.S. federal income tax purposes. The Trustee and the Note Administrator shall be entitled to rely upon (i) the receipt of notice from
the Rating Agencies or the Requesting Party, which may be in electronic form, that the Rating Agency Condition has been satisfied and (ii) receipt of an Opinion of Counsel forwarded to the Trustee and Note Administrator certifying that,
following provision of notice of such supplemental indenture to the Noteholders and holders of the Preferred Shares, that the Securityholders would not be materially and adversely affected by such supplemental indenture. Such determination
shall be conclusive and binding on all present and future Securityholders. Neither the Trustee nor the Note Administrator shall be liable for any such determination made in good faith and in reliance upon such Opinion of Counsel, as the case
may be.
It shall not be necessary for any Act of Securityholders under this Section 8.3 to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer, the Co-Issuer, the Note Administrator and the Trustee of any supplemental indenture pursuant to this Section 8.3, the
Note Administrator, at the expense of the Issuer, shall mail to the Securityholders, the Preferred Share Paying Agent, the Servicer, the Special Servicer, the Sponsor and, so long as the Notes are Outstanding and so rated, the Rating Agencies a
copy thereof based on an outstanding rating. Any failure of the Trustee and the Note Administrator to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 8.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article 8, this Indenture shall be modified in accordance therewith, such supplemental indenture shall
form a part of this Indenture for all purposes and every Holder of Notes theretofore and thereafter authenticated and delivered hereunder, and every Holder of Preferred Shares, shall be bound thereby.
Section 8.5 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 8 may, and if required by the Note Administrator shall,
bear a
notice in form approved by the Note Administrator as to any matter provided for in such supplemental indenture. If the Issuer and the Co-Issuer shall so determine, new Notes, so modified as
to conform in the opinion of the Note Administrator and the Issuer and the Co-Issuer to any such supplemental indenture, may be prepared and executed by the Issuer and the Co-Issuer and authenticated and delivered by the Note Administrator in
exchange for Outstanding Notes. Notwithstanding the foregoing, any Note authenticated and delivered hereunder shall be subject to the terms and provisions of this Indenture, and any supplemental indenture.
ARTICLE 9
REDEMPTION OF SECURITIES; REDEMPTION PROCEDURES
Section 9.1 Clean-up Call; Tax Redemption; Optional Redemption; and Auction Call
Redemption.
(a) The Notes shall be redeemed by the Issuer and the Co-Issuer, as applicable, at the direction of the
Collateral Manager delivered to the Issuer, the Note Administrator and the Trustee (such redemption, a “Clean-up Call”), in whole but not in part, at a price equal to the applicable Redemption Prices on any Payment Date on or after the
Payment Date on which the Aggregate Outstanding Amount of the Offered Notes in the aggregate has been reduced to 10% or less of the Aggregate Outstanding Amount of the Offered Notes on the Closing Date; provided that the funds
available to be used for such Clean-up Call will be sufficient to pay the Total Redemption Price. Disposition of Collateral in connection with a Clean-up Call may include sales of Collateral to more than one purchaser, including by means of
sales of participation interests in one or more Real Estate Loans to more than one purchaser.
(b) The Notes shall be redeemable by the Issuer and the Co-Issuer, as applicable, in whole but not in part,
at the written direction of a Majority of Preferred Shareholders delivered to the Issuer, the Note Administrator, the Preferred Share Paying Agent and the Trustee, on the Payment Date following the occurrence of a Tax Event if the Tax
Materiality Condition is satisfied at a price equal to the applicable Redemption Prices (such redemption, a “Tax Redemption”); provided that the funds available to be used for such Tax Redemption will be sufficient to pay the
Total Redemption Price. Upon the receipt of such written direction of a Tax Redemption, the Note Administrator shall provide written notice thereof to the Securityholders and the Rating Agencies. Any sale or disposition of a Collateral
Interest by the Trustee in connection with a Tax Redemption shall be performed upon Issuer Order by the Collateral Manager on behalf of the Issuer.
(c) The Notes shall be redeemable by the Issuer and the Co-Issuer, as applicable, in whole but not in part,
and without payment of any penalty or premium, at a price equal to the applicable Redemption Prices, on any Payment Date after the end of the Non-call Period, at the written direction of a Majority of the Preferred Shareholders to the Issuer,
the Note Administrator and the Trustee (such redemption, an “Optional Redemption”); provided, however, that the funds available to be used for such Optional Redemption will be
sufficient to pay the Total Redemption Price. Notwithstanding anything herein to the contrary, the Issuer shall not sell any Collateral Interest to any Affiliate other than the Retention Holder in connection with an Optional Redemption.
Notwithstanding anything herein to the contrary in this Indenture, in the case of an Optional Redemption, if the Holder of the Preferred Shares and/or one or more
Affiliates thereof own 100% of one or more of the most junior Classes of Notes, such Holder(s) may elect to exchange such Notes and the Preferred Shares for all of the remaining Collateral Interests and other assets of the Issuer, in lieu of
the Issuer paying such Holder(s) the Redemption Price for such Securities.
(d) The Notes shall be redeemable by the Issuer and the Co-Issuer, as applicable, in whole but not in part,
at a price equal to the applicable Redemption Prices, on any Payment Date occurring in January, April, July or October in each year, beginning on the Payment Date occurring in February 2032, upon the occurrence of a Successful Auction and
pursuant to the procedures set forth in Exhibit M (such redemption, an “Auction Call Redemption”). An Auction Call Redemption may only occur on a Payment Date in January, April, July or October in accordance with the requirements set forth in Exhibit M.
(e) The election by the Collateral Manager to redeem the Notes pursuant to a Clean-up Call shall be evidenced by an Officer’s Certificate from
the Collateral Manager directing the Note Administrator to pay to the Paying Agent the Redemption Price of all of the Notes to be redeemed from funds in the Payment Account in accordance with the Priority of Payments. In connection with a Tax
Redemption, the occurrence of a Tax Event and satisfaction of the Tax Materiality Condition and the election by a Majority of Preferred Shareholders to redeem the Notes pursuant to a Tax Redemption shall be evidenced by an Officer’s Certificate
from the Collateral Manager certifying that such conditions for a Tax Redemption have occurred. The election by a Majority of Preferred Shareholders to redeem the Notes pursuant to an Optional Redemption shall be evidenced by an Officer’s
Certificate from the Collateral Manager certifying that the conditions for an Optional Redemption have occurred.
(f) A redemption pursuant to Section 9.1(a), 9.1(b) or 9.1(c) shall not occur
unless (i) at least five (5) Business Days before the scheduled Redemption Date, (A) the Collateral Manager shall have furnished to the Trustee and the Note Administrator evidence (in a form reasonably satisfactory to the Trustee and the Note
Administrator) that the Collateral Manager, on behalf of the Issuer, has entered into a binding agreement or agreements with one or more financial institutions whose long-term unsecured debt obligations (other than such obligations whose
rating is based on the credit of a Person other than such institution) have a credit rating from Moody’s at least equal to the highest rating of any Notes then Outstanding or whose short-term unsecured debt obligations have a credit rating of
“P-1” or higher by Moody’s (as long as the term of such agreement is ninety (90) days or less), to sell (directly or by participation or other arrangement) all or part of the Collateral not later than
the Business Day immediately preceding the scheduled Redemption Date, (B) the Rating Agency Condition has been satisfied with respect to the applicable method of redemption, (C) the Collateral Manager shall have furnished to the Trustee and
the Note Administrator evidence (in a form reasonably satisfactory to the Trustee and the Note Administrator) that the Collateral Manager, on behalf of the Issuer, has entered into a binding agreement or agreements with the Retention Holder
(or an Affiliate or agent thereof) to sell (directly or by participation or other arrangement) all or part of the Collateral not later than the scheduled Redemption Date, or (D) KREF Holdings (or an Affiliate or agent thereof) has priced but
not yet closed another securitization transaction, and (ii) the related Sale Proceeds pursuant to clause (i)(A) or clause (i)(C), or the net proceeds
pursuant to clause (i)(D), as applicable, (in immediately available funds), together with all other available funds (including proceeds from the sale of the Collateral, Eligible
Investments maturing on or prior to the scheduled Redemption Date, all amounts in the Accounts and available Cash), shall be an aggregate amount sufficient to pay all amounts, payments, fees and expenses in accordance with the Priority of
Payments due and owing on such Redemption Date.
Section 9.2 Notice of Redemption.
(a) In connection with a Clean-up Call pursuant to Section 9.1(a), a Tax Redemption pursuant to Section
9.1(b), an Optional Redemption pursuant to Section 9.1(c), or an Auction Call Redemption pursuant to Section 9.1(d), the Note Administrator shall set the applicable Record Date ten (10) Business Days prior to the
proposed Redemption Date. The Note Administrator shall deliver to the Rating Agencies any notice received by it from the Issuer or the Special Servicer of such proposed Redemption Date, the applicable Record Date, the principal amount of
Notes to be redeemed on such Redemption Date and the Redemption Price of such Notes in accordance with Section 9.1.
(b) Any such notice of an Optional Redemption, Clean-up Call or Tax Redemption may be withdrawn by the
Issuer and the Co-Issuer at the direction of the Collateral Manager up to the second Business Day prior to the scheduled Redemption Date by written notice to the Note Administrator, the Trustee, the Preferred Share Paying Agent, the Servicer,
the Special Servicer, the Operating Advisor and each Holder of Notes to be redeemed. The failure of any Optional Redemption, Clean-up Call or Tax Redemption that is withdrawn in accordance with this Indenture shall not constitute an Event of
Default.
Section 9.3 Notice of Redemption or Maturity.
Any sale or disposition of a Collateral Interest by the Trustee in connection with an Optional Redemption, Clean-up Call, Tax Redemption or Auction Call Redemption shall be
performed upon Issuer Order by the Collateral Manager on behalf of the Issuer, and the Trustee shall have no responsibility or liability therefor. Notice of redemption (or a withdrawal thereof) or Clean-up Call pursuant to Section 9.1
or the Maturity of any Notes shall be given by first class mail, postage prepaid, mailed not less than ten (10) Business Days (or, where the notice of an Optional Redemption, a Clean-up Call or a Tax Redemption is withdrawn pursuant to Section
9.2(b), four (4) Business Days (or promptly thereafter upon receipt of written notice, if later)) prior to the applicable Redemption Date or Maturity, to (unless the Note Administrator agrees to a shorter notice period) the Collateral
Manager, the Trustee, the Servicer, the Special Servicer, the Preferred Share Paying Agent, the Rating Agencies, and each Securityholder to be redeemed, at its address in the Notes Register.
All notices of redemption shall state:
(a) the applicable Redemption Date;
(b) the applicable Redemption Price;
(c) that all the Notes are being paid in full and that interest on the Notes shall cease to accrue on the
Redemption Date specified in the notice; and
(d) the place or places where such Notes to be redeemed in whole are to be surrendered for payment of the
Redemption Price which shall be the office or agency of the Paying Agent as provided in Section 7.2.
Notice of redemption shall be given by the Issuer and Co-Issuer, or at their request, by the Note Administrator in their names, and at the expense of the Issuer. Failure
to give notice of redemption, or any defect therein, to any Holder of any Note shall not impair or affect the validity of the redemption of any other Notes.
Section 9.4 Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after the Redemption Date (unless the Issuer shall Default in the payment of the Redemption Price and accrued interest thereon) the Notes shall cease to bear interest on the Redemption Date. Upon final payment on a Note
to be redeemed, the Holder shall present and surrender such Note at the place specified in the notice of redemption on or prior to such Redemption Date; provided, however, that if there
is delivered to the Issuer, the Co-Issuer, the Note Administrator and the Trustee such security or indemnity as may be required by them to hold each of them harmless and an undertaking thereafter to surrender such Note, then, in the absence of
notice to the Issuer, the Note Administrator and the Trustee that the applicable Note has been acquired by a bona fide purchaser, such final payment shall be made without presentation or surrender. Payments of interest on the Notes so to be
redeemed whose Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such at the close of business on the relevant Record Date according to the terms and
provisions of Section 2.7(f).
If any Note called for redemption shall not be paid upon surrender thereof for redemption, the principal thereof shall, until paid, bear interest from the Redemption Date
at the applicable Note Interest Rate for each successive Interest Accrual Period the Note remains Outstanding.
Section 9.5 Mandatory Redemption.
(a) If either of the Offered Note Protection Tests is not satisfied as of any related Determination Date,
on the next Payment Date the Offered Notes shall be redeemed (a “Mandatory Redemption”), from Interest Proceeds as set forth in Section 11.1(a)(i)(14) in an amount necessary, and only to the extent necessary, for such Offered
Note Protection Test to be satisfied. On or promptly after such Mandatory Redemption, the Issuer shall certify or cause to be certified to the Rating Agencies, the Note Administrator and the Trustee whether the Offered Note Protection Tests
have been satisfied.
ARTICLE 10
ACCOUNTS, ACCOUNTINGS AND RELEASES
Section 10.1 Collection of Amounts; Custodial Account.
(a) Except as otherwise expressly provided herein, the Note Administrator may demand payment or delivery
of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all amounts and other property payable to or receivable by the Note Administrator pursuant to this Indenture,
including all payments due on the Collateral in accordance with the terms and conditions of such Collateral. The Note Administrator shall segregate and hold all such amounts and property received by it in an Eligible Account in trust for the
Secured Parties, and shall apply such amounts as provided in this Indenture. Any Indenture Account may include any number of subaccounts deemed necessary or appropriate by the Trustee for convenience in administering sub account.
(b) The Note Administrator in its capacity as Securities Intermediary on behalf of the Trustee for the
benefit of the Secured Parties (the “Securities Intermediary”) shall, upon receipt, credit all Collateral Interests and Eligible Investments to an account in its own name for the benefit of the Secured Parties designated as the “Custodial
Account.”
Section 10.2 Reinvestment and Replenishment Account.
(a) The Note Administrator shall, on or prior to the Closing Date, establish a single, segregated trust account which shall be designated as
the “Reinvestment and Replenishment Account,” which shall be held in trust in the name of the Note Administrator for the benefit of the Secured Parties and over which the Note Administrator shall have exclusive control and the sole right
of withdrawal; provided, however, that the Note Administrator shall only withdraw such amounts as directed by the Issuer or the Collateral Manager on behalf of the Issuer. All amounts credited to the Reinvestment and
Replenishment Account pursuant to Section 11.1(a)(ii) or otherwise shall be held by the Note Administrator as part of the Collateral and shall be applied to the purposes herein provided.
(b) The Note Administrator agrees to give the Issuer and the Collateral Manager prompt notice if it becomes aware that the Reinvestment and
Replenishment Account or any funds on deposit therein, or otherwise to the credit of the Reinvestment and Replenishment Account, becomes subject to any writ, order, judgment, warrant of attachment, execution or similar process. The Issuer
shall have no legal, equitable or beneficial interest in the Reinvestment and Replenishment Account other than in accordance with the Priority of Payments. The Reinvestment and Replenishment Account shall remain at all times an Eligible
Account.
(c) The Collateral Manager, on behalf of the Issuer, may direct the Note Administrator to, and upon such direction the Note Administrator
shall, invest all funds in the Reinvestment and Replenishment Account in Eligible Investments designated by the Collateral Manager, and in accordance with Section 11.2. All interest and other income from such
investments shall be deposited in the Reinvestment and Replenishment Account, any gain realized from such investments shall be credited to the Reinvestment and Replenishment Account, and any loss resulting from
such investments shall be charged to the Reinvestment and Replenishment Account. The Note Administrator shall not in any way be held liable (except as a result of negligence, willful misconduct or bad faith) by reason of any insufficiency of
such Reinvestment and Replenishment Account resulting from any loss relating to any such investment, except with respect to investments in obligations of the Note Administrator or any Affiliate thereof. Initially, funds in the Reinvestment and
Replenishment Account shall be held in Allspring 100% Treasury MM Fund #3177 until such time as the Collateral Manager provides written instructions directing the Note Administrator to reinvest them in another Eligible Investment or not to
invest them.
(d) Amounts in the Reinvestment and Replenishment Account shall remain in the Reinvestment and Replenishment Account (or invested in Eligible
Investments) until the earlier of (i) the time the Collateral Manager instructs the Note Administrator in writing to transfer any such amounts (or related Eligible Investments) to the Payment Account, (ii) the time the Collateral Manager
notifies the Note Administrator in writing that such amounts (or related Eligible Investments) are to be applied to the acquisition of Reinvestment Collateral Interests and Replenishment Collateral Interests in accordance with Section 12.2
and (iii) the first Business Day after the last day of the Replenishment Period. Upon receipt of notice pursuant to clause (i) above and on the date described in clause (iii) above, the Note Administrator shall transfer the
applicable amounts (or related Eligible Investments) to the Payment Account, in each case for application on the next Payment Date pursuant to Section 11.1(a)(ii) as Principal Proceeds.
(e) During the Reinvestment Period (and up to sixty (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) or the Replenishment Period, as applicable, the Collateral Manager on
behalf of the Issuer may, by notice to the Note Administrator, direct the Note Administrator to, and upon receipt of such notice the Note Administrator shall, reinvest amounts (and related Eligible Investments) credited to the Reinvestment and
Replenishment Account in Real Estate Loans and Participations selected by the Collateral Manager as permitted under and in accordance with the requirements of Article 12 and such notice. The Note Administrator shall be entitled to
conclusively rely on such notice and shall not be required to make any determination as to whether any loans or participations satisfy the Eligibility Criteria, the Acquisition Criteria or the Acquisition and Disposition Requirements.
(f) During the Reinvestment Period and the Replenishment Period, upon certification in the form of
Officer’s Certificate by the Collateral Manager to the Servicer and the Note Administrator (which the Servicer and the Note Administrator may rely upon without further inquiry) that (i) the Offered
Note Protection Tests were satisfied as of the immediately preceding Payment Date and (ii) the Collateral Manager reasonably expects the Offered Note Protection Tests to be satisfied on the immediately succeeding Payment Date, the Servicer
shall, pursuant to the Servicing Agreement, remit any Unscheduled Principal Payments to the Note Administrator for deposit into the Reinvestment and Replenishment Account prior to a Payment Date and such Principal Proceeds available for
distribution in accordance with the Priority of Payments will be reduced accordingly. Upon receipt of such Officer’s Certificate by the Note
Administrator and receipt of such funds from the Servicer, the Note Administrator shall be entitled to release any such funds to acquire Reinvestment Collateral Interests or Replenishment Collateral Interests, as
applicable, upon direction from the Collateral Manager.
Section 10.3 Payment Account.
(a) The Note Administrator shall, on or prior to the Closing Date, establish a single, segregated trust
account which shall be designated as the “Payment Account,” which shall be held in trust in the name of the Note Administrator for the benefit of the Secured Parties and over which the Note Administrator shall have exclusive control
and the sole right of withdrawal. All funds received by the Note Administrator from the Servicer on each Remittance Date shall be credited to the Payment Account. Any and all funds at any time on deposit in, or otherwise to the credit of,
the Payment Account shall be held in trust by the Note Administrator, on behalf of the Trustee for the benefit of the Secured Parties. Except as provided in Sections 11.1 and 11.2, the only permitted withdrawal from or
application of funds on deposit in, or otherwise to the credit of, the Payment Account shall be (i) to pay the interest and the principal on the Notes and make other payments in respect of the Notes in accordance with their terms and the
provisions of this Indenture, (ii) to deposit into the Preferred Share Distribution Account for distributions to the Preferred Shareholders, (iii) upon Issuer Order, to pay other amounts specified therein, and (iv) otherwise to pay amounts
payable pursuant to and in accordance with the terms of this Indenture, each in accordance with the Priority of Payments.
(b) The Note Administrator agrees to give the Issuer and the Collateral Manager prompt notice if it becomes
aware that the Payment Account or any funds on deposit therein, or otherwise to the credit of the Payment Account, becomes subject to any writ, order, judgment, warrant of attachment, execution or similar process. The Issuer shall have no
legal, equitable or beneficial interest in the Payment Account other than in accordance with the Priority of Payments. The Payment Account shall remain at all times an Eligible Account.
Section 10.4 [Reserved]
Section 10.5 Expense Reserve Account.
(a) The Note Administrator shall, on or prior to the Closing Date, establish a single, segregated trust account which shall be designated as
the “Expense Reserve Account,” which shall be held in trust in the name of the Note Administrator for the benefit of the Secured Parties and over which the Note Administrator shall have exclusive control and the sole right of
withdrawal. The only permitted withdrawal from or application of funds on deposit in, or otherwise standing to the credit of, the Expense Reserve Account shall be to pay (on any day other than a Payment Date), accrued and unpaid Company
Administrative Expenses (other than accrued and unpaid expenses and indemnities payable to the Collateral Manager under the Collateral Management Agreement); provided that the Collateral Manager shall be entitled (but not required) without liability on its part, to direct the Note Administrator to refrain from making any such payment of a Company Administrative Expense on any day other than
a Payment Date if, in its reasonable determination, taking into account the Priority of Payments, the payment of such amounts is likely to leave insufficient funds available to pay in full each of the items payable prior thereto in the Priority
of Payments on the next succeeding Payment Date. At the
direction of the Collateral Manager to the Note Administrator, amounts credited to the Expense Reserve Account may be applied on or prior to the Determination Date preceding the first Payment Date to pay amounts
due in connection with the offering of the Notes. On or after the first Payment Date, any amount remaining in the Expense Reserve Account may, at the election of the Collateral Manager, be designated as Interest Proceeds. On the date on which
all or substantially all of the Issuer’s assets have been sold or otherwise disposed of, the Issuer by Issuer Order executed by an Authorized Officer of the Collateral Manager shall direct the Note Administrator to, and upon receipt of such
Issuer Order, the Note Administrator shall, transfer all amounts on deposit in the Expense Reserve Account to the Payment Account for application pursuant to Section 11.1(a)(i) as Interest Proceeds.
(b) On each Payment Date, the Collateral Manager may designate Interest Proceeds (in an amount not to exceed $100,000 on such Payment Date)
after application of amounts payable pursuant to clauses (1) through (19) of Section 11.1(a)(i) for deposit into the Expense Reserve Account.
(c) The Note Administrator agrees to give the Issuer and the Collateral Manager prompt notice if it becomes aware that the Expense Reserve
Account or any funds on deposit therein, or otherwise to the credit of the Expense Reserve Account, becomes subject to any writ, order, judgment, warrant of attachment, execution or similar process.
The Issuer shall have no legal, equitable or beneficial interest in the Expense Reserve Account other than in accordance with the Priority of Payments. The Expense Reserve Account shall remain at all times an Eligible Account.
(d) The Collateral Manager, on behalf of the Issuer, may direct the Note Administrator to, and upon such direction the Note Administrator
shall, invest all funds in the Expense Reserve Account in Eligible Investments designated by the Collateral Manager. All interest and other income from such investments shall be deposited in the Expense Reserve Account, any gain realized from
such investments shall be credited to the Expense Reserve Account, and any loss resulting from such investments shall be charged to the Expense Reserve Account. The Note Administrator shall not in any way be held liable (except as a result of
negligence, willful misconduct or bad faith) by reason of any insufficiency of such Expense Reserve Account resulting from any loss relating to any such investment. If the Note Administrator does not receive written investment instructions from
an Authorized Officer of the Collateral Manager, funds in the Expense Reserve Account shall be held uninvested.
Section 10.6 [Reserved]
Section 10.7 Interest Advances.
(a) With respect to each Payment Date for which the sum of Interest Proceeds collected during the related
Due Period and remitted to the Note Administrator are insufficient to remit the interest due and payable with respect to the Class A Notes, the Class A-S Notes and the Class B Notes on such Payment Date in accordance with Section 11.1
as a result of interest shortfalls on the Class A Notes, the Class A-S Notes and the Class B Notes (or the application of interest received on the Class A Notes, the Class A-S Notes and the Class B Notes to pay certain expenses in accordance
with the terms of the Servicing Agreement) (the amount of such
insufficiency, an “Interest Shortfall”), the Note Administrator shall provide the Advancing Agent with email notice of such Interest Shortfall no later than the close of
business on the Business Day preceding such Payment Date, at the following address: KREF2022FL3@kkr.com, or such other email address as provided by the Advancing Agent to the Note Administrator. The
Note Administrator shall provide the Advancing Agent with additional email notice, prior to any funding of an Interest Advance by the Advancing Agent, of any additional interest remittances received by the Note Administrator after delivery of
such initial notice that reduces such Interest Shortfall. No later than 10:00 a.m. (New York time) on the related Payment Date, the Advancing Agent shall advance the difference between such amounts (each such advance, an “Interest Advance”)
by deposit of an amount equal to such Interest Advance in the Payment Account, subject to a determination of recoverability by the Advancing Agent as described in Section 10.7(b), and subject to a maximum limit with respect to any
Payment Date equal to the lesser of (i) the aggregate amount of the Interest Shortfalls that would otherwise occur on the Class A Notes, the Class A-S Notes and the Class B Notes on such Payment Date and (ii) the aggregate amount of the
interest payments not received in respect of Collateral Interests with respect to such Payment Date (including, for such purpose, interest payments received but applied to pay certain expenses in accordance with the terms of the Servicing
Agreement).
Notwithstanding the foregoing, in no circumstance will the Advancing Agent, the Backup Advancing Agent or the Trustee be required to make an Interest Advance in respect of
a Collateral Interest to the extent that the aggregate outstanding amount of all unreimbursed Interest Advances would exceed the Aggregate Outstanding Amount of the Class A Notes, the Class A-S Notes and the Class B Notes. In addition, in no
event will the Advancing Agent, the Backup Advancing Agent or the Trustee be required to advance any payments in respect of interest on any Class of Notes other than the Class A Notes, the Class A-S Notes and the Class B Notes or principal of
any Note. Any Interest Advance made by the Advancing Agent with respect to a Payment Date that is in excess of the actual Interest Shortfall for such Payment Date shall be refunded to the Advancing Agent by the Note Administrator on the
related Payment Date (or, if such Interest Advance is made prior to final determination by the Note Administrator of such Interest Shortfall, on the Business Day of such final determination).
The Advancing Agent shall provide the Note Administrator written notice of a determination by the Advancing Agent that a proposed Interest Advance would constitute a
Nonrecoverable Interest Advance no later than 10:00 a.m. (New York time) on the related Payment Date. If the Advancing Agent shall fail to make any required Interest Advance by 10:00 a.m. (New York time) on the Payment Date upon which
distributions are to be made pursuant to Section 11.1(a)(i), the Collateral Manager shall remove the Advancing Agent in its capacity as advancing agent hereunder as required under Section 16.5(d) and the Backup Advancing Agent
shall be required to make such Interest Advance no later than 11:00 a.m. (New York time) on the Payment Date, subject to a determination of recoverability by the Backup Advancing Agent as described in Section 10.7(b). If the Backup Advancing Agent fails to make any required Interest Advance by 11:00 a.m. on the Payment Date, then the Backup Advancing Agent shall notify the Trustee, via email at
cmbstrustee@wilmingtontrust.com no later than 11:00 a.m. on the Payment Date and shall furnish to the Trustee any information requested by the Trustee to determine recoverability of such Interest Advance. The Trustee shall, based on its
determination of recoverability, make such Interest Advance no later than 3:00 p.m. on the Payment Date. The Trustee shall be entitled to conclusively rely on any notice given by the
Advancing Agent or Backup Advancing Agent with respect to a Nonrecoverable Interest Advance hereunder. Based upon available information at the time,
the Backup Advancing Agent and the Advancing Agent or the Collateral Manager, as applicable, will provide fifteen (15) days prior notice to the Rating Agencies if recovery of a Nonrecoverable Interest Advance would result in an Interest
Shortfall on the next succeeding Payment Date. No later than the close of business on the Determination Date related to a Payment Date on which the recovery of a Nonrecoverable Interest Advance would result in an Interest Shortfall, the Backup
Advancing Agent or the Collateral Manager, as applicable, shall provide the Rating Agencies notice of such recovery.
(b) Notwithstanding anything herein to the contrary, none of the Advancing Agent, the Backup Advancing
Agent or the Trustee, as applicable, shall be required to make any Interest Advance unless such Person determines, in its sole discretion, exercised in good faith that such Interest Advance, or such proposed Interest Advance, plus interest
expected to accrue thereon at the Reimbursement Rate, will not be a Nonrecoverable Interest Advance. In determining whether any proposed Interest Advance will be, or whether any Interest Advance previously made is, a Nonrecoverable Interest
Advance, the Advancing Agent, the Backup Advancing Agent or the Trustee, as applicable, will take into account certain factors, including but not limited to:
(i) amounts that may be realized on each Mortgaged Property in its “as is” or
then-current condition and occupancy;
(ii) the potential length of time before such Interest Advance may be reimbursed and the
resulting degree of uncertainty with respect to such reimbursement;
(iii) the possibility and effects of future adverse changes with respect to the
Mortgaged Properties, and
(iv) the fact that Interest Advances are intended to provide liquidity only and not
credit support to the Holders of the Class A Notes, the Class A-S Notes or the Class B Notes.
For purposes of any such determination of whether an Interest Advance constitutes or would constitute a Nonrecoverable Interest Advance, an Interest Advance will be deemed
to be nonrecoverable if the Advancing Agent, the Backup Advancing Agent or the Trustee, as applicable, determines that future Interest Proceeds and Principal Proceeds may be ultimately insufficient to fully reimburse such Interest Advance, plus
interest thereon at the Reimbursement Rate within a reasonable period of time. The Backup Advancing Agent and the Trustee will be entitled to conclusively rely on any affirmative determination by the Advancing Agent that an Interest Advance
would have been a Nonrecoverable Interest Advance. Absent bad faith, the determination by the Advancing Agent, the Backup Advancing Agent or the Trustee, as applicable, as to the nonrecoverability of any Interest Advance shall be conclusive
and binding on the Holders of the Class A Notes, the Class A-S Notes and the Class B Notes.
(c) Each of the Advancing Agent, the Backup Advancing Agent and the Trustee may recover any previously
unreimbursed Interest Advance made by it (including any
Nonrecoverable Interest Advance), together with interest thereon, first, from Interest Proceeds and second
(to the extent that there are insufficient Interest Proceeds for such reimbursement), from Principal Proceeds to the extent that such reimbursement would not trigger an additional Interest Shortfall; provided that if at any time an
Interest Advance is determined to be a Nonrecoverable Interest Advance, the Advancing Agent, the Backup Advancing Agent or the Trustee shall be entitled to recover all outstanding Interest Advances from the Collection Account pursuant to the
Servicing Agreement on any Business Day during any Interest Accrual Period prior to the related Determination Date. The Advancing Agent shall be permitted (but not obligated) to defer or otherwise structure the timing of recoveries of
Nonrecoverable Interest Advances in such manner as the Advancing Agent determines is in the best interest of the Holders of the Notes, as a collective whole, which may include being reimbursed for Nonrecoverable Interest Advances in
installments.
(d) The Advancing Agent, the Backup Advancing Agent and the Trustee will each be entitled with respect to
any Interest Advance made by it (including Nonrecoverable Interest Advances) to interest accrued on the amount of such Interest Advance for so long as it is outstanding at the Reimbursement Rate.
(e) The obligations of the Advancing Agent, the Backup Advancing Agent and the Trustee to make Interest
Advances in respect of the Class A Notes, the Class A-S Notes and the Class B Notes shall continue through the Stated Maturity Date of the Class A Notes, the Class A‑S Notes and the Class B Notes unless the Class A Notes, the Class A‑S Notes
and the Class B Notes redeemed or repaid in full.
(f) In no event will the Advancing Agent, in its capacity as such hereunder or the Note Administrator, in
its capacity as Backup Advancing Agent hereunder, or the Trustee, be required to advance any amounts in respect of payments of principal of any Collateral Interest or Note.
(g) In consideration of the performance of its obligations hereunder, the Advancing Agent shall be entitled
to receive, at the times set forth herein and subject to the Priority of Payments, to the extent funds are available therefor, the Advancing Agent Fee. For so long as the Seller (or one of its Affiliates) (i) is the Advancing Agent and (ii)
owns the Preferred Shares, the Advancing Agent hereby agrees, on behalf of itself and its affiliates, to waive its rights to receive the Advancing Agent Fee and any Reimbursement Interest. The Note Administrator shall not be entitled to an
additional fee in respect of its role as Backup Advancing Agent. If the Advancing Agent is terminated for failing to make an Interest Advance hereunder (as provided in Section 16.5(d)) (or for failing to make a Servicing Advance
under the Servicing Agreement) that the Advancing Agent did not determine to be nonrecoverable, the Backup Advancing Agent, the Trustee or any applicable subsequent successor advancing agent will be entitled to receive the Advancing Agent Fee
(plus Reimbursement Interest on any Interest Advances, in the case of the Backup Advancing Agent or the Trustee or successor advancing agent, or Servicing Advance made by the successor advancing agent) and shall make Interest Advances until a
successor Advancing Agent is appointed under this Indenture.
(h) The determination by the Advancing Agent, the Backup Advancing Agent or the Trustee (each in its
capacity as successor Advancing Agent), as applicable, (i) that it has
made a Nonrecoverable Interest Advance (together with Reimbursement Interest thereon) or (ii) that any proposed Interest Advance, if made, would constitute a Nonrecoverable Interest Advance,
shall be evidenced by an Officer’s Certificate delivered promptly to the Trustee, the Note Administrator, the Issuer and the 17g-5 Information Provider, setting forth the basis for such determination; provided that failure to give such
notice, or any defect therein, shall not impair or affect the validity of, or the Advancing Agent or the Backup Advancing Agent, entitlement to reimbursement with respect to, any Interest Advance.
(i) With respect to any Interest Advance made by the Trustee, the Trustee shall succeed to all of the
Backup Advancing Agent’s rights, protections and immunities hereunder, including, without limitation, the Backup Advancing Agent’s rights of reimbursement and interest on each Interest Advance at the reimbursement rate, the Advancing Agent
Fee and the right to determine that a proposed Interest Advance is a Nonrecoverable Interest Advance. Without limiting the generality of the foregoing, all references to “Backup Advancing Agent” in Section 11.1 relating to
reimbursing the Backup Advancing Agent for any Interest Advance or interest thereon shall include the “Trustee,” so the Note Administrator shall be entitled to withdraw from the Payment Account any amounts available to pay the Trustee,
reimburse the Trustee for such Interest Advances and other items and use such amounts instead to reimburse the Trustee for such Interest Advances; provided that the Trustee shall have priority over the Backup Advancing Agent for such
reimbursements.
(j) The Trustee will remain eligible to act as Backup Advancing Agent for so long as it maintains its
eligibility requirements as Trustee under Section 6.8.
Section 10.8 Reports by Parties.
(a) The Note Administrator shall supply, in a timely fashion, to the Issuer, the Trustee, the Servicer, the
Special Servicer and the Collateral Manager any information regularly maintained by the Note Administrator that the Issuer, the Trustee, the Servicer, the Special Servicer or the Collateral Manager may from time to time request in writing
with respect to the Collateral or the Indenture Accounts and provide any other information reasonably available to the Note Administrator by reason of its acting as Note Administrator hereunder and required to be provided by Section 10.9
or to permit the Collateral Manager to perform its obligations under the Collateral Management Agreement. Each of the Issuer, the Servicer, and the Special Servicer shall promptly forward to the Collateral Manager, the Trustee and the Note
Administrator any information in their possession or reasonably available to them concerning any of the Collateral that the Trustee or the Note Administrator reasonably may request or that reasonably may be necessary to enable the Note
Administrator to prepare any report or to enable the Trustee or the Note Administrator to perform any duty or function on its part to be performed under the terms of this Indenture.
Section 10.9 Reports; Accountings.
(a) Based primarily on the CREFC®
Loan Periodic Update File prepared by the Servicer with respect to the Serviced Real Estate Loans and delivered by the Servicer to the Note Administrator no later than 2:00 p.m. (New York time) on the second Business Day before the
Remittance Date, the Note Administrator shall prepare and make available on its website
initially located at www.ctslink.com (or, upon written request from registered Holders of the Notes or from those parties that cannot receive such
statement electronically, provide by first class mail), on each Payment Date to Privileged Persons, a report substantially in the form of Exhibit G hereto (the “Monthly Report”), setting forth the following information:
(i) the amount of the distribution of principal and interest on such Payment Date to
the Noteholders and any reduction of the Aggregate Outstanding Amount of the Notes;
(ii) the aggregate amount of compensation paid to the Note Administrator, the Trustee
and servicing compensation paid to the Servicer during the related Due Period;
(iii) the Aggregate Outstanding Portfolio Balance outstanding immediately before and
immediately after the Payment Date;
(iv) the number, Aggregate Outstanding Portfolio Balance, weighted average remaining
term to maturity and weighted average interest rate of the Collateral Interests as of the end of the related Due Period;
(v) the number and Aggregate Principal Balance of Collateral Interests that are (A)
delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent ninety (90) days or more and (D) current but Specially Serviced Loans or in foreclosure but not an REO Property;
(vi) the value of any REO Property owned by the Issuer or any Permitted Subsidiary as of
the end of the related Due Period, on an individual Collateral Interest basis, based on the most recent appraisal or valuation;
(vii) the amount of Interest Proceeds and Principal Proceeds received in the related Due
Period;
(viii) the amount of any Interest Advances made by the Advancing Agent, the Backup
Advancing Agent or the Trustee, as applicable;
(ix) the payments due pursuant to the Priority of Payments with respect to each clause
thereof;
(x) the number and related principal balances of any Collateral Interests that have been
(or are related to Real Estate Loans that have been) extended or modified during the related Due Period on an individual Collateral Interest basis;
(xi) the amount of any remaining unpaid Interest Shortfalls as of the close of business
on the Payment Date;
(xii) a listing of each Collateral Interest that was the subject of a principal
prepayment during the related collection period and the amount of principal prepayment occurring;
(xiii) the aggregate unpaid principal balance of the Collateral Interests outstanding as
of the close of business on the related Determination Date;
(xiv) with respect to any Collateral Interest as to which a liquidation occurred during
the related Due Period (other than through a payment in full), (A) the number thereof and (B) the aggregate of all liquidation proceeds which are included in the Payment Account and other amounts received in connection with the liquidation
(separately identifying the portion thereof allocable to distributions of the Notes);
(xv) with respect to any REO Property owned by the Issuer or any Permitted Subsidiary
thereof, as to which the Special Servicer determined that all payments or recoveries with respect to the related property have been ultimately recovered during the related collection period, (A) the related Collateral Interest and (B) the
aggregate of all liquidation proceeds and other amounts received in connection with that determination (separately identifying the portion thereof allocable to distributions on the Securities);
(xvi) the amount on deposit in the Expense Reserve Account;
(xvii) the aggregate amount of interest on monthly debt service advances in respect of the
Collateral Interests paid to the Advancing Agent, the Backup Advancing Agent and/or the Trustee since the prior Payment Date;
(xviii) a listing of each modification, extension or waiver made with respect to each
Collateral Interest;
(xix) an itemized listing of any Special Servicing Fees received from the Special Servicer
or any of its affiliates during the related Due Period;
(xx) the amount of any dividends or other distributions to the Preferred Shares on the
Payment Date; and
(xxi) the Net Outstanding Portfolio Balance.
(b) The Note Administrator will post on the Note Administrator’s Website, any report received from the
Servicer or Special Servicer detailing any breach of the representations and warranties with respect to any Collateral Interest by the Seller or any of its affiliates and the steps taken by the Seller or any of its affiliates to cure such
breach; a listing of any breach of the representations and warranties with respect to any Collateral Interest by the Seller or any of its affiliates and the steps taken by the Seller or any of its affiliates to cure such breach;
(c) All information made available on the Note Administrator’s Website will be restricted and the Note
Administrator will only provide access to such reports to Privileged Persons in accordance with this Indenture. In connection with providing access to its website, the Note Administrator may require registration and the acceptance of a
disclaimer.
(d) Not more than five (5) Business Days after receiving an Issuer Request requesting information regarding
a Clean-up Call, a Tax Redemption, an Auction Call
Redemption or an Optional Redemption as of a proposed Redemption Date, the Note Administrator shall, subject to its timely receipt of the necessary information to the extent not in its
possession, compute the following information and provide such information in a statement (the “Redemption Date Statement”) delivered to the Collateral Manager and the Preferred Share Paying Agent:
(i) the Aggregate Outstanding Amount of the Notes of the Class or Classes to be
redeemed as of such Redemption Date;
(ii) the amount of accrued interest due on such Notes as of the last day of the Due
Period immediately preceding such Redemption Date;
(iii) the Redemption Price;
(iv) the sum of all amounts due and unpaid under Section 11.1(a) (other than
amounts payable on the Notes being redeemed or to the Noteholders thereof); and
(v) the amounts in the Collection Account and the Indenture Accounts (other than the
Preferred Share Distribution Account) available for application to the redemption of such Notes.
(e) [reserved]
(f) Commencing after the quarter ending on March 31, 2022, the Issuer shall provide quarterly updates on the status of the business plan for
each Collateral Interest, which reports shall be sent to CREBondAdmin@wellsfargo.com and posted to the Note Administrator’s Website.
Section 10.10 Release of Collateral Interests; Release of Collateral.
(a) If no Event of Default has occurred and is continuing and subject to Article 12, the Issuer (or
the Collateral Manager on its behalf) may direct the Trustee to release a Pledged Collateral Interest from the lien of this Indenture, by Issuer Order delivered to the Trustee and the Custodian at least two (2) Business Days prior to the
settlement date for any sale of a Pledged Collateral Interest, which Issuer Order shall be accompanied by a certification of the Collateral Manager that (i) the Pledged Collateral Interest has been sold pursuant to and in compliance with Article
12 or (ii) in the case of a redemption pursuant to Section 9.1, the proceeds from any such sale of Collateral Interests are sufficient to redeem the Notes pursuant to Section 9.1 and pay all Company Administrative
Expenses then due and payable, and, upon receipt of a Request for Release of such Collateral Interest from the Collateral Manager, the Servicer or the Special Servicer, the Custodian shall deliver any such Pledged Collateral Interest, if in
physical form, duly endorsed to the broker or purchaser designated in such Issuer Order or to the Issuer if so requested in the Issuer Order, or, if such Pledged Collateral Interest is represented by a Security Entitlement, cause an
appropriate transfer thereof to be made, in each case against receipt of the sales price therefor as set forth in such Issuer Order. If requested, the Custodian may deliver any such Pledged Collateral Interest in physical form for
examination (prior to receipt of the sales proceeds) in accordance with street delivery custom. The Custodian shall (i) deliver any agreements and other documents in its possession relating to such Pledged
Collateral Interest and (ii) the Trustee, if applicable, duly assign each such agreement and other document, in each case, to the broker or purchaser designated in such Issuer Order or to the
Issuer if so requested in the Issuer Order.
(b) The Issuer (or the Collateral Manager on behalf of the Issuer) may deliver to the Trustee and Custodian
at least three (3) Business Days prior to the date set for redemption or payment in full of a Pledged Collateral Interest, an Issuer Order certifying that such Pledged Collateral Interest is being paid in full. Thereafter, the Collateral
Manager, the Servicer or the Special Servicer, by delivery of a Request for Release, may direct the Custodian to deliver such Pledged Collateral Interest and the related Collateral Interest File therefor on or before the date set for
redemption or payment, to the Collateral Manager, the Servicer or the Special Servicer for redemption against receipt of the applicable redemption price or payment in full thereof.
(c) With respect to any Collateral Interest subject to a workout or restructuring, the Issuer (or the
Collateral Manager on behalf of the Issuer) may, by Issuer Order delivered to the Trustee and Custodian at least two (2) Business Days prior to the date set for an exchange, tender or sale, certify that a Collateral Interest is subject to a
workout or restructuring and setting forth in reasonable detail the procedure for response thereto. Thereafter, the Collateral Manager, the Servicer or the Special Servicer may, in accordance with the terms of, and subject to any required
consent and consultation obligations set forth in the Servicing Agreement, direct the Custodian, by delivery to the Custodian of a Request for Release, to deliver any Collateral to the Collateral Manager, the Servicer or the Special Servicer
in accordance with such Request for Release.
(d) The Special Servicer shall remit to the Servicer for deposit into the Collection Account any net
proceeds received by it from the disposition of a Pledged Collateral Interest and treat such proceeds as Principal Proceeds, for remittance by the Servicer to the Note Administrator on the first Remittance Date occurring thereafter. None of
the Trustee, the Note Administrator or the Securities Intermediary shall be responsible for any loss resulting from delivery or transfer of any such proceeds prior to receipt of payment in accordance herewith.
(e) The Trustee shall, upon receipt of an Issuer Order declaring that there are no Notes Outstanding and
all obligations of the Issuer hereunder have been satisfied, release the Collateral from the lien of this Indenture.
(f) Upon receiving actual notice of any offer or any request for a waiver, consent, amendment or other
modification with respect to any Collateral Interest, or in the event any action is required to be taken in respect to a Loan Document, the Special Servicer on behalf of the Issuer will promptly notify the Collateral Manager and the Servicer
of such request, and the Special Servicer shall grant any waiver or consent, and enter into any amendment or other modification pursuant to the Servicing Agreement in accordance with the Servicing Standard, except with respect to any
Administrative Modifications and Criteria-Based Modifications, which will be analysed, processed and executed solely by the Collateral Manager. In the case of any modification or amendment that
results in the release of the related Collateral Interest, notwithstanding anything to the contrary in Section 5.5(a), the Custodian, upon receipt of a Request for Release, shall release the related Collateral Interest File upon the
written instruction of the Servicer or the Special Servicer, as applicable.
Section 10.11 [Reserved]
Section 10.12 Information Available Electronically.
(a) The Note Administrator shall make available to any Privileged Person the following items (in each case,
as applicable, to the extent received by it) by means of the Note Administrator’s Website the following items (to the extent such items were prepared by or delivered to the Note Administrator in electronic format):
(i) The following documents, which will initially be available under a tab or heading
designated “deal documents”:
(1) the final Offering Memorandum related to the Offered Notes;
(2) this Indenture, and any schedules, exhibits and supplements thereto;
(3) the CREFC®
Loan Setup file;
(4) the Issuer Charter;
(5) the Servicing Agreement, any schedules, exhibits and supplements thereto; and
(6) the Preferred Share Paying Agency Agreement, and any schedules, exhibits and
supplements thereto;
(ii) The following documents will initially be available under a tab or heading
designated “periodic reports”:
(1) the Monthly Reports prepared by the Note Administrator pursuant to Section
10.9(a);
(2) certain information and reports specified in the Servicing Agreement (including the
collection of reports specified by CRE Finance Council or any successor organization reasonably acceptable to the Note Administrator and the Servicer) known as the “CREFC® Investor Reporting Package” relating to the Collateral Interests to the extent that the Note Administrator receives such information and reports from the Servicer and the Special Servicer from time to time; and
(3) any quarterly updates on the status of the business plan for each Collateral
Interest delivered by the Issuer to the Note Administrator;
(iii) The following documents, which will initially be available under a tab or heading
designated “additional documents”:
(1) inspection reports delivered to the Note Administrator under the terms of the
Servicing Agreement;
(2) appraisals delivered to the Note Administrator under the terms of the Servicing
Agreement;
(3) any quarterly updates on the status of the business plan for each Collateral
Interest delivered by the Issuer to the Note Administrator; and
(4) the Issuer hereby directs the Note Administrator to post any reports or such other
information that, from time to time, the Issuer or the Special Servicer provides to the Note Administrator to be made available on the Note Administrator’s Website;
(iv) The following documents, which will initially be available under a tab or heading
designated “special notices”:
(1) notice of final payment on the Notes delivered to the Note Administrator pursuant to
Section 2.7(d);
(2) notice of termination of the Servicer or the Special Servicer;
(3) notice of a Servicer Termination Event or a Special Servicer Termination Event, each
as defined in the Servicing Agreement and delivered to the Note Administrator under the terms of the Servicing Agreement;
(4) notice of the resignation of any party to this Indenture and notice of the
acceptance of appointment of a replacement for any such party, to the extent such notice is prepared or received by the Note Administrator;
(5) officer’s certificates supporting the determination that any Interest Advance was
(or, if made, would be) a Nonrecoverable Interest Advance delivered to the Note Administrator pursuant to Section 10.7(b);
(6) any direction received by the Note Administrator from the Collateral Manager for the
termination of the Special Servicer during any period when such Person is entitled to make such a direction, and any direction of a Majority of the Notes to terminate the Special Servicer;
(7) any direction received by the Note Administrator from a Majority of the Controlling
Class or a Supermajority of the Notes for the termination of the Note Administrator or the Trustee pursuant to Section 6.9(c);
(8) any notices from the Designated Transaction Representative with respect to any
Benchmark Transition Event, Benchmark Replacement Date,
Benchmark Replacement, Benchmark Replacement Adjustment or any supplemental indenture implementing Benchmark Replacement Conforming Changes;
(9) any notice or documents provided to the Note Administrator by the Collateral Manager
or the Servicer directing the Note Administrator to post to the “special notices” tab; and
(10) any notice of a proposed supplement, amendment or modification to this Indenture;
(v) Any notices required pursuant to the EU/UK Risk Retention Letter and provided by the
EU/UK Retention Holder, the Retention Holder, or the Collateral Manager to the Note Administrator, which will initially be available under a tab or heading designated “EU/UK Risk Retention” (and the Note Administrator shall email notification
to any Privileged Person (other than market data providers) that has registered to receive access to the Note Administrator’s Website that a notice has been posted under the tab or heading designated “EU/UK Risk Retention”);
(vi) the following notices provided by the Retention Holder or the Collateral Manager to
the Note Administrator, if any, which will initially be available under a tab or heading designated “U.S. Risk Retention Special Notices”:
(1) any changes to the fair values set forth in the “U.S. Credit Risk
Retention” section of the Offering Memorandum between the date of the Offering Memorandum and the Closing Date;
(2) any material differences between the valuation methodology or any of the key inputs and assumptions that were used in
calculating the fair value or range of fair values prior to the pricing of the Securities and the Closing Date; and
(3) any noncompliance of the applicable credit risk retention requirements under the credit risk retention requirements under
Section 15G of the Exchange Act by the Retention Holder or a Subsequent Retaining Holder as and to the extent the Sponsor is required under the credit risk retention requirements under Section 15G of the Exchange Act;
(vii) the “Investor Q&A Forum” pursuant to Section 10.13; and
(viii) solely to the Noteholders and holders of any Preferred Shares, the “Investor
Registry” pursuant to Section 10.13.
The Note Administrator shall, in addition to posting the applicable notices on the “U.S. Risk Retention Special Notices” tab, provide email notification to any Privileged
Person (other than market data providers) that has registered to receive access to the Note Administrator’s Website that a notice has been posted to the “U.S. Risk Retention Special Notices” tab.
Privileged Persons who execute Exhibit H-2 shall only be entitled to access the Monthly Report, and shall not have access to any other information on the Note
Administrator’s Website.
The Note Administrator’s Website shall initially be located at www.ctslink.com. The foregoing information shall be made available by the Note Administrator on the Note Administrator’s Website promptly following receipt. The Note Administrator may change the titles of the tabs and headings on portions of its
website, and may re-arrange the files as it deems proper. The Note Administrator shall have no obligation or duty to verify, confirm or otherwise determine whether the information being delivered is accurate, complete, conforms to the
transaction, or otherwise is or is not anything other than what it purports to be. In the event that any such information is delivered or posted in error, the Note Administrator may remove it from the Note Administrator’s Website. The Note
Administrator has not obtained and shall not be deemed to have obtained actual knowledge of any information posted to the Note Administrator’s Website to the extent such information was not produced by the Note Administrator. In connection
with providing access to the Note Administrator’s Website, the Note Administrator may require registration and the acceptance of a disclaimer. The Note Administrator shall not be liable for the dissemination of information in accordance with
the terms of this Indenture, makes no representations or warranties as to the accuracy or completeness of such information being made available, and assumes no responsibility for such information.
Assistance in using the Note Administrator’s Website can be obtained by calling (866) 846-4526.
Section 10.13 Investor Q&A Forum; Investor Registry.
(a) The Note Administrator shall make the “Investor Q&A Forum” available to Privileged Persons
and prospective purchasers of Notes by means of the Note Administrator’s Website, where the Noteholders (including beneficial owners of Notes) may (i) submit inquiries to the Note Administrator relating to the Monthly Reports, and submit
inquiries to the Collateral Manager, the Servicer or the Special Servicer (each, a “Q&A Respondent”) relating to any servicing reports prepared by that party, the Collateral Interests, or the properties related thereto (each an “Inquiry”
and collectively, “Inquiries”), and (ii) view Inquiries that have been previously submitted and answered, together with the answers thereto. Upon receipt of an Inquiry for a Q&A Respondent, the Note Administrator shall forward the
Inquiry to the applicable Q&A Respondent, in each case via email or such other method as the Note Administrator and the Servicer or the Special Servicer agree within a commercially reasonable period of time following receipt thereof.
Following receipt of an Inquiry, the Note Administrator and the applicable Q&A Respondent, unless such party determines not to answer such Inquiry as provided below, shall reply to the Inquiry, which reply of the applicable Q&A
Respondent shall be by email to the Note Administrator, the Servicer and the Special Servicer or such other method as the Note Administrator and the Servicer or the Special Servicer will agree. The Note Administrator shall post (within a
commercially reasonable period of time following preparation or receipt of such answer, as the case may be) such Inquiry and the related answer to the Note Administrator’s Website. If the Note Administrator or the applicable Q&A
Respondent determines, in its respective sole discretion, that (i) any Inquiry is not of a type described above, (ii) answering any Inquiry would not be in the best interests of the Issuer or the Noteholders, (iii) answering any Inquiry would
be in violation of applicable law, the Loan Documents, the
Collateral Management Agreement, this Indenture or the Servicing Agreement, (iv) answering any Inquiry would materially increase the duties of, or result in significant
additional cost or expense to, the Note Administrator, the Collateral Manager, the Servicer or the Special Servicer, as applicable or (v) answering any such inquiry would reasonably be expected to result in the waiver of an attorney client
privilege or the disclosure of attorney work product, or is otherwise not advisable to answer, it shall not be required to answer such Inquiry and shall promptly notify the Note Administrator of such determination. The Note Administrator
shall notify the Person who submitted such Inquiry in the event that the Inquiry shall not be answered in accordance with the terms of this Indenture. Any notice by the Note Administrator to the
Person who submitted an Inquiry that shall not be answered shall include the following statement: “Because this Indenture and the Servicing Agreement provides that the Note Administrator, the Collateral Manager, the Servicer, and the Special
Servicer shall not answer an Inquiry if it determines, in its respective sole discretion, that (i) any Inquiry is beyond the scope of the topics described in this Indenture, (ii) answering any Inquiry would not be in the best interests of the
Issuer and/or the Noteholders, (iii) answering any Inquiry would be in violation of applicable law or the Loan Documents, the Collateral Management Agreement, this Indenture or the Servicing Agreement, (iv) answering any Inquiry would
materially increase the duties of, or result in significant additional cost or expense to, the Note Administrator, the Collateral Manager, the Servicer or the Special Servicer, as applicable, or (v) answering any such inquiry would reasonably
be expected to result in the waiver of an attorney client privilege or the disclosure of attorney work product, or is otherwise not advisable to answer, no inference shall be drawn from the fact that the Trustee, the Collateral Manager, the
Servicer or the Special Servicer has declined to answer the Inquiry.” Answers posted on the Investor Q&A Forum shall be attributable only to the Q&A Respondent, and shall not be deemed to be answers from any other Person. Any
Inquiry and the related answer posted to the Note Administrator’s Website may be amended, modified, deleted or otherwise altered as the Note Administrator, the Collateral Manager, Servicer or Special Servicer, as applicable, may determine in
its sole discretion. None of the Placement Agents, the Issuer, the Co-Issuer, the Seller, the Collateral Manager, the Advancing Agent, the Future Funding Indemnitor, the Retention Holder, the Servicer, the
Special Servicer, the Note Administrator or the Trustee, or any of their respective Affiliates shall certify to any of the information posted in the Investor Q&A Forum and no such party shall have any responsibility or liability for the
content of any such information. The Note Administrator shall not be required to post to the Note Administrator’s Website any Inquiry or answer thereto that the Note Administrator determines, in its sole discretion, is administrative or
ministerial in nature. The Investor Q&A Forum shall not reflect questions, answers and other communications that are not submitted via the Note Administrator’s Website. Additionally, the Note Administrator may require acceptance of a
waiver and disclaimer for access to the Investor Q&A Forum.
(b) The Note Administrator shall make available to any Noteholder or holder of Preferred Shares and any
beneficial owner of a Note, the Investor Registry. The “Investor Registry” shall be a voluntary service available on the Note Administrator’s Website, where Noteholders and beneficial owners of Notes can register and thereafter obtain
information with respect to any other Noteholder or beneficial owner that has so registered. Any Person registering to use the Investor Registry shall be required to certify that (i) it is a Noteholder, a beneficial owner of a Note or a
holder of a Preferred Share and (ii) it grants authorization to the Note Administrator to make its name and contact information available on the Investor Registry for at least 45 days from the date of such certification to other registered
Noteholders and
registered beneficial owners or Notes. Such Person shall then be asked to enter certain mandatory fields such as the individual’s name, the company name and email address, as well as certain
optional fields such as address, and phone number. If any Noteholder or beneficial owner of a Note notifies the Note Administrator that it wishes to be removed from the Investor Registry (which notice may not be within forty-five (45) days of
its registration), the Note Administrator shall promptly remove it from the Investor Registry. The Note Administrator shall not be responsible for verifying or validating any information submitted on the Investor Registry, or for monitoring or
otherwise maintaining the accuracy of any information thereon. The Note Administrator may require acceptance of a waiver and disclaimer for access to the Investor Registry.
(c) Certain information concerning the Collateral and the Notes, including the Monthly Reports, CREFC® Reports and supplemental notices, and notices and documents related to any Benchmark Transition Event and Benchmark Replacement, shall be provided by the Note
Administrator to certain market data providers upon receipt by the Note Administrator from such persons of a certification in the form of Exhibit I hereto, which certification may be submitted electronically via the Note
Administrator’s Website. The Issuer hereby authorizes the provision of such information to Bloomberg, L.P., Trepp, LLC, Intex Solutions, Inc., Markit Group Limited, Interactive Data Corp., BlackRock Financial Management, Inc., CMBS.com,
Inc., Moody’s Analytics, Inc., KBRA Analytics, LLC, MBS Data, LLC, RealInsight, Thomson Reuters Corporation and PricingDirect Inc. and such other providers of data and analytical software as directed by the Issuer in writing to the Note
Administrator.
(d) [Reserved]
(e) The 17g-5 Information Provider will make the “Rating Agency Q&A Forum and Servicer Document Request
Tool” available to NRSROs via the 17g-5 Information Providers Website, where NRSROs may (i) submit inquiries to the Note Administrator relating to the Monthly Report, (ii) submit inquiries to the Collateral Manager, the Servicer or the
Special Servicer relating to servicing reports prepared by such parties, or the Collateral, except to the extent already obtained, (iii) submit requests for loan-level reports and information, and (iv) view previously submitted inquiries and
related answers or reports, as the case may be. Upon receipt of an inquiry or request for the Note Administrator, the Collateral Manager, the Servicer or the Special Servicer, as the case may be, the 17g-5 Information Provider shall forward
such inquiry or request to the Note Administrator, the Collateral Manager, the Servicer or the Special Servicer, as applicable, in each case via email within a commercially reasonable period of time following receipt thereof. The Trustee,
the Note Administrator, the Collateral Manager, the Servicer or the Special Servicer, as applicable, will be required to answer each inquiry, unless it determines that (a) answering the inquiry would be in violation of applicable law, the
Servicing Standard, the Collateral Management Standard, this Indenture, the Collateral Management Agreement, the Servicing Agreement, or the applicable loan documents, (b) answering the inquiry would or is reasonably expected to result in a
waiver of an attorney-client privilege or the disclosure of attorney work product, or (c) answering the inquiry would materially increase the duties of, or result in significant additional cost or expense to, such party, and the performance
of such additional duty or the payment of such additional cost or expense is beyond the scope of its duties under this Indenture or the Servicing Agreement, as applicable. In the event that any of the Trustee, the Note Administrator, the
Servicer or the Special Servicer
declines to answer an inquiry, it shall promptly email the 17g-5 Information Provider with the basis of such declination. The 17g-5 Information Provider will be required to post the
inquiries and the related answers (or reports, as applicable) on the Rating Agency Q&A Forum and Servicer Document Request Tool promptly upon receipt, or in the event that an inquiry is unanswered, the inquiry and the basis for which it was
unanswered. The Rating Agency Q&A Forum and Servicer Document Request Tool may not reflect questions, answers, or other communications which are not submitted through the 17g-5 Website. Answers and information posted on the Rating Agency
Q&A Forum and Servicer Document Request Tool will be attributable only to the respondent, and will not be deemed to be answers from any other Person. No such other Person will have any responsibility or liability for, and will not be
deemed to have knowledge of, the content of any such information.
Section 10.14 Certain Procedures.
For so long as the Notes may be transferred only in accordance with Rule 144A, the Issuer (or the Collateral Manager on its behalf) will ensure that any Bloomberg screen
containing information about the Rule 144A Global Notes includes the following (or similar) language:
(i) the “Note Box” on the bottom of the “Security Display” page describing the Rule 144A
Global Notes will state: “Iss’d Under 144A”;
(ii) the “Security Display” page will have the flashing red indicator “See Other
Available Information”; and
The indicator will link to the “Additional Security Information” page, which will state that the Offered Notes “are being offered in reliance on the exemption from
registration under Rule 144A of the Securities Act to persons who are qualified institutional buyers (as defined in Rule 144A under the Securities Act)”.
ARTICLE 11
APPLICATION OF FUNDS
Section 11.1 Disbursements of Amounts from Payment Account.
(a) Notwithstanding any other provision in this Indenture, but subject to the other subsections of this Section
11.1, on each Payment Date, the Note Administrator shall disburse amounts transferred to the Payment Account in accordance with the following priorities (the “Priority of Payments”):
(i) Interest Proceeds. On each Payment Date that is not a Redemption Date, the
Stated Maturity Date or a Payment Date following an acceleration of the Notes as a result of the occurrence and continuation of an Event of Default, Interest Proceeds with respect to the related Due Period shall be distributed in the
following order of priority:
(1) to the payment of taxes and filing fees (including any registered office and government fees) owed by the Issuer or the Co-Issuer, if any;
(2) (a) first, to the Trustee, the Backup Advancing Agent and the Advancing Agent, in that order, the aggregate amount of
any Nonrecoverable Interest Advances due and payable to such party; (b) second, to the Advancing Agent (or to the Backup Advancing Agent, if the Advancing Agent has failed to make any Interest Advance
required to be made by the Advancing Agent pursuant to the terms hereof or to the Trustee if the Backup Advancing Agent has failed to make any Interest Advance required to be made by the Advancing Agent pursuant to the terms hereof) the
Advancing Agent Fee and any previously due but unpaid Advancing Agent Fee (with respect to amounts owed to the Advancing Agent, unless waived by the Advancing Agent) (provided that the Advancing Agent, the Backup Advancing Agent or the
Trustee, as applicable, has not failed to make any Interest Advance required to be made in respect of any Payment Date pursuant to the terms of this Indenture); and (c) third, to the Trustee, the Backup
Advancing Agent and the Advancing Agent, in that order, to the extent due and payable to such party, Reimbursement Interest and reimbursement of any outstanding Interest Advances not to exceed, in each case, the amount that would result in an
Interest Shortfall with respect to such Payment Date;
(3) (a) first, pro rata, based on their entitlement, to the payment to the Note
Administrator and to the Trustee of the accrued and unpaid fees in respect of their services equal to $5,750, in each case payable monthly (a portion of which is required to be paid to the Trustee by the Note Administrator), (b) second, to the payment of other accrued and unpaid Company Administrative Expenses of the Note Administrator, the Trustee, the custodian, the Paying Agent and the Preferred Share Paying Agent not to exceed
the sum of $150,000 per Expense Year, and (c) third, to the payment of any other accrued and unpaid Company Administrative Expenses;
(4) to the payment of the Collateral Manager Fee and any previously due but unpaid Collateral Manager Fee (if not waived by the Collateral Manager);
(5) to the payment of the Class A Interest Distribution Amount plus any Class A Defaulted Interest Amount;
(6) to the payment of the Class A-S Interest Distribution Amount plus any Class A-S Defaulted Interest Amount;
(7) to the payment of the Class B Interest Distribution Amount plus any Class B Defaulted Interest Amount;
(8) to the payment of the Class C Interest Distribution Amount and, if no Class A Notes, Class A-S Notes and Class B Notes are outstanding, any Class C Defaulted
Interest Amount;
(9) to the payment of the Class C Deferred Interest (in reduction of the Aggregate Outstanding Amount of the Class C Notes);
(10) to the payment of the Class D Interest Distribution Amount and, if no Class A Notes, Class A-S Notes, Class B Notes and Class C Notes are outstanding, any Class D
Defaulted Interest Amount;
(11) to the payment of the Class D Deferred Interest (in reduction of the Aggregate Outstanding Amount of the Class D Notes);
(12) to the payment of the Class E Interest Distribution Amount and, if no Class A Notes, Class A-S Notes, Class B Notes, Class C Notes and Class D Notes are
outstanding, any Class E Defaulted Interest Amount;
(13) to the payment of the Class E Deferred Interest (in reduction of the Aggregate Outstanding Amount of the Class E Notes);
(14) if either of the Offered Note Protection Tests is not satisfied as of the Determination Date relating to such Payment Date, to the payment of, first, principal on the Class A Notes, second, principal on the Class A-S Notes, third, principal on the Class B Notes, fourth, principal on the Class C Notes, fifth, principal on the Class D Notes, and sixth, principal on the Class E Notes,
in each case, to the extent necessary to cause each of the Offered Note Protection Tests to be satisfied or, if sooner, until 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
have been paid in full;
(15) pro rata, based on entitlement, to the payment of the Class F Interest Distribution Amount, the Class F-E Interest
Distribution Amount and the Class F-X Interest Distribution Amount and, if no Class A Notes, Class A-S Notes, Class B Notes, Class C Notes, Class D Notes and Class E Notes are
outstanding, any Class F Defaulted Interest Amount, any Class F-E Defaulted Interest Amount and any Class F-X Defaulted Interest Amount, as applicable;
(16) pro rata, based on entitlement, to the payment of the Class F Deferred Interest
(in reduction of the Aggregate Outstanding Amount of the Class F Notes) and the Class F-E Deferred Interest (in reduction of the Aggregate Outstanding Amount of the Class F-E Notes);
(17) pro rata, based on entitlement, to the payment of the Class G Interest Distribution Amount, the Class G-E Interest
Distribution Amount and the Class G-X Interest Distribution Amount and, if no Class A Notes, Class A-S Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class F-E Notes and Class F-X Notes are outstanding, any
Class G Defaulted Interest Amount, any Class G-E Defaulted Interest Amount and any Class G-X Defaulted Interest Amount, as applicable;
(18) pro rata, based on entitlement, to the payment of the Class G Deferred Interest
(in reduction of the Aggregate Outstanding Amount of the Class G Notes) and the Class G-E Deferred Interest (in reduction of the Aggregate Outstanding Amount of the Class G-E Notes);
(19) to the payment of any Company Administrative Expenses not paid pursuant to clause (3) above in the order specified therein;
(20) upon direction of the Collateral Manager, for deposit into the Expense Reserve Account in an amount not to exceed $100,000 in respect of such Payment Date; and
(21) any remaining Interest Proceeds to be released from the lien of the Indenture and paid (upon standing order of the Issuer) to the Preferred Share Paying Agent for
deposit into the Preferred Share Distribution Account for distribution to the holder of the Preferred Shares subject to and in accordance with the provisions of the Preferred Share Paying Agency Agreement.
(ii) Principal Proceeds. On each Payment Date that is not a Redemption Date,
the Stated Maturity Date or a Payment Date following an acceleration of the Notes as a result of the occurrence and continuation of an Event of Default, Principal Proceeds with respect to the related Due Period shall be distributed in the
following order of priority:
(1) to the payment of the amounts referred to in clauses (1) through (5)
of Section 11.1(a)(i) in the same order of priority specified therein, without giving effect to any limitations on amounts payable set forth therein, but only to the extent not paid in full thereunder;
(2) during the Reinvestment Period and Replenishment Period and for so long as the Offered Note Protection Tests are
satisfied, so long as the Issuer is permitted to purchase Reinvestment Collateral Interests or the Replenishment Collateral Interests, as applicable, under Section 12.2 at the direction of the
Collateral Manager, for deposit in the Reinvestment and Replenishment Account the amount designated by the Collateral Manager during the related Interest Accrual Period to be held for
reinvestment in Reinvestment Collateral Interests or Replenishment Collateral Interests, as applicable, or for payment of the purchase price of Reinvestment Collateral Interests and Replenishment Collateral Interests, as applicable (it being
understood that the Collateral Manager shall be deemed to have directed the reinvestment of all Principal Proceeds until such time as it has provided the Note Administrator with a notice to the contrary);
(3) to the payment of principal of the Class A Notes until the Class A Notes have been paid in full;
(4) to the payment of amounts referred to in clause (6) of Section
11.1(a)(i), but only to the extent not paid in full thereunder;
(5) to the payment of principal of the Class A-S Notes until the Class A-S Notes have been paid in full;
(6) to the payment of amounts referred to in clause (7) of Section
11.1(a)(i), but only to the extent not paid in full thereunder;
(7) to the payment of principal of the Class B Notes until the Class B Notes have been paid in full;
(8) to the payment of amounts referred to in clause (8) of Section
11.1(a)(i), but only to the extent not paid in full thereunder
(9) to the payment of principal of the Class C Notes (including any Class C Deferred Interest) until the Class C Notes have
been paid in full;
(10) to the payment of amounts referred to in clause (10) of Section
11.1(a)(i), but only to the extent not paid in full thereunder;
(11) to the payment of principal of the Class D Notes (including any Class D Deferred Interest) until the Class D Notes have
been paid in full;
(12) to the payment of amounts referred to in clause (12) of Section
11.1(a)(i), but only to the extent not paid in full thereunder;
(13) to the payment of principal of the Class E Notes (including any Class E Deferred Interest) until the Class E Notes have
been paid in full;
(14) to the payment of amounts referred to in clause (15) of Section
11.1(a)(i), but only to the extent not paid in full thereunder;
(15) pro rata, based on Aggregate Outstanding Amount, to the payment of principal of the Class F Notes (including any Class F Deferred Interest) and the
Class F-E Notes (including any Class F-E Deferred Interest) until the Class F Notes and the Class F-E Notes have been paid in full;
(16) to the payment of amounts referred to in clause (17) of Section
11.1(a)(i), but only to the extent not paid in full thereunder;
(17) pro rata, based on Aggregate Outstanding Amount, to the payment of principal of the Class G Notes (including any Class G Deferred Interest) and the Class G-E Notes (including any Class G-E Deferred Interest) until the Class G Notes and the Class G-E Notes have been paid in
full; and
(18) any remaining Principal Proceeds to be released from the lien of the Indenture and paid (upon standing order of the
Issuer) to the Preferred Share Paying Agent for deposit into the Preferred Share Distribution Account for distribution to the holder of the Preferred Shares subject to and in accordance with the provisions of the Preferred Share Paying Agency
Agreement.
During the Reinvestment Period and the Replenishment Period, the Collateral Manager may request that the Servicer remit Principal Proceeds to the Note Administrator, no
later than two (2) Business Days after receipt by the Servicer of the related Principal Proceeds, for deposit into the Reinvestment and Replenishment Account prior to a Payment Date upon certification by the Collateral Manager to each of the
Servicer and the Note Administrator that (i) the Offered Note Protection Tests were satisfied as of the immediately preceding Payment Date, (ii) the Collateral Manager reasonably expects the Offered Note Protection Tests to be satisfied on the
immediately succeeding Payment Date and (iii) the Collateral Manager reasonably expects that such Principal Proceeds will not be necessary to make payments in accordance with clause (1) of this Section 11.1(a)(ii), and Principal
Proceeds available for distribution in accordance with this Section 11.1(a)(ii) shall be reduced accordingly. Upon receipt of such certification by the Note Administrator and receipt of such funds from the Servicer, the Note
Administrator shall be entitled to release any such funds upon direction from the Collateral Manager.
(iii) Redemption Dates and Payment Dates During Events of Default. On any
Redemption Date, the Stated Maturity Date or a Payment Date following the occurrence and continuation of an Event of Default, Interest Proceeds and Principal Proceeds with respect to the related Due Period will be distributed in the following
order of priority:
(1) to the payment of the amounts referred to in clauses (1) through (4)
of Section 11.1(a)(i) in the same order of priority specified therein, but without giving effect to any limitations on amounts payable set forth therein;
(2) to the payment of any out-of-pocket fees and expenses of the Issuer, the Note
Administrator and Trustee (including legal fees and expenses) incurred in connection with an acceleration of the Notes following an Event of Default, including in connection with sale and liquidation of any of the Collateral in connection
therewith, to the extent not previously paid or withheld;
(3) to the payment of the Class A Interest Distribution Amount plus any Class A
Defaulted Interest Amount;
(4) to the payment in full of principal of the Class A Notes;
(5) to the payment of the Class A-S Interest Distribution Amount plus any Class A-S
Defaulted Interest Amount;
(6) to the payment in full of principal of the Class A-S Notes;
(7) to the payment of the Class B Interest Distribution Amount plus any Class B
Defaulted Interest Amount;
(8) to the payment in full of principal of the Class B Notes;
(9) to the payment of the Class C Interest Distribution Amount plus any Class C
Defaulted Interest Amount;
(10) to the payment in full of principal of the Class C Notes (including any Class C
Deferred Interest);
(11) to the payment of the Class D Interest Distribution Amount plus any Class D Defaulted
Interest Amount;
(12) to the payment in full of principal of the Class D Notes (including any Class D
Deferred Interest);
(13) to the payment of the Class E Interest Distribution Amount plus any Class E
Defaulted Interest Amount;
(14) to the payment in full of principal of the Class E Notes (including any Class E
Deferred Interest);
(15) pro rata, based on entitlement, to the payment of the Class F Interest Distribution Amount, the Class F-E Interest Distribution Amount and the Class F-X Interest Distribution Amount plus any Class F Defaulted Interest Amount, any Class F-E Defaulted Interest Amount and any Class
F-X Defaulted Interest Amount, as applicable;
(16) pro rata, based on Aggregate Outstanding Amount, to the payment in full of principal of the Class F Notes (including any Class F Deferred Interest) and the Class F-E Notes (including any Class F-E Deferred Interest);
(17) pro rata, based on entitlement, to the payment of the Class G Interest Distribution Amount, the Class G-E Interest
Distribution Amount and the Class G-X Interest Distribution Amount plus any Class G Defaulted Interest Amount, any Class G-E Defaulted Interest Amount and any Class G-X Defaulted Interest Amount, as
applicable;
(18) pro rata, based on Aggregate Outstanding Amount, to the payment in full of principal of the Class G Notes (including any Class G Deferred Interest) and the Class G-E Notes (including any Class G-E Deferred Interest); and
(19) any remaining Interest Proceeds and Principal Proceeds to be released from the lien of the Indenture and paid (upon standing order of the Issuer) to the Preferred Share Paying Agent for deposit into the Preferred Share Distribution Account for distribution to the holder of the Preferred Shares subject to and in
accordance with the provisions of the Preferred Share Paying Agency Agreement.
(b) On or before the Business Day prior to each Payment Date, the Issuer shall, pursuant to Section
10.3, remit or cause to be remitted to the Note Administrator for deposit in the Payment Account an amount of Cash sufficient to pay the amounts described in Section 11.1(a) required to be paid on such Payment Date.
(c) If on any Payment Date the amount available in the Payment Account from amounts received in the related
Due Period are insufficient to make the full amount of the disbursements required by any clause of Section 11.1(a)(i), Section 11.1(a)(ii) or Section 11.1(a)(iii), such payments will be made to Noteholders of each
applicable Class, as to each such clause, ratably in accordance with the respective amounts of such disbursements then due and payable to the extent funds are available therefor.
(d) In connection with any required payment by the Issuer to the Servicer or the Special Servicer pursuant
to the Servicing Agreement of any amount scheduled to be paid from time to time between Payment Dates from amounts received with respect to the Collateral Interests, the Servicer or the Special Servicer, as applicable, shall be entitled to
retain or withdraw such amounts from the Collection Account pursuant to the terms of the Servicing Agreement.
Section 11.2 Securities Accounts.
All amounts held by, or deposited with the Note Administrator in the Reinvestment and Replenishment Account, Custodial Account and Expense Reserve Account pursuant to the provisions of this
Indenture shall be invested in Eligible Investments described in clause (v) of the definition of Eligible Investments and such amounts shall be credited to the Indenture Account that is the source of funds for such investment. Absent
such direction, funds in the foregoing accounts shall be held uninvested. All amounts held by or deposited with the Note Administrator in the Payment Account shall be held uninvested. Any amounts not so
invested in Eligible Investments as herein provided, shall be credited to one or more securities accounts established and maintained pursuant to the Securities Account Control Agreement at the Corporate Trust Office of the Note Administrator,
or at another financial institution whose long-term rating is at least equal to “A2” by Moody’s (or such lower rating as the Rating Agencies shall approve) and agrees to act as a Securities
Intermediary on behalf of the Note Administrator on behalf of the Secured Parties pursuant to an account control agreement in form and substance similar to the Securities Account Control Agreement.
ARTICLE 12
SALE AND EXCHANGES OF COLLATERAL INTERESTS; FUTURE FUNDING ESTIMATES
Section 12.1 Sales and Exchanges of Collateral Interests.
(a) Except as otherwise expressly permitted or required by this Indenture, the Issuer shall not sell or otherwise dispose of any Collateral
Interest. Subject to the satisfaction of the Acquisition and Disposition Requirements, the Collateral Manager, on behalf of the Issuer, acting pursuant to the Collateral Management Agreement may direct the Trustee or the Special Servicer in
writing to sell at any time:
(i) any Defaulted Collateral Interest;
(ii) any Credit Risk Collateral Interest, unless in the case of a sale of a Credit Risk Collateral Interest to an entity
other than the Collateral Manager or an affiliate thereof that is for a cash purchase price that is less than the Par Purchase Price thereof, the Offered Note Protection Tests were not satisfied as of the immediately preceding Measurement Date
and have not been cured as of the proposed sale date; or
(iii) any Collateral Interest acquired in violation of the Eligibility Criteria, the Acquisition Criteria or the
Acquisition and Disposition Requirements.
The Special Servicer shall sell any Collateral Interest in any sale permitted pursuant to this Section 12.1(a), as directed by the Collateral Manager. Promptly after any sale pursuant
to this Section 12.1(a), the Collateral Manager shall notify the 17g-5 Information Provider of the Collateral Interest sold and the sale price and shall provide such other information relating to such sale as may be reasonably requested
by the Rating Agencies.
(b) In addition, with respect to any Credit Risk Collateral Interest or a Defaulted Collateral Interest permitted to be sold pursuant to Section
12.1(a), such Credit Risk Collateral Interest or Defaulted Collateral Interest may be sold by the Issuer at the direction of the Collateral Manager:
(i) to an entity, other than an Interested Person; or
(ii) to an Interested Person for a cash purchase price that is equal to or greater than:
(a) with respect to (A) Defaulted Collateral Interests, at any time, and (B) Credit Risk Collateral Interests, until the Disposition Limitation Threshold has been
met, in each case, the Par Purchase Price thereof; and
(b) with respect to Credit Risk Collateral Interests, after the Disposition Limitation Threshold has been met, following disclosure to, and approval by, the Advisory
Committee in accordance with the Collateral Management Agreement, the greater of (A) the Par Purchase Price thereof and (B)
the fair market value thereof (any such purchase pursuant to Section 12.1(b)(ii), a “Credit Risk/Defaulted Collateral Interest Cash Purchase”).
In connection with the sale of a Credit Risk Collateral Interest or a Defaulted Collateral Interest in accordance with Section 12.1(a) or this Section 12.1(b), the Collateral
Manager may cause the Issuer to create one or more participation interests in such Defaulted Collateral Interest or Credit Risk Collateral Interest and direct the Special Servicer or the Trustee to sell one or more of such participation
interests.
If a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted
Collateral Interest, the Collateral Manager shall use commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter. In no event shall the Issuer or
the Collateral Manager be permitted to sell or otherwise dispose of any Collateral Interest for the primary purpose of recognizing gains or decreasing losses resulting from market value changes.
In the case of a sale of a Credit Risk Collateral Interest or a Defaulted Collateral Interest, or the exchange of a Credit Risk Collateral Interest, in each case, which is a Combined Loan, the
related Mortgage Loan and the corresponding Mezzanine Loan shall be sold or exchanged together.
(c) At all times the Majority of the Preferred Shares shall have the rights (such rights, collectively, the “PE Purchase Rights”) to
purchase (i) any Defaulted Collateral Interest for a purchase price that is equal to or greater than the Par Purchase Price and (ii) any Credit Risk Collateral Interest for a purchase price that is equal to or greater than (1) until the
Disposition Limitation Threshold has been met, the Par Purchase Price and (2) after the Disposition Limitation Threshold has been met, following disclosure to, and approval by, the Advisory Committee in accordance with the Collateral Management
Agreement, the greater of (A) the Par Purchase Price and (B) the fair market value thereof.
(d) A Defaulted Collateral Interest or Credit Risk Collateral Interest may be disposed of at any time, following disclosure to, and approval
by, the Advisory Committee, by the Collateral Manager directing the Issuer to exchange such Defaulted Collateral Interest or Credit Risk Collateral Interest for (1) a Collateral Interest owned by an affiliate of the Collateral Manager that
satisfies the Eligibility Criteria, the Acquisition Criteria and the Acquisition and Disposition Requirements (such Collateral Interest, an “Exchange Collateral Interest”) or (2) a combination of an Exchange Collateral Interest and cash
(such exchange, a “Credit Risk/Defaulted Collateral Interest Exchange”); provided that:
(i) the sum of (A) the Par Purchase Price of such Exchange Collateral Interest plus
(B) the cash amount (if any) to be paid to the Issuer by the Collateral Manager or such affiliate thereof in connection with such exchange, is equal to or greater than the sum of the Par Purchase Price of the Credit Risk Collateral Interest or
Defaulted Collateral Interest sought to be exchanged; and
(ii) with respect to any such exchange of a Credit Risk Collateral Interest after the Reinvestment Period, the Credit Risk
Exchange Limitation is satisfied.
If the Collateral Manager directs the sale of a Collateral Interest acquired in violation of the Eligibility Criteria, the Acquisition Criteria or the Acquisition and Disposition Requirements,
the Issuer may sell such Collateral Interest to the Collateral Manager or an affiliate thereof for a cash purchase price that is equal to or greater than the Par Purchase Price thereof.
If the Collateral Manager does not promptly direct the sale of a Collateral Interest that is determined to have been acquired in violation of the Eligibility Criteria, the Acquisition Criteria
or the Acquisition and Disposition Requirements, the Issuer shall satisfy the Rating Agency Condition with respect to such Collateral Interest within sixty (60) days after such date of determination. If the Issuer satisfies the Rating Agency
Condition with respect to such Collateral Interest within such time period, the Issuer may retain such Collateral Interest. If the Issuer does not satisfy the Rating Agency Condition with respect to such Collateral Interest within such time
period, the Issuer shall promptly sell such Collateral Interest to the Collateral Manager or an affiliate thereof for a cash purchase price that is equal to or greater than the Par Purchase Price thereof.
In connection with the exchange of a Credit Risk Collateral Interest or a Defaulted Collateral Interest as in accordance with this Section 12.1(d), the Collateral Manager may cause the
Issuer to create one or more participation interests in such Defaulted Collateral Interest or Credit Risk Collateral Interest and direct the Special Servicer or the Trustee to exchange one or more of such participation interests.
(e) After the Issuer has notified the Trustee and the Note Administrator of an Optional Redemption, a Clean-up Call, a Tax Redemption or an
Auction Call Redemption in accordance with Section 9.1, the Collateral Manager, on behalf of the Issuer, and acting pursuant to the Collateral Management Agreement, may at any time direct the Trustee (in the case of an Optional
Redemption, Clean-up Call Redemption or Tax Redemption) or the Special Servicer (in the case of an Auction Call Redemption) in writing by Issuer Order to sell, and the Trustee or the Special Servicer, as applicable, shall sell in the manner
directed by the Majority of Preferred Shareholders in writing, any Collateral Interest without regard to the foregoing limitations in Section 12.1(a); provided that:
(i) the Sale Proceeds therefrom must be used to pay certain expenses and redeem all of
the Notes in whole but not in part pursuant to Section 9.1, and upon any such sale the Trustee shall release the lien of such Collateral Interest, and the Custodian shall, upon receipt of a Request for Release, release the related
Collateral Interest File, pursuant to Section 10.10;
(ii) the Collateral Manager on behalf of the Issuer shall not sell (and the Trustee
shall not be required to release) a Collateral Interest pursuant to this Section 12.1(f) unless the Collateral Manager certifies to the Trustee and the Note Administrator that, in the Collateral Manager’s reasonable business judgment
based on calculations included in the certification (which shall include the sales prices of the
Collateral Interests), the Sale Proceeds from the sale of one or more of the Collateral Interests and all Cash and proceeds from Eligible Investments will be at least equal
to the Total Redemption Price; and
(iii) in connection with an Optional Redemption, a Clean-Up Call, a Tax
Redemption or an Auction Call Redemption, all the Collateral Interests to be sold pursuant to this Section 12.1(f) must be sold in accordance with the requirements set forth in Section 9.1(f).
(f) In the event that any Notes remain Outstanding as of the Payment Date occurring six months prior to the
Stated Maturity Date of the Notes, the Collateral Manager will be required to determine whether the proceeds expected to be received on the Collateral Interests prior to the Stated Maturity Date of the Notes will be sufficient to pay in full
the principal amount of (and accrued interest on) the Notes on the Stated Maturity Date. If the Collateral Manager determines, in its sole discretion, that such proceeds will not be sufficient to pay the outstanding principal amount of and
accrued interest on the Notes on the Stated Maturity Date of the Notes, the Issuer will, at the direction of the Collateral Manager, be obligated to liquidate the portion of Collateral Interests sufficient to pay the remaining principal
amount of and interest on the Notes on or before the Stated Maturity Date. The Collateral Interests to be liquidated by the Issuer will be selected by the Collateral Manager.
(g) Notwithstanding anything herein to the contrary, the Collateral Manager on behalf of the Issuer shall
be permitted to sell to a Permitted Subsidiary any Sensitive Asset for consideration consisting of equity interests in such Permitted Subsidiary (or an increase in value of equity interests already owned).
(h) Under no circumstances shall the Trustee be required to acquire any Collateral Interests or property
related thereto.
(i) Any Collateral Interest sold pursuant to this Section 12.1 shall be released from the lien of
this Indenture.
(j) Any Collateral Interest that was required at acquisition to satisfy the Eligibility Criteria, the Acquisition and Disposition Requirements
or, as applicable, the Acquisition Criteria, but failed to do so, may be sold by the Collateral Manager on behalf of the Issuer to the Seller or an affiliate thereof within 60 days of such acquisition at a price that is equal to the Par
Purchase Price of such Collateral Interest.
Section 12.2 Reinvestment Collateral Interests; Replenishment Collateral Interests.
(a) Except as provided in Section 12.3(c), during the Reinvestment Period (and up to
sixty (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), amounts (or Eligible Investments) credited to the Reinvestment and Replenishment Account may, but are not required to, be reinvested in Reinvestment Collateral Interests (which shall be, and hereby are upon acquisition
by the Issuer, Granted to the Trustee pursuant to the Granting Clause of this
Indenture) that satisfy as of the date of purchase such Reinvestment Collateral Interests the applicable Eligibility Criteria, the Acquisition and Disposition Requirements and the Acquisition Criteria, as
evidenced by an Officer’s Certificate of the Collateral Manager on behalf of the Issuer delivered to the Trustee and the Note Administrator, substantially in the form of Exhibit J hereto (which shall include the Subsequent Transfer
Instrument attached to such Officer’s Certificate), delivered as of the date of purchase such Reinvestment Collateral Interest.
Amounts on deposit in the Reinvestment and Replenishment Account shall be available for the table-funding and subsequent acquisition of any Reinvestment Collateral Interest subject to the
procedures and conditions set forth in this Section 12.2 above and as long as the Custodian is in possession of either (i) the related Loan Documents or (ii) a bailee letter received from origination counsel that is issued with respect
to the related Loan Documents; provided that (x) the bailee under the bailee letter shall not be an agent of the Custodian and (y) the Loan Documents held under bailee letter shall be forwarded to the Custodian no later than five Business Days
following acquisition of such Reinvestment Collateral Interest.
(b) Notwithstanding the foregoing provisions, (i) Cash on deposit in the Reinvestment and Replenishment Account may be invested in Eligible
Investments pending investment in Reinvestment Collateral Interests and (ii) if an Event of Default shall have occurred and be continuing, no Reinvestment Collateral Interest may be acquired unless it was the subject of a commitment entered
into by the Issuer prior to the occurrence of such Event of Default.
(c) Notwithstanding the foregoing provisions, at any time when the Retention Holder, or any Affiliate that
is wholly-owned by KREF Sub-REIT or a Subsequent REIT and is a disregarded entity for U.S. federal income tax purposes, continues to own 100% of the Preferred Shares, it may contribute additional Cash, Eligible Investments and Collateral
Interests to the Issuer so long as, in the case of Collateral Interests, any such Collateral Interests satisfy the Eligibility Criteria at the time of such contribution, including, but not limited to, for purposes of effecting any cure
rights reserved for the holder of the Participations, pursuant to and in accordance with the terms of the related Participation Agreement. Cash or Eligible Investments contributed to the Issuer by the Retention Holder (during the Reinvestment
Period or the Replenishment Period) shall be credited to the Reinvestment and Replenishment Account (unless the Retention Holder directs otherwise) and may be reinvested by the Issuer in Reinvestment Collateral Interests and Replenishment
Collateral Interests, as applicable, so long as no Event of Default has occurred and is continuing.
(d) In addition, prior to the end of the Replenishment Period, but not thereafter, the Issuer may, but is not required to, reinvest Principal
Proceeds in an amount up to 10% of the Aggregate Collateral Interest Cut-off Date Balance of funded Companion Participations that satisfy the Eligibility Criteria if, after giving effect to such reinvestment, the Acquisition Criteria and the
Acquisition and Disposition Requirements are satisfied as of the date of the purchase of such funded Companion Participation, as evidenced by an Officer’s Certificate of the Collateral Manager on behalf of the Issuer delivered to the Trustee
and the Note Administrator, substantially in the form of Exhibit J hereto (which shall include the Subsequent Transfer Instrument attached to such Officer’s Certificate), delivered as of the date
of purchase of such Replenishment Collateral Interest. Principal Proceeds (including Sale Proceeds) shall not be reinvested following the Replenishment Period.
Section 12.3 Conditions Applicable to all Transactions Involving Sale
or Grant.
(a) Any transaction effected after the Closing Date under this Article 12 shall be conducted in accordance with the requirements of
the Collateral Management Agreement; provided that (1) the Collateral Manager shall not direct the Special Servicer to acquire any Collateral Interest for inclusion in the Collateral from the
Collateral Manager or any of its Affiliates as principal or to sell any Collateral Interest from the Collateral to the Collateral Manager or any of its Affiliates as principal unless the transaction is effected in accordance with the Collateral
Management Agreement and (2) the Collateral Manager shall not direct the Special Servicer to acquire any Collateral Interest for inclusion in the Collateral from any account or portfolio for which the Collateral Manager serves as investment
adviser or direct the Special Servicer to sell any Collateral Interest to any account or portfolio for which the Collateral Manager serves as investment adviser unless such transactions comply with the Collateral Management Agreement and
Section 206(3) of the Advisers Act. The Special Servicer shall have no responsibility to oversee compliance with this clause by the other parties.
(b) Upon any Grant pursuant to this Article 12, all of the Issuer’s right, title and interest to the Collateral Interest or Securities
shall be Granted to the Trustee pursuant to this Indenture, such Collateral Interest or Securities shall be registered in the name of the Issuer, and the Trustee (or the Custodian on its behalf) shall receive such Pledged Collateral Interest or
Securities as evidenced by the Collateral Interest File. The original note and/or participation certificate and all allonges thereto or assignments thereof that are required to be included in the
Collateral Interest File related to any Reinvestment Collateral Interest or Exchange Collateral Interest acquired by the Issuer after the Closing Date shall be delivered no later than one (1) Business Day before the date of acquisition of such
Reinvestment Collateral Interest or Exchange Collateral Interest, as applicable, by the Issuer and the remaining documents constituting such Collateral Interest File shall be delivered by no later than three (3) Business Days after the date of
acquisition.
(c) Notwithstanding anything contained in this Article 12 to the contrary, the Issuer shall, subject to this Section 12.3(c), have the
right to effect any transaction which has been consented to by the Holders of Notes evidencing 100% of the Aggregate Outstanding Amount of each and every Class of Notes (or if there are no Notes Outstanding, 100% of the Preferred Shares).
(d) The acquisition by the Issuer of any Reinvestment Collateral Interest, Replenishment Collateral Interest or Exchange Collateral Interest
shall be conditioned upon delivery by the Issuer to the Custodian of a Subsequent Transfer Instrument.
(e) Any acquisition of a Collateral Interest shall be conditioned upon delivery by the Collateral Manager to the Issuer, the Note
Administrator and the Special Servicer of an Officer’s Certificate of the Collateral Manager substantially in the form of Exhibit J hereto stating that the Acquisition Criteria, the Eligibility Criteria, the Acquisition and Disposition
Requirements and the requirements of Section 12.3(a) have been satisfied (and setting forth, to the extent appropriate, calculations in reasonable detail necessary to determine compliance with the
Eligibility Criteria).
Section 12.4 Modifications to Offered Note Protection Tests.
In the event that (1) Moody’s modifies the definitions or calculations relating to any of the Moody’s specific Eligibility Criteria or (2) any Rating Agency modifies the definitions or
calculations relating to either of the Offered Note Protection Tests (each, a “Rating Agency Test Modification”), in any case in order to correspond with published changes in the guidelines, methodology or standards established by such
Rating Agency, the Issuer may, but is under no obligation solely as a result of this Section 12.4 to, incorporate corresponding changes into this Indenture by an amendment or supplement hereto without the consent of the Holders of the Notes
(except as provided below) (but with written notice to the Noteholders) or the Preferred Shares if (x) in the case of a modification of a Moody’s specific Eligibility Criteria, the Rating Agency Condition is satisfied with respect to Moody’s,
(y) in the case of a modification of an Offered Note Protection Test, the Rating Agency Condition is satisfied with respect to each Rating Agency then rating any Class of Notes and (z) written notice of such modification is delivered by the
Collateral Manager to the Note Administrator and the Trustee and the Holders of the Notes and Preferred Shares (which notice may be included in the next regularly scheduled report to Noteholders). Any such Rating Agency Test Modification shall
be effected without execution of a supplemental indenture; provided, however, that such amendment shall be (i) evidenced by a written instrument executed and delivered by each of the Co‑Issuers and the Collateral Manager and
delivered to the Trustee, and (ii) accompanied by delivery by the Issuer to the Trustee of an Officer’s Certificate of the Issuer (or the Collateral Manager on behalf of the Issuer) certifying that such amendment has been made pursuant to and
in compliance with this Section 12.4.
Section 12.5 Ongoing Future Advance Estimates.
(a) The Note Administrator and the Trustee, on behalf of the Noteholders and the Holders of the Preferred
Shares, are hereby directed by the Issuer to (i) enter into the Future Funding Agreement and the Future Funding Account Control Agreement, pursuant to which the Seller will agree to pledge certain collateral described therein in order to
secure certain future funding obligations of any Affiliated Future Funding Companion Participation Holder as holder of any Future Funding Companion Participations and (ii) administer the rights of the Note Administrator and the secured party,
as applicable, under the Future Funding Agreement and the Future Funding Account Control Agreement. In the event an Access Termination Notice (as defined in the Future Funding Agreement) has been sent by the Note Administrator to the related
account bank and for so long as such Access Termination Notice is not withdrawn by the Note Administrator, the Note Administrator shall, pursuant to the direction of the Issuer or the Special Servicer on its behalf, direct the use of funds on
deposit in the Future Funding Controlled Reserve Account pursuant to the terms of the Future Funding Agreement. Neither the Trustee nor the Note Administrator shall have any obligation to ensure that the Seller is depositing or causing to be
deposited all amounts into the Future Funding Controlled Reserve Account that are required to be deposited therein pursuant to the Future Funding Agreement.
(b) Pursuant to the Future Funding Agreement, on the Closing Date, (i) KREF Holdings, in its capacity as
Future Funding Indemnitor, shall deliver its Largest One Quarter Future Advance Estimate to the Collateral Manager, the Servicer, the Special Servicer, the Note Administrator and the 17g-5 Information Provider and (ii) the Future Funding
Indemnitor shall deliver to the Collateral Manager, the Servicer, the Special Servicer, the Note Administrator and the 17g-5 Information Provider a certification of a responsible financial officer of the Future Funding Indemnitor that the
Future Funding Indemnitor has Segregated Liquidity at least equal to the Largest One Quarter Future Advance Estimate. Thereafter, so long as any Future Funding Companion Participation is held by an Affiliated Future Funding Companion
Participation Holder and any future advance obligations remain outstanding under such Future Funding Companion Participation, no later than the 18th day (or, if such day is not a Business Day, the next
succeeding Business Day) of the calendar-month preceding the beginning of each calendar quarter (starting with the calendar quarter beginning in July 2022), the Future Funding Indemnitor shall deliver (which may be by email) to the Collateral
Manager, the Servicer, the Special Servicer, the Note Administrator and the 17g-5 Information Provider a certification of a responsible financial officer of the Future Funding Indemnitor that the Future Funding Indemnitor has Segregated
Liquidity equal to the greater of (i) the Largest One Quarter Future Advance Estimate or (ii) the controlling Two Quarter Future Advance Estimate for the immediately following two calendar quarters.
(c) Pursuant to the Future Funding Agreement, for so long as any Future Funding Companion Participations is
held by an Affiliated Future Funding Companion Participation Holder and any future advance obligations remain outstanding under such Future Funding Companion Participation and, subject to Section 12.5(d),
by (x) no earlier than the thirty-five (35) days prior to, and (y) no later than the fifth (5th) day of, the calendar-month preceding the beginning of each calendar quarter (starting with the calendar quarter beginning in July 2022) (or if
such day is not a Business Day, the next succeeding Business Day), the Seller is required to deliver to the Collateral Manager, the Servicer, the Special Servicer, the Note Administrator and the Future Funding Indemnitor (i) a Two Quarter
Future Advance Estimate for the immediately following two calendar quarters and (ii) such supporting documentation and other information (including any relevant calculations) as is reasonably necessary for the Servicer to perform its
obligations described below. The Issuer shall cause the Servicer to, within ten (10) days after receipt of the Two Quarter Future Advance Estimate and supporting documentation from the Seller, (A) review the Seller’s Two Quarter Future
Advance Estimate and such supporting documentation and other information provided by the Seller in connection therewith, (B) consult with the Seller with respect thereto and make such inquiry, and request such additional information (and the
Seller shall promptly respond to each such request for consultation, inquiry or request for information), in each case as is commercially reasonable for the Servicer to perform its obligations described in the following clause (C),
and (C) by written notice to the Note Administrator, the Seller and the Future Funding Indemnitor substantially in the form set forth in the Servicing Agreement, either (1) confirm that nothing has come to the attention of the Servicer in the
documentation provided by the Seller that in the reasonable opinion of the Servicer would support a determination of a Two Quarter Future Advance Estimate that is at least 25% higher than the Seller’s Two Quarter Future Advance Estimate for
such period and shall state that the Seller’s Two Quarter Future Advance Estimate for such period shall control or (2) deliver its own Two Quarter Future Advance Estimate for such period. If the Servicer’s Two Quarter Future Advance Estimate
is at least 25% higher than the Seller’s
Two Quarter Future Advance Estimate for any period, then the Servicer’s Two Quarter Future Advance Estimate for such period shall control; otherwise, the Seller’s Two Quarter Future Advance
Estimate for such period shall control.
(d) No Two Quarter Future Advance Estimate shall be made by the Seller or the Servicer for a
calendar quarter if, by the fifth (5th) day of the calendar-month preceding the beginning of such calendar quarter, the Future Funding Indemnitor delivers (which may be by email) to the Collateral Manager, the Servicer, the Special Servicer,
the Note Administrator and the 17g-5 Information Provider a certificate of a responsible financial officer of the Future Funding Indemnitor certifying that (i) the Future Funding Indemnitor has Segregated Liquidity equal to at least 100% of the
aggregate amount of outstanding future advance obligations (subject to the same exclusions as the calculation of the Two Quarter Future Advance Estimate) under the Future Funding Companion Participations held
by Affiliated Future Funding Companion Participation Holders or (ii) no such future funding obligations remain outstanding under the Future Funding Companion Participations held by Affiliated Future Funding Companion Participation
Holders. All certifications regarding Segregated Liquidity, any Two Quarter Future Advance Estimates, or any notices described in (b) and (c) above shall be emailed to the Note
Administrator at trustadministrationgroup@wellsfargo.com and CREBondAdmin@wellsfargo.com or such other email address as provided by the Note Administrator.
(e) The 17g-5 Information Provider shall promptly post to the 17g-5 Website pursuant to Section
14.13(d) of this Indenture, any certification with respect to the holder of the Future Funding Companion Participations that is delivered to it in accordance with the Future Funding Agreement.
ARTICLE 13
NOTEHOLDERS’ RELATIONS
Section 13.1 Subordination.
(a) Anything in this Indenture or the Notes to the contrary notwithstanding, the Issuer and the Holders
agree that, for the benefit of the Holders of the Class A Notes, that the rights of the Holders of 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 G-X Notes shall be subordinate and junior to the Class A Notes to the extent and in the manner set forth in Article 11 of this Indenture; provided that on
each Redemption Date and each Payment Date as a result of the occurrence and continuation of the acceleration of the Notes following the occurrence of an Event of Default, all accrued and unpaid interest on and outstanding principal on the
Class A Notes shall be paid pursuant to Section 11.1(a)(iii) in full in Cash or, to the extent 100% of Holders of the Class A Notes consent, other than in Cash, before any further payment or distribution is made on account of any
other Class of Notes, to the extent and in the manner provided in Section 11.1(a)(iii).
(b) Anything in this Indenture or the Notes to the contrary notwithstanding, the Issuer and the Holders
agree, for the benefit of the Holders of the Class A-S Notes, that the
rights of the Holders of 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 G-X Notes shall be subordinate and junior to the Class A-S Notes to the extent and in the manner set forth in Article 11 of this Indenture; provided that on each Redemption Date and each Payment Date as a
result of the occurrence and continuation of the acceleration of the Notes following the occurrence of an Event of Default, all accrued and unpaid interest on and outstanding principal on the Class A-S Notes shall be paid pursuant to Section
11.1(a)(iii) in full in Cash or, to the extent 100% of Holders of the Class A-S Notes consent, other than in Cash, before any further payment or distribution is made on account of any of 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 G-X Notes to the extent and in the manner provided in Section 11.1(a)(iii).
(c) Anything in this Indenture or the Notes to the contrary notwithstanding, the Issuer and the Holders
agree, for the benefit of the Holders of the Class B Notes, that the rights of the Holders of 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 G-X Notes shall be subordinate and junior to the Class B Notes to the extent and in the manner set forth in Article 11 of this Indenture; provided that on each Redemption Date and each Payment Date as a
result of the occurrence and continuation of the acceleration of the Notes following the occurrence of an Event of Default, all accrued and unpaid interest on and outstanding principal on the Class B Notes shall be paid pursuant to Section
11.1(a)(iii) in full in Cash or, to the extent 100% of Holders of the Class B Notes consent, other than in Cash, before any further payment or distribution is made on account of any of 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 G-X Notes to the extent and in the manner provided in Section 11.1(a)(iii).
(d) Anything in this Indenture or the Notes to the contrary notwithstanding, the Issuer and the Holders
agree, for the benefit of the Holders of the Class C Notes, that the rights of the Holders of 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 G-X Notes shall be subordinate and junior to the Class C Notes to the extent and in the manner set forth in Article 11 of this Indenture; provided that on each Redemption Date and each Payment Date as a result of the
occurrence and continuation of the acceleration of the Notes following the occurrence of an Event of Default, all accrued and unpaid interest on and outstanding principal on the Class C Notes shall be paid pursuant to Section 11.1(a)(iii)
in full in Cash or, to the extent 100% of Holders of the Class C Notes consent, other than in Cash, before any further payment or distribution is made on account of any of 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 G-X Notes to the extent and in the manner provided in Section 11.1(a)(iii).
(e) Anything in this Indenture or the Notes to the contrary notwithstanding, the Issuer and the Holders
agree, for the benefit of the Holders of the Class D Notes, that the rights of the Holders of 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 G-X Notes shall
be subordinate and junior to the Class D Notes to the extent and in the manner set forth in Article 11 of this
Indenture; provided that on each Redemption Date and each Payment Date as a result of the occurrence and continuation of the acceleration of the Notes following the
occurrence of an Event of Default, all accrued and unpaid interest on and outstanding principal on the Class D Notes shall be paid pursuant to Section 11.1(a)(iii) in full in Cash or, to the extent 100% of Holders of the Class D Notes
consent, other than in Cash, before any further payment or distribution is made on account of any of 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 G-X
Notes to the extent and in the manner provided in Section 11.1(a)(iii).
(f) Anything in this Indenture or the Notes to the contrary notwithstanding, the Issuer and the Holders
agree, for the benefit of the Holders of the Class E Notes, that the rights of the Holders of 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 subordinate and
junior to the Class E Notes to the extent and in the manner set forth in Article 11 of this Indenture; provided that on each Redemption Date and each Payment Date as a result of the occurrence and continuation of the acceleration of the Notes
following the occurrence of an Event of Default, all accrued and unpaid interest on and outstanding principal on the Class E Notes shall be paid pursuant to Section 11.1(a)(iii) in full in Cash or, to the extent 100% of Holders of the
Class E Notes consent, other than in Cash, before any further payment or distribution is made on account of any of 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 to
the extent and in the manner provided in Section 11.1(a)(iii).
(g) Anything in this Indenture or the Notes to the contrary notwithstanding, the Issuer and the Holders agree, for the benefit of the Holders
of the Class F Notes, the Class F-E Notes and the Class F-X Notes, that the rights of the Holders of the Class G Notes, the Class G-E Notes and the Class G-X Notes shall be subordinate and junior to the Class F Notes, the Class F-E Notes and
the Class F-X Notes to the extent and in the manner set forth in Article 11 of this Indenture; provided that on each Redemption Date and each Payment Date as a result of the occurrence and continuation of the acceleration of the
Notes following the occurrence of an Event of Default, all accrued and unpaid interest on and outstanding principal on the Class F Notes, the Class F-E Notes and the Class F-X Notes shall be paid pursuant to Section 11.1(a)(iii) in full
in Cash or, to the extent 100% of Holders of the Class F Notes, the Class F-E Notes and the Class F-X Notes consent, other than in Cash, before any further payment or distribution is made on account of any of the Class G Notes, the Class G-E
Notes and the Class G-X Notes to the extent and in the manner provided in Section 11.1(a)(iii).
(h) In the event that notwithstanding the provisions of this Indenture, any Holders of any Class of Notes
shall have received any payment or distribution in respect of such Class contrary to the provisions of this Indenture, then, unless and until all accrued and unpaid interest on and outstanding principal of all more senior Classes of Notes
have been paid in full in accordance with this Indenture, such payment or distribution shall be received and held in trust for the benefit of, and shall forthwith be paid over and delivered to, the Note Administrator, which shall pay and
deliver the same to the Holders of the more senior Classes of Notes in accordance with this Indenture.
(i) Each Holder of any Class of Notes agrees with the Note Administrator on behalf of the Secured Parties
that such Holder shall not demand, accept, or receive any payment
or distribution in respect of such Notes in violation of the provisions of this Indenture including Section 11.1(a) and this Section 13.1; provided, however, that after all accrued and unpaid interest on, and principal of, each Class of Notes senior to such Class have been paid in full, the Holders of such Class of Notes shall be fully
subrogated to the rights of the Holders of each Class of Notes senior thereto. Nothing in this Section 13.1 shall affect the obligation of the Issuer to pay Holders of such Class of Notes any amounts due and payable hereunder.
(j) The Trustee agrees and the Holders of each Class of Notes and the holders of the equity in the Issuer,
the Co-Issuer and the Collateral Manager are deemed to agree, not to institute against, or join any other person in instituting against, the Issuer, the Co-Issuer or any Permitted Subsidiary, any petition for bankruptcy, reorganization,
arrangement, moratorium, liquidation or similar proceedings under the laws of any jurisdiction before one year and one day or, if longer, the applicable preference period (plus one day) then in
effect, have elapsed since the final payments to the Holders of the Notes.
Section 13.2 Standard of Conduct.
In exercising any of its or their voting rights, rights to direct and consent or any other rights as a Securityholder under this Indenture, a Securityholder or
Securityholders shall not have any obligation or duty to any Person or to consider or take into account the interests of any Person and shall not be liable to any Person for any action taken by it or them or at its or their direction or any
failure by it or them to act or to direct that an action be taken, without regard to whether such action or inaction benefits or adversely affects any Securityholder, the Issuer, or any other Person, except for any liability to which such
Securityholder may be subject to the extent the same results from such Securityholder’s taking or directing an action, or failing to take or direct an action, in bad faith or in violation of the express terms of this Indenture.
ARTICLE 14
MISCELLANEOUS
Section 14.1 Form of Documents Delivered to the Trustee and Note Administrator.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer or the Co-Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such Authorized Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate of an Authorized Officer of the Issuer or the Co-Issuer or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or representations by, the Issuer, the Co-Issuer, the Collateral Manager or any other Person, stating that the information
with respect to such factual matters is in the possession of the Issuer, the Co-Issuer, the Collateral Manager or such other Person, unless such Authorized Officer of the Issuer or the Co-Issuer or such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous. Any Opinion of Counsel also may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Authorized Officer of the
Issuer or the Co-Issuer, or the Collateral Manager on behalf of the Issuer, certifying as to the factual matters that form a basis for such Opinion of Counsel and stating that the information with respect to such matters is in the possession of
the Issuer or the Co-Issuer or the Collateral Manager on behalf of the Issuer, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Whenever in this Indenture it is provided that the absence of the occurrence and continuation of a Default or Event of Default is a condition precedent to the
taking of any action by the Trustee or the Note Administrator at the request or direction of the Issuer or the Co-Issuer, then notwithstanding that the satisfaction of such condition is a condition precedent to the Issuer’s or the Co-Issuer’s
rights to make such request or direction, the Trustee or the Note Administrator shall be protected in acting in accordance with such request or direction if it does not have knowledge of the occurrence and continuation of such Default or Event
of Default as provided in Section 6.1(g).
Section 14.2 Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Securityholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Securityholders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and the Note Administrator, and, where it is hereby expressly required, to the Issuer and/or the
Co-Issuer. Such instrument or instruments (and the action or actions embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the Note Administrator, the Issuer and the Co-Issuer, if made in the
manner provided in this Section 14.2.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any
manner which the Trustee or the Note Administrator deems sufficient.
(c) The principal amount and registered numbers of Notes held by any Person, and the date of his holding
the same, shall be proved by the Notes Register. The Notional
Amount and registered numbers of the Preferred Shares held by any Person, and the date of his holding the same, shall be proved by the register of members maintained with respect to the
Preferred Shares. Notwithstanding the foregoing, the Trustee and Note Administrator may conclusively rely on an Investor Certification to determine ownership of any Notes.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the
Securityholder shall bind such Securityholder (and any transferee thereof) of such Security and of every Security issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee, the Note Administrator, the Preferred Share Paying Agent, the Share Registrar, the Issuer or the Co-Issuer in reliance thereon, whether or not notation of such action is made upon such Security.
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.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Securityholders or other documents provided or permitted by this Indenture to be made upon,
given or furnished to, or filed with:
(a) the Trustee by any Securityholder or by the Note Administrator, the Issuer or the Co-Issuer shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to and mailed, by certified mail, return receipt requested, hand delivered, sent by overnight courier service guaranteeing next day delivery, to the Trustee addressed to it at Wilmington
Trust, National Association, 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee – KREF 2022-FL3, Facsimile number: (302) 636-6196, with a copy to: E-mail: cmbstrustee@wilmingtontrust.com, or at any other address previously furnished in writing to the parties hereto and the Servicing Agreement, and to the Securityholders;
(b) the Note Administrator by the Trustee or by any Securityholder shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service, to the Note Administrator addressed to it at Computershare Trust Company, National Association, Corporate Trust
Services, 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: Corporate Trust Services – KREF 2022-FL3, with a copy by email to: trustadministrationgroup@wellsfargo.com and CREBondAdmin@wellsfargo.com, or at any other address previously furnished in writing to the parties hereto and the Servicing Agreement, and to the Securityholders;
(c) the Issuer by the Trustee, the Collateral Manager, the Note Administrator or by any Securityholder
shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form, to the
Issuer addressed to it at c/o KKR Real Estate Finance Manager LLC, 30 Hudson Yards, Suite 7500, New York, New York 10001, with a copy by email to: KREF2022FL3@kkr.com, with a coy by email to:
cayman@maples.com, or at any other address previously furnished in writing to the Trustee and the Note Administrator by the Issuer, with a copy to the Special Servicer;
(d) the Co-Issuer by the Trustee, the Collateral Manager, the Note Administrator or by any Securityholder
shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form, to the
Co-Issuer addressed to it c/o KKR Real Estate Finance Manager LLC, 30 Hudson Yards, Suite 7500, New York, New York 10001, with a copy by email to: KREF2022FL3@kkr.com, or at any other address previously furnished in writing to the Trustee and the Note Administrator by the Co-Issuer, with a copy to the Special Servicer at its address set forth below;
(e) the Advancing Agent by the Trustee, the Collateral Manager, the Note Administrator, the Issuer or the
Co-Issuer shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form,
to the Advancing Agent addressed to it at c/o KKR Real Estate Finance Manager LLC, 30 Hudson Yards, Suite 7500, New York, New York 10001, with a copy by email to: KREF2022FL3@kkr.com, or at any other address previously furnished in writing to the Trustee, the Note Administrator, and the Co-Issuers, with a copy to the Special Servicer at its address set forth below.
(f) the Preferred Share Paying Agent shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to and mailed, by certified mail, return receipt requested, hand delivered, sent by overnight courier service guaranteeing next day delivery or by facsimile in legible form, to the Preferred Share Paying Agent
addressed to it at its Corporate Trust Office or at any other address previously furnished in writing by the Preferred Share Paying Agent;
(g) the Servicer by the Issuer, the Collateral Manager, the Note Administrator, the Co-Issuer or the
Trustee shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid to Midland Loan Services, a Division of PNC Bank, National Association, P.O. Box 25965, Shawnee Mission, Kansas 66225-5965,
Attention: Executive Vice President – Division Head, or hand delivered, sent by overnight courier service or by facsimile in legible form, to the Servicer addressed to it at Midland Loan Services, a Division of PNC Bank, National Association,
10851 Mastin Street, Building 82, Suite 300, Overland Park, Kansas 66210, Attention: Executive Vice President – Division Head, email: noticeadmin@midlandls.com, or at any other address previously furnished in writing to the Issuer, the
Collateral Manager, the Note Administrator, the Co-Issuer and the Trustee;
(h) the Special Servicer by the Issuer, the Collateral Manager, the Note Administrator, the Co-Issuer or
the Trustee shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid to Midland Loan Services, a Division of PNC Bank, National Association, P.O. Box 25965, Shawnee Mission, Kansas 66225-5965,
Attention: Executive Vice President – Division Head, or hand delivered, sent by overnight courier service or by facsimile in legible form, to the Special Servicer addressed to it at Midland Loan Services, a Division of PNC Bank, National
Association, 10851 Mastin Street, Building 82, Suite 300, Overland Park, Kansas 66210, Attention: Executive Vice President – Division Head, email:
noticeadmin@midlandls.com, or at any other address previously furnished in writing to the Issuer, the Collateral Manager, the Note Administrator, the Co-Issuer and the Trustee;
(i) the Rating Agencies, by the Issuer, the Co-Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Note Administrator or
the Trustee shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form,
to the Rating Agencies addressed to them at (i) DBRS, Inc., 22 West Washington Street, Chicago, Illinois 60602, Attention: CMBS, Fax: (312) 332-3492, Email: cmbs.surveillance@morningstar.com and (ii) Moody’s Investor Services, Inc., 7 World Trade Center, 250 Greenwich Street, New York, New York 10007, Attention: CRE CDO
Surveillance, (or by electronic mail at moodys_cre_cdo_monitoring@moodys.com), or such other address that any Rating Agency shall designate in the future; provided that any request, demand, authorization, direction, order, notice,
consent, waiver or Act of Securityholders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with the Rating Agencies (“17g-5 Information”) shall be given in accordance with, and
subject to, the provisions of Section 14.13;
(j) Wells Fargo Securities, LLC, as a Placement Agent, as a Placement Agent, by the Issuer, the Co-Issuer,
the Collateral Manager, the Note Administrator, the Trustee or the Servicer shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, hand delivered, sent by
overnight courier service or by facsimile in legible form to Wells Fargo Securities, LLC, 30 Hudson Yards, 15th Floor, New York, New York 10001, Attention: A.J. Sfarra, fax: (212) 214-8970, email: anthony.sfarra@wellsfargo.com, with a copy
to: Troy B. Stoddard, Esq., Wells Fargo Law Department, D1053-300, 301 South College St., Charlotte, North Carolina 28288, fax: (704) 715-2378, email: troy.stoddard@wellsfargo.com;
(k) KKR Capital Markets LLC, as a Placement Agent, by the Issuer, the Co-Issuer, the Collateral
Manager, the Note Administrator, the Trustee or the Servicer shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid,
hand delivered, sent by overnight courier service or by facsimile in legible form to 30 Hudson Yards, Suite 7500, New York, New York 10001, Attention: Adam Smith, Email: Adam.Smith@kkr.com;
(l) Morgan Stanley & Co. LLC, as a Placement Agent, by the Issuer, the Co-Issuer, the
Collateral Manager, the Note Administrator, the Trustee or the Servicer shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight
courier service or by facsimile in legible form to Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Jane Lam, e-mail: jane.lam@morganstanley.com, with a copy to: Morgan Stanley & Co. LLC, Legal
Compliance Division, 1221 Avenue of the Americas, New York, New York 10020;
(m) Goldman Sachs & Co. LLC, as a Placement Agent, by the Issuer, the Co-Issuer, the Collateral
Manager, the Note Administrator, the Trustee or the Servicer shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier
service or by facsimile in legible form to Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282, Attention: Leah Nivison, e-mail:
leah.nivison@gs.com, with a copy to: Joe Osborne, facsimile number: (212) 291-5381, email: joe.osborne@gs.com;
(n) MUFG Securities Americas Inc., as a Placement Agent, by the Issuer, the Co-Issuer, the
Collateral Manager, the Note Administrator, the Trustee or the Servicer shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight
courier service or by facsimile in legible form to MUFG Securities Americas Inc., 1221 Avenue of the Americas, 6th Floor, New York, New York 10020, Attention: Asif Khan, email: asif.khan@mufgsecurities.com;
(o) the Collateral Manager shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, hand
delivered, sent by overnight courier service or by facsimile in legible form, to the Collateral Manager addressed to it at KKR Real Estate Finance Manager LLC, 30 Hudson Yards, Suite 7500, New York, New York
10001, with a copy by email to: KREF2022FL3@kkr.com; and
(p) the Note Administrator, shall be sufficient for every purpose hereunder if in writing and mailed, first
class postage prepaid hand delivered, sent by overnight courier service to the Corporate Trust Office of the Note Administrator.
Section 14.4 Notices to Noteholders; Waiver.
Except as otherwise expressly provided herein, where this Indenture or the Servicing Agreement provides for notice to Holders of Notes of any event,
(a) such notice shall be sufficiently given to Holders of Notes if in writing and mailed, first class
postage prepaid, to each Holder of a Note affected by such event, at the address of such Holder as it appears in the Notes Register, not earlier than the earliest date and not later than the latest date, prescribed for the giving of such
notice;
(b) such notice shall be in the English language; and
(c) all reports or notices to Preferred Shareholders shall be sufficiently given if provided in writing and
mailed, first class postage prepaid, to the Preferred Share Paying Agent.
The Note Administrator shall deliver to the Holders of the Notes any information or notice in its possession, requested to be so delivered by at least 25% of the Holders of
any Class of Notes.
Neither the failure to mail any notice, nor any defect in any notice so mailed, to any particular Holder of a Note shall affect the sufficiency of such notice with respect
to other Holders of Notes. In case by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to give such notice by mail, then such notification to Holders of Notes shall be made with the
approval of the Note Administrator and shall constitute sufficient notification to such Holders of Notes for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Trustee and with the Note Administrator, but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In the event that, by reason of the suspension of the regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee and the Note Administrator shall be deemed to
be a sufficient giving of such notice.
Section 14.5 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 14.6 Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer and the Co-Issuer shall bind their respective successors and assigns, whether so expressed or not.
Section 14.7 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 14.8 Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or implied, shall give to any Person, other than (i) the parties hereto and their successors hereunder and (ii)
the Servicer, the Special Servicer, the Collateral Manager, the Preferred Shareholders, the Preferred Share Paying Agent, the Share Registrar, the Noteholders and the Sponsor (each of whom shall be an express third party beneficiary hereunder),
any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 14.9 Governing Law; Waiver of Jury Trial.
THIS INDENTURE AND EACH NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT,
TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 14.10 Submission to Jurisdiction.
Each of the Issuer and the Co-Issuer hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan
in The City of New York in any action or proceeding arising out of or relating to the Notes or this Indenture, and each of the Issuer and the Co-Issuer hereby irrevocably agrees that all claims in respect of such action or proceeding may be
heard and determined in such New York State or federal court. Each of the Issuer and the Co-Issuer hereby irrevocably waives, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such
action or proceeding. Each of the Issuer and the Co-Issuer irrevocably consents to the service of any and all process in any action or proceeding by the mailing or delivery of copies of such process to it at the office of the Issuer’s and the
Co-Issuer’s agent set forth in Section 7.2. Each of the Issuer and the Co-Issuer agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law.
Section 14.11 Counterparts and Signatures.
This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument. This Indenture and any document in the Collateral Interest File shall be valid, binding and enforceable against a party (and any respective successors and permitted assigns thereof) when executed and delivered by an authorized
individual on behalf of such party by means of (i) an original manual signature, (ii) a faxed, scanned or photocopied manual signature or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National
Commerce Act, state enactments of the Uniform Electronic Transactions Act and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”), in each
case, to the extent applicable. Each faxed, scanned or photocopied manual signature, or other electronic signature, shall for all purposes have the same validity, legal effect and admissibility in evidence as an original manual signature.
Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to
investigate, confirm or otherwise verify the validity or authenticity thereof. Delivery of an executed counterpart of a signature page of this Indenture in Portable Document Format (PDF) or by electronic transmission shall be as effective as
delivery of a manually executed original counterpart to this Indenture. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other
Signature Law due to the character or intended character of the writings.
Section 14.12 Liability of Co-Issuers.
Notwithstanding any other terms of this Indenture, the Notes or any other agreement entered into between, inter alios, the Issuer
and the Co-Issuer or otherwise, neither the
Issuer nor the Co-Issuer shall have any liability whatsoever to the Co-Issuer or the Issuer, respectively, under this Indenture, the Notes, any such agreement or otherwise and, without
prejudice to the generality of the foregoing, neither the Issuer nor the Co-Issuer shall be entitled to take any steps to enforce, or bring any action or proceeding, in respect of this Indenture, the Notes, any such agreement or otherwise
against the other Co-Issuer or the Issuer, respectively. In particular, neither the Issuer nor the Co-Issuer shall be entitled to petition or take any other steps for the winding up or bankruptcy of the Co-Issuer or the Issuer, respectively or
shall have any claim in respect of any Collateral of the Co-Issuer or the Issuer, respectively.
Section 14.13 17g-5 Information.
(a) The Co-Issuers shall comply with their obligations under Rule 17g-5 promulgated under the Exchange Act
(“Rule 17g-5”), by their or their agent’s posting on the 17g-5 Website, no later than the time such information is provided to the Rating Agencies, all information that the Issuer or other parties on its behalf, including the Trustee,
the Note Administrator, the Servicer and the Special Servicer, provide the Rating Agencies for the purposes of determining the initial credit rating of the Notes or undertaking credit rating surveillance of the Notes; provided that no
party other than the Issuer, the Trustee, the Note Administrator, the Servicer or the Special Servicer may provide information to the Rating Agencies on the Issuer’s behalf without the prior written consent of the Issuer. At all times while
any Notes are rated by any Rating Agency or any other NRSRO, the Issuer shall engage a third party to post 17g-5 Information to the 17g-5 Website. The Issuer hereby engages the Note Administrator (in such capacity, the “17g-5 Information
Provider”), to post 17g-5 Information it receives from the Issuer, the Trustee, the Note Administrator, the Servicer or the Special Servicer to the 17g-5 Website in accordance with this Section 14.13, and the Note Administrator
hereby accepts such engagement.
(b) Any information required to be delivered to the 17g-5 Information Provider by any party under this Indenture or the Servicing Agreement
shall be delivered to it via electronic mail at 17g5informationprovider@wellsfargo.com, specifically with a subject reference of “KREF 2022-FL3 Ltd.” and an identification of the type of information being provided in the body of such electronic
mail, or via any alternative electronic mail address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider.
Upon delivery by the Co-Issuers to the 17g-5 Information Provider (in an electronic format mutually agreed upon by the Co-Issuers and the 17g-5 Information Provider) of
information designated by the Co-Issuers as having been previously made available to NRSROs by the Co-Issuers (the “Pre-Closing 17g-5 Information”), the 17g-5 Information Provider shall make such Pre-Closing 17g-5 Information available
only to the Co-Issuers and to NRSROs via the 17g-5 Information Provider’s Website pursuant this Section 14.13(b) The Co-Issuers shall not be entitled to direct the 17g-5 Information Provider to provide access to the Pre-Closing 17g-5
Information or any other information on the 17g-5 Information Provider’s Website to any designee or other third party.
(c) The 17g-5 Information Provider shall make available, solely to NRSROs, the following items to the extent such items are delivered to it
via email at
17g5informationprovider@wellsfargo.com, specifically with a subject reference of “KREF 2022-FL3 Ltd.” and an identification of the type of information being provided in the body of the email, or via any alternate
email address following notice to the parties hereto or any other delivery method established or approved by the 17g-5 Information Provider if or as may be necessary or beneficial:
(i) any statements as to compliance and related Officer’s Certificates delivered under Section
7.9;
(ii) any information requested by the Issuer or the Rating Agencies;
(iii) any notice to the Rating Agencies relating to the Special Servicer’s determination
to take action without satisfaction of the Rating Agency Condition;
(iv) any requests for satisfaction of the Rating Agency Condition that are delivered to
the 17g-5 Information Provider pursuant to Section 14.14;
(v) any summary of oral communications with the Rating Agencies that are delivered to
the 17g-5 Information Provider pursuant to Section 14.13(c); provided that the summary of such oral communications shall not disclose which Rating Agencies the communication was with;
(vi) any amendment or proposed supplemental indenture to this Indenture pursuant to Section 8.3; and
(vii) the “Rating Agency Q&A Forum and Servicer Document Request Tool” pursuant to Section
10.13(e).
The foregoing information shall be made available by the 17g-5 Information Provider on the 17g-5 Website or such other website as the Issuer may notify the parties hereto
in writing.
(d) Information shall be posted on the same Business Day of receipt provided that such information is
received by 12:00 p.m. (eastern time) or, if received after 12:00 p.m., on the next Business Day. The 17g-5 Information Provider shall have no obligation or duty to verify, confirm or otherwise determine whether the information being
delivered is accurate, complete, conforms to the transaction, or otherwise is or is not anything other than what it purports to be. In the event that any information is delivered or posted in error, the 17g-5 Information Provider may remove
it from the website. The 17g-5 Information Provider (and the Trustee) has not obtained and shall not be deemed to have obtained actual knowledge of any information posted to the 17g-5 Website to the extent such information was not produced
by it. Access will be provided by the 17g-5 Information Provider to NRSROs upon receipt of an NRSRO Certification in the form of Exhibit F hereto (which certification may be submitted electronically via the 17g-5 Website).
(e) Upon request of the Issuer or a Rating Agency, the 17g-5 Information Provider shall post on the 17g-5
Website any additional information requested by the Issuer or such Rating Agency to the extent such information is delivered to the 17g-5 Information
Provider electronically in accordance with this Section 14.13. In no event shall the 17g-5 Information Provider disclose on the 17g-5 Website the Rating Agency or NRSRO that requested
such additional information.
(f) The 17g-5 Information Provider shall provide a mechanism to notify each Person that has signed-up for
access to the 17g-5 Website in respect of the transaction governed by this Indenture each time an additional document is posted to the 17g-5 Website.
(g) Any other information required to be delivered to the Rating Agencies pursuant to this Indenture shall be furnished to the Rating Agencies only after the earlier of (x) receipt of confirmation (which may be by email) from the 17g-5 Information Provider that such information has been posted to the 17g-5
Website and (y) at the same time such information has been delivered to the 17g‑5 Information Provider in accordance with this Section 14.13.
(h) Notwithstanding anything to the contrary in this Indenture, a breach of this Section 14.13
shall not constitute a Default or Event of Default.
(i) If any of the parties to this Indenture receives a Form ABS Due Diligence-15E from any party in
connection with any third-party due diligence services such party may have provided with respect to the Collateral Interests (“Due Diligence Service Provider”), such receiving party shall promptly forward such Form ABS Due
Diligence-15E to the 17g-5 Information Provider for posting on the 17g-5 Website. The 17g-5 Information Provider shall post on the 17g-5 Website any Form ABS Due Diligence-15E it receives directly from a Due Diligence Service Provider or
from another party to this Indenture, promptly upon receipt thereof.
Section 14.14 Rating Agency Condition.
Any request for satisfaction of the Rating Agency Condition made by a Requesting Party pursuant to this Indenture, shall be made in writing, which writing shall contain a
cover page indicating the nature of the request for satisfaction of the Rating Agency Condition, and shall contain all back-up material necessary for the Rating Agencies to process such request. Such written request for satisfaction of the
Rating Agency Condition shall be provided in electronic format to the 17g-5 Information Provider in accordance with Section 14.13 and after receiving actual knowledge of such posting (which may be in the form of an automatic email
notification of posting delivered by the 17g-5 Website to such party), the Requesting Party shall send the request for satisfaction of such Rating Agency Condition to the Rating Agencies in accordance with the instructions for notices set forth
in Section 14.3.
Section 14.15 Patriot Act Compliance.
In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the Trustee, Note Administrator, the Servicer and the Special Servicer may be required to obtain, verify and record certain information relating to individuals and
entities which maintain a business relationship with the Trustee or Note Administrator, as the case may be. Accordingly, each of the parties agrees to provide to the Trustee and the Note Administrator, upon its request from time to time, such
identifying information and documentation as may be available for such party in order to enable the Trustee and the Note Administrator, as applicable, to comply with Applicable Law.
Section 14.16 Special Servicer Alternative Rate Activities.
Each holder of an interest in any Note or Preferred Share, by the acceptance of its interest, shall be deemed to have irrevocably waived and released any and all claims, in
each case, with respect to any action taken or omitted to be taken by the Special Servicer in the performance of the Special Servicer Alternative Rate Activities (as defined in the Servicing Agreement) unless such actions are taken or omitted
to be taken by reason of the Special Servicer’s gross negligence.
ARTICLE 15
ASSIGNMENT OF THE COLLATERAL INTEREST PURCHASE AGREEMENT
Section 15.1 Assignment of Collateral Interest Purchase Agreement.
(a) The Issuer, in furtherance of the covenants of this Indenture and as security for the Offered Notes and
amounts payable to the Secured Parties hereunder and the performance and observance of the provisions hereof, hereby collaterally assigns, transfers, conveys and sets over to the Trustee, for the benefit of the holders of the Offered Notes
(and to be exercised on behalf of the Issuer by persons responsible therefor pursuant to this Indenture and the Servicing Agreement), all of the Issuer’s estate, right, title and interest in, to and
under the Collateral Interest Purchase Agreement (now or hereafter entered into) (each, an “Article 15 Agreement”), including, without limitation, (i) the right to give all notices, consents and releases thereunder, (ii) the right to
give all notices of termination and to take any legal action upon the breach of an obligation of the Seller or Collateral Manager thereunder, including the commencement, conduct and consummation of proceedings at law or in equity, (iii) the
right to receive all notices, accountings, consents, releases and statements thereunder and (iv) the right to do any and all other things whatsoever that the Issuer is or may be entitled to do thereunder; provided, however, that the Issuer reserves for itself a license to exercise all of the Issuer’s rights pursuant to each Article 15 Agreement without
notice to or the consent of the Trustee or any other party hereto (except as otherwise expressly required by this Indenture, including, without limitation, as set forth in Section 15.1(f)) which license shall be and is hereby deemed
to be automatically revoked upon the occurrence of an Event of Default hereunder until such time, if any, that such Event of Default is cured or waived.
(b) The assignment made hereby is executed as collateral security, and the execution and delivery hereby
shall not in any way impair or diminish the obligations of the Issuer under the provisions of each of the Article 15 Agreements, nor shall any of the obligations contained in each of the Article 15 Agreements be imposed on the Trustee.
(c) Upon the retirement of the Notes and the release of the Collateral from the lien of this Indenture,
this assignment and all rights herein assigned to the Trustee for the benefit of the Noteholders shall cease and terminate and all the estate, right, title and interest of the
Trustee in, to and under each of the Article 15 Agreements shall revert to the Issuer and no further instrument or act shall be necessary to evidence such termination and reversion.
(d) The Issuer represents that it has not executed any assignment of the Article 15 Agreements other than
this collateral assignment.
(e) The Issuer agrees that this assignment is irrevocable, and that it shall not take any action which is
inconsistent with this assignment or make any other assignment inconsistent herewith. The Issuer shall, from time to time upon the request of the Trustee, execute all instruments of further assurance and all such supplemental instruments
with respect to this assignment as the Trustee may specify.
(f) The Issuer hereby agrees, and hereby undertakes to obtain the agreement and consent of the Seller in
the Collateral Interest Purchase Agreement to the following:
(i) the Seller consents to the provisions of this collateral assignment and agrees to
perform any provisions of this Indenture made expressly applicable to the Seller pursuant to the applicable Article 15 Agreement;
(ii) the Seller acknowledges that the Issuer is collaterally assigning all of its right,
title and interest in, to and under the Collateral Interest Purchase Agreement to the Trustee for the benefit of the Noteholders, and the Seller agrees that all of the representations, covenants and agreements made by the Seller in such
Article 15 Agreement are also for the benefit of, and enforceable by, the Trustee and the Noteholders;
(iii) the Seller shall deliver to the Trustee duplicate original copies of all notices,
statements, communications and instruments delivered or required to be delivered to the Issuer pursuant to the applicable Article 15 Agreement;
(iv) none of the Issuer or the Seller shall enter into any agreement amending, modifying
or terminating the applicable Article 15 Agreement (other than in respect of an amendment or modification to cure any inconsistency, ambiguity or manifest error) or selecting or consenting to a successor without notifying the Rating Agencies
and without the prior written consent and written confirmation of the Rating Agencies that such amendment, modification or termination will not cause its then-current ratings of the Notes to be downgraded or withdrawn;
(v) except as otherwise set forth herein and therein (including, without limitation, pursuant to Section 12 of the
Collateral Management Agreement), the Collateral Manager shall continue to serve as Collateral Manager under the Collateral Management Agreement, notwithstanding that the Collateral Manager shall not have received amounts due it under the
Collateral Management Agreement because sufficient funds were not then available hereunder to pay such amounts pursuant to the Priority of Payments. The Collateral Manager agrees not to cause the filing of a petition in bankruptcy against the
Issuer for the nonpayment of the fees or other amounts payable to the Collateral Manager under the Collateral Management Agreement until the payment in full of all Notes issued under this Indenture and the expiration of a period equal to the
applicable preference period (plus one day) under the Bankruptcy Code plus ten days following such payment; and
(vi) the Collateral Manager irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court
sitting in the Borough of Manhattan in The City of New York in any action or proceeding arising out of or relating to the Notes or this Indenture, and the Collateral Manager irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State or federal court. The Collateral Manager irrevocably waives, to the fullest extent it may legally do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. The Collateral Manager irrevocably consents to the service of any and all process in any action or Proceeding by the mailing by certified mail, return receipt requested, or delivery requiring signature and proof of delivery of
copies of such initial process to it at c/o Maples Fiduciary Services (Delaware) Inc., 4001 Kennett Pike, Suite 302, Wilmington, Delaware 19807. The Collateral Manager agrees that a final and non-appealable judgment by a court of competent
jurisdiction in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
ARTICLE 16
ADVANCING AGENT
Section 16.1 Liability of the Advancing Agent.
The Advancing Agent shall be liable in accordance herewith only to the extent of the obligations specifically imposed upon and undertaken by the Advancing Agent.
Section 16.2 Merger or Consolidation of the Advancing Agent.
(a) The Advancing Agent will keep in full effect its existence, rights and franchises as a corporation
under the laws of the jurisdiction in which it was formed, and will obtain and preserve its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Indenture to perform its duties under this Indenture.
(b) Any Person into which the Advancing Agent may be merged or consolidated, or any corporation resulting
from any merger or consolidation to which the Advancing Agent shall be a party, or any Person succeeding to the business of the Advancing Agent shall be the successor of the Advancing Agent, hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding (it being understood and agreed by the parties hereto that the consummation of any such transaction by the Advancing Agent
shall have no effect on the obligations of the Backup Advancing Agent and the Trustee under Section 10.7, which obligations shall continue pursuant to the terms of Section 10.7).
Section 16.3 Limitation on Liability of the Advancing Agent and Others.
None of the Advancing Agent or any of its Affiliates, directors, officers, employees or agents shall be under any liability for any action taken or for refraining from the
taking of any action in good faith pursuant to this Indenture, or for errors in judgment; provided, however, that this provision shall not protect the Advancing Agent against liability to
the Issuer or Noteholders for any breach of warranties or representations made herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of
negligent disregard of obligations and duties hereunder. The Advancing Agent and any director, officer, employee or agent of the Advancing Agent may rely in good faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. The Advancing Agent and any director, officer, employee or agent of the Advancing Agent shall be indemnified by the Issuer pursuant to the priorities set forth in Section 11.1(a) and
held harmless against any loss, liability or expense incurred in connection with any legal action relating to this Indenture or the Notes, other than any loss, liability or expense (i) specifically required to be borne by the Advancing Agent
pursuant to the terms hereof or otherwise incidental to the performance of obligations and duties hereunder (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Indenture); or (ii) incurred by reason
of any breach of a representation, warranty or covenant made herein, any misfeasance, bad faith or negligence by the Advancing Agent in the performance of or negligent disregard of, obligations or duties hereunder or any violation of any state
or federal securities law.
Section 16.4 Representations and Warranties of the Advancing Agent.
The Advancing Agent represents and warrants that:
(a) the Advancing Agent (i) has been duly organized, is validly existing and is in good standing under the
laws of the State of Delaware, (ii) has full power and authority to own the Advancing Agent’s Collateral and to transact the business in which it is currently engaged, and (iii) is duly qualified and in good standing under the laws of each
jurisdiction where the Advancing Agent’s ownership or lease of property or the conduct of the Advancing Agent’s business requires, or the performance of this Indenture would require, such qualification, except for failures to be so qualified
that would not in the aggregate have a material adverse effect on the business, operations, Collateral or financial condition of the Advancing Agent or the ability of the Advancing Agent to perform its obligations under, or on the validity or
enforceability of, the provisions of this Indenture applicable to the Advancing Agent;
(b) the Advancing Agent has full power and authority to execute, deliver and perform this Indenture; this
Indenture has been duly authorized, executed and delivered by the Advancing Agent and constitutes a legal, valid and binding agreement of the Advancing Agent, enforceable against it in accordance with the terms hereof, except that the
enforceability hereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law);
(c) neither the execution and delivery of this Indenture nor the performance by the Advancing Agent of its
duties hereunder conflicts with or will violate or result in a breach or violation of any of the terms or provisions of, or constitutes a default under: (i) the Governing Documents of the Advancing Agent, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other agreement, obligation, condition, covenant or instrument to which the Advancing Agent is a party or is bound, (iii) any law, decree, order,
rule or regulation applicable to the Advancing Agent of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having jurisdiction over the Advancing Agent or its properties, and which would have, in
the case of any of (i), (ii) or (iii) of this Section 16.4(c), either individually or in the aggregate, a material adverse effect on the business, operations, Collateral or financial condition of the Advancing
Agent or the ability of the Advancing Agent to perform its obligations under this Indenture;
(d) no litigation is pending or, to the best of the Advancing Agent’s knowledge, threatened, against the
Advancing Agent that would materially and adversely affect the execution, delivery or enforceability of this Indenture or the ability of the Advancing Agent to perform any of its obligations under this Indenture in accordance with the terms
hereof; and
(e) no consent, approval, authorization or order of or declaration or filing with any government,
governmental instrumentality or court or other Person is required for the performance by the Advancing Agent of its duties hereunder, except such as have been duly made or obtained.
Section 16.5 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Advancing Agent and no appointment of a successor Advancing Agent
pursuant to this Article 16 shall become effective until the acceptance of appointment by the successor Advancing Agent under Section 16.6.
(b) The Advancing Agent may, subject to Section 16.5(a), resign at any time by giving written
notice thereof to the Issuer, the Co-Issuer, the Collateral Manager, the Note Administrator, the Trustee, the Servicer, the Noteholders and the Rating Agencies.
(c) The Advancing Agent may be removed at any time by Act of Supermajority of the Preferred Shares upon
written notice delivered to the Trustee and to the Issuer and the Co-Issuer.
(d) If the Advancing Agent fails to make a required Interest Advance and it has not determined such Interest Advance to be a Nonrecoverable
Interest Advance, the Collateral Manager may, and at the direction of the Majority of the Controlling Class shall, terminate the Advancing Agent and replace the Advancing Agent with a successor Advancing Agent, subject to the satisfaction of
the Rating Agency Condition. In the event that the Collateral Manager has not terminated and replaced the Advancing Agent within 30 days of the Advancing Agent’s failure to make a required Interest Advance, the Note Administrator may, and at
the direction of the Majority of the Controlling Class shall, terminate the Advancing Agent and use commercially reasonable efforts for up to 90 days after such termination to
appoint a successor Advancing Agent, subject to the satisfaction of the Rating Agency Condition.
(e) Subject to Section 16.5(d), if the Advancing Agent shall resign or be removed, upon receiving
such notice of resignation or removal, the Backup Advancing Agent shall become the successor advancing agent until such time as the Issuer and the Co-Issuer shall promptly appoint a successor advancing agent by written instrument, in
duplicate, executed by an Authorized Officer of the Issuer and an Authorized Officer of the Co-Issuer, one copy of which shall be delivered to the Advancing Agent so resigning and to the Backup Advancing Agent, and one copy to the successor
Advancing Agent, together with a copy to each Noteholder, the Collateral Manager, the Trustee, the Note Administrator, the Servicer and the Special Servicer; provided that such successor Advancing Agent shall be appointed only subject
to satisfaction of the Rating Agency Condition, upon the written consent of a Majority of Preferred Shareholders. If no successor Advancing Agent shall have been appointed and an instrument of acceptance by a successor Advancing Agent shall
not have been delivered to the Advancing Agent within thirty (30) days after the giving of such notice of resignation, the Backup Advancing Agent, the Trustee, the Note Administrator, or any Preferred Shareholder, on behalf of himself and all
others similarly situated, may petition any court of competent jurisdiction for the appointment of a successor Advancing Agent.
(f) The Issuer and the Co-Issuer shall give prompt notice of each resignation and each removal of the
Advancing Agent and each appointment of a successor Advancing Agent by mailing written notice of such event by first class mail, postage prepaid, to the Rating Agencies, the Trustee, the Note Administrator, and to the Holders of the Notes as
their names and addresses appear in the Notes Register.
Section 16.6 Acceptance of Appointment by Successor Advancing Agent.
(a) Every successor Advancing Agent appointed hereunder shall execute, acknowledge and deliver to the
Issuer, the Co-Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Trustee, the Note Administrator, and the retiring Advancing Agent an instrument accepting such appointment hereunder and under the Servicing Agreement.
Upon delivery of the required instruments, the resignation or removal of the retiring Advancing Agent shall become effective and such successor Advancing Agent, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, duties and obligations of the retiring Advancing Agent hereunder and under the Servicing Agreement.
(b) Other than with respect to the Backup Advancing Agent as set forth in Section 16.5(e), no appointment of a
successor Advancing Agent shall become effective unless (1) the Rating Agency Condition has been satisfied with respect to the appointment of such successor Advancing Agent and (2) such successor has (i) a long-term unsecured debt rating of at
least “A2” by Moody’s, and whose short-term unsecured debt rating is at least “P-1” from Moody’s and (ii) a long-term unsecured debt rating of at least “A” by DBRS Morningstar, or if not rated by DBRS Morningstar, an equivalent by two other
NRSROs, one of which may be Moody’s.
Section 16.7 Removal and Replacement of Advancing Agent.
The Note Administrator shall replace any such successor Advancing Agent (excluding the Note Administrator and Trustee in its capacity as Backup Advancing Agent) upon receiving notice that such
successor Advancing Agent’s (i) long-term unsecured debt rating at any time becomes lower than “A2” by Moody’s, and whose short-term unsecured debt rating becomes lower than “P-1” by Moody’s and (ii) long-term unsecured debt rating has become
lower than “A” by DBRS Morningstar.
ARTICLE 17
CURE RIGHTS; PURCHASE RIGHTS
Section 17.1 Collateral Interest Purchase Agreements.
Following the Closing Date, unless a Collateral Interest Purchase Agreement is necessary to comply with the provisions of this Indenture, the Issuer may acquire Collateral Interests in
accordance with customary settlement procedures in the relevant markets. In any event, the Issuer (or the Collateral Manager on behalf of the Issuer) shall obtain from any seller of a Collateral Interest, all Loan Documents with respect to
each Collateral Interest that govern, directly or indirectly, the rights and obligations of the owner of the Collateral Interest with respect to the Collateral Interest and any certificate evidencing the Collateral Interest.
Section 17.2 Representations and Warranties Related to Reinvestment Collateral Interests, Replenishment Collateral Interests and Exchange Collateral Interests.
(a) Upon the acquisition of any Collateral Interest by the Issuer, the Seller shall be required to make representations and warranties
substantially in the form attached as Exhibit B to the Collateral Interest Purchase Agreement with such exceptions as may be relevant.
(b) The representations and warranties in Section 17.2(a) with respect to the acquisition of any Reinvestment
Collateral Interest, Replenishment Collateral Interest and Exchange Collateral Interest may be subject to any modification, limitation or qualification that the Collateral Manager determines to be reasonably acceptable in accordance with the
Collateral Management Standard; provided that the Collateral Manager shall provide the Rating Agencies with a report (by providing such report to the 17g-5 Information Provider) attached to each
Monthly Report identifying each such affected representation or warranty and the modification, exception, limitation or qualification received with respect to the acquisition of any Reinvestment Collateral Interest, Replenishment Collateral
Interest and Exchange Collateral Interest during the period covered by the Monthly Report, which report may contain explanations by the Collateral Manager as to its determinations.
(c) The Issuer (or the Collateral Manager on behalf of the Issuer) shall obtain a covenant from the Person making any representation or
warranty to the Issuer pursuant to Section 17.2(a) that such Person shall repurchase the related Collateral Interest if any such representation or warranty is materially breached (but only after the expiration of any permitted
cure periods and failure to cure such breach). The purchase price for any Collateral Interest repurchased shall be a price equal to the Repurchase Price.
Section 17.3 Operating Advisor.
If the Issuer, as a holder of a Participation has the right pursuant to the related Loan Documents to appoint the operating advisor, directing holder or Person serving a similar function under
the Loan Documents, each of the Issuer, the Trustee and the Collateral Manager shall take such actions as are reasonably necessary to appoint the Collateral Manager to such position.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Indenture as of the day and year first above written.
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KREF 2022-FL3 LTD., as Issuer
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Executed as a deed
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By
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Name:
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Title:
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KREF 2022-FL3 LLC, as Co‑Issuer
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By:
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Name:
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Title:
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KREF CLO LOAN SELLER LLC, as Advancing Agent
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By:
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Name:
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Title:
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[SIGNATURES CONTINUE ON FOLLOWING PAGE]
KREF 2022-FL3 – Signature Page to Indenture
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
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By:
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Name:
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Title:
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[SIGNATURES CONTINUE ON FOLLOWING PAGE]
KREF 2022-FL3 – Signature Page to Indenture
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COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION, as Note Administrator
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By:
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Name:
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Title:
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KREF 2022-FL3 – Signature Page to Indenture
SCHEDULE A
COLLATERAL INTEREST SCHEDULE
Collateral Interest |
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Collateral Interest Type |
Aven
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Pari Passu Participation
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Crystal Towers and Flats
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Pari Passu Participation
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Portofino Place
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Pari Passu Participation
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Berkeley Place
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Pari Passu Participation
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Outlook DTC
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Pari Passu Participation
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Eli Apts
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Mortgage Loan
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3001 Park
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Pari Passu Participation
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Alas Over Lowry
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Mortgage Loan
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Hollywood East
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Pari Passu Participation
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Landmark South
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Pari Passu Participation
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Motion at Dadeland
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Pari Passu Participation
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The Kendrick
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Pari Passu Participation
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Alvista Durham
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Pari Passu Participation
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Heights at Park Lane
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Pari Passu Participation
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Orchards Portfolio
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Pari Passu Participation
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The Harland
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Pari Passu Participation
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SCHEDULE B
BENCHMARK
Calculation of Term SOFR
Term SOFR with respect to any Interest Accrual Period will be determined by the Calculation Agent in accordance with the following provisions:
(i) On each Benchmark Determination Date, Term SOFR will equal the rate, as obtained by the Calculation Agent, identified as “1 Month CME Term SOFR,” as reported on
the Term SOFR Source as of the Reference Time.
(ii) If, on any Benchmark Determination Date, Term SOFR does not appear on the Term SOFR Source by 5:00 p.m. (New York time), then Term SOFR for purposes of calculating
Term SOFR will be the rate published on the last SOFR Business Day preceding such Benchmark Determination Date for which Term SOFR was published;
(iii) Notwithstanding the foregoing, in no event will Term SOFR be less than zero.
In making the above calculations, all percentages resulting from the calculation will be rounded, if necessary, to the nearest one hundred thousandth of a percentage point (0.00001%).
SCHEDULE C
LIST OF AUTHORIZED OFFICERS OF COLLATERAL MANAGER
Name
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Title
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Matthew Salem
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Chief Executive Officer
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Patrick Mattson
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President and Chief Operating Officer
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Mostafa Nagaty
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Chief Financial Officer and Treasurer
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Vincent Napolitano
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General Counsel and Secretary
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