Execution Version 

AGREEMENT OF COMMON TERMS AND DEFINITIONS 

Dated as of December 15, 2023 

SIG RCRS C MF 2023 Venture LLC 

Agreement of Common Terms and Definitions 

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Article III Miscellaneous ........................................................................................................78 

Section 3.1. Application of the Common Terms ...........................................................78 

Section 3.2. Enforceability of this Agreement...............................................................78 

Section 3.3. Waivers and Amendments .........................................................................78 

Section 3.4. Successors and Assigns..............................................................................78

Section 3.5. Custodian and Paying Agent Special Acknowledgments..........................79 

Schedules 

Schedule I Notice Schedule 

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AGREEMENT OF COMMON TERMS AND DEFINITIONS

THIS AGREEMENT OF COMMON TERMS AND DEFINITIONS (as the same is amended, 

modified or supplemented in accordance with the terms of this agreement, this “Agreement”), is

made and entered into as of the Closing Date, by and among: (i) the Federal Deposit Insurance

Corporation in its capacity as the Receiver, as the “Transferor” as defined herein (in such capacity,

the “Transferor”); (ii) the Federal Deposit Insurance Corporation in its capacity as the Receiver,

as the “Initial Member” as defined herein (in such capacity, the “Initial Member”); (ii) SIG-23 

Private Owner LLC, a Delaware limited liability company (the “Private Owner”); (iii) SIG RCRS

C MF 2023 Venture LLC, a Delaware limited liability company (the “Company”); and 

Computershare Trust Company N.A., a national banking association organized under the laws of 

the United States (the “Bank”). All capitalized terms used in this Agreement and that are defined 

in this Agreement will have the meanings and definitions set forth in this Agreement.

WHEREAS, the Transferor and the Company have entered into, or are contemporaneously 

with the execution and delivery of this Agreement entering into, that certain Transfer Agreement;

WHEREAS, the Private Owner, the Initial Member and the Company have entered into, or

are contemporaneously with the execution and delivery of this Agreement entering into, that

certain Private Owner Interest Sale Agreement;

WHEREAS, the Company, the Initial Member, the Private Owner and the Bank have

entered into, or are contemporaneously with the execution and delivery of this Agreement entering 

into, that certain Custodial and Paying Agency Agreement;

WHEREAS, the Company, the Initial Member and the Private Owner have entered into, or 

are contemporaneously with the execution and delivery of this Agreement entering into, that

certain LLC Operating Agreement;

WHEREAS, each party to this Agreement is a party to, or contemporaneously with the

execution and delivery of this Agreement is becoming a party to, one or more of the Core

Agreements or Transaction Documents;

WHEREAS, the parties to this Agreement wish to adopt the definitions in this Agreement

as the common definitions of capitalized terms used in the Core Agreements; and

WHEREAS, the parties to this Agreement wish to adopt the common terms set forth in this

Agreement as common terms generally applicable to the Transaction Documents;

NOW, THEREFORE, in consideration of the premises and the other covenants and 

conditions contained in this Agreement, and for other good and valuable consideration the receipt

and sufficiency of which are acknowledged, each party which has executed this Agreement agrees

as follows:

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ARTICLE I 

Certain Definitions 

Section 1.1. Definitions. Unless otherwise defined in the respective Core Agreement, 

the following terms in the Core Agreements will have the meanings and definitions respectively 

set forth in this Section 1.1. 

“A/B Note” means, with respect to any Loan and related Note, two promissory notes 

originating from a single Note where the B promissory note (B Note) is related (subordinated) to 

a senior promissory A note (A Note) and both share the same collateral. The B Note represents the 

difference between the total Unpaid Principal Balance of the applicable originating single Note 

and Unpaid Principal Balance of the A Note (in each case with such Unpaid Principal Balance 

being determined solely by reference to the actual unpaid principal balance in accordance with the 

applicable Asset Documents). 

“Acceptable Investment Rating” means any of the highest three rating categories that 

may be assigned to any security, obligation, or entity by the Rating Agencies. 

“Acceptable Rating” means, in each case with respect to construction loan servicers or 

special loan servicers of commercial and/or residential mortgage loans (or the applicable ratings 

category that includes such loans), (a) a rating of “Average (Select Servicer List)” (or better) or 

other comparable rating by S&P Global Ratings, (b) a rating of Level 3 Servicer Rating (or better) 

or other comparable rating by Fitch Ratings Inc., (c) a rating of “MOR CS3” (or better) or other 

comparable rating by DBRS Morningstar, or (d) a rating of “Pass” or other comparable rating by 

Kroll Bond Rating Agency. 

“Accountants” means the independent certified public accountants of the Company. 

“Accounting Records” means the general ledger, supporting subsidiary ledgers and 

schedules, and loan servicing system records of the Receiver. 

“Accounts” means the Company Accounts and the Private Owner Pledged Account. 

“Acquired Property” means, collectively, Company Acquired Property and Receiver 

Acquired Property. For the avoidance of doubt, Company Acquired Property and Receiver 

Acquired Property each include: (a) all related rights, powers or Liens of any Ownership Entity 

in, to or under the Collateral Documents and or Asset Documents; (b) all rights of the Receiver, 

the Failed Bank, the Company or any Ownership Entity pursuant to any Contract for Deed or in 

or to the real property that is subject to any such Contract for Deed; (c) all rights of the Receiver, 

the Failed Bank, the Company or any Ownership Entity pursuant to any lease or in or to the related 

leased property; (d) all rights of the Receiver, the Failed Bank, the Company or any Ownership 

Entity under the Related Agreements (to the extent relating to such Company Acquired Property 

or Receiver Acquired Property and not otherwise relating to or included in a Loan); (e) all rights 

of the Receiver, the Failed Bank, the Company or any Ownership Entity to any Deficiency Balance 

or any Deficiency Judgment Claim with respect to such Deficiency Balance (in each case to the 

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extent relating to such Company Acquired Property or Receiver Acquired Property and not 

otherwise relating to or included in a Loan); (f) all rights of the Receiver, the Failed Bank, the 

Company or any Ownership Entity to any Underlying Loan; (g) all rights of the Company or any 

Ownership Entity to any Seller Financed Loan or other loan documents; (h) all rights to causes of 

action, lawsuits, judgments, claims and demands of any nature available to or being pursued by or 

for the benefit of the Receiver, the Failed Bank, the Company or any Ownership Entity with respect 

to any of the foregoing or the ownership, use, function, value of or other rights pertaining to any 

of the foregoing, whether arising by way of counterclaim or otherwise, other than any claims 

retained by the Receiver pursuant to Section 2.7 of the Transfer Agreement; and (i) all guaranties, 

warranties, indemnities and similar rights in favor of the Receiver, the Failed Bank, the Company 

or any Ownership Entity with respect to any of the foregoing; provided, however, that, for purposes 

of any Transaction Document other than the Transfer Agreement, any such Receiver Acquired 

Property, and any of the foregoing rights, powers or Liens of (or in favor of) the Receiver or the 

Failed Bank, are to be included in (and considered part of) the Acquired Property only to the extent 

such Receiver Acquired Property, and rights, powers or Liens, are transferred to the Company 

pursuant to the Transfer Agreement (and not otherwise subsequently transferred back to the 

Receiver). 

“Acquired Property Deed” means, with respect to any Acquired Property (other than a 

Receiver Acquired Property that is conveyed by the Transferor to an Ownership Entity pursuant 

to a Receiver’s Deed or, in the case of any Potentially Defectively Foreclosed Receiver Acquired 

Property, a Receiver’s Quitclaim Deed), the instrument or document required by the Law of the 

jurisdiction in which the Acquired Property is located to convey fee title. 

“Acquired Property Files” means, with respect to each Acquired Property, to the extent 

applicable, the following: (a) (i) if the related Acquired Property Deed, Receiver’s Deed or 

Receiver’s Quitclaim Deed has been delivered for recordation, a copy thereof (which may be 

electronic) file-stamped with evidence of recording thereon in the name of the Ownership Entity, 

together with a certificate of the related Servicer (or Subservicer) or the foreclosure attorney 

certifying that such Acquired Property Deed, Receiver’s Deed or Receiver’s Quitclaim Deed is a 

true, correct and complete copy of the original document, or (ii) if the related Acquired Property 

Deed, Receiver’s Deed or Receiver’s Quitclaim Deed has been delivered for recordation but not 

yet returned, a copy thereof (which may be electronic) together with a certificate of the related 

Servicer (or Subservicer) or the foreclosure attorney certifying that such Acquired Property Deed, 

Receiver’s Deed or Receiver’s Quitclaim Deed is a true, correct and complete copy of the original 

document, and that the original Acquired Property Deed, Receiver’s Deed or Receiver’s Quitclaim 

Deed has been delivered to the proper recording office for recordation; (b) as applicable, either 

(i) a copy of each Acquired Property Deed (which may be electronic) that is intervening between 

the lender that obtained title to such property assets as a result of foreclosure or deed in lieu of 

foreclosure of a mortgage or deed of trust and the Ownership Entity, with the same certification 

documentation required in clause (a)(i) above, or (ii) the original or a copy of the assignment of 

foreclosure bid between the foreclosing lender and the Ownership Entity with respect to the related 

Acquired Property, and in the case of a copy, together with a certificate of the related Servicer (or 

Subservicer) or the foreclosure attorney certifying that such assignment of foreclosure bid is a true, 

correct and complete copy of the original document, with the same certification documentation 

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required in clause (a)(i) above; (c) the original or copy of the policy of title insurance prior to 

foreclosure of the related mortgage loan accompanied by a title report procured upon foreclosure 

of the related mortgage loan, with respect to the Acquired Property; (d) with respect to each 

Receiver Acquired Property conveyed by the Transferor to an Ownership Entity pursuant to a 

Receiver’s Deed, the policy of title insurance and survey for such Receiver Acquired Property as 

and to the extent required under Section 3.1(d)(v) of the Transfer Agreement; (e) with respect to 

each Receiver Acquired Property conveyed by the Transferor to an Ownership Entity pursuant to 

a Receiver’s Deed, the original or a copy of the applicable Omnibus Property Assignment; (f) for 

any Acquired Property that is subject to a lease, a copy of the lease together with a certificate of 

the related Servicer (or Subservicer) certifying that such lease is a true, correct and complete copy 

of the original document; (g) with respect to any personal property Acquired Property with respect 

to which a document of assignment, conveyance of transfer is required to be filed or recorded 

pursuant to any applicable Law to evidence the transfer thereof, either the original or (if such 

original copy is retained by the relevant Recording Office) a copy thereof (which may be 

electronic) file-stamped with evidence of recording or filing thereon, together (in the case of a 

copy) with a certificate of the related Servicer (or Subservicer) or the foreclosure attorney 

certifying that such document of assignment, conveyance of transfer is a true, correct and complete 

copy of the original document; and (h) with respect to any personal property Acquired Property 

with respect to which a certificate of title is issued under any applicable Law, the original of such 

certificate of title. 

“Acquired REO Property” means any real property (and related personal property) 

included in the Acquired Property. 

“Act” means the Delaware Limited Liability Company Act, 6 Del. C. Section 18-101 et 

seq., as may be amended, supplemented, or modified from time to time. 

“Action” means any (a) action, suit or proceeding (including the administrative claims 

process administered by the Receiver pursuant to 12 U.S.C. Section 1821(d)(3) through (13) and 

initiated by the filing of a “proof of claim” with the Receiver) by or before any Governmental 

Authority, whether civil, criminal, administrative or investigative, and whether at law or in equity, 

or (b) any arbitration proceeding. 

“Additional Security” means collateral (securing the Private Owner Obligations) 

consisting of (a) Qualifying Cash Collateral or (b) undrawn (and available) amounts under a 

Qualifying Letter of Credit, together aggregating an amount at least equal (at all times) to the 

Private Owner Pledged Amount, it being understood and agreed that the Private Owner initially 

may meet the foregoing requirements through either clause (a) or (b) above (or a combination 

thereof; provided that, subject to the one-time substitution right set forth in Section 3.13(e) of the 

LLC Operating Agreement, at no time shall more than one Qualifying Letter of Credit be issued 

for such purpose), and that such determination with respect to clause (a) or (b) above will be as 

initially determined by the Private Owner on or prior to the Closing Date (including as might be 

set forth in the Bid submitted by or on behalf of the Private Owner, or as otherwise might be 

determined by the Private Owner in a manner acceptable to the Initial Member in connection with 

the Closing), and may not be altered after the Closing Date except as permitted pursuant to 

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Section 3.13(e) of the LLC Operating Agreement (including as contemplated by the definition of 

the term “LC Reissuance/Extension Failure”); provided, however, that it is further understood that, 

to the extent that the Private Owner used a Qualifying Letter of Credit, the composition of the 

Additional Security can change after the Closing Date as a result of draws on such Qualifying 

Letter of Credit. 

“Additional Security Substitution Fee” means a fee in the amount of $10,000.00, payable 

by the Private Owner to the Initial Member in connection with any substitution of the form of the 

Additional Security, including any such substitution resulting from, or so as to avoid or cure the 

occurrence of, an LC Reissuance/Extension Failure. 

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit 

balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after 

giving effect to the following adjustments: 

(a) Credit to such Capital Account any amounts that such Member is obligated 

to restore or is deemed to be obligated to restore pursuant to Treasury Regulations Sections 1.704-

2(g)(1) and 1.704-2(i)(5); and 

(b) Debit to such Capital Account the items described in Treasury Regulations 

Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6). 

The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the 

provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and is to be interpreted 

consistently therewith. 

“Adjusted Equity Asset Value” means, with respect to any Asset, (a) the Equity Asset 

Value of such Asset, plus (in the case of any Excess Principal) or minus (in the case of any Principal 

Deficiency) (b) the applicable Adjustment to Asset Value. 

“Adjusted Escrow Balance” means, with respect to any Loan, the Escrow Balance 

adjusted higher or lower, as appropriate, to reflect the actual balance of the Escrow Account as 

reflected on the Accounting Records as of the Cut-Off Date and to correct errors reflected in the 

Escrow Balance due to (a) miscalculations, misapplied payments, unapplied payments, unrecorded 

disbursements or other accounting errors with respect to the period ending on the Cut-Off Date, 

(b) the effect of any final court decree, unappealable regulatory enforcement order or other similar 

action of a legal or regulatory nature effective on or before the Cut-Off Date, (c) a foreclosure sale 

that occurred on or before the Cut-Off Date and for which the Redemption Period, if any, expired 

on or before the Cut-Off Date, or (d) the portion of any Dishonored Check that was applied to (and 

reflected in) the Escrow Balance. 

“Adjusted Unpaid Principal Balance” means, with respect to any Asset, the Cut-Off Date 

Unpaid Principal Balance adjusted higher or lower, as appropriate, to reflect the actual Unpaid 

Principal Balance of the Asset as of the Cut-Off Date on the Accounting Records and to correct 

errors reflected in the Cut-Off Date Unpaid Principal Balance due to (a) miscalculations, 

misapplied payments, unapplied payments, unrecorded advances of principal or other 

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disbursements, or other accounting errors with respect to the period ending on the Cut-Off Date, 

(b) the effect of any final court decree, unappealable regulatory enforcement order or other similar 

action of a legal or regulatory nature effective on or before the Cut-Off Date, (c) a foreclosure sale 

that occurred on or before the Cut-Off Date and for which the Redemption Period, if any, expired 

on or before the Cut-Off Date or (d) the portion of any Dishonored Check that was applied to (and 

reflected in) the Cut-Off Date Unpaid Principal Balance. 

“Adjustment Percentage” means, with respect to any Asset, the quotient (expressed as a 

decimal) of the Private Owner Interest Asset Value for such Asset divided by the Cut-Off Date 

Unpaid Principal Balance of such Asset. 

“Adjustment to Asset Value” means, in the event of any Excess Principal (or Principal 

Deficiency) with respect to any Asset, an amount equal to the product of (a) the amount of such 

Excess Principal (or Principal Deficiency), multiplied by (b) the quotient of the Equity Asset Value 

for such Asset divided by the Cut-Off Date Unpaid Principal Balance of such Asset. 

“Affected Asset” has the meaning set forth in Section 4.5(d) of the Transfer Agreement. 

“Affidavit and Assignment of Claim” means an Affidavit and Assignment of Claim in 

the form of Attachment D to the Transfer Agreement. 

“Affiliate” means, with respect to any specified Person, (a) any other Person directly or 

indirectly Controlling or Controlled by or under common Control with such specified Person, (b) 

any Person owning or Controlling 10.0% or more of the outstanding voting securities, voting 

equity interests, or beneficial interests of the Person specified, (c) any officer, director, general 

partner, managing member, trustee, employee or promoter of the Person specified or any 

Immediate Family Member of such officer, director, general partner, managing member, trustee, 

employee or promoter, (d) any corporation, partnership, limited liability company or trust for 

which any Person referred to in clause (b) or (c) acts in that capacity, or (e) any Person who is an 

officer, director, general partner, managing member, trustee or holder of 10.0% or more of the 

outstanding voting securities, voting equity interests or beneficial interests of any Person described 

in clauses (a) through (d); provided, however, that (x) none of the Initial Member, the Transferor, 

the FDIC or any Affiliate (for this purpose determined disregarding clauses (b), (c) and (d) of this 

definition (including in the context of clause (e) of this definition) and disregarding the Company 

and any Person Controlled by the Company) of any of the foregoing will be deemed to be an 

“Affiliate” of the Company or of any Person Controlled by the Company, and (y) for the purposes 

of (i) the definition of the term “Change of Control,” (ii) Section 10.1(s) of the LLC Operating 

Agreement and (iii) any PO Owner Undertaking, clauses (b), (c), (d) and (e) above are to be 

disregarded. 

“Agreement of Common Terms and Definitions” means this Agreement. 

“Allonge” means an allonge, executed in blank, by the Company. 

“Applicable Agreements” has the meaning set forth in the Reporting and Access 

Schedule. 

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“Applicable Reporting” has the meaning set forth in Section 6 of the Reporting and 

Access Schedule. 

“Appraisal” means, as of any date of determination with respect to any Acquired Property 

(including any applicable Collateral for a Loan prior to the same becoming Acquired Property) or 

Mortgaged Property, a determination of the market value thereof pursuant to a commercially 

reasonable appraisal complying with USPAP (or other appraisal standards acceptable to the Initial 

Member) and conducted by a state certified appraiser (not an Affiliate of the Manager, Servicer or 

the Private Owner) or, if broker price opinions are customarily used for properties of a similar type 

and location as a reliable means for determination of value thereof, a commercially reasonable 

broker price opinion prepared by a real estate broker (not an Affiliate of the Manager, Servicer or 

the Private Owner); provided, however, that (a) in all events such form of determination of market 

value is to be selected and conducted in compliance with applicable Law, including, in respect of 

Acquired Property, as to the exercise of relevant remedies (resulting in acquisition of title to such 

Acquired Property) and preservation of rights to collect the Deficiency Balance, if any, and (b) if 

the market value for such Acquired Property or Mortgaged Property, as applicable, as so 

determined pursuant to the foregoing clause (a) is an amount equal to or in excess of 

$5,000,000.00, then such determination will be subject to completion of an appraisal review 

conducted in accordance with USPAP (or other appraisal standards acceptable to the Initial 

Member) by a state certified appraiser (or other qualified professional regularly performing 

valuation reviews) (not an Affiliate of the Manager, the Servicer, the Private Owner or the 

applicable Person having performed such valuation) which confirms that such valuation meets 

acceptable quality standards conforming to market practices in the relevant market, follows 

applicable requirements of Law, and concludes with a reasonable and reliable market value 

estimate (it being understood that such valuation will not be deemed a completed “Appraisal” until 

such review and confirmation is so obtained). Any appraisal included in the Asset Files and 

forming the basis for an initial Appraised Value set forth in the Loan Performance at Cut-Off Date 

Report will be deemed to be an “Appraisal” hereunder (having a date, and reflecting a value, as 

set forth in such appraisal). 

“Appraised Value” means, as of any date of determination, the appraised value of an 

Acquired REO Property (or other Acquired Property) or Mortgaged Property, as applicable, based 

upon the most recent Appraisal obtained pursuant to Section 5.3(a) of Annex IV to the LLC 

Operating Agreement, the definition of “Net Fair Value” or any other applicable provision of the 

Transaction Documents permitting or requiring such Appraisal; provided, that for any Mortgaged 

Property for which an appraised value is set forth (whether by Loan or specific reference to such 

Mortgaged Property) in the Loan Performance at Cut-Off Date Report, the initial Appraised Value 

of such Mortgaged Property is as so set forth in the Loan Performance at Cut-Off Date Report. 

“Asset” means an individual Loan or Acquired Property, and “Assets” means all of the 

Loans and Acquired Property collectively. 

“Asset Documents” means (a) all documents, agreements, certificates, instruments and 

other writings (including all Collateral Documents) now or hereafter executed by or delivered or 

caused to be delivered by any Borrower, any Obligor or any other obligor evidencing, creating, 

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guaranteeing or securing, or otherwise executed or delivered in respect of, all or any part of an 

Asset or evidencing any transaction contemplated thereby (including, for this purpose, title 

insurance policies and endorsements thereto), and all Modifications thereto, and (b) without 

limiting the generality of clause (a), all documents, agreements, instruments and other writings 

pursuant to which the Failed Bank has any obligation to make a principal advance to any Borrower 

(which principal advance, if it had been made on or prior to the Cut-Off Date, would have been 

reflected in the calculation of the outstanding principal balance of a Loan). 

“Asset File” means all documents pertaining to any Asset, either copies or originals 

(electronic or otherwise), that are in the possession of the Receiver or any of its employees or 

contractors responsible for the servicing of the Asset, other than (a) the original Notes, renewals 

of the Notes and other Collateral Documents and Custodial Documents and (b) confidential or 

privileged communications between the Receiver (or any predecessor-in-interest, including the 

Failed Bank) and its legal counsel; provided, however, that the Asset Files do not include files 

maintained by other employees or agents of the Receiver or attorney-client or work product 

privileged materials held by the Receiver’s legal counsel unless, in the opinion of such counsel, 

the disclosure of the material is not likely to result in the waiver of the attorney-client or work 

product privilege. 

“Asset Management” means the general oversight and management of Assets (including 

oversight and control of litigation or other proceedings or claims with respect to any Assets), the 

exercise of remedies (including institution and management of foreclosure proceedings or other 

actions to enforce upon any Collateral or rights against any Borrower or Obligor) with respect to 

Defaulted Loans (and exercise of applicable authority as described in Section 12.16 of, and Section 

5 of Annex IV to, the LLC Operating Agreement with respect to all Loans), marketing and sale of 

Assets, and management (and all other Servicing) of Acquired Property; provided, however that 

Asset Management will in all events exclude day-to-day servicing of Loans (other than Defaulted 

Loans), disbursements to Borrowers, collections of payments from Borrowers with respect to 

Loans (other than in connection with exercise of remedies following applicable acceleration of any 

such Loan, or otherwise against any Collateral for such Loan), management of Escrow Accounts, 

and any other Servicing of a Loan that, pursuant to applicable Law, would require the Person 

conducting the same to meet licensing, certification or similar requirements of any Governmental 

Authority (other than general qualifications to do business in a particular jurisdiction). 

“Asset Proceeds” means all of the following: (a) any and all proceeds with respect to any 

or all of the Assets or any or all of the Collateral, including principal, interest, default interest, 

prepayment fees, premiums and charges, extension and exit fees, late fees, assumption fees, other 

fees and charges, insurance proceeds and condemnation payments (or any portion thereof) and, 

with respect to any Acquired Property, operating cash flow realized from such Acquired Property, 

whether paid directly to the Company or payable to an Ownership Entity and distributed to the 

Company, and, with respect to any Acquired Property leased by an Ownership Entity to a TRS 

Entity, the lease payment for such Acquired Property paid to an Ownership Entity and distributed 

to the Company; (b) any and all proceeds from sales or other dispositions or refinancings of any 

or all of the Assets (including Acquired Property) or any or all of the Ownership Entities, including 

any Repurchase Price payments pursuant to the Transfer Agreement; (c) any proceeds from 

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making a draw under any letter of credit or certificate of deposit held with respect to any Asset, if 

such draw is permitted by the terms of the Asset Documents; (d) any recoveries from Borrowers 

or Obligors of any kind or nature with respect to the Assets; (e) any deposits or down payments 

forfeited by prospective purchasers or lessees of apartments or other units for space at any 

Collateral; (f) indemnity payments or reimbursements (including for TRS Costs) received by the 

Company or any Ownership Entity pursuant to the Transaction Documents; and (g) any interest or 

other earnings accrued and paid on any of the amounts described in the foregoing clauses (a) 

through (f) while held in the Collection Account or any other account (other than the Working 

Capital Reserve Account, the Capital Improvement Account or the Private Owner Pledged 

Account); provided, however, that, with respect to proceeds of any Loan Participation (including 

as a result of any sale or other disposition of such Loan Participation or of Collateral relating 

thereto), the Asset Proceeds exclude any amounts payable to others under the applicable Loan 

Participation Agreement, and with respect to any Loan, the Asset Proceeds exclude all Escrow 

Payments and all other amounts required to be deposited in any Escrow Account pursuant to the 

applicable Asset Documents. 

“Asset Schedule” means the Asset Schedule included in Attachment A to the Transfer 

Agreement (except as used in the Servicing Agreement, wherein such term is separately defined). 

“Asset Schedule and Exception List” means a list of the Assets, identifying, with respect 

to each Asset, each Custodial Document delivered to the Custodian and each Exception (including 

identifying, with respect to any document or other item required to be provided by the Company 

to the Custodian pursuant to Sections 6.1(c)(ii), (iii), (vi) or (viii) of the Custodial and Paying 

Agency Agreement, which of the various alternatives with respect to originals or copies thereof 

specified in the relevant clause applies) and that details, with respect to any such Asset that has 

been released by the Custodian, the following: (a) the Borrower name and any identification 

number assigned to the Asset, (b) the location to which the Custodial Documents with respect to 

such Asset were delivered by the Custodian, (c) the date on which such Custodial Documents were 

released by the Custodian, and (d) the Person to which such Custodial Documents were released. 

“Assignment and Acceptance of Limited Liability Company Interest” means an 

Assignment and Acceptance of Limited Liability Company Interest in the form of Attachment I to 

the Transfer Agreement. 

“Assignment and Lost Instrument Affidavit” means an Assignment and Lost Instrument 

Affidavit in the form of Attachment F to the Transfer Agreement. 

“Assignment of JDC Agreement” means, with respect to any JDC Agreement, an 

assignment thereof substantially in the form of Exhibit E to the LLC Operating Agreement, 

executed and delivered by the JDC Contractor, the Manager and, to the extent applicable, the 

Servicer (if the Servicer or one of its Subservicers engages the JDC Contractor) and applicable 

Subservicer (if such Subservicer engages the JDC Contractor), in favor of the Initial Member. Any 

such Assignment of JDC Agreement, once so executed and delivered, will be deemed a 

Transaction Document. 

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“Assumed Closing Date Asset Litigation” means any Closing Date Asset Litigation other 

than any Retained Closing Date Asset Litigation, including any appeal of any such Closing Date 

Asset Litigation after the Closing Date, and including, with respect to any such Closing Date Asset 

Litigation, any claim (including any assertion of a Liability) that might be asserted therein 

(including first asserted therein) on, or at any time after, the Closing Date (whether by amendment 

of a complaint, counterclaim or otherwise). 

“Assumed Property Obligations” means, with respect to any Acquired Property, 

obligations that run with (or are otherwise imposed by operation of Law on the owner of) such 

Acquired Property and contractual obligations (in favor of Persons other than the Company, the 

Failed Bank or any other predecessor in interest to the Company) arising under agreements (to 

which the applicable Borrower or Obligor was a party) relating to or affecting such Acquired 

Property as in effect prior to the foreclosure or other event pursuant to which the applicable 

Ownership Entity acquired title to such Acquired Property, in each case to the extent such 

obligations rightfully (and with the Company having exercised applicable remedies in accordance 

with the Servicing Standard) remain binding on such Acquired Property or Ownership Entity. 

“Authorized Denomination” has the meaning set forth in Section 2(b) of Annex I to the 

Custodial and Paying Agency Agreement. 

“Authorized Representative” means, with respect to any Person, each individual 

designated in writing as required by Section 17.1 of the Custodial and Paying Agency Agreement 

by such Person to the Custodian to act as an authorized representative of such Person for purposes 

of the Custodial and Paying Agency Agreement. 

“Bank” means Computershare Trust Company N.A., a national banking association 

organized under the laws of the United States. 

“Bankruptcy Rule” means any of the rules set forth in the Federal Rules of Bankruptcy 

Procedure, as amended, supplemented, or modified from time to time. 

“Beneficiaries” has the meaning set forth in the Reporting and Access Schedule. 

“Bid” means the sealed offer of the Winning Bidder set forth in the Bid Form. 

“Bid Form” has the meaning set forth in the Recitals of the Private Owner Interest Sale 

Agreement. 

“Bidder Qualification Application” means that certain Bidder Qualification Application 

submitted by or on behalf of the Winning Bidder to, and approved by, the FDIC in connection with 

(and as a condition to submission of) the Bid. 

“Book Value” means (a) with respect to property transferred pursuant to the Transfer 

Agreement, the Fair Market Value of such property at the time of such transfer and (b) with respect 

to any other Company asset, the adjusted basis of such asset for federal income tax purposes; 

provided, however, that the Book Values of all Company assets are to be adjusted to equal their 

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Agreement of Common Terms and Definitions 

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respective Fair Market Values in accordance with the rules set forth in Section 1.704-1(b)(2)(iv)(f) 

of the Treasury Regulations, except as otherwise provided in this Agreement, immediately prior 

to: (x) the date of the acquisition of any additional LLC Interest by any new or existing Member 

in exchange for more than a de minimis Capital Contribution; (y) the date of the actual distribution 

of more than a de minimis amount of Company property (other than a pro rata distribution) to a 

Member in connection with the redemption of all or part of such Member’s LLC Interest; or (z) the 

date of the actual liquidation of the Company within the meaning of Section 1.704-1(b)(2)(ii)(g) 

of the Treasury Regulations; and provided further, however, that adjustments pursuant to clauses 

(x) and (y) above are to be made only if the Tax Representative reasonably determines, after 

consultation with the Initial Member, that such adjustments are necessary or appropriate to reflect 

the relative economic interests of the Members. The Book Value of any Company Property 

distributed to any Member are to be adjusted immediately prior to such distribution to equal its 

Fair Market Value as of such date. 

“Borrower” means any borrower with respect to any Asset. 

“Borrower-Business Relationship Business Plan” has the meaning set forth in Section 

7.7 of the LLC Operating Agreement. 

“Business” means the acquisition of the Assets pursuant to the Transfer Agreement and 

the ownership, servicing, administration, management, and liquidation of the Assets. 

“Business Day” means any day except (a) a Saturday, Sunday or other day on which 

commercial banks in the State of New York or United States federal government offices are 

required or authorized by Law to close or (b) with respect to any day on which the Company owes 

an obligation to the Custodian or the Paying Agent or on which the Custodian or the Paying Agent 

owes an obligation to the Company, any such Business Day pursuant to the foregoing clause (a) 

other than a day on which the Bank’s offices are closed. 

“Business Plan” has the meaning set forth in Section 7.7 of the LLC Operating Agreement. 

“Call Event” has the meaning set forth in Section 3.14(a) of the LLC Operating 

Agreement. 

“Capital Account” means the capital account of a Member related to such Member’s 

outstanding LLC Interests, as adjusted to account for allocations of Net Income (and items thereof) 

and Net Loss (and items thereof), and contributions and distributions relating to such LLC 

Interests, as provided in greater detail in Article VI of the LLC Operating Agreement and 

elsewhere in the LLC Operating Agreement. 

“Capital Contribution” means a contribution to the capital of the Company made, deemed 

to be made, or to be made pursuant to the Original LLC Operating Agreement, the Transfer 

Agreement, or the LLC Operating Agreement. 

“Capital Improvement” means, with respect to any Acquired Property or Mortgaged 

Property, as applicable, any Permitted Capital Improvement or other Development (including for 

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Agreement of Common Terms and Definitions 

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such purpose any improvement or preservation), in each case other than as may be determined to 

qualify for funding by way of Servicing Expenses (and exclusion from treatment as a Capital 

Improvement) pursuant to clause (x) of the proviso appearing as the last paragraph of the definition 

of such term. 

“Capital Improvement Account” means the segregated trust or custodial account 

designated as the “Capital Improvement Account” pursuant to Section 3.5(a) of the Custodial and 

Paying Agency Agreement. 

“Capital Improvement Account Deposit” has the meaning set forth in the Private Owner 

Interest Sale Agreement. 

“Capital Improvement Advance” or “Capital Improvement Loan” means, with respect 

to any Loan, any Funding Draw, other than a Required Funding Draw, for the funding of Permitted 

Capital Improvements of the real property securing such Loan pursuant to the funding provisions 

of the applicable Asset Documents (and related Modifications thereto), to the extent (including as 

to any such Modifications) in accordance with an applicable approved Capital Improvement Plan 

and the terms set forth in the Permitted Capital Improvement Addendum; provided, however, that 

in no event will any such costs and expenses payable pursuant to any such Permitted Capital 

Improvement Draw include any Excluded Expenses. 

“Capital Improvement Approval Request” has the meaning set forth in Section 1(a) of 

the Permitted Capital Improvement Addendum. 

“Capital Improvement Contribution” means each capital contribution made by the 

Initial Member or the Private Owner on the Closing Date to fund Capital Improvement Account 

(in the amount of the Initial Member Capital Improvement Account Deposit or Private Owner 

Capital Improvement Account Deposit, as applicable). 

“Capital Improvement Fund” means a segregated fund for Permitted Capital 

Improvement Expenses to be (a) funded initially on the Closing Date (in an aggregate amount 

equal to the Capital Improvement Account Deposit) pursuant to the LLC Operating Agreement 

and the payments contemplated in the Private Owner Interest Sale Agreement, and (b) thereafter 

held in the Capital Improvement Account and used and replenished from time to time pursuant to 

the applicable provisions in the LLC Operating Agreement and the Custodial and Paying Agency 

Agreement. 

“Capital Improvement Fund Floor” means $43,050,504.43, or with an applicable 

written approval from the Initial Member pursuant to Section 2(c) of the Permitted Capital 

Improvement Addendum, such lower amount as might be applicable pursuant to such written 

approval. 

“Capital Improvement Fund Target” means the targeted amount of Capital Improved 

Fund as determined by the Manager with respect to each Distribution Date prior to (but excluding) 

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the occurrence of the Final Monthly Distribution, to be not less than the Capital Improvement Fund 

Floor. 

“Capital Improvement Plan” means, with respect to any Acquired REO Property or 

Mortgaged Property securing a Loan, a specific plan for Permitted Capital Improvements of such 

Acquired REO Property or Mortgaged Property, including a detailed scope of proposed 

improvements or preservation, timeline, and budget (including, for any such Loan, the timing, 

amount and material terms for the intended Capital Improvement Advances, and material terms of 

any intended Modifications). 

“Cash Flow and Distribution Report” has the meaning set forth in Section 11.3 of the 

Custodial and Paying Agency Agreement. 

“CERCLA” means The United States Comprehensive Environmental Response, 

Compensation, and Liability Act, as amended, supplemented, or modified from time to time. 

“Certificate” has the meaning set forth in Section 2.1(a) of the LLC Operating Agreement. 

“Certificated Note” has the meaning set forth in Section 1(b) of Annex I to the Custodial 

and Paying Agency Agreement. 

“Change of Control” means: 

(a) with respect to the Private Owner: 

(i) the Private Owner’s Specified Parents for any reason (A) failing or 

ceasing to collectively Control the Private Owner or (B) failing or ceasing to collectively own, 

beneficially and of record, either directly or indirectly at least 50.1% in value of all of the 

Ownership Interests in the Private Owner; 

(ii) any Person other than the Private Owner’s Specified Parents (and 

their respective Affiliates) at any time, when considered together with all of such other Person’s 

Affiliates, acquiring or holding, of record or beneficially, directly or indirectly through one or more 

intermediaries other than Affiliates, more than 25% in value of all of the Ownership Interests in 

the Private Owner; 

(iii) (A) the individual, or any of the individuals, as the case may be, 

constituting the Key Decision Makers at any time failing or ceasing to be actively and 

meaningfully involved (directly or indirectly) in all non-ordinary course decision-making 

regarding (1) the conduct of the business and affairs of the Private Owner (including with respect 

to the Private Owner’s obligations and powers in its capacity as the Manager) or (2) without 

limiting the generality of clause (1), the asset management/special servicing of the Assets, or (B) 

the individual or any of the individuals, as the case might be, constituting the Key Asset Managers 

at any time failing or ceasing to have the power (or, if multiple individuals constitute such Key 

Asset Managers, the collective power), directly or indirectly, to manage and control, or failing or 

ceasing to be actively and meaningfully involved (directly or indirectly) on a day-to-day basis in, 

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all ordinary course decision-making regarding the asset management/special servicing of the 

Assets; provided that a Change of Control will not be deemed to have occurred under the foregoing 

clause (A) or clause (B), as applicable, with respect to any Key Decision Maker or Key Asset 

Manager having so failed or ceased to be actively and meaningfully involved due to death, 

incapacitation or other reasonably unforeseeable circumstance (that is fully outside the control of 

all of the Private Owner, the Servicer, any Specified Parent or any Affiliate of any of the 

foregoing), in each case so long as both (x) the Private Owner promptly notifies the Initial Member 

of such occurrence, and (y) within 60 days of such occurrence, such Person is replaced (or the 

Initial Member otherwise consents to a designation of Key Decision Makers or Key Asset 

Managers, as applicable, omitting such Person) in accordance with the definition of “Key Decision 

Makers” or “Key Asset Managers”, as applicable; 

(iv) the Lead Bidder failing or ceasing to retain, beneficially and of 

record, either directly or indirectly, a percentage Ownership Interest in the Private Owner 

(expressed in terms of relative fair market values of all outstanding Ownership Interests in the 

Private Owner) that is at least 75% of such direct or indirect percentage Ownership Interest of the 

Lead Bidder in the Private Owner (determined as described above) upon consummation of the 

Closing; 

(v) with respect to any Specified Parent of the Private Owner, (A) the 

Ultimate Parent Entity(ies) of such Specified Parent for any reason (1) failing or ceasing to Control 

such Specified Parent, or (2) failing or ceasing to retain, beneficially and of record, either directly 

or indirectly, a percentage Ownership Interest in such Specified Parent (expressed in terms of 

relative fair market values of all outstanding Ownership Interests in such Specified Parent) that is 

at least 75% of such direct or indirect percentage Ownership Interest of such Person in such 

Specified Parent (determined as described above) upon consummation of the Closing (or, in the 

case of any Person becoming a Specified Parent after the Closing pursuant to clause (A)(ii) of the 

definition of such term, as of the date such Person so became a Specified Parent), or (B) any Entity 

(considered together with its Affiliates), or any Entities acting together or that would constitute a 

“group” for the purposes of Section 13(d) of the Exchange Act (in the case of each such Entity, 

considered together with its Affiliates), in each case other than the Ultimate Parent Entities of such 

Specified Parent (and/or any Entities Controlled by such Ultimate Parent Entities), at any time will 

Control such Specified Parent, including by Controlling such Ultimate Parent Entities; or 

(vi) without limitation of any of the foregoing, with respect to The 

Community Preservation Corporation, in its capacity as the Lead Bidder or as a Specified Parent 

or Ultimate Parent Entity, such Person ceasing to maintain its status or eligibility for treatment as 

a not-for-profit corporation; and 

(b) with respect to the Servicer or any Rated Subservicer: 

(i) such Person’s Specified Parent for any reason (A) failing or ceasing 

to Control such Person or (B) failing or ceasing to own, beneficially and of record, either directly 

or indirectly, at least 50.1% in value of all of the Ownership Interests in such Person (or, in the 

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case of The Community Preservation Corporation, in its capacity as the Servicer, such Person 

ceasing to maintain its status or eligibility for treatment as a not-for-profit corporation); or 

(ii) without limitation of clause (i), in the event such Person is (or at the 

time it became the Servicer or an applicable Rated Subservicer, was) an Affiliate of the Private 

Owner, any Change of Control with respect to the Private Owner. 

“Clean-Up Call” has the meaning set forth in Section 12.20 of the LLC Operating 

Agreement. 

“Clean-Up Call Notice” means a notice delivered by the Initial Member pursuant to 

Section 12.20(b) of the LLC Operating Agreement for an exercise of the Clean-Up Call, which 

may, at the Initial Member’s option in its sole discretion, include applicable instructions for 

suspending or withholding, as directed by the Initial Member, any or all further distributions with 

respect to the LLC Interests pursuant to Section 5.1(d) of the Custodial and Paying Agency 

Agreement. 

“Clearing Agency” means an organization registered as a “clearing agency” pursuant to 

Section 17A of the Exchange Act. 

“Closing” means the consummation of the transactions contemplated in the Private Owner 

Interest Sale Agreement. 

“Closing Date” means December 15, 2023. 

“Closing Date Asset Litigation” means (a) any Action relating to any of the Assets and 

that is pending against the Receiver and/or the Failed Bank as of the Cut-Off Date and/or the 

Closing Date or (b) without limitation of clause (a), any Action relating to any of the Assets and 

in which the Receiver or the Failed Bank is involved (including as a plaintiff) as of the Cut-Off 

Date or the Closing Date, to the extent that any Liability of the Receiver or the Failed Bank is 

asserted therein (including by way of counterclaim). 

“Code” means the United States Internal Revenue Code of 1986, together with the 

regulations promulgated thereunder, as amended, supplemented, or modified from time to time. 

“Collateral” means any and all real or personal property, whether tangible, intangible or 

mixed, securing or pledged to secure an Asset, including (a) any account, equipment, guarantee or 

contract right, equity, partnership or other interest that is the subject of any Collateral Document 

and (b) as the context requires, Acquired Property, whether or not expressly specified. 

“Collateral Certificate” has the meaning set forth in Section 6.1(b) of the Custodial and 

Paying Agency Agreement. 

“Collateral Document” means any deed of trust, deed, trust deed, deed to secure debt, 

mortgage, contract for the sale of real property, pledge agreement, security agreement, personal, 

corporate or other guaranty, assignment, collateral agreement, stock power or other agreement or 

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document of any kind, whether an original or a copy, whether similar to or different from those 

enumerated, (a) securing in any manner the performance or payment by any Borrower or any 

Obligor of its obligations or the obligations of any Borrower or any Obligor pursuant to any of the 

Assets or Notes evidencing the Assets, or (b) evidencing ownership of any Acquired Property. 

“Collection Account” means the segregated trust or custodial account designated as the 

“Collection Account” pursuant to Section 3.1(a) of the Custodial and Paying Agency Agreement. 

“Common Terms” means, in relation to this Agreement or any other Transaction 

Document that specifies that the “Common Terms” apply to such Transaction Document, the 

common terms and conditions set forth in Article II. 

“Company” means SIG RCRS C MF 2023 Venture LLC, a Delaware limited liability 

company. 

“Company Accounts” means the Collection Account, the Distribution Account, the 

Working Capital Reserve Account, the Capital Improvement Account and such other Company 

accounts (other than Escrow Accounts) as may be contemplated or permitted pursuant to the 

Transaction Documents, in each case including, as applicable pursuant to Section 5.1(c) of Annex 

IV to the LLC Operating Agreement, any Ownership Entity Account with respect thereto. 

“Company Acquired Property” means (a) Collateral to which title is acquired by or on 

behalf of the Company or any Ownership Entity by foreclosure, by deed in lieu of foreclosure, by 

power of sale, pursuant to the Uniform Commercial Code or otherwise; (b) the equity interests in 

any Ownership Entity holding any such Collateral; and (c) the assets held directly or indirectly by 

any such Ownership Entity. 

“Company Property” means any property contributed to, acquired by, or otherwise owned 

by the Company (including the Assets contributed or sold by the Transferor to the Company 

pursuant to the Transfer Agreement), whether real or personal, tangible or intangible property, 

including any legal or equitable interest in such property, ownership interests in entities owning 

real or personal property, and money. 

“Computer Security Incident” means any unauthorized acquisition of, or access to, 

computerized or other electronic data, or any computer system, equipment or device storing such 

data, that compromises the security, confidentiality, or integrity of Customer Information. The 

term “Computer Security Incident” does not include the good faith acquisition of, or access to, 

Customer Information by an employee or agent of the person or entity that maintains the Customer 

Information as long as the Customer Information is not used improperly or subject to further 

unauthorized disclosure. 

“Confidentiality Agreement” means each Confidentiality Agreement, dated as of the 

Closing Date or such earlier date as may have been applicable pursuant to the sealed bid process 

resulting in the submission of the Bid Form, by and between the FDIC and the Private Owner or 

any Affiliates of the Private Owner (including by way of joinder). 

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Agreement of Common Terms and Definitions 

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“Consolidated Business Plan” has the meaning set forth in Section 7.7 of the LLC 

Operating Agreement. 

“Contract for Deed” means an executory contract with a third party to convey real 

property to such third party upon payment of the amounts set forth therein and/or the performance 

of any other obligations described therein, including any installment land sale contract. 

“Control” (including the phrases “Controlled by” and “under common Control with”) 

when used with respect to any specified Person means the possession, direct or indirect, of the 

power to direct or cause the direction of the management and policies of such Person, whether 

through the ownership of voting securities or interests, by contract or otherwise. 

“Core Agreements” means, collectively, the Transfer Agreement, the Private Owner 

Interest Sale Agreement, the LLC Operating Agreement, and the Custodial and Paying Agency 

Agreement. 

“Covered Persons” has the meaning set forth in Section 4.6(f) of the LLC Operating 

Agreement. 

“Critical Strategy Resolution Business Plan” has the meaning set forth in Section 7.8(b) 

of the LLC Operating Agreement. 

“Custodial and Paying Agency Agreement” means the Custodial and Paying Agency 

Agreement dated as of the Closing Date, by and among the Company, the Bank, the Initial Member 

and the Private Owner, and thereafter any replacement Custodial and Paying Agency Agreement 

that is acceptable to the Initial Member. 

“Custodial Delivery Failure” has the meaning set forth in Section 13.1(c) of the Custodial 

and Paying Agency Agreement. 

“Custodial Documents” has the meaning set forth in Section 6.1(c) of the Custodial and 

Paying Agency Agreement. 

“Custodial Report” means a report prepared by the Custodian, which shall be in a form 

acceptable to the Company detailing, with respect to any Asset that has been released by the 

Custodian, the following: (a) the Borrower name and any identification number assigned to the 

Asset, (b) the location to which the Custodial Documents with respect to such Asset were delivered 

by the Custodian, (c) the date on which such Custodial Documents were released by the Custodian, 

and (d) the Person to which such Custodial Documents were released. 

“Custodian” means the Bank (as the initial document custodian appointed pursuant to the 

LLC Operating Agreement), and any successor custodian that is a Qualified Custodian and Paying 

Agent and is acceptable to and approved by the Initial Member, such approval not to be 

unreasonably withheld, delayed, or conditioned. 

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“Custodian/Paying Agent” means the Person from time to time serving as the Custodian 

and the Paying Agent. 

“Custodian and Paying Agent Report” has the meaning set forth in Section 11.1(a) of 

the Custodial and Paying Agency Agreement. 

“Customer Information” means all non-public information regarding any Borrower or 

Obligor, disclosure of which is regulated or restricted in any way by applicable Law. 

“Cut-Off Date” means the close of business on October 13, 2023. 

“Cut-Off Date Unpaid Principal Balance” means, with respect to any Asset, the estimate 

of the Unpaid Principal Balance of the Asset as of the Cut-Off Date as stated on the Asset Schedule. 

“Debt” of any Person means (a) all indebtedness of such Person for borrowed money; 

(b) all obligations of such Person for the deferred purchase price of property or services (excluding 

non-Affiliated trade payables (or Affiliated trade payables incurred in a manner consistent with 

applicable requirements in the Transaction Documents that are expressly subordinated in writing 

to such Person’s obligations under the Transaction Documents on terms satisfactory to the Initial 

Member) arising in the ordinary course of business); (c) all obligations of such Person evidenced 

by notes, bonds, debentures or other similar instruments; (d) all indebtedness created or arising 

under any conditional sale or other title retention agreement with respect to property acquired by 

such Person (even though the rights and remedies of the seller or lender under such agreement in 

the event of default are limited to repossession or sale of such property); (e) all obligations of such 

Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as 

capital leases; (f) all liabilities or obligations of any nature whatsoever secured by a consensual 

pledge, consensual security interest or other consensual Lien of, in or on any property or asset of 

such Person (other than (i) if such Person is the Private Owner, any such pledge, security interest 

or other Lien granted to the Initial Member under the LLC Operating Agreement and (ii) customary 

rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform 

Commercial Code of banks or other similar financial institutions where such Person maintains 

deposits); (g) all direct or contingent obligations of such Person arising under, or otherwise in 

respect of, letters of credit (including standby and commercial), bankers’ acceptances, bank 

guaranties, surety bonds and similar instruments (including any Qualifying Letter of Credit); or 

(h) all indebtedness or obligations of others of the kinds referred to in clauses (a) through (g) above 

in respect of which such Person has entered into or issued any Guarantee. 

“Debtor Relief Laws” means Title 11 of the United States Code (11 U.S.C. Section 101 

et seq.), and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of 

creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor 

relief Laws of the United States or other applicable jurisdictions from time to time in effect and 

affecting the rights of creditors generally. 

“Debt Service Coverage Ratio” or “DSCR” means, for any Loan, as of any date of 

determination and determined for the 12 month period ending on such date, the quotient of (x) Net 

Operating Income for such period divided by (y) total debt service for such period, in each case 

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determined subject to the following, and in all events in a manner satisfactory to (and with such 

changes, including as to calculation methodology and components, as may be required from time 

to time by) the Initial Member: 

(a) The Debt Service Coverage Ratio for each Loan will be determined: 

(i) on a quarterly basis as of March 31, June 30, September 30 and 

December 31 of each calendar year, with the updated determination being reflected commencing 

with the Loan Performance Report for the Due Period ending on or about such date; and 

(ii) based on information available to the Company, with the Manager 

being required to (A) generally use commercially reasonable efforts to obtain from the 

corresponding Obligors, and (B) as a condition to making any Capital Improvement Advance or 

entering into any Modification, specifically obtain from such corresponding Obligors, and require 

them to continue to provide, not less than on a quarterly basis, in each case (for clauses (x) and 

(y)) current relevant information for purposes of determining the Debt Service Coverage Ratio and 

all of its components. 

(b) Total debt service will be determined based on principal and interest 

payments made by the applicable Obligors during such period on all indebtedness (including the 

applicable Loan) secured by any Mortgaged Property for such Loan, specifically (i) including, for 

any continuing failure to pay, as required to have been made, and (ii) excluding any payment in 

kind of interest or reduction, other than by payment in full, of interest or principal. 

(c) In connection with any Loan for which a permitted Modification or Capital 

Improvement Advance is made, for any applicable portion of such 12 month period that precedes 

the effective date of such Modification or Capital Improvement Advance, as applicable, the Debt 

Service Coverage Ratio will be determined on a pro forma basis assuming, in respect of the 

principal and interest payments under such Loan, that such Modification had been in effect or such 

Capital Improvement Advance had been made, as applicable, at the commencement of such period. 

“Default” (a) for purposes of the LLC Operating Agreement (and any reference in any 

other Transaction Document to a Default under the LLC Operating Agreement), means any event 

or condition that constitutes an Event of Default (as such term is defined in the LLC Operating 

Agreement) or that, with the giving of any notice, the passage of time, or both, would be an Event 

of Default (as such term is defined in the LLC Operating Agreement) and (b) for purposes of any 

other Transaction Document in which it is used (other than in reference to a Default pursuant to 

the LLC Operating Agreement, has the meaning set forth in such Transaction Document. 

“Defaulted Loan” means any Loan (a) that is delinquent sixty days or more in respect to 

any scheduled payment of principal and/or interest thereunder or (b) as to which any principal or 

accrued interest remains unpaid for thirty days or more after the stated maturity date of such Loan. 

“Deficiency Balance” means the remaining unpaid principal balance of any Note or Loan 

sold or contributed pursuant to the Transfer Agreement (or, in the case of Receiver Acquired 

Property for which the foreclosure or other acquisition event occurred (with expiration of any 

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relevant Redemption Period) on or before the Cut-Off Date, the remaining balance of the 

applicable Underlying Loan) after crediting to it the proceeds of any foreclosure sale, deed in lieu 

of foreclosure or any other exercise of remedies with respect to Collateral (or, in the case of any 

Receiver Acquired Property described in the preceding parenthetical, the applicable collateral for 

such Underlying Loan, including such Receiver Acquired Property). 

“Deficiency Judgment Claim” means any claim, right or demand in or to any deficiency 

judgment, or any similar claim, right, demand or other recourse. 

“Determination Date” means the last day of each Due Period. 

“Development” means any development or construction of any kind with respect to any 

Asset. 

“Direct Owner” means, with respect to any Person, any other Person who has any direct 

ownership interest in such Person. 

“Dishonored Check” means any check or similar instrument that has been returned due to 

insufficient funds or a stop payment order. 

“Disposition” means, with respect to any particular property, equity interest or asset, (a) 

any sale, assignment, alienation, gift, exchange, conveyance, transfer, pledge or hypothecation of, 

any granting of a Lien or proxy with respect to, or any other disposition whatsoever of, such 

property, equity interest or asset (or of any interest therein), (b) without limitation of clause (a), 

effecting any transaction or entering into any arrangement (including any form of participation or 

other derivative transaction of any nature whatsoever) that in effect (and at any time) transfers or 

otherwise disposes of (or results in the transfer or disposition of), to any extent, the economic or 

other consequences of ownership of such property, equity interest or asset (including, in the case 

of the Private Owner Interest, voting and/or management participation rights associated therewith 

or rights to receive the Interim Management Fee or the Management Fee), including any agreement 

to make any payment to a third party based upon any amount received in respect of such property 

or asset, or (c) any other action or transaction similar to any of the foregoing, in the case of each 

of clauses (a), (b) and (c), whether any of the foregoing is voluntary or involuntary, direct or 

indirect or in whole or in part, and including any of the foregoing effected by operation of Law 

(including any merger into, or any consolidation with, any other Person). For the avoidance of 

doubt, a statutory conversion of a Person into another form of Person does not constitute a 

Disposition. The terms “Dispose” or “Disposed” mean to make, effect, or consummate a 

“Disposition.” 

“Dissolution Event” means, with respect to any specified Person, (a) in the case of a 

specified Person that is a partnership or limited partnership or a limited liability company, the 

dissolution and commencement of winding up of such partnership, limited partnership or limited 

liability company, (b) in the case of a specified Person that is a corporation, the filing of a 

certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter and 

the expiration of ninety days after the date of notice to the corporation of such revocation without 

a reinstatement of its charter, and (c) in the case of any other specified entity, the termination of 

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Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

such entity. For the avoidance of doubt, a statutory conversion of a Person into another form of 

Person does not constitute a “Dissolution Event.” 

“Distributable Cash” has the meaning set forth in Section 6.5 of the LLC Operating 

Agreement. 

“Distribution Account” means the segregated trust or custodial account designated as the 

“Distribution Account” pursuant to Section 3.2(a) of the Custodial and Paying Agency Agreement. 

“Distribution Date” means (a) until occurrence of the Final Monthly Distribution, the 

twenty-fifth day of each month or, if such day is not a Business Day, the next succeeding day that 

is a Business Day, commencing January 25, 2024; and (b) following occurrence of the Final 

Monthly Distribution, such applicable dates as the Manager may determine in accordance with the 

LLC Operating Agreement for purposes of any distribution of funds from the Working Capital 

Reserve. 

“Dollar” or “$” means lawful currency of the United States of America. 

“Due Period” means (a) with respect to the first Distribution Date, the period from and 

including the day immediately following the Cut-Off Date to and including the last day of the 

calendar month prior to the month in which such first Distribution Date occurs, (b) with respect to 

each Distribution Date thereafter through and including the Final Monthly Distribution, the 

calendar month prior to the month in which such Distribution Date occurs, and (c) with respect to 

each Distribution Date following the Final Monthly Distribution, the period from the expiration of 

the most recent Due Period and continuing until the date that is five Business Days prior to such 

Distribution Date (or, for purposes of delivery of Monthly Reports, such shorter period as may 

apply pursuant to the last sentence of Section 3(b) of the Reporting and Access Schedule). 

“Earnest Money Deposit” has the meaning set forth in the Recitals of the Private Owner 

Interest Sale Agreement. 

“Eligible Account” means one or more segregated trust or custodial account or accounts 

established and maintained with an Eligible Institution, each of which is to be entitled for the 

benefit of the Company. 

“Eligible Institution” means a Person that is not an Affiliate of the Private Owner (or the 

Manager) and that is a “well capitalized” federally insured depository institution (with the term 

“well capitalized” having the meaning provided in 12 U.S.C. Section 1831o(b)(1)(A)); provided, 

however, that an Affiliate of the Private Owner (or the Manager) may be deemed to be an Eligible 

Institution if the Initial Member provides a written consent (which may be withheld at the Initial 

Member’s sole and absolute discretion), which consent may be withdrawn upon written 

notification to the Manager, in which case such Affiliate of the Private Owner (or of the Manager) 

shall no longer constitute an Eligible Institution as of the receipt of such notice. Any accounts 

maintained pursuant to any Transaction Document at any institution that ceases to be an Eligible 

Institution are to be moved to an Eligible Institution within three Business Days after the receipt 

of such notice. 

-21- SIG RCRS C MF 2023 Venture LLC 

Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

“Embargoed Person” means any Person (a) included on the Specially Designated 

Nationals list administered by the U.S. Treasury Department’s Office of Foreign Assets Control; 

(b) owned or controlled by any Person on such Specially Designated Nationals list; or (c) otherwise 

subject to trade restrictions under United States Law, including, without limitation, the 

International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et seq., the Trading with 

the Enemy Act, 50 U.S.C. Section App. 1 et seq., any foreign assets control regulations of the 

United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended, supplemented 

or modified from time to time), or any enabling legislation or regulations promulgated thereunder 

or any executive order relating thereto (including Executive Order 13224 of September 21, 2001 

Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit 

or Support Terrorism (66 Fed. Reg. 49079 (2001)) or 31 C.F.R. Section 594.101 et seq.) with the 

result that a purchase of assets or any other transaction entered into with respect to any assets 

(including any investment in any joint venture transaction), whether directly or indirectly, is 

prohibited by or in violation of Law. 

“Entity” means any Person other than a natural person. 

“Environmental Hazard” means the presence at, in or under any real property Collateral 

or Acquired REO Property (whether held in fee simple or subject to a Ground Lease or otherwise, 

and including any improvements whether by buildings or facilities, and any personal property, 

fixtures, leases and other property or rights pertaining thereto), of any “hazardous substance,” as 

such term is defined in Section 101(14) of CERCLA, or any petroleum (including crude oil or any 

fraction thereof that is liquid at standard conditions of temperature and pressure), at a level or in 

an amount that requires remediation or abatement pursuant to applicable Law. 

“Equity Asset Value” means, with respect to any Asset, the product of (a) the Private 

Owner Interest Asset Value of such Asset multiplied by (b) the quotient of 1.0 divided by the 

percentage ownership interest of the Private Owner (expressed as a decimal, with 100% being 

equal to 1.0). 

“ERISA” means the United States Employee Retirement Income Security Act of 1974, 

together with the regulations promulgated thereunder, as amended, supplemented, or modified 

from time to time. 

“ERISA Plan Assets” means “plan assets” within the meaning of Section 3(42) of ERISA 

and the “plan asset” regulations set forth in 29 C.F.R. Section 2510.3-101 as promulgated under 

ERISA, modified to the extent applicable by Section 3(42) of ERISA. 

“Escrow Account” means (a) for purposes of the Transfer Agreement, an account 

maintained by the Receiver (or, in the context of Article VI of the Transfer Agreement, the 

Company) or its servicer or other agent for the deposit of Escrow Payments received in respect of 

one or more Assets, and (b) for purposes of the Servicing Agreement and all other Transaction 

Documents, one or more segregated trust or custodial accounts maintained by the Servicer (or an 

applicable Subservicer) in trust for the benefit of the Company for deposit of Escrow Payments 

received in respect of one or more Assets, and in either case includes, but is not limited to, all socalled “lockbox” accounts maintained by the Failed Bank or the Company under the terms of any 

-22- SIG RCRS C MF 2023 Venture LLC 

Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

 

 

 

 

Asset Documents and any other accounts maintained by the Failed Bank or the Company under 

the Asset Documents for amounts deposited or required to be deposited therein by the applicable 

Borrower. 

“Escrow Advance” means any advance made to pay Taxes or insurance premiums or any 

other cost or expense that, but for a shortfall in an Escrow Account for an Asset, is payable using 

funds in an Escrow Account for an Asset. 

“Escrow Balance” means, with respect to any Loan, the positive escrow balance (if any) 

in the Escrow Account with respect to that Loan. 

“Escrow Payments” means the amounts for the purpose of paying ground rents, Taxes, 

assessments, water rates, common charges in condominiums and planned unit developments, 

mortgage insurance premiums, fire and hazard insurance premiums and other payments, or for the 

purpose of paying construction costs, tenant improvement costs and leasing commissions, debt 

service, furniture, fixture and equipment costs, capital improvement costs, environmental 

remediation costs or amounts held as in escrow or as reserves for any other purpose that have been 

deposited in escrow or a reserve account (or designated as such by the Borrower for such deposit) 

with the Failed Bank, the Receiver or the Company or (in each case) its servicer or other agent 

with respect to any Asset. 

“Event of Default”, as used in any Transaction Document, has the meaning set forth in 

such Transaction Document; provided, however, that, as used in the Servicing Agreement or the 

Private Owner Pledged Account Control Agreement, except as otherwise expressly provided 

therein, the term “Event of Default” has the meaning set forth in Section 3.13(k) of the LLC 

Operating Agreement. 

“Exception” means, with respect to any Asset, any variance from the requirements of 

Section 6.1(c) of the Custodial and Paying Agency Agreement or the requirements set forth in the 

Review Criteria, including any missing Custodial Document and any document that does not meet 

the applicable requirements set forth in Section 6.1(c) of the Custodial and Paying Agency 

Agreement or in the Review Criteria. 

“Excess Damage Liability” means, as of any date of determination in respect of an 

Affected Asset and related Excluded Liability Company Claim and in all events determined to the 

satisfaction of the Transferor, aggregate damages to Company (on account of such Excluded 

Liability Company Claim) to the extent in excess of the Total Asset Value of such Affected Asset, 

determined taking into account (and with such damages being reduced by) all net proceeds having 

been received by or on behalf of the Company with respect to such Affected Asset and the 

remaining Fair Market Value of such Affected Asset as reasonably determined by the Manager to 

the satisfaction of the Transferor (and with a right for the Transferor to require an applicable third 

party appraisal at the expense of the Company); provided, however, that if the Transferor exercises 

its right to repurchase such Affected Asset and completes such repurchase, the Fair Market Value 

for such Affected Asset will be set at the Repurchase Price. 

“Excess Principal” has the meaning set forth in Section 2.4(c) of the Transfer Agreement. 

-23- SIG RCRS C MF 2023 Venture LLC 

Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

 

 

“Excess Working Capital Advance” has the meaning set forth in Section 5.5 of the LLC 

Operating Agreement. 

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended, 

supplemented, or modified from time to time. 

“Excluded Expenses” means any of the following: 

(a) any expenses or costs that are not incurred in accordance with the Servicing 

Standard or, to the extent applicable, the Fannie Mae Guidelines; 

(b) any expenses or costs that are paid to any Affiliate of any of the Manager, 

the Company, the Servicer or any Subservicer; provided, however, that Excluded Expenses as 

described in this clause (b) do not include out-of-pocket expenses or costs incurred by the Manager, 

the Servicer or any Subservicer in accordance with the Transaction Documents, so long as such 

expenses or costs both (i) are paid (by the Manager, the Servicer or such Subservicer) to Persons 

that are not Affiliates of any of the Manager, the Company, the Servicer or any Subservicer and 

(ii) would otherwise constitute Servicing Expenses but for application of this clause (b); 

(c) any fees or other compensation to or expenses of financial advisors or 

consultants (including any advisors or consultants engaged by the Manager, the Servicer, any 

Subservicer or any other Person to assist with preparation of any Business Plan, Capital 

Improvement Plan, Strategic Plan Report or Critical Strategy Resolution Business Plan, with any 

feasibility studies, or with any strategic determinations with respect to actual or potential 

Disposition of any or all Assets), except to the extent the same are incurred as brokerage fees or 

sales commissions incurred in connection with a permitted sale of any Acquired Property or any 

portion thereof; 

(d) any fine, Tax or other penalty, late fee, service charge, interest or similar 

charge, costs to release Liens or any other costs or expenses (including legal fees and expenses) 

incurred by or on behalf of the Company, the Manager (in its capacity as such or in its individual 

capacity), the Servicer or any Subservicer as a result of the Company’s, the Manager’s, the 

Servicer’s, any Subservicer’s or any JDC Contractor’s failure to service any Asset or Collateral 

properly in accordance with the applicable Asset Documents, the LLC Operating Agreement, the 

Servicing Agreement, any Subservicing Agreement, any JDC Agreement (or Assignment of JDC 

Agreement), any other Transaction Document or otherwise, or failure to make a payment in a 

timely manner, or failure otherwise to act in a timely manner; 

(e) any interest on any amounts paid by any Person with respect to any 

Servicing Expenses, Interim Servicing Expenses or Pre-Approved Charges; 

(f) any overhead or administrative costs (whether or not attributable to 

Servicing) incurred by the Company, the Manager, the Servicer, any Subservicer or any other 

Person (including any (i) travel expenses; (ii) costs for office space, office equipment, supplies 

and related expenses, employee salaries, bonuses and other compensation and related expenses 

and similar internal costs and expenses, together with any other expenses incurred by the Manager 

-24- SIG RCRS C MF 2023 Venture LLC 

Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

 

 

 

 

 

to comply with Section 3.3 of the LLC Operating Agreement (including any costs or expenses of 

engaging independent contractors to perform relevant services for the day-to-day operation of the 

Company in lieu of performance of the same by personnel required to be made available by the 

Manager pursuant to such Section 3.3); and (iii) expenses incurred by any of the Manager, the Tax 

Representative, the Company, the Servicer or any Subservicer to comply with Section 4.3, 

Section 7.2, Section 7.3, Section 7.4, Section 7.5, Section 7.6(a) and Section 7.7 of the LLC 

Operating Agreement and the Reporting and Access Schedule) (in each case other than applicable 

administrative (but not overhead) costs of the Company), which expenses are payable to Persons 

that are not Affiliates of any of the Manager, the Company, the Servicer or any Subservicer) and 

expressly qualify as Reimbursable Company Administrative Expenses; 

(g) any servicing, management (including property management) or similar 

fees paid to the Servicer, any Subservicer or any other Person; provided, however, that property 

management fees for on-site property managers (or other dedicated property managers to the extent 

such fees are directly attributable to such on-site property management) of specific Acquired REO 

Property and JDC Contractor fees pursuant to permitted engagements of JDC Contractors for 

servicing of JDC Loans, in each case that are payable to Persons that are not Affiliates of any of 

the Manager, the Company, the Servicer or any Subservicer, are not included in this clause (g); 

(h) [intentionally omitted]; 

(i) any amounts subject to the indemnity obligations (i) of the Private Owner 

pursuant to Section 4.6 of the LLC Operating Agreement, (ii) of the Servicer pursuant to 

Section 8.2 of the Servicing Agreement, or (iii) equivalent indemnity obligations of any 

Subservicer as required to be included in its Subservicing Agreement pursuant to Section 4.2 of 

the Servicing Agreement or Section 3.1 of Annex IV to the LLC Operating Agreement; 

(j) any fees or other compensation to or expenses of lobbyists (or other political 

advisors or consultants) or any expenses or costs relating to any political contribution; 

(k) any expenses or costs relating to any charitable or other similar contribution; 

or 

(l) any other amounts expressly designated as “Excluded Expenses” (or 

otherwise expressly required to be borne by the Manager, the Servicer or any Subservicer without 

reimbursement) pursuant to the terms of the Transaction Documents. 

“Excluded Liabilities” means any of the following: 

(a) solely with respect to clause (a) of the definition of the term “Obligations”, 

all Liabilities of the Failed Bank and/or the Receiver under any Transferred Contract for damages 

or other remedies (at law or in equity), to the extent (and only to the extent) attributable to an act 

or omission or circumstance that occurred or existed prior to the Cut-Off Date and that constituted 

a breach by the Failed Bank and/or the Receiver under such Transferred Contract, or a tort, willful 

misconduct, fraud or a violation of Law by the Failed Bank and/or the Receiver; provided, 

however, that, this clause (a) does not exclude from clause (a) of the definition of the term 

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Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

“Obligations” any Liability of the Receiver under any Transferred Contract that is overdue (but 

solely excludes any Liability of the Failed Bank and/or the Receiver for damages or other remedies 

(at law or in equity) for any breach of any such Liability occurring prior to the Cut-Off Date); 

(b) all Liabilities under any Transferor Loan-Servicing Contract; and 

(c) all Liabilities of the Failed Bank or the Receiver as of the Closing Date other 

than the Obligations. 

“Excluded Liability Company Action” means any Action commenced against the 

Company at any time after the Closing Date in which an Excluded Liability is asserted against the 

Company; provided, however, that no Action against the Company in respect of a Liability 

asserted against the Receiver and/or the Failed Bank in any Assumed Closing Date Asset Litigation 

constitutes an Excluded Liability Company Action. 

“Excluded Liability Company Claim” means any Excluded Liability that is asserted 

against the Company in an Excluded Liability Company Action; provided, however, that no claim 

against the Company in respect of a Liability asserted against the Receiver and/or the Failed Bank 

in any Assumed Closing Date Asset Litigation constitutes an Excluded Liability Company Claim. 

“Exempt Taxes” means, in each case, with respect to any real property (and related 

personal property) Receiver Acquired Property, (a) any penalty accrued for any period prior to the 

Closing Date on any Tax with respect to any such Receiver Acquired Property in which the 

Receiver holds a fee interest that was not secured by a valid Lien against the Receiver Acquired 

Property in effect before the Receiver acquired an interest in such Receiver Acquired Property; (b) 

any Tax (including any special assessment) accrued for any period prior to the Closing Date that 

is not an ad valorem real property Tax, the amount of which was not fixed at the time the Receiver 

acquired a fee interest in such Receiver Acquired Property, regardless of the existence of any Lien 

purporting to secure the payment of any such Tax; and (c) any Tax (including any special 

assessment) accrued for any period prior to the Closing Date that is not an ad valorem real property 

Tax and that was not secured by a valid Lien against such Receiver Acquired Property in effect 

before the Receiver acquired an interest in such Receiver Acquired Property. 

“Existing Servicer” means a Person (including the Receiver) acting as servicer for any 

Asset as of the Cut-Off Date. 

“Failed Bank” means Signature Bridge Bank, N.A. 

“Fair Market Value” means, with respect to any asset on a given date, the gross fair 

market value of such asset, unreduced by any liability, on such date as determined in good faith 

by the Manager after consultation with the Initial Member; provided, however, that (a) the initial 

Fair Market Value for each Asset will be the Total Asset Value for such Asset, and (b) as of the 

Closing Date, the Fair Market Value of the Capital Contribution made by the Initial Member will 

be based on the Private Owner Interest Sale Price, as set forth in the Private Owner Interest Sale 

Agreement, and such Fair Market Value will be utilized for determining the initial Capital 

Accounts of the Members as of the Closing Date. 

-26- SIG RCRS C MF 2023 Venture LLC 

Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

 

“Fannie Mae” means the Federal National Mortgage Association of the United States, or 

any successor thereto. 

“Fannie Mae Guidelines” means those guidelines governing reimbursement of costs and 

expenses by Fannie Mae with respect to loans owned or securitized by Fannie Mae, as in effect on 

the date on which an expense or cost is incurred, including as such guidelines might be set forth in 

the then-effective Fannie Mae Delegated Underwriting and Servicing Guide (or replacement 

thereto), including all applicable lender memos issued by Fannie Mae in connection therewith. 

“FDIA” means the Federal Deposit Insurance Act, as amended, supplemented, or modified 

from time to time. 

“FDIC” means the Federal Deposit Insurance Corporation, in any capacity, present or 

future. 

“FDIC Legal Powers” means the powers, immunities, defenses, privileges and other rights 

granted to the Receiver pursuant to the provisions of the FDIA (including 12 U.S.C. 

Sections 1821(d), 1823(e) and 1825), the National Bank Act (including 12 U.S.C. Sections 91 and 

191 et seq.), applicable state receivership laws (incorporated into the FDIA, for example, by 12 

U.S.C. Section 1821(c)(3)(B)), and similar federal law and state law (including statutory and 

common law) doctrines which protect financial institution receivers and their assignees (for 

example, the so-called “D’Oench Doctrine,” statutory bona fide purchaser status, involuntary 

assignee protection, etc.), regardless of whether any of the foregoing powers, immunities, 

defenses, privileges or other rights are (or are asserted, claimed or purported to be) available to an 

assignee of the Receiver (including a purchaser of assets from the Receiver). 

“FDIC Power of Attorney” means (a) any Limited Power of Attorney or (b) any other 

power of attorney, or other authorization to act in the name of, or otherwise on behalf of, the 

Transferor, the Prior Transferor or the FDIC, that the Transferor or the FDIC might provide to the 

Company or representatives of the Company (including the Manager or representatives of the 

Manager) pursuant to, or otherwise in connection with the transactions contemplated by, any 

Transaction Document (including in the discretion of the Transferor or the FDIC). 

“Federal Reserve District” means one of the twelve districts represented by a regional 

Federal Reserve Bank. 

“Final Distribution” means the distribution of all remaining funds in the Working Capital 

Reserve in accordance with the applicable terms of the LLC Operating Agreement and the 

Custodial and Paying Agency Agreement after liquidation of all of the Assets and related 

Collateral (including Acquired REO Property) following the dissolution of the Company. 

“Final Monthly Distribution” means the distribution of all remaining Asset Proceeds 

(other than applicable reserves in the Working Capital Reserve) in accordance with the applicable 

terms of the LLC Operating Agreement and the Custodial and Paying Agency Agreement after 

liquidation of all of the Assets and related Collateral (including Acquired REO Property) pursuant 

to Section 9.2 of the LLC Operating Agreement. 

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Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

 

 

“Fiscal Year” means the fiscal year of the Company and its Subsidiaries, beginning on 

January 1 and ending on December 31 of each calendar year. 

“Foreign Asset” means an Asset with respect to which the Borrower or any of the 

Collateral is located in any Foreign Jurisdiction. 

“Foreign Jurisdiction” means any jurisdiction other than the United States, and any 

subdivision of or in such other jurisdiction. 

“Funding Draw” means any principal advance made to a Borrower after the Closing Date 

under a Loan pursuant to the terms of the applicable Asset Documents. 

“GAAP” means United States generally accepted accounting principles as in effect from 

time to time. 

“Governmental Authority” means (a) any United States or non-United States national, 

federal, state, local, municipal, provincial, or international government or any political subdivision 

of any thereof; or (b) any governmental, regulatory, or administrative authority, agency, or 

commission, or judicial or arbitral body of any of the foregoing described in clause (a). 

“Ground Lease” means a ground lease or other lease. 

“Group of Assets” means all Assets that, as of the Cut-Off Date, are serviced by the same 

Existing Servicer. 

“Guarantee” means, with respect to any particular indebtedness or other obligation, (a) 

any direct or indirect guarantee thereof by a Person other than the obligor with respect to such 

indebtedness or other obligation or any transaction or arrangement intended to have the effect of 

directly or indirectly guaranteeing such indebtedness or other obligation, including without 

limitation any agreement by a Person other than the obligor with respect to such indebtedness or 

other obligation (i) to pay or purchase such indebtedness or other obligation or to advance or 

supply funds for the payment or purchase of such indebtedness or other obligation; (ii) to purchase, 

sell or lease (as lessee or lessor) property of, to purchase or sell services from or to, to supply funds 

to or in any other manner invest in, the obligor with respect to such indebtedness or other obligation 

(including any agreement to pay for property or services of the obligor irrespective of whether 

such property is received or such services are rendered), primarily for the purpose of enabling the 

obligor to make payment of such indebtedness or other obligation or to assure the holder or other 

obligee of such indebtedness or other obligation against loss; or (iii) otherwise to assure the obligee 

of such indebtedness or other obligation against loss with respect thereto, or (b) any grant (or 

agreement in favor of the obligee of such indebtedness or other obligation to grant such obligee, 

under any circumstances) by a Person other than the obligor with respect to such indebtedness or 

other obligation of a security interest in, or other Lien on, any property or other interest of such 

Person, whether or not such other Person has not assumed or become liable for the payment of 

such indebtedness or other obligation. 

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Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

“HFSH Act” means the Helping Families Save Their Home Act of 2009, as amended, 

supplemented, or modified from time to time. 

“HPD” means the New York City Department of Housing Preservation and Development 

(or any successor thereto). 

“Immediate Family Member” means, with respect to any individual, his or her spouse, 

parents, parents-in-law, grandparents, descendants, nephews, nieces, brothers, sisters, brothers-inlaw, sisters-in-law, children (whether natural or adopted), children-in-law, stepchildren, 

grandchildren, and grandchildren-in-law. 

“Indemnified Parties” has, (a) for purposes of the LLC Operating Agreement, the 

meaning given therein and (b) for purposes of the Transfer Agreement, the meaning given therein. 

“Initial Member” means the Persons from time to time constituting the “Initial Member” 

pursuant to, and in accordance with, the LLC Operating Agreement (initially, the Receiver). For 

avoidance of doubt, references to the Initial Member will, as the context might require (with 

respect to any period (a) on or before the Closing Date or (b) during which the Receiver is the 

Initial Member), include the Receiver as a party to the Original LLC Operating Agreement and/or 

as the Transferor, as applicable. 

“Initial Member Capital Contribution” has the meaning set forth in Section 2.3(a)(i) of 

the LLC Operating Agreement. 

“Initial Member Capital Improvement Account Deposit” has the meaning set forth in 

the Private Owner Interest Sale Agreement. 

“Initial Member Interest” means (a) the limited liability company interest in the 

Company held by the Initial Member, including the rights to share in the income, gain, loss, 

deductions and credits of, and the right to receive distributions from, the Company; (b) all other 

rights, benefits and privileges enjoyed by the Initial Member (pursuant to the Act, the LLC 

Operating Agreement or otherwise) in its capacity as a Member, including rights to vote, consent 

and approve; and (c) all other rights, benefits, privileges and claims (whether known or unknown) 

of the Initial Member pursuant to, or arising pursuant to, the LLC Operating Agreement. For the 

avoidance of doubt, the “Initial Member Interest” does not include any right, title or interest of the 

Receiver in its capacity as the Transferor. 

“Initial Member Related Person” means the Initial Member and any other Related Person 

with respect to the Initial Member. 

“Initial Member WCR Account Deposit” has the meaning set forth in the Private Owner 

Interest Sale Agreement. 

“Insolvency Event” means, with respect to any specified Person, the occurrence of any of 

the following events: 

-29- SIG RCRS C MF 2023 Venture LLC 

Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

(a) the specified Person makes an assignment for the benefit of creditors; 

Proceeding; 

(b) the specified Person files a voluntary petition for relief in any Insolvency 

(c) the specified Person is adjudged bankrupt or insolvent or there is entered 

against the specified Person an order for relief in any Insolvency Proceeding; 

(d) the specified Person files a petition or answer seeking for the specified 

Person any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or 

similar relief under any Law; 

(e) the specified Person seeks, consents to, or acquiesces in the appointment of 

a receiver, trustee, custodian, conservator, liquidator, rehabilitator, or similar officer of the 

specified Person or of all or any substantial part of the specified Person’s properties. or any 

receiver, trustee, custodian, conservator, liquidator, rehabilitator, or similar officer is appointed 

without the application or consent of such specified Person and the appointment continues 

undischarged and unstayed for forty-five calendar days; 

(f) the specified Person files an answer or other pleading admitting or failing 

to contest the material allegations of a petition filed against the specified Person in any proceeding 

described in clauses (a) through (e); 

(g) the specified Person becomes unable to pay its obligations as they become 

due, or the sum of such specified Person’s debts is greater than all of such Person’s property, at a 

fair valuation; or 

(h) (i) at least sixty days have passed following the commencement of any 

proceeding against the specified Person seeking reorganization, arrangement, composition, 

readjustment, liquidation, dissolution or similar relief under any Law and such proceeding has not 

been dismissed, or (ii) (A) at least sixty days have passed following the appointment of a trustee, 

receiver or liquidator for the specified Person or all or any substantial part of the specified Person’s 

properties without the specified Person’s agreement or acquiescence, and such appointment has 

not been vacated or stayed, or (B) if such appointment has been stayed, at least sixty days have 

passed following the expiration of the stay and such appointment has not been vacated. 

“Insolvency Proceeding” means any proceeding under Title 11 of the United States Code 

(11 U.S.C. Section 101 et seq.) or any proceeding under any other Debtor Relief Law. 

“Insurance Deficiency Notice” has the meaning set forth in the Section 4(c) of the 

Insurance Schedule. 

“Insurance Modifications” has the meaning set forth in the Section 4(c) of the Insurance 

Schedule. 

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Agreement of Common Terms and Definitions 

Version 08-2022 (Standard) 
 

 

 

 

 

“Insurance Schedule” means the Insurance Schedule attached as Annex III to the LLC 

Operating Agreement. 

“Intellectual Property” means all United States or foreign intellectual and similar 

property of every kind and nature, including, without limitation, inventions, designs, patents, 

copyrights, trademarks, trade secrets, confidential or proprietary and technical and business 

information, know-how, show-how or other data or information, software and databases and all 

embodiments or fixations thereof and related documentation, registrations and franchises, and any 

license of any of the foregoing, and all additions, improvements and accessions to, and books and 

records describing or used in connection with, any of the foregoing and all rights to sue at law or 

in equity for any infringement or other violation thereof, including the right to receive all proceeds 

and damages therefrom. 

“Interim Management Fee” means, with respect to each Due Period commencing during 

the Interim Servicing Period, a fee payable to the Manager (pursuant to, and for the purposes set 

forth in, Section 12.5 of the LLC Operating Agreement, and as payable in accordance with the 

Custodial and Paying Agency Agreement) for each Group of Assets for which the Servicing 

Transfer Date has not yet occurred as of the first day of such Due Period, in an amount equal to 

(a) except as provided in clause (b), the Interim Servicing Fee, or (b) with respect to any Due 

Period commencing prior to the Closing Date, (i) if such Due Period ends prior to or on the Closing 

Date, zero, or (ii) if such Due Period ends after the Closing Date, what the Interim Servicing Fee 

for such Due Period would have been if, for purposes of calculating the number of days in such 

Due Period, the portion of such Due Period prior to the Closing Date was disregarded. 

“Interim Servicing Expenses” means all out-of-pocket fees, costs, expenses and 

indemnified amounts incurred by or on behalf of the Transferor (including as the Initial Member) 

or any Existing Servicer in connection with the Servicing and, to the extent expressly set forth in 

clause (d) below, the management of the Company and the Ownership Entities, incurred during, 

or in connection with the applicable exercise of rights or performance of applicable obligations 

with respect to, any Interim Servicing Period (or, for purposes of clause (f) below, as may 

otherwise be payable pursuant to such item), including, in each case to the extent so incurred during 

or in connection with any such Interim Servicing Period (or as may otherwise be payable pursuant 

to clause (f) below), (a) any and all out-of-pocket fees, costs, expenses and indemnified amounts 

which a Borrower is obligated to pay to any Person or to reimburse to the lender, in either case, 

pursuant to the applicable Note or any other Asset Documents, including Escrow Advances; (b) 

any and all out-of-pocket expenses deemed necessary by the Transferor or any Existing Servicer 

to protect or preserve the value of the Collateral or the priority of the Liens and security interests 

created by the Asset Documents relating thereto, including Taxes, insurance premiums (including 

forced place insurance premiums), payment of ground rent, the costs of prevention of waste, 

repairs and maintenance, foreclosure expenses and legal fees and expenses relating to foreclosure 

or other litigation with respect to the Assets; (c) any and all direct expenses related to the 

preservation, operation, management (including for engagement of on-site property managers for 

any specific Acquired REO Property), appraisal (including for any required Appraisal), leasing 

(including tenant improvements), and sale of the Collateral and/or Acquired Property (including 

real estate brokerage fees), and fees to Governmental Authorities to preserve or retain entitlements 

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granted to, and benefitting, such Collateral and/or Acquired Property; (d) costs and expenses in 

connection with the formation of the Company and other Reimbursable Company Administrative 

Expenses (but only to the extent incurred from and after the Closing Date or otherwise in 

connection with the formation of the Company); (e) to the extent not covered by any of clauses (a) 

through (d), and subject only to any express exclusions set forth in the Transfer Agreement, 

expenses (including judgments, settlements and reasonable attorneys’ fees of outside counsel) 

incurred by the Transferor (including to reimburse any applicable Existing Servicer) in connection 

with any litigation (including any bankruptcy action) with respect to the Assets, but only to the 

extent incurred from and after the Cut-Off Date; (f) amounts required for the Company to discharge 

(in accordance with the Transaction Documents) the Obligations as they become due, and to make 

applicable indemnification and/or reimbursement payments (other than for Pre-Approved 

Charges) owing by the Company to the Initial Member, the Transferor or any other Indemnified 

Party under the Transaction Documents; and (g) Required Funding Draws or other advances 

required or permitted to be made to any Borrower (and any advances to the Company for making 

the same). 

“Interim Servicing Fee” means, with respect to each Due Period during the Interim 

Servicing Period (or commencing during such Interim Servicing Period), a fee payable by the 

Company to the Transferor (including as the Initial Member) (for the provision of interim 

Servicing on behalf of the Company) for each Group of Assets for which the Servicing Transfer 

Date has not yet occurred as of the first day of such Due Period, which fee shall be calculated and 

earned as of the first day of such Due Period (and payable on the applicable Distribution Date for 

such Due Period in accordance with the Custodial and Paying Agency Agreement), and be in the 

following amounts: 

(a) with respect to Loans (other than, for the avoidance of doubt, Acquired 

Property), in the amount determined by multiplying (i) the Unpaid Principal Balance of the Loans 

(other than, for the avoidance of doubt, Acquired Property) in such Group of Assets calculated as 

of the first day of such Due Period by (ii) and by (iii) a fraction, the numerator of which is 

the number of days in the respective Due Period and the denominator of which is three hundred 

and sixty, and 

(b) with respect to Acquired Property, in the amount determined by multiplying 

(i) the Net Fair Value of the Acquired Property in such Group of Assets calculated as of the first 

day of such Due Period by (ii) and by (iii) a fraction, the numerator of which is the number 

of days in the respective Due Period and the denominator of which is three hundred sixty. 

“Interim Servicing Period” means, with respect to each Group of Assets, the period 

beginning on the day after the Cut-Off Date and ending, with respect to such Group of Assets, on 

the Servicing Transfer Date for such Group of Assets. 

“Interpretive Statement” means any written or oral statement with respect to an Asset or 

Obligation, whether in, or in any filing made in connection with, any Action or otherwise, that 

involves interpreting the FDIA or any FDIC Legal Power. 

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“Investment Company Act” means the Investment Company Act of 1940, as amended, 

supplemented, or modified from time to time. 

“Issuing Bank” means, with respect to any Qualifying Letter of Credit, the applicable 

issuing bank. 

“JDC Agreement” has the meaning set forth in Section 4.1 of Annex IV to the LLC 

Operating Agreement. 

“JDC Contractor” means any Person not an Affiliate of the Private Owner, the Manager, 

the Servicer or any Subservicer retained by the Manager (in its individual capacity), or with the 

consent of the Manager, by the Servicer or an applicable Subservicer, to service, manage, 

administer, and provide debt collection services for any of the JDC Loans in accordance with the 

Transaction Documents and the Servicing Obligations and Servicing Standard applicable to 

Servicers. 

“JDC Loan” means any Loan (including any related guaranty, but excluding Ownership 

Entities, all Acquired Property and all other assets which are not loans) and any Deficiency Balance 

which (a) is fully charged off and shown to have a zero value on the books and records of the 

Company, as determined in accordance with GAAP, (b) has been assigned a zero Unpaid Principal 

Balance pursuant to clause (c) of the definition of such term, and (c) is identified by the Manager 

(acting in accordance with the Transaction Documents and, for this purpose, acting in accordance 

with the Servicing Obligations and the Servicing Standard applicable to it and to the Servicers) as 

the type of loan that mortgage lenders (with respect to loans similar to the Loans) customarily refer 

to judgment and debt collectors for routine collection in the mortgage loan servicing industry for 

such loans. For purposes of clarity, a JDC Loan does not include any Collateral or other Collateral 

Document (other than guaranties of the JDC Loan) or any of the rights or remedies arising 

thereunder or incidental or ancillary thereto. 

“Key Asset Managers” means the individuals designated as the “Key Asset Managers” in 

the Bidder Qualification Application, as such group of individuals might be modified from time to 

time pursuant to a written request for such modification submitted by the Private Owner and 

consented to in writing by the Initial Member (such consent not to be unreasonably withheld). 

“Key Decision Makers” means the individuals designated as the “Key Decision Makers” 

in the Bidder Qualification Application, as such group of individuals might be modified from time 

to time pursuant to a written request for such modification submitted by the Private Owner and 

consented to in writing by the Initial Member (such consent not to be unreasonably withheld). 

“Law” means any applicable statute, law, ordinance, regulation, rule, code, injunction, 

judgment, decree, or order (including any executive order) of any Governmental Authority. 

“LC Reissuance/Extension Failure” means, with respect to any Qualifying Letter of 

Credit, (a) any failure of Issuing Bank to be and remain a Qualified Issuer, or (b) any failure of 

such Qualifying Letter of Credit to be automatically renewed (for an additional year) at least sixty 

days prior to the then-scheduled expiry of such Qualifying Letter of Credit, or the receipt by the 

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Initial Member of any notice to the effect that such Qualifying Letter of Credit will not be 

automatically renewed (for such additional one year period), in each case unless, within ten days 

of the occurrence of such failure or the Initial Member’s receipt of such notice, as the case might 

be, the Private Owner has either (x) fully replaced such Qualifying Letter of Credit with a new 

Qualifying Letter of Credit issued by a Qualified Issuer (in conformance with all of the 

requirements set forth in the LLC Operating Agreement with respect to Qualifying Letters of 

Credit) or (y) completed an exercise of its right to substitute such Qualifying Letter of Credit with 

Qualifying Cash Collateral pursuant to Section 3.13(e) of the LLC Operating Agreement (and 

provided Qualifying Cash Collateral in the full undrawn face amount of such Qualifying Letter of 

Credit and paid to the Initial Member the Additional Security Substitution Fee), which right to 

substitute pursuant to Section 3.13(e) will be deemed to exist for substitution of such Qualifying 

Letter of Credit notwithstanding the occurrence, if any, of a prior substitution (of Qualifying Cash 

Collateral with such Qualifying Letter of Credit) pursuant to such Section. 

“Lead Bidder” means The Community Preservation Corporation, a New York 

corporation. 

“Liabilities” means, as to any Person, all liabilities, covenants and obligations of such 

Person of any nature whatsoever, whether direct or indirect, absolute or contingent, matured or 

unmatured, known or unknown, or material or immaterial, whether accrued, vested or otherwise, 

and whether or not actually reflected, or required by GAAP to be reflected, in such Person’s 

balance sheets or other books and records, including any such liabilities, covenants or obligations 

based or founded upon negligence, gross negligence, recklessness, fault, strict liability, 

misrepresentation, fraud, quantum meruit, contract, tort (including toxic tort), breach of warranty 

(express or implied), theories of design defect or failure to warn, so-called “successor liability” 

doctrines, infringement or misappropriation of intellectual property rights, breach of fiduciary 

duty, violation of Law or any other legal or equitable theory. 

“Lien” means any mortgage, deed of trust, pledge, deed to secure debt, trust deed, security 

interest, charge, restriction on or condition to transfer, voting or exercise or enjoyment of any right 

or beneficial interest, option, right of first refusal, easement, covenant, restriction, and any other 

lien, claim or encumbrance of any nature whatsoever. 

“limited liability company interest” has the meaning ascribed to such term in the Act. 

“Limited Power of Attorney” means any Limited Power of Attorney executed by the 

Transferor and/or Prior Transferor in (or based on) the form set forth in Attachment K to the 

Transfer Agreement. 

“Litigation Substitution Deadline Date” means, with respect to any particular Closing 

Date Asset Litigation, or any particular claim or claims asserted in any Closing Date Asset 

Litigation, the earlier of (a) the sixtieth day after the last Servicing Transfer Date and (b) the 

thirtieth day after the date on which the Transferor notifies the Company in writing (after the 

Closing Date) that it irrevocably waives its right to designate such Closing Date Asset Litigation, 

or such particular claim or claims asserted in such Closing Date Asset Litigation, respectively, to 

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be a Retained Closing Date Asset Litigation, or such other date as may be agreed to in writing by 

the Transferor and the Company (each acting in their discretion). 

“LLC Interest” means, with respect to any particular Member, (a) the entire limited 

liability company interest in the Company owned or held by such Member, including such 

Member’s rights to share in the income, gain, loss, deductions and credits of, and the right to 

receive distributions from, the Company; (b) all other rights, benefits and privileges enjoyed by 

such Member (under the Act, the LLC Operating Agreement or otherwise) in its capacity as a 

Member, including rights to vote, consent and approve; and (c) all other rights, benefits, privileges 

and claims (whether known or unknown) of such Member pursuant to, or arising pursuant to, the 

LLC Operating Agreement (including, to the extent applicable, all rights, benefits, privileges and 

claims (whether known or unknown) of such Member (in its capacity as the Manager) pursuant to, 

or arising pursuant to, the LLC Operating Agreement (including rights to receive the Interim 

Management Fee or the Management Fee)). 

“LLC Operating Agreement” means the Amended and Restated Limited Liability 

Company Operating Agreement dated as of the Closing Date, by and among the Initial Member, 

the Private Owner, and the Company. 

“Loan” means any loan or Loan Participation set forth on the Asset Schedule, and any loan 

into which any such loan or Loan Participation is refinanced or modified, and includes with respect 

to each such loan or Loan Participation: (a) any obligation evidenced by a Note; (b) all rights, 

powers or Liens of the Receiver, the Failed Bank, the Company or any Ownership Entity in or 

under the Collateral and Collateral Documents; (c) all rights of the Receiver, the Failed Bank or 

the Company pursuant to the Related Agreements and Asset Documents; (d) all rights of the 

Receiver, the Failed Bank or the Company to any Deficiency Balance (in each case to the extent 

relating to such Loan and not otherwise included in any Acquired Property, and in all events 

subject to any exclusions/inclusions as might be expressly set forth in the Asset Schedule or 

Ownership Entity and Receiver Acquired Property Schedule); (e) all rights to causes of action, 

lawsuits, judgments, claims and demands of any nature available to or being pursued by or for the 

benefit of the Receiver, the Failed Bank, or the Company with respect to any of the foregoing or 

the ownership, use, function, value of or other rights pertaining to any of the foregoing, whether 

arising by way of counterclaim or otherwise, other than any claims retained by the Receiver 

pursuant to Section 2.7 of the Transfer Agreement; and (f) all guaranties, warranties, indemnities 

and similar rights in favor of the Receiver, the Failed Bank or the Company with respect to any of 

the foregoing; provided, however, that, for purposes of any Transaction Document other than the 

Transfer Agreement, the foregoing rights, powers or Liens of (or in favor of) the Receiver or the 

Failed Bank will be included in (and considered part of) the Loans only the extent such rights, 

powers or Liens are transferred to the Company pursuant to the Transfer Agreement (and not 

otherwise subsequently transferred back to the Receiver). 

“Loan Criteria Matrix” means the Loan Criteria Matrix attached as Exhibit I of the LLC 

Operating Agreement. 

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“Loan Modification Program” means the Signature Multifamily Mortgage Loan 

Modification Program described in Exhibit C of the Servicing Agreement, as it may be amended, 

supplemented or otherwise modified by the FDIC from time to time. 

“Loan Participation” means any loan listed on the Asset Schedule subject to a shared 

credit, participation, co-lending or similar inter-creditor agreement pursuant to which the Failed 

Bank or the Receiver was, or the Company is, the lead or agent financial depository institution or 

otherwise managed or held the credit or sold participations, or under which the Failed Bank or the 

Receiver was, or the Company is, a participating financial depository institution or purchased 

participations in a credit managed by another Person. 

“Loan Participation Agreement” means an agreement pursuant to which the Failed Bank 

or the Receiver was, or the Company is, the lead or agent financial depository institution or 

otherwise managed or held a shared credit or sold participations, or pursuant to which the Failed 

Bank or the Receiver was, or the Company is, a participating financial depository institution or 

purchased participations in a credit managed by another Person. 

“Loan Performance at Cut-Off Date Report” means the Loan Performance at Cut-Off 

Date Report (prepared by the Receiver) included in Attachment A to the Transfer Agreement. 

Such Loan Performance at Cut-Off Date Report contains, as applicable, the initial application of 

the Loan Criteria Matrix with respect to each Loan, listing the applicable Risk Category of such 

Loan and the specific Risk Category classifications for each component of the Loan Criteria 

Matrix, and including also the initial Appraised Value, Debt Service Coverage Ratio, Net 

Operating Income and Loan to Value of the related Mortgaged Property, in each case as of the 

Cut-Off Date. 

“Loan Performance Report” means each report in electronic format in the form set forth 

in Exhibit H to the LLC Operating Agreement (as such form may be updated or otherwise modified 

from time to time pursuant to such Exhibit H of the LLC Operating Agreement), to be prepared 

and distributed by the Manager in accordance with the Reporting and Access Schedule. 

“Loan to Value” or “LTV” means, for any Loan and as of any date of determination, the 

quotient of (a) the Appraised Value for the Mortgaged Property securing such Loan, divided by (b) 

the current Unpaid Principal Balance of such Loan; provided that, if such Mortgaged Property 

secures more than one Loan, the LTV will be determined on a cumulative basis (as a single ratio) 

for all such Loans secured by such Mortgaged Property, and such single LTV will apply separately 

to each such Loan. 

“Losses” means, collectively, losses, claims, damages, disbursements, suits, Liabilities, 

costs, and expenses (including attorneys’ fees and litigation and similar costs, and other out-ofpocket expenses, actually incurred in investigating, defending, asserting, or preparing the defense 

or assertion of any of the foregoing), deficiencies, interest, awards, amounts paid in settlement, 

judgments, penalties, and fines. 

“Lost Instrument Affidavit” means a Lost Instrument Affidavit, in the form of Exhibit L 

to the Custodial and Paying Agency Agreement, executed by the Custodian. 

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“Members” means (a) the Person from time to time constituting the “Initial Member” 

pursuant to and in accordance with the LLC Operating Agreement, and (b) from and after the 

Closing Date, the Person from time to time constituting the “Private Owner” pursuant to and in 

accordance with the LLC Operating Agreement (regardless of whether such Person is also the 

Manager), in each case so long as such Person remains a member of the Company. For purposes 

of clarification, references in the LLC Operating Agreement to the term “member” (lowercase) 

means a “member” as such term is defined in the Act. 

“Modification” means any extension, renewal, substitution, replacement, supplement, 

amendment or modification of any agreement, certificate, document, instrument, or other writing, 

whether or not contemplated in the original agreement, document, or instrument. 

“Monthly Report” means a report in electronic format in the form set forth in Exhibit B 

to the LLC Operating Agreement (as such form may be updated or otherwise modified from time 

to time pursuant to Section 3(b) of the Reporting and Access Schedule), to be prepared and 

distributed by the Manager in accordance with the Reporting and Access Schedule. 

“Mortgage” means the mortgage, deed of trust or other instrument, including any 

Modifications thereto, creating a first or junior Lien on or ownership interest in a Mortgaged 

Property. 

“Mortgage Assignment” means, with respect to any Mortgage, an assignment of the 

Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the 

applicable Law of the jurisdiction wherein the related Mortgaged Property is located to reflect the 

assignment and pledge of the Mortgage. 

“Mortgaged Property” means (a) the underlying real property or interest in real property, 

whether or not improved by buildings or facilities, and any personal property, fixtures, leases and 

other property or rights pertaining thereto, securing a mortgage loan, and (if applicable) any other 

Collateral securing such mortgage loan, or (b) with respect to any other type of loan, the Collateral 

securing such loan. The Collateral for a Loan may include one or more of the collateral types 

described in clause (a) or (b). 

“Net Fair Value” means the fair market value of Acquired Property based on (a) the price 

that would be received to sell such Acquired Property (excluding any related Deficiency Balance 

or Deficiency Judgment Claim) in an orderly transaction between market participants on a 

measurement date, or (b) as determined by an Appraised Value, as provided in this definition. The 

Net Fair Value is to be initially determined in accordance with the requirements, and subject to the 

periodic adjustments and limitations as provided below. The Net Fair Value is to be set forth (and 

updated, as applicable, including for downward adjustments required pursuant to Section 7.7(c) of 

the LLC Operating Agreement), on an Acquired Property-by-Acquired Property basis, in each 

Consolidated Business Plan (and update thereto), and, for purposes of each Distribution Date, in 

the Monthly Report covering the Due Period with respect to such Distribution Date). 

(w) With respect to any Acquired Property that is included among the Assets on 

the Closing Date, the Net Fair Value is to be reasonably determined by the Manager (including on 

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the basis of an Appraisal, in the event the Manager elects to obtain the same) and set forth in the 

initial Consolidated Business Plan (and until such time the Manager delivers a Consolidated 

Business Plan setting forth the Net Fair Value of each Acquired Property, the Net Fair Value for 

each Acquired Property will be the book value set forth on the Asset Schedule (as the Unpaid 

Principal Balance of such Acquired Property as of the Cut-Off Date) as adjusted to its Adjusted 

Unpaid Principal Balance pursuant to the Transfer Agreement); 

(x) With respect to any Acquired Property that is not included among the Assets 

on the Closing Date, the Net Fair Value is to be initially determined at the time the relevant 

Collateral becomes Acquired Property, based on the Appraised Value as determined pursuant to 

Section 5.3(a) of Annex IV to the LLC Operating Agreement (and, until such determination of the 

Appraised Value, is to be based on the Unpaid Principal Balance of the applicable Loan 

immediately prior to the same being converted to such Acquired Property (where such Acquired 

Property represented, immediately prior to such conversion, all or substantially all of the value of 

the Collateral for such Loan), or otherwise on the applicable Release Price for such Collateral 

immediately prior to such conversion thereof to such Acquired Property); 

(y) In the event of any partial sale or other partial disposition of any Acquired 

Property, the Net Fair Value of the portion of the Acquired Property retained by the Company will 

be reduced by the Release Price of the portion so sold or otherwise disposed (or, until such Release 

Price has been established, by the net proceeds of such partial sale or other disposition); and 

(z) Following the initial determination with respect to any Acquired Property 

pursuant to clause (w) or clause (x) (including any specifically contemplated update or adjustment 

in such clause (w) or clause (x)), the Net Fair Value for such Acquired Property or any portion 

thereof will not increase (notwithstanding any increase in fair market value); provided, however, 

that, in the event of any Permitted Capital Improvements to such Acquired Property pursuant to 

an applicable approved Capital Improvement Plan, (i) the Net Fair Value with respect to such 

Acquired Property is to be increased by the amount of the funded Permitted Capital Improvement 

Expenses (as and when paid from the Capital Improvement Fund), in each case only to the extent 

such Permitted Capital Improvement Expenses are capitalized thereto in accordance with GAAP 

(and applicable Law), and (ii) at the election of the Manager on a one-time basis upon completion 

of all Capital Improvements set forth in such Capital Improvement Plan (and payment of all 

Permitted Capital Improvement Expenses with respect thereto), and subject to the Manager 

obtaining an updated Appraisal within 6 months after such completion, the Net Fair Value with 

respect to such Acquired Property is to be further increased by an amount, if positive (with no 

reduction if such amount is negative, but without limitation to such reductions as may be applicable 

in respect of any further changes in market value), equal to the difference of (x) the increase in the 

fair market value of such Acquired Property as a result of such Capital Improvements (determined 

based on such Appraisal), less (y) the aggregate amount of the Permitted Capital Improvement 

Expenses having been included in the Net Fair Value pursuant to clause (i) above. 

“Net Income” or “Net Loss” means, for each Fiscal Year or other period, the taxable 

income or loss of the Company, or particular items thereof, determined in accordance with the 

accounting method used by the Company for federal income tax purposes with the following 

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adjustments: (a) all items of income, gain, loss, deduction or expense specially allocated pursuant 

to the LLC Operating Agreement (including pursuant to Sections 6.2(b)(i) through (iv) of the LLC 

Operating Agreement) are not to be taken into account in computing such taxable income or loss; 

(b) any income of the Company that is exempt from federal income taxation and not otherwise 

taken into account in computing the taxable income of the Company is to be added to such taxable 

income or loss; (c) if the Book Value of any asset differs from its adjusted tax basis for federal 

income tax purposes, any gain or loss resulting from a disposition of such asset is to be calculated 

with reference to such Book Value; (d) upon an adjustment to the Book Value of any asset pursuant 

to the definition of Book Value, the amount of the adjustment will be included as gain or loss in 

computing such Net Income or Net Loss; (e) if the Book Value of any asset differs from its adjusted 

tax basis for federal income tax purposes, the amount of depreciation, amortization or cost recovery 

deductions with respect to such asset for purposes of determining Net Income or Net Loss is to be 

an amount that bears the same ratio to such Book Value as the federal income tax depreciation, 

amortization or other cost recovery deductions bears to such adjusted tax basis (provided, however, 

that if the federal income tax depreciation, amortization or other cost recovery deduction is zero, 

the Tax Representative may use any reasonable method for purposes of determining depreciation, 

amortization or other cost recovery deductions in calculating Net Income or Net Loss); and (f) 

except for items in clause (a) above, any expenditures of the Company not deductible in computing 

taxable income or loss, not properly capitalizable and not otherwise taken into account in 

computing Net Income or Net Loss pursuant to this definition, are to be treated as deductible items. 

“Net Operating Income” or “NOI” means, for any Loan and based solely on the 

Mortgaged Property(ies) securing such Loan, the net revenue from the cash flow of the relevant 

Mortgaged Property(ies) after operating expenses and before depreciation, capital expenses, and 

debt service, in each case determined in a manner satisfactory to the Initial Member. 

“Note” means each note or promissory note, lost instrument affidavit, loan agreement, 

shared credit, or Loan Participation Agreement, intercreditor agreement, reimbursement 

agreement, any other evidence of indebtedness of any kind, or any other agreement, document, or 

instrument, in each case evidencing the indebtedness of a borrower under a Loan, and all 

Modifications to the foregoing. 

“Notice of Event of Default” has, for purposes of the Private Owner Pledged Account 

Control Agreement, the meaning set forth in the Private Owner Pledged Account Control 

Agreement. 

“Notice Schedule” means the Notice Schedule attached as Schedule I to this Agreement. 

“NY UCC” means the Uniform Commercial Code as in effect on the Closing Date in the 

State of New York, as amended, supplemented, or modified from time to time, and any successor 

statute. 

“Obligations” means all of the following (in each case, whether existing or accrued (or 

due, overdue, or not due) as of, or incurred, imposed, or arising on or after, the Cut-Off Date and/or 

the Closing Date): 

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(a) all Liabilities (including any Liability to make an extension of credit (or 

other advance)) of the Receiver under any Transferred Contract, in each case to the extent the same 

are, in accordance with the FDIC Legal Powers (interpreted as set forth in the last sentence of 

Section 2.2 of the Transfer Agreement), legally binding on and valid against the Receiver; 

(b) all Liabilities (including (i) Liabilities for Taxes, (ii) homeowners 

association dues and other assessments, (iii) the obligation to prevent waste or allow the property 

to become a nuisance, and (iv) the obligation to comply with deed, zoning or other use restrictions) 

of the Receiver with respect to any Receiver Acquired Property (including with respect to the 

existence, acquisition, ownership, possession, operation, conduct or condition thereof), whether 

imposed by Law, order of any Governmental Authority, recorded instrument or deed, or otherwise, 

in each case to the extent the same are, in accordance with the FDIC Legal Powers (interpreted as 

set forth in the last sentence of Section 2.2 of the Transfer Agreement), legally binding on and 

valid against the Receiver; 

(c) without limitation of clause (ii) of the first sentence of Section 2.2 of the 

Transfer Agreement, all Liabilities (including any Liabilities for or in respect of any costs and 

expenses (including attorneys’ fees and litigation and similar costs, and other out-of-pocket 

expenses, actually incurred in investigating, defending, asserting or preparing the defense of any 

Assumed Closing Date Asset Litigation), judgments, awards, fines, settlement amounts or 

penalties) of the Receiver (after giving effect to the FDIC Legal Powers) for or in respect of, or 

otherwise arising out of, any Assumed Closing Date Asset Litigation, in each case (i) to the extent 

the same are, in accordance with the FDIC Legal Powers (interpreted as set forth in the last 

sentence of Section 2.2 of the Transfer Agreement), legally binding on and valid against the 

Receiver and (ii) in the case of any such costs or expenses, to the extent the same were or are 

incurred after the Cut-Off Date; and 

(d) all Liabilities of the Receiver arising out of or in connection with, resulting 

from or related in any way to, any Asset (including with respect to the existence, acquisition, 

ownership, possession, operation, conduct or condition thereof), to the extent attributable to acts, 

omissions, events or circumstances (including (i) acts or omissions of, or on behalf of, the 

Company, the Private Owner, the Servicer, any subsidiary of the Company or any Ownership 

Entity, and (ii) without limitation of clause (i), any acts or omissions of the Transferor and/or any 

Existing Servicer in connection with the services (including in any event all Servicing) provided 

(or caused to be provided) or contemplated to be provided (or to be caused to be provided) by the 

Transferor and/or any Existing Servicer pursuant to, or as described in, Section 3.3 of the Transfer 

Agreement) occurring or initially arising at any time after the Cut-Off Date (including at any time 

after the Closing Date), 

in each case (for clauses (a) through (d) inclusive) excluding, however, any Excluded Liability 

(disregarding for this purpose clause (c) of the definition of the term “Excluded Liabilities”). It is 

understood and agreed that any Liability of the Failed Bank or the Receiver that has been 

discharged or otherwise extinguished (whether by operation of Law, by settlement or payment 

(including payment by issuance of a receivership certificate), by contract or otherwise) prior to, on 

or as of a specified date does not constitute a Liability of the Receiver as of such specified date; 

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provided, however, that this sentence does not limit or qualify, and is subject to, clause (c) of the 

preceding sentence or the indemnity set forth in clause (ii) of the first sentence of Section 2.2 of 

the Transfer Agreement. 

“Obligor” means (a) any guarantor of all or any portion of any Loan or all or any of any 

Borrower’s obligations set forth and described in the Asset Documents or (b) any other Person 

(other than any Borrower, the lenders and any administrative or other agent) that is obligated 

pursuant to the Asset Documents with respect to an Asset, and includes the guarantor pursuant to 

any completion guaranty or similar document. 

“Office” has the meaning set forth in Section 6.1(a) of the Custodial and Paying Agency 

Agreement. 

“Omnibus Loan Assignment” means, with respect to any Loan included in the Assets, a 

general assignment and assumption, without representation, warranty, or covenant of any kind, of 

the applicable Asset Documents related to such Loan, in the form of Attachment G-3 to the 

Transfer Agreement. 

“Omnibus Property Assignment” means, with respect to any Receiver Acquired Property 

(other than a Potentially Defectively Foreclosed Receiver Acquired Property), the title to which is 

held by the Receiver (rather than an Ownership Entity) as of the Closing Date, a general 

assignment and assumption, without representation, warranty or covenant of any kind, of any 

Related Agreements and tangible and intangible personal property related to such Receiver 

Acquired Property, in the form of Attachment J-2 to the Transfer Agreement. 

“Order” has the meaning set forth in Section 6.1 of the Transfer Agreement. 

“Organizational Documents” means (a) with respect to any corporation, the certificate or 

articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with 

respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the 

certificate or articles of formation or organization and limited liability company or operating 

agreement; and (c) with respect to any partnership, joint venture, trust or other form of business 

entity, the partnership, joint venture or other applicable agreement of formation or organization 

and any agreement, instrument, filing or notice with respect thereto filed in connection with its 

formation or organization with the applicable Governmental Authority in the jurisdiction of its 

formation or organization and, if applicable, any certificate or articles of formation or organization 

of such entity. 

“Original LLC Operating Agreement” means the initial “limited liability company 

agreement” (as such term is defined in the Act) of the Company dated as of a date prior to the 

Closing Date, pursuant to which the Initial Member held the entire limited liability company 

interest in the Company. 

“Ownership Entity” means a Special Purpose Entity that is a direct, wholly owned 

subsidiary of the Company (or, for purposes of the Transfer Agreement, an entity that is identified 

as an Ownership Entity on the Ownership Entity and Receiver Acquired Property Schedule), 

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whether contributed by the Transferor on the Closing Date or formed or acquired by the Company 

thereafter; provided, however, that any entity transferred to the Company on the Closing Date 

pursuant to the Transfer Agreement (or otherwise identified as an Ownership Entity in the 

Ownership Entity and Receiver Acquired Property Schedule) that is not a Special Purpose Entity 

as of the Closing Date will be deemed to be an Ownership Entity, but the Company and the 

Manager are to take all necessary and appropriate actions to cause any such entity to become a 

Special Purpose Entity as promptly as possible after the Closing. 

“Ownership Entity and Receiver Acquired Property Schedule” means Attachment C 

to the Transfer Agreement. 

“Ownership Entity Account” has the meaning set forth in Section 5.1(c) of Annex IV to 

the LLC Operating Agreement. 

“Ownership Interest” means, with respect to any Person, (a) any limited liability company 

interest in, any shares of capital stock of, or any other ownership or profit, or voting, interest in, 

such Person; (b) any rights or recourse against such Person under any stock appreciation, phantom 

stock, profit participation or similar rights or plan; (c) any rights of any nature whatsoever 

(including conversion rights, exchange rights or rights under warrants) to have such Person issue 

(or otherwise cause to become outstanding), sell, execute or deliver, or any liability or obligation 

of such Person to issue (or otherwise cause to become outstanding), sell, execute or deliver, (i) any 

Ownership Interest with respect to such Person described in clause (a) or (b), or (ii) any contract 

including any right or recourse described in clause (a) or (b) or above in this clause (c); or (d) any 

other “equity security” (as such term is defined in Rule 3a11-1 under the Exchange Act) of such 

Person. 

“Paying Agent” means the Bank, and any successor paying agent that is a Qualified 

Custodian and Paying Agent and is acceptable to and approved by the Initial Member, such 

approval not to be unreasonably withheld, delayed, or conditioned. 

“Percentage Interest” means, with respect to the limited liability company interest in the 

Company held by the Initial Member prior to the Closing Date, 100% and, with respect to the 

limited liability company interests in the Company held by the Initial Member and Private Owner, 

respectively, on and after the Closing Date, as set forth in Section 2.3(c) of the LLC Operating 

Agreement (pursuant to which Section 2.3(c) such Percentage Interest is 95.0% for the Initial 

Member and 5.0% for the Private Owner). 

“Permitted Buyer” means, as of any date of determination, any person that is one or more 

of the following: 

(a) a Certified Community Development Financial Institution (CDFI) as defined and 

published by the US. Department of the Treasury Community Development Financial Institutions 

Fund. See, for reference as of the date hereof, each of https://www.cdfifund.gov/ (for an overview) 

and https://www.cdfifund.gov/sites/cdfi/files/2023-08/CDFI_Cert_List_08_22_2023_Final.xlsx 

(for a list of such Certified CDFIs). 

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(b) a Pre-Qualified PACT Partner as defined and published by the New York City 

Housing Authority. See, for reference as of the date hereof, each of 

https://www.nyc.gov/site/nycha/about/pact/procurement.page (for an overview) and 

https://www.nyc.gov/assets/nycha/downloads/pdf/pactpreq-partnerlist.pdf (for the list of such PreQualified PACT Partners). 

(c) a Qualified Preservation Buyer as defined and published by the HPD. See, for 

reference as of the date hereof, each of https://www.nyc.gov/site/hpd/about/about-hpd.page (for 

an overview) and https://www.nyc.gov/site/hpd/services-and-information/qualified-preservationbuyers.page (for a list of such Qualified Preservation Buyers). 

“Permitted Capital Improvements” has the meaning set forth in Section 1 of the 

Permitted Capital Improvement Addendum. 

“Permitted Capital Improvement Addendum” means the Permitted Capital 

Improvement Addendum attached as Annex V to the LLC Operating Agreement. 

“Permitted Dispositions” has the meaning set forth in Section 8.1 of the LLC Operating 

Agreement. 

“Permitted Capital Improvement Expenses” means, as the context might require, the 

specific approved budgeted amounts for (a) in connection with any Loan, Capital Improvement 

Advances, and/or (b) in connection with any Acquired REO Property, the costs and expenses for 

Permitted Capital Improvements to such Acquired REO Property, in each case (for both (a) and 

(b)) only to the extent set forth in the approved Capital Improvement Plan for such Asset; provided, 

however, that, in no event will any such costs and expenses include any Excluded Expenses or 

Working Capital Expenses. 

“Permitted Investments” means any one or more of the following obligations or securities 

having at the time of purchase, or at such other time as might be specified, the required ratings, if 

any, provided for in this definition: 

(a) direct obligations of, or guaranteed as to timely payment of principal and 

interest by, the United States of America or any agency or instrumentality of the United States of 

America, the obligations of which are backed by the full faith and credit of the United States of 

America (for the avoidance of doubt, this clause (a) will include any debt guaranteed by the FDIC 

in its corporate capacity); 

(b) demand and time deposits in or certificates of deposit of, or bankers’ 

acceptances issued by, any bank or trust company, savings and loan association or savings bank in 

the United States (provided, however, that, in the case of obligations that are not fully FDICinsured deposits, the commercial paper and/or long-term unsecured debt obligations of such 

depository institution or trust company (or in the case of the principal depository institution in a 

holding company system, the commercial paper or long-term unsecured debt obligations of such 

holding company) have an Acceptable Investment Rating); 

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(c) general obligations of or obligations guaranteed by any state of the United 

States or the District of Columbia receiving ratings of not less than the highest rating of each 

Rating Agency rating such obligations; 

(d) mutual funds in which investments are limited to the obligations referred to 

in clauses (a), (b) or (c) of this definition; and 

(e) with the prior written consent of the Initial Member, any other demand, 

money market or time deposit or other obligation, instrument, security or investment. 

“Permitted Liens” means (a) Liens on Collateral (other than Acquired Property) caused 

or permitted by the Manager as permitted under the Asset Documents where the applicable 

Borrower is not in default thereunder (so long as any such Lien caused by, or permitted pursuant 

to a discretionary consent or waiver of, the Manager is subordinated and junior to the security 

interest in favor of the Company in the applicable Collateral); (b) any Lien arising by operation of 

Law with respect to any Mortgaged Property as a result of the applicable Borrower’s failure to pay 

ground rents, Taxes, assessments, water rates, sewer rents, and other similar charges with respect 

to such Mortgaged Property, if (i) the Manager determines in accordance with the Servicing 

Standard (and maintains applicable records of such determination pursuant to Section 1 of the 

Reporting and Access Schedule) that the amount of such Lien (or applicable aggregate amount 

required to be paid by the Company so as to discharge the same) exceeds the net recoverable 

amount to the Company with respect to such Mortgaged Property and (ii) so long as such Lien 

remains in effect, the Company does not acquire title to such Mortgaged Property or otherwise 

have any liability with respect to such Lien; (c) inchoate Liens arising by operation of Law for 

Taxes not yet due, payable or delinquent; (d) leasehold interests of lessees and purchase rights of 

purchasers under leases and sales contracts otherwise permitted pursuant to the Transaction 

Documents (with respect to the Collateral or Acquired Property being so leased or purchased); 

(e) in the case of Acquired Property (and in addition to the foregoing), any Permitted Lien (and all 

title and survey exceptions based thereon as set forth in the applicable owner’s title insurance) in 

existence at the time the Company or an applicable Ownership Entity acquired title to such 

Acquired Property (other than, in connection with any such title acquired by foreclosure or other 

applicable legal process, any such Lien as would be extinguishable in accordance with applicable 

Law in connection with such foreclosure or other legal process); and (f) such other Liens as the 

Initial Member approves in writing in its sole discretion. 

“Person” means any individual, corporation, partnership (general or limited), limited 

liability company, limited liability partnership, firm, joint venture, association, joint-stock 

company, trust, estate, unincorporated organization, Governmental Authority, or other entity. 

“PO Owner” means (a) any holder of an Ownership Interest in the Private Owner at any 

time prior to the Final Distribution and (b) if any such holder is a nominee for another Person or 

Persons, each such other Person or Persons. 

“PO Owner Undertaking” has the meaning set forth in Section 4(a) of the Private Owner 

Interest Sale Agreement. 

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“PO/Manager Distribution Instruction” has the meaning set forth in Section 5.1(a) of 

the Custodial and Paying Agency Agreement. 

“PO/Manager Distribution Reinstatement Notice” has the meaning set forth in 

Section 5.1(a) of the Custodial and Paying Agency Agreement. 

“Potentially Defectively Foreclosed Receiver Acquired Property” means each real 

property (and related personal property) Receiver Acquired Property identified as “Potentially 

Defectively Foreclosed” or as a “Potentially Defectively Foreclosed Receiver Acquired Property” 

on the Ownership Entity and Receiver Acquired Property Schedule. 

“Pre-Approved Charges” means the costs and expenses (including legal fees and costs 

incurred by the Company, the Manager, the Servicer or any Subservicer for the benefit of the 

Company) expressly designated as “Pre-Approved Charges” in the Custodial and Paying Agency 

Agreement (including Section 6.1(a)), in the Transfer Agreement (including Sections 2.8, 3.1(a), 

3.1(b), 3.1(d)(i), 3.1(d)(v), 3.1(e), 3.2(b), 4.3, 4.10 and 5.6 of the Transfer Agreement), and no 

other costs or expenses. 

“Previously Approved Matters” has the meaning set forth in Section 2.7 of the LLC 

Operating Agreement. 

“Principal Deficiency” has the meaning set forth in Section 2.4(c) of the Transfer 

Agreement. 

“Prior Failed Bank” means, Signature Bank, New York, New York. 

“Prior Servicers” means, as of any date of determination, the Receiver, the Company, the 

Existing Servicers, the FDIC, the Failed Bank and any predecessor-in-interest thereof, any 

Ownership Entities existing (or having been in existence) on or before such date, and all of their 

respective Related Persons (but excluding, in all cases, the Manager (in its individual capacity)). 

“Prior Transferor” means, the FDIC in its capacity as receiver for the Prior Failed Bank; 

provided, however, that, from and after the acquisition of the assets of such receivership by the 

FDIC in its corporate capacity, “Prior Transferor” will refer to the FDIC in its corporate capacity 

as successor to such receivership. 

“Priority of Payments” has the meaning set forth in Section 5.1 of the Custodial and 

Paying Agency Agreement. 

“Private Owner” means the Person from time to time constituting the “Private Owner” 

under, and in accordance with, the LLC Operating Agreement (initially, SIG-23 Private Owner 

LLC, a Delaware limited liability company). 

“Private Owner Capital Improvement Account Deposit” has the meaning set forth in 

the Private Owner Interest Sale Agreement. 

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“Private Owner Interest” (a) for purposes of the Private Owner Interest Sale Agreement, 

has the meaning set forth in the Recitals of the Private Owner Interest Sale Agreement, and (b) for 

purposes of each Transaction Document other than the Private Owner Interest Sale Agreement, 

means (i) the limited liability company interest in the Company held by the Private Owner, 

including the rights to share in the income, gain, loss, deductions and credits of, and the right to 

receive distributions from, the Company, (ii) all other rights, benefits and privileges enjoyed by 

the Private Owner (pursuant to the Act, the LLC Operating Agreement or otherwise) in its capacity 

as a Member, including rights to vote, consent and approve, and (iii) all other rights, benefits, 

privileges and claims (whether known or unknown) of the Private Owner (in any capacity, 

including as the Manager) pursuant to, or arising pursuant to, the LLC Operating Agreement or 

the Custodial and Paying Agency Agreement, including in any event (A) all rights of the Private 

Owner (in any capacity, including as the Manager) to receive the Interim Management Fee or the 

Management Fee and to receive any distributions or payments on account of any Excess Working 

Capital Advances made by or on behalf of the Private Owner (in any capacity, including as the 

Manager) and (B) all rights with respect to any funds in the Private Owner Pledged Account. For 

the avoidance of doubt, the “Private Owner Interest” does not include any right, title, or interest of 

the Manager (in its individual capacity) under the Servicing Agreement. 

“Private Owner Interest Asset Value” means, with respect to any Asset, the portion of 

the Private Owner Interest Sale Price allocated to such Asset, as set forth on the Private Owner 

Interest Asset Value Schedule. 

“Private Owner Interest Asset Value Schedule” means the “Private Owner Interest Asset 

Value Schedule” attached as Attachment B to the Transfer Agreement. 

“Private Owner Interest Sale Agreement” means the Private Owner Interest Sale and 

Assignment Agreement between the Initial Member and the Private Owner dated as of the Closing 

Date. 

“Private Owner Interest Sale Price” means the purchase price set forth in the Private 

Owner Interest Sale Agreement (as the “Private Owner Interest Sale Price” defined therein) for the 

limited liability company interest sold to the Private Owner. 

“Private Owner Obligations” means all duties, liabilities, and obligations of the Private 

Owner under or with respect to the LLC Operating Agreement and the Transaction Documents. 

“Private Owner Pledged Account” means the segregated trust or custodial account 

designated as the “Private Owner Pledged Account” pursuant to Section 3.9(a) of the Custodial 

and Paying Agency Agreement. 

“Private Owner Pledged Account Control Agreement” means the Private Owner 

Pledged Account Control Agreement (in substantially the form set forth in Exhibit Q to the 

Custodial and Paying Agency Agreement), among the Private Owner, the Paying Agent, and the 

Initial Member, with respect to the Private Owner Pledged Account. 

“Private Owner Pledged Amount” means $19,000,000.00. 

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“Private Owner WCR Account Deposit” has the meaning set forth in the Private Owner 

Interest Sale Agreement. 

“Proceedings” means any suit in equity, action at Law or other judicial or administrative 

proceeding. 

“Purchase Price Payment” has the meaning set forth in Section 1(a) of the Private Owner 

Interest Sale Agreement. 

“Purchaser Eligibility Certification” means, (a) with respect to the Private Owner, any 

Purchaser Eligibility Certification delivered by the Private Owner or any of its Affiliates to the 

Receiver in connection with the transactions contemplated in the LLC Operating Agreement and 

the other Transaction Documents, including the Purchaser Eligibility Certification delivered by 

the Private Owner to the Receiver on or about the Closing Date, and, (b) with respect to any 

Permitted Disposition (and the applicable transferee in connection therewith), a Purchaser 

Eligibility Certification in substantially the form of the Purchaser Eligibility Certification 

referenced in clause (a), with such changes as the Initial Member might require based on changes 

to such form of Purchaser Eligibility Certification as maintained by the FDIC. 

“Put/Call Closing” has the meaning set forth in Section 3.14(b) of the LLC Operating 

Agreement. 

“Put/Call Closing Date” has the meaning set forth in Section 3.14(b) of the LLC Operating 

Agreement. 

“Put/Call Notice” has the meaning set forth in Section 3.14(a) of the LLC Operating 

Agreement. 

“Put Event” has the meaning set forth in Section 3.14(a) of the LLC Operating Agreement. 

“Qualified Custodian and Paying Agent” means any Person that (a) is a bank, trust 

company or title insurance company subject to supervision and examination by any federal or state 

regulatory authority, (b) is experienced in providing services of the type required to be performed 

by the Bank as the Custodian and Paying Agent under the Custodial and Paying Agency 

Agreement, (c) is qualified and licensed to do business in each jurisdiction in which the Custodial 

Documents will be held to the extent required unless and to the extent the failure to be so qualified 

or licensed will not have a material adverse effect on the Custodian or its ability to perform its 

obligations under the Custodial and Paying Agency Agreement, (d) is not prohibited from 

exercising custodial powers in any jurisdiction in which the Custodial Documents are or will be 

held, (e) has combined capital and surplus of at least $50,000,000 as reported in its most recent 

report of condition, (f) has the facilities to safeguard the funds deposited in the Accounts, the Asset 

Documents and the other Custodial Documents, and (g) is not an Affiliate of the Company, the 

Initial Member, the Private Owner, the Servicer or any Subservicer. 

“Qualified Institutional Buyer” means a “qualified institutional buyer” as such term is 

defined in Rule 144A under the Securities Act. 

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“Qualified Issuer” means any FDIC-insured depository institution that is at all times “well 

capitalized” (as such term is defined in 12 U.S.C. Section 1831o(b)(1)(A)), is in the business of 

issuing letters of credit and either (a) maintains offices in either or both of New York City, NY 

and Washington, D.C. where presentation and drawings on such letters of credit can be duly made, 

or (b) maintains a letter of credit department at its offices in another city and confirms to the Initial 

Member that its standard institutional practice is to permit presentation and drawing on such letters 

of credit by facsimile transmission of documents to such office. 

“Qualified Purchaser” means a “qualified purchaser” within the meaning of 

Section 3(c)(7) of the Investment Company Act. 

“Qualified Servicer” means any Person that (a) is properly licensed and qualified to 

conduct business in each jurisdiction in which such licenses and qualifications to conduct business 

are necessary for the Servicing to be conducted by or through such Person (taking into account 

any Servicing being conducted by any Subservicer engaged by such Person), (b) has the 

management capacity and experience to service Assets of the type held by the Company and to be 

serviced by such Person, especially performing and non-performing multifamily residential real 

estate loans (including acquisition, development and construction loans) secured by commercial 

properties subject to Rent Control or Rent Stabilization regulations including the number and types 

of Assets serviced, (c) has the ability itself, or through an applicable Subservicer engaged by such 

Person, to track, process and post payments, to furnish Tax reports to borrowers, and to monitor 

construction and approve and disburse construction draws, and (d) in the event such Person is to 

perform any Servicing other than Asset Management, such Person either (i) has an Acceptable 

Rating, (ii) has engaged a Rated Subservicer for all such Servicing other than Asset Management, 

or (iii) is approved by and continues to be acceptable to the Initial Member in its sole discretion. 

“Qualified Transferee” has the meaning set forth in Section 10.1 of the LLC Operating 

Agreement. 

“Qualifying Cash Collateral” means cash and any interest earned thereon (and Permitted 

Investments with respect thereto) in the Private Owner Pledged Account. 

“Qualifying Letter of Credit” means an irrevocable standby letter of credit (a) delivered 

to (and naming as sole beneficiary thereunder) the Initial Member substantially in the form of 

Exhibit D to the LLC Operating Agreement (or in such other form as may be acceptable to, and 

approved in writing by, the Initial Member), duly issued by an Issuing Bank that is, as of the date 

of issuance thereof, a Qualified Issuer, (b) drawable either (i) at such Issuing Bank’s offices in 

New York City, NY or Washington, D.C. or (ii) through a letter of credit department located at its 

offices in another city which permits presentation and drawing on such letters of credit by facsimile 

transmission of documents to such office (provided, however, that, with respect to this clause (ii), 

such Qualified Issuer must confirm to the Initial Member that such Qualified Issuer’s standard 

institutional practice is to permit presentation and drawing on such letters of credit by facsimile 

transmission of documents to such office), and (c) having an initial term of one year with automatic 

renewals thereafter (without amendment except for extension of the then current expiry date by an 

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additional year) until the Initial Member has delivered written notice to the Issuing Bank to the 

effect that such Qualifying Letter of Credit is being released in its entirety. 

“Rated Subservicer” means a Qualified Servicer (that, for purposes of clause (d) of such 

definition, either (a) has an Acceptable Rating, or (b) is approved by and continues to be acceptable 

to the Initial Member in its sole discretion) engaged as a Subservicer by the Servicer so that the 

Servicer qualifies as a Qualified Servicer (and without the engagement of which such Servicer 

would not, as to applicable Servicing being conducted by such Rated Subservicer, so qualify as a 

Qualified Servicer). 

“Rating Agencies” means each of S&P Global Ratings, Fitch Ratings Inc., DBRS 

Morningstar, Kroll Bond Rating Agency, and such other rating agencies as are nationally 

recognized. 

“Receiver” means the FDIC, in its capacity as receiver for Signature Bridge Bank, N.A., 

provided, however, that, from and after the acquisition of the assets of such receivership by the 

FDIC in its corporate capacity, “Receiver” will refer to the FDIC in its corporate capacity as 

successor to such receiver. 

“Receiver Acquired Property” means (a) the equity interests in any Ownership Entity (or 

other special purpose entity holding applicable real and/or personal property) set forth on the 

Ownership Entity and Receiver Acquired Property Schedule (and the assets held directly or 

indirectly by any such Ownership Entity); (b) Collateral that is identified as “Owned Real Estate” 

on the Ownership Entity and Receiver Acquired Property Schedule, the title to which has been 

acquired by or on behalf of the Receiver or the Failed Bank by foreclosure, by deed in lieu of 

foreclosure, by power of sale or pursuant to the Uniform Commercial Code or otherwise (including 

where the foreclosure or other acquisition event occurs before the Cut-Off Date), but the title to 

which has not yet been transferred to an Ownership Entity by the Receiver (which will include 

each Potentially Defectively Foreclosed Receiver Acquired Property, except where the context 

provides otherwise); and (c) any other Collateral, the title to which has been acquired by or on 

behalf of the Receiver or the Failed Bank by foreclosure, by deed in lieu of foreclosure, by power 

of sale or pursuant to the Uniform Commercial Code or otherwise, if the foreclosure or other 

acquisition event occurs after the Cut-Off Date, or occurred on or before the Cut-Off Date but the 

Redemption Period had not expired on or before the Cut-Off Date, and the equity interests in any 

Ownership Entity (or other special purpose entity formed by or on behalf of the Receiver or the 

Failed Bank) holding any such Collateral. 

“Receiver’s Deed” means, with respect to any real property (and related personal property) 

Receiver Acquired Property (other than a Potentially Defectively Foreclosed Receiver Acquired 

Property), the title to which is held by the Receiver (rather than an Ownership Entity) as of the 

Closing Date, a special warranty deed in recordable form, in the form of Attachment J-1 to the 

Transfer Agreement. 

“Receiver’s Quitclaim Deed” means, with respect to any Potentially Defectively 

Foreclosed Receiver Acquired Property, the title (if any) to which is held by the Receiver (rather 

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than an Ownership Entity) as of the Closing Date, a quitclaim deed in recordable form, in the form 

attached as Attachment J-3 to the Transfer Agreement. 

“Recording Office” means (a) the appropriate recording office of the jurisdiction in which 

the Mortgaged Property is located with respect to any given Asset (if such Asset is not Acquired 

Property) or in which the Acquired Property is located, and (b) in the case of personal property 

(including, to the extent applicable to such personal property, of clause (a)) each appropriate 

recording or filing office for the recordation or filing of a notice of a Lien on, or Mortgage with 

respect to, or a document of assignment, conveyance or transfer of title to, such personal property. 

“Redemption Period” means the statutory time period, if any, during which a foreclosed 

owner may buy back foreclosed real property from the foreclosure sale purchaser under the Law 

of the jurisdiction in which the property is located, which period (if the jurisdiction provides for 

the same) may vary among the jurisdictions that do provide for a Redemption Period. 

“Regulation AB” means the regulations at 17 C.F.R. Section 229.1100 et seq., as the same 

may be amended, supplemented, or modified from time to time. 

“Reimbursable Company Administrative Expenses” means (a) reasonable fees of 

outside auditors in connection with annual audits of the Company (and the Ownership Entities); 

(b) [intentionally omitted]; (c) licensing, filing and similar fees paid to applicable authorities in 

connection with obtaining and maintaining applicable Company (or Ownership Entity) licenses or 

registrations, and reasonable attorneys’ fees incurred in connection therewith, or with the 

preservation (and eventual dissolution) of the Company’s (or any Ownership Entity’s) existence 

in accordance with the LLC Operating Agreement (including for purposes of compliance with 

Section 4.3 of the LLC Operating Agreement); and (d) reasonable fees of the Manager incurred in 

complying with the provisions of Section 704(c) of the Code with respect to contributed property 

and preparing reports setting forth information, on an Asset-by-Asset basis, to enable the Company 

(and the Members) to properly track any gain or loss as required by Section 704(c) of the Code 

pursuant to Section 7.6(b) of the LLC Operating Agreement; provided, however, that in no event 

will Reimbursable Company Administrative Expenses include (x) fees or costs in connection with 

audits, licenses or filings of or with respect to the Manager, the Servicer, any Subservicer or any 

other Person (other than the Company and the Ownership Entities), (y) any amounts qualifying as 

Excluded Expenses under clauses (a) through (e) or (g) through (i) of the definition thereof, or (z) 

any overhead costs of the Company, the Manager, the Servicer or any Subservicer (including any 

(i) travel expenses or (ii) costs for office space, office equipment, supplies and related expenses, 

employee salaries, bonuses and other compensation and related expenses and similar internal costs 

and expenses, together with any other expenses incurred by the Manager to comply with 

Section 3.3 of the LLC Operating Agreement (including any costs or expenses of engaging 

independent contractors to perform relevant services for the day-to-day operation of the Company 

in lieu of performance of the same by personnel required to be made available by Manager pursuant 

to such Section 3.3)). 

“Related Agreement” means (a) any agreement, document or instrument (other than the 

Notes and Collateral Documents) relating to or evidencing any obligation to pay or securing any 

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Asset (including any equipment lease, letter of credit, bankers’ acceptance, draft, system 

confirmation of transaction, loan history, affidavit, general collection information, and 

correspondence and comments relating to any obligation); (b) any agreement relating to real 

property or rights in or to any real property (including leases, tenancies, concessions, licenses or 

other rights of occupancy or use and security deposits related thereto) related to any Asset; (c) any 

collection, contingency fee, and Tax and other service agreements (including those referred to in 

Section 4.2 of the Transfer Agreement) that are specific to the Assets (or any of them) and that are 

assignable; (d) any letter of assurance, letter of credit or similar instrument evidencing an 

obligation of the Failed Bank, the Receiver, the Company or any Ownership Entity that was issued 

for the benefit of any Person and relates in any way to an Asset or the acquisition, development or 

construction of any project with respect to which the proceeds of such Asset were used or were 

intended to be used; and (e) any interest rate swap arrangement between the Borrower and the 

Failed Bank, the Receiver or the Company (in each case as the applicable lender, agent or other 

creditor under an Asset) that relates to any Asset; provided, however, that no contract or instrument 

that was disaffirmed or repudiated by the Receiver prior to the Cut-Off Date or no Transferor 

Loan-Servicing Contract will constitute, or be deemed to constitute, a Related Agreement. 

“Related Party” means, with respect to any Person, any party related to such Person in the 

manner delineated in 26 U.S.C.A. Section 267(b) and the regulations promulgated thereunder, as 

such Law and regulations may be amended, supplemented, or modified from time to time. 

“Related Party Agreement” means any current or future contract, agreement, 

commitment, arrangement, or transaction (including any agreement to sell Company Property, 

incur any Debt or become bound by any Guarantee of any obligations) with or for the benefit of 

(including to pay any fee to) the Private Owner or any Affiliate of the Company or the Private 

Owner. 

“Related Person” means, with respect to any specified Person, any Affiliate of such 

specified Person, and any officer, director, stockholder, member, manager, partner, principal, 

employee, contractor, attorney, representative, agent, successor or assign of such specified Person 

or of any such Affiliate; provided, however, that, the Servicer and any Subservicer will be deemed 

to constitute a “Related Person” of (a) the Company and (b) during any period during which the 

Private Owner serves or served as the Manager, the Private Owner. 

“Release Price” means, with respect to any parcel (or other severable portion that, pursuant 

to any Business Plan, could potentially be separately sold by the Company or an applicable 

Borrower) of Acquired Property or Mortgaged Property securing a Loan, the applicable release 

price as designated by the Manager, which release price: 

(a) with respect to any such parcel (or other severable portion) comprising 

Acquired Property, is to be determined (and updated) by the Manager together with each 

determination (and update) of the Net Fair Value of such Acquired Property (with the applicable 

release prices to be set forth for such Acquired Property in each applicable Business Plan or other 

report including the Net Fair Value of such Acquired Property); provided, however, that, the 

Manager at all times is to cause the aggregate amount of the release prices for each such parcel (or 

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other severable portion) comprising such Acquired Property to be in an amount not less than the 

Net Fair Value of such Acquired Property (including with applicable reasonable allocations by the 

Manager of any increases or reductions in such Net Fair Value); and 

(b) with respect to any such parcel (or other severable portion) comprising 

Mortgaged Property securing a Loan, is to be as set forth in the applicable Asset Documents with 

respect to such Loan as in effect as of the Closing Date, or, to the extent not so set forth therein, 

as reasonably determined (and updated) by the Manager (with all such release prices to be set forth 

in each Consolidated Business Plan and in each Borrower-Business-Relationship Business Plan, 

if any, for such Loan); provided, however, that, to the extent any such determination is made by 

the Manager (as a result of no such release price being set forth in the applicable Asset Documents), 

the Manager is to cause the aggregate amount of the release prices for each parcel (and other 

severable portions) comprising all Mortgaged Property securing a Loan, as so set forth in each 

applicable Business Plan, to be in an amount not less than the Unpaid Principal Balance of such 

Loan (including with reasonable allocations by the Manager with respect to any increase in the 

Unpaid Principal Balance of such Loan). 

“Relevant Account” has the meaning set forth in Section 3.11(a) of the Custodial and 

Paying Agency Agreement. 

“Rent Control” or “RC” means and refers to government policies that place a limit on the 

amount a landlord can demand for leasing and re-leasing a home or apartment; and any reference 

to “Rent Controlled” or “RC” properties or units means and refers to properties or units that are 

subject to these policies. 

“Rent Stabilization” or “RS” means and refers to government policies that (i) regulate 

how often and by what amount a landlord may increase the rent of housing units, and (ii) provide 

tenants with services and eviction protections; and any reference to “Rent Stabilized” or “RS” 

properties or units means and refers to properties or units that are subject to these policies. 

“Reporting and Access Schedule” means the Reporting and Access Schedule attached as 

Annex II to the LLC Operating Agreement. 

“Reporting Service” means any Person retained by the Initial Member, pursuant to Section 

6 of the Reporting and Access Schedule, to facilitate and assist with reporting required to be 

provided to the Initial Member (and, as applicable, each other Beneficiary) pursuant to the 

Transaction Documents. 

“Repurchase Price” means, with respect to any Asset, an amount equal to the sum of 

(a) the Total Asset Value of such Asset, plus (b) unreimbursed (by the applicable Borrower or 

other Obligor, or otherwise from applicable Asset Proceeds not applied in reduction of the Unpaid 

Principal Balance of such Asset) Servicing Expenses that have been advanced by the Company 

with respect to such Asset as of the date of the repurchase, and minus (c) the result when the Unpaid 

Principal Balance of the Asset as of the date of repurchase is subtracted from the Adjusted Unpaid 

Principal Balance of the Asset (which result might be a negative number). 

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“Required Funding Draw” means a Funding Draw that the Company has an existing, 

affirmed obligation to fund (without regard to any waiver or amendment entered into after the 

Closing Date) subject to applicable limitations in the relevant Asset Documents. 

“RESPA” means the Real Estate Settlement Procedures Act of 1974, as amended, 

supplemented, or modified from time to time. 

“Responsible Officer” means, in relation to any specified Person, the chief executive 

officer, president, chief operating officer, chief financial officer or treasurer of such specified 

Person (or, if applicable, of the Person having general management authority with respect to the 

business and affairs of such specified Person). 

“Restricted Servicer Change of Control” means any Change of Control with respect to 

the Servicer or any Rated Subservicer, which Change of Control has not been approved in writing 

by the Manager and the Initial Member (which approval may not be unreasonably withheld). 

“Retained Closing Date Asset Litigation” means (a) any Closing Date Asset Litigation, 

or any particular claim or claims asserted in any Closing Date Asset Litigation, expressly 

designated in writing by the Receiver in its absolute discretion as constituting “Retained Closing 

Date Asset Litigation” either (i) in the applicable written litigation reports, if any, provided by the 

Receiver to the Winning Bidder (and other applicable qualified bidders having successfully 

submitted a Bidder Qualification Application) prior to its Bid submission, (ii) in the list of 

litigation prepared by the Initial Member and attached as Schedule I to the Transferee 

Acknowledgment and Certification delivered pursuant to Section 1(b)(vii) of the Private Owner 

Interest Sale Agreement, or (iii) in a separate written notice by the Receiver delivered to the 

Company no later than thirty days after the last Servicing Transfer Date; and (b) in any event, any 

Closing Date Asset Litigation, to the extent (and only to the extent) (i) asserting a claim for 

damages arising out of or resulting from a repudiation (effected pursuant to and in accordance with 

the FDIA and the internal policies and procedures of the FDIC) by the Receiver of a Liability, or 

challenging any prior decision with respect thereto, or (ii) asserting a claim against or Liability of 

the Receiver that, pursuant to and in accordance with applicable Law, was asserted through the 

receivership administrative claims processes administered by the Receiver pursuant to 12 U.S.C. 

Section 1821(d)(3) through (13). 

“Review Criteria” means the matters specified in Exhibit F to the Custodial and Paying 

Agency Agreement. 

“Risk Category” means, as of any date of determination and as the context may require, 

the applicable risk category, as an “A”, “B”, “C” or “D” classification, (a) in the case of a Loan, 

for such Loan as determined pursuant to the Loan Criteria Matrix and (b) in the case of a specific 

Acquired REO Property, for the applicable corresponding Loan immediately before such property 

(as prior Mortgaged Property) became Acquired REO Property, determined for this purpose based 

solely on the “Non-Financial Criteria” of the Loan Criteria Matrix as applicable to such property 

at such time, in each case with initial and subsequent such determinations being subject to the 

following: 

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(i) The Risk Category for an Asset is determined based on the lowest (with D 

being lower than C, which is lower than B, which is lower than A) individual Risk Category for 

any specific “Financial Criteria” or “Non-Financial Criteria” (or, for Acquired REO Property, only 

“Non-Financial Criteria”) pursuant to the Loan Criteria Matrix. 

(ii) The initial Risk Category for each Loan is set forth in the Loan Performance 

at Cut-Off Date Report, and, following the Closing Date, the Risk Category for each Loan, based 

on circumstances existing as of the end of each Due Period, will be set forth in the Loan 

Performance Report for such Due Period. 

(iii) Except as otherwise expressly provided, a change in Risk Category of a 

Loan will become effective upon any of (A) receipt by the Initial Member of the Loan Performance 

Report setting forth such change, and, in the case of any improvement in Risk Category (such as 

from B to A or C to B), further confirmation by the Initial Member as to such improved Risk 

Category based on the Loan Criteria Matrix, or (B) such date as may be set forth in a notice by the 

Initial Member to the Company of a separate determination by the Initial Member, based on the 

Loan Criteria Matrix, that a changed Risk Category applies (with the Initial Member having the 

right, in its sole discretion, to so deliver a notice changing the Risk Category of any Loan, including 

to assign a D Risk Category thereto, during any period of delay or failure of the Manager in 

delivery of any Loan Performance Report setting for the Risk Category for such Loan). 

(iv) The Risk Category for each Acquired REO Property (which must be 

determined to the satisfaction of the Initial Member, and once so determined will not change) will 

be determined by the Manager prior to the Company’s acquisition of such Acquired REO Property 

and set forth in the Monthly Report for the Due Period in which such Acquired REO Property is 

so acquired. 

(v) For each Loan, and for purposes of any determination after the applicable 

Servicing Transfer Date of the Loan to Value “Financial Criteria” portion of the Loan Criteria 

Matrix, eligibility for a Risk Category A/B classification requires an Appraisal (for each 

Mortgaged Property securing such Loan) obtained (and reflecting an Appraised Value as of a date 

that is) not more than 3 years prior to the applicable determination date of such Loan to Value. 

References to Risk Categories may be used alone or in combination, and may omit use the term 

“Risk Category”. By way of example, (x) reference to an “A Loan” or “Risk Category A Loan” 

refers to a Loan that, as of the applicable date of determination has such an “A” classification, (y) 

reference to an “A Asset” or “Risk Category A Asset” refers to any Asset, including separately 

any Loan or Acquired REO Property, that, as of the applicable date of determination, has such an 

“A” classification, and (z) reference to an “A/B Loan”, “Risk Category A/B Loan” or “Risk 

Category A or B Loan” refers to any Loan, that as of the applicable date of determination, has 

either such an “A” classification or a “B” classification. 

“Rules of Construction” means, in relation to any agreement (including this Agreement) 

(for this purpose, each a “specified agreement”) that specifies that the “Rules of Construction” 

apply to such specified agreement, the following rules of construction and interpretation: 

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(a) Headings and Captions. The table of contents and the article, section or 

paragraph headings, titles or captions contained in such specified agreement are inserted only as a 

matter of convenience and for reference and in no way define, limit, extend or describe the scope 

of such specified agreement or the intent of any provisions of such specified agreement. All 

Section and paragraph references contained in such specified agreement will refer to such specified 

agreement unless otherwise specified. 

(b) References to Persons Exclusive. References in such specified agreement 

to “Affiliates” or “Subsidiaries” of a specified Person refer to, and include, only other Persons 

which from time to time constitute “Affiliates” or “Subsidiaries,” as the case might be, of such 

specified Person, and do not include, at any particular time, other Persons that might have been, 

but at such time have ceased to be, “Affiliates,” or “Subsidiaries,” as the case might be, of such 

specified Person, except to the extent that any such reference specifically provides otherwise. A 

reference in such specified Agreement to a Member or other Person, in and of itself, does not, and 

will not be deemed to, refer to or include any other Person having an interest in a Member or other 

Person (such as, without limitation, any stockholder or member of or partner in a Member, or other 

Person). 

(c) Use of “Or”. Unless the context indicates otherwise, any use of the term 

“or” in such specified agreement is not exclusive. 

(d) References to Laws. Any reference in such specified agreement to a Law 

includes any amendment of, modification to, or replacement of, such Law. 

(e) Use of Accounting Terms. Accounting terms used in such specified 

agreement will have the meanings assigned to them by GAAP applied on a consistent basis by the 

accounting entity to which they refer. 

(f) References to Documents. References in such specified agreement to any 

other document, instrument or agreement will, in each case, except as might be set forth otherwise 

in such specified agreement, be deemed (i) to include all appendices, exhibits, schedules and other 

attachments to such other document, instrument or agreement (as originally executed), (ii) to 

include all documents, instruments or agreements issued or executed (if such other document, 

instrument or agreement is a Transaction Document, in accordance with the terms of such 

Transaction Document) in replacement of such other document, instrument or agreement, and 

(iii) to mean such other document, instrument or agreement, or replacement thereof as specified in 

clause (ii), as amended, modified and supplemented from time to time in accordance with the terms 

of such other document, instrument or agreement; provided, however, that (I) any reference in 

such specified agreement to terms defined in the Agreement of Common Terms and Definitions 

will mean such terms as amended, modified, supplemented or replaced in accordance with the 

Agreement of Common Terms and Definitions, and (II) with respect to any terms in such other 

document, instrument or agreement that are expressly incorporated by reference into such specified 

agreement, any such amendment, modification, supplement or replacement pursuant to the 

foregoing, will for purposes of such incorporation by reference, be deemed effective only to the 

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extent such amendment, modification, supplement or replacement also complies with the terms of 

such specified agreement for the amendment of such specified agreement. 

(g) Use of “Herein.” Unless otherwise specified in such specified agreement, 

the words “hereof,” “herein” and “hereunder” and words of similar import, as used in such 

specified agreement, will refer to such specified agreement as a whole and not to any particular 

provision of such specified agreement. 

(h) Use of “Including.” The words “include” and “including” and words of 

similar import, as used in such specified agreement, are not limiting, and are to be construed to be 

followed by the words “without limitation,” whether or not they are in fact followed by such words. 

(i) Use of “During.” The word “during”, as used in such specified agreement, 

when used with respect to a period of time is to be construed to mean commencing at the beginning 

of such period and continuing until the end of such period. 

(j) Singular/Plural Usage. Unless the context otherwise requires, singular 

nouns and pronouns when used in such specified agreement are to be deemed to include the plural 

and vice versa and impersonal pronouns are to be deemed to include the personal pronoun of the 

appropriate gender. 

(k) Servicer. Unless the context otherwise requires, during any period during 

which there is more than one Servicer, references (other than in any Servicing Agreement or 

Subservicing Agreement) to “the Servicer” or “the Servicing Agreement” will refer to “the 

Servicers or any of them” and to “the Servicing Agreements or any of them”, respectively. 

(l) References to Indirect Ownership. With respect to any determination of any 

specified Person’s (or Persons’) indirect ownership in any other Person, unless otherwise specified 

as to any particular use, such indirect ownership is to be determined attributing to such specified 

Person (or Persons) its (or their) actual ultimate indirect ownership in such other Person (for 

example, after taking into account the dilutive effect of intervening Persons that directly or 

indirectly own any Ownership Interest in such other Person but that are not wholly-owned 

subsidiaries of such specified Person (or Persons)). 

(m) Predecessors-in-Interest. Unless the context otherwise requires, (i) 

references in such specified agreement to any “predecessor-in-interest” or “predecessors-ininterest” (or any similar term) of the Transferor or of the Failed Bank shall be deemed to include 

each of the Prior Transferor and the Prior Failed Bank, and (ii) as used in relation to the Assets 

existing as of the Cut-Off Date (or the Closing Date) being transferred to the Company (and 

Obligations being assumed by the Company) and determinations with respect to Closing Date 

Asset Litigation (including obligations for transfer thereof), references in the Transfer Agreement 

and other applicable Transaction Documents (including relevant definitions in the Agreement of 

Common Terms and Definitions) to rights, obligations and liabilities of, and Actions by, against 

or involving, the Receiver or the Failed Bank will, except as otherwise determined by the 

Transferor (at any time) to not be applicable, be deemed to include (A) such rights, obligations or 

liabilities as successor or assignee of the Prior Receiver or Prior Failed Bank, as applicable, and 

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(B) such Actions by, against or in the name of the Prior Receiver or the Prior Failed Bank, 

including as may be separately administered by the Prior Receiver as of the Closing Date, in each 

case whether or not the applicable transfer or succession in respect of the Assets (as held by the 

Prior Failed Bank prior to the FDIC having been appointed as Prior Receiver) from the Prior Failed 

Bank (or Prior Receiver) was filed, perfected or otherwise further reflected under the terms of any 

documents or applicable administrative, judicial or legal requirements. 

“Secured Assets” means all right, title and interest of the Private Owner in and to (a) the 

Private Owner Pledged Account (and all funds therein and related rights thereto as more 

specifically described in the Private Owner Pledged Account Control Agreement), (b) the Private 

Owner Interest, (c) the Servicing Agreement, each Subservicing Agreement, each other 

Transaction Document, and each other agreement or document from time to time entered into by 

(or otherwise including rights in favor of) the Private Owner in its capacity as the Manager, and 

(d) all proceeds of any of the foregoing at any time (including distributions thereon or other income 

in respect thereof). 

“Securities Act” means the Securities Act of 1933, as amended, supplemented, or modified 

from time to time. 

“Seller Financed Loans” has the meaning set forth in Section 12.22 of the LLC Operating 

Agreement. 

“Servicer” means the Person retained by the Manager (in its individual capacity) to 

service, manage or administer any of the Assets or the Collateral in accordance with the LLC 

Operating Agreement. As of the Closing Date, the initial Servicer is The Community Preservation 

Corporation, a New York corporation. 

“Servicer Advances” means advances made by or on behalf of the Servicer to fund 

Servicing Expenses. 

“Servicing” means servicing, administering, managing, and disposing of the Assets and 

the Collateral. 

“Servicing Agreement” means, initially, the Servicing Agreement dated as of the Closing 

Date, by and between the Manager (in its individual capacity) and the Servicer, and thereafter any 

replacement agreement entered into between the Manager (in its individual capacity) and the 

Person designated as the Servicer therein, which servicing agreement shall satisfy the requirements 

of Section 3 of Annex IV to the LLC Operating Agreement and shall be acceptable to the Initial 

Member in all respects. 

“Servicing Expenses” means any of the following (in each case subject to the proviso set 

forth in the last full paragraph of this definition): 

(a) for an Asset which is a Loan, any and all customary, reasonable and 

necessary “out-of-pocket” costs and expenses incurred on or after the Closing Date by or on behalf 

of the Manager, the Servicer, or any Subservicer in connection with Servicing of such Asset (i) 

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incurred to protect, restore or preserve the value of the Collateral or the priority of the Liens and 

security interests created by the Asset Documents relating thereto (such as Taxes, home owners’ 

association fees, insurance premiums (including “forced placed” insurance premiums), ground 

rent, fees to Governmental Authorities to preserve or retain entitlements granted to and benefitting 

the Asset, costs to prevent waste, routine repairs and maintenance, foreclosure expenses and 

reasonable, independent, outside counsel legal fees and expenses relating to foreclosure or other 

litigation with respect to the Asset, reasonable independent JDC Contractor fees and expenses 

under permitted JDC Agreements, and reasonable expenses (including reasonable outside counsel 

legal fees) in connection with the structuring and related Modifications for making a Capital 

Improvement Advance (it being understood that expenses for any Development in connection with 

a Capital Improvement Advance are limited to the applicable Permitted Capital Improvement 

Expenses)), or (ii) routinely incurred in connection with a permitted sale of such Loan or applicable 

Collateral with respect thereto (such as brokerage fees, appraisals, advertisement costs and closing 

costs); 

(b) for an Asset which is Acquired Property, any and all customary, reasonable 

and necessary “out-of-pocket” costs and expenses incurred on and after the Closing Date by or on 

behalf of the Manager, the Servicer, or any Subservicer in connection with Servicing of such Asset 

(i) incurred in connection with the direct, property level financial operation of such property (such 

as, for any specific Acquired Property, collection, deposit and remittance of rent and other property 

level receipts, implementation of financial controls on operating income and expenses, 

documentation of and record keeping for operating income and expenses, preparation of monthly 

operating statements, preparation of operating budgets, and verification that expenses do not 

exceed the approved line item limits of the annual operating budget with respect to such specific 

Acquired Property), in each case limited to such activities as performed by (or otherwise of such 

nature as would so be performed by) an on-site property manager for such Acquired Property (and 

in all events excluding any expenses incurred for oversight of any such financial operation, or for 

preparation of Business Plans, Capital Improvement Plans, Strategic Plan Reports, Critical 

Strategy Resolution Business Plans, Monthly Reports or other reports required to be provided by 

the Manager, the Servicer or any Subservicer pursuant to the Transaction Documents); (ii) 

routinely incurred in connection with the physical aspects of such property (such as insurance, 

security, utilities, fees to Governmental Authorities to preserve, restore, protect or retain 

entitlements granted to, and benefitting, such property, property level administration and services, 

home owners’ association fees, enforcement of leases and property rules and regulations, 

emergency responses and routine daily upkeep, maintenance, repair and replacement of existing 

improvements) for maintenance, protection, preservation or restoration thereof; (iii) routinely 

incurred in connection with the sale of such Acquired Property (such as brokerage fees, appraisals, 

advertisement costs and closing costs); (iv) if the Asset is Acquired Property held for lease, 

routinely incurred in connection with leasing activity (such as brokerage fees and advertisement 

costs); (v) incurred in accordance with the Servicing Standard to obtain any insurance proceeds or 

any liquidation proceeds; (vi) incurred to obtain an appraisal (including any Appraisal as required 

pursuant to the Transaction Documents and the definition of Net Fair Value); or (vii) incurred to 

perform (in accordance with the Servicing Standard) Assumed Property Obligations; 

(c) Reimbursable Company Administrative Expenses; 

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(d) subject to Section 4.6 of the LLC Operating Agreement (and excluding any 

amounts or claims the Private Owner is required to bear or indemnify pursuant to such Section 4.6 

of the LLC Operating Agreement), to the extent not covered by any of clauses (a) through (c) 

above, legal fees and expenses (including judgments, settlements and reasonable attorneys’ fees 

of independent outside counsel) incurred by the Company (including to directly or, through the 

Manager, the Servicer or any Subservicer, indirectly reimburse the Manager, the Servicer or any 

Subservicer) in its (or the Manager’s, the Servicer’s or any Subservicer’s) defense of claims 

asserted against the Company or any Ownership Entity (or the Manager, the Servicer or any 

Subservicer) that relate to one or more Assets or the conduct of the Business, and allege, as the 

basis for such claims, any act or omission of the Company or any Ownership Entity (or the 

Manager, the Servicer or any Subservicer) or of the Failed Bank, the Receiver, any Existing 

Servicer or any other Person acting as servicer for any of the Assets at any time prior to the CutOff Date, but only if (i) such claims are not attributable to any act or omission of the Company, 

the Manager, the Servicer or any Subservicer in a manner inconsistent with, or in violation of, the 

Servicing Standard or any of the provisions of the LLC Operating Agreement or any Transaction 

Document, and (ii) (A) such claims are decided and there are final non appealable orders or 

judgments (unless the Initial Member has agreed in writing that no appeal needs to be taken) in 

favor of the Company or an Ownership Entity, as applicable (and the Manager, the Servicer and 

any Subservicer, to the extent any such claim has been asserted against the same), or if decided 

against the Company (or the Manager or the Servicer or any Subservicer) without any finding of 

bad faith, gross negligence or willful misconduct on the part of any of the foregoing or (B) there 

is entered into a final settlement of any such claim with the prior written consent of the Initial 

Member; 

(e) subject to Section 4.6 of the LLC Operating Agreement (and excluding any 

amounts or claims the Private Owner is required to bear or indemnify pursuant to such Section 4.6 

of the LLC Operating Agreement), (i) expenses specified in Sections 4.5 or 4.6 of the Transfer 

Agreement to constitute Servicing Expenses and (ii) expenses incurred in connection with any 

litigation (including any bankruptcy action) included in the Obligations and assumed pursuant to 

Section 4.5(a), Section 4.5(b) or Section 4.6 of the Transfer Agreement; and 

(f) amounts required for the Company to discharge (in accordance with the 

Transaction Documents) the Obligations as they become due, and to make applicable 

indemnification and/or reimbursement payments (other than for Pre-Approved Charges) owing by 

the Company to the Initial Member, the Transferor or any other Indemnified Party under the 

Transaction Documents, 

provided, however, that Servicing Expenses will not include any (w) Excluded Expenses; 

(x) Development expenses or Capital Improvement expenses (and, for such purpose, if the 

Manager reasonably determines that an expense is rightfully classified as a Servicing Expense 

pursuant to the foregoing clause (b)(ii) (as to Acquired REO Property) or clause (a)(i) (as to 

Mortgaged Property) rather than as a Development or Capital Improvement expense, the Manager 

is to provide written notice to the Initial Member of such determination setting forth in reasonable 

detail such expense, in which case such expense so rightfully classified a Servicing Expense, and 

the specific uses thereof, will be deemed excluded from the definitions of Development and/or 

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Capital Improvement (and Permitted Capital Improvement Expense), as applicable); (y) any 

Funding Draws or other principal advances to a Borrower (provided, however, that this clause (y) 

is to be deemed not to exclude, with respect to any Loan, amounts otherwise constituting Servicing 

Expenses paid by the Company (and not advanced to or at the request of the Borrower), but that 

qualify as Funding Draws as a result of the right of the Company pursuant to the applicable Asset 

Documents to add the same to the principal amount of the Loan); or (z) any costs or expenses that 

are excluded pursuant to any of the foregoing clauses (a) through (f) (including any such costs or 

expenses of a type or nature generally described in any such clause that are so excluded as a result 

of a failure to satisfy any express condition, limitation or requirement set forth in such clause), 

except to the extent the same qualify as Servicing Expenses under another of such clauses (a) 

through (f). 

“Servicing Obligations” has the meaning set forth in the LLC Operating Agreement 

(except as used in the Servicing Agreement, wherein such term is separately defined). 

“Servicing Standard” has the meaning set forth in the LLC Operating Agreement (except 

as used in the Servicing Agreement, wherein such term is separately defined). 

“Servicing Transfer Date” means, with respect to any Group of Assets, the date on which 

the transfer of the loan servicing records for such Group of Assets to the Servicer’s system of 

records is completed and the Servicer (including through any applicable Subservicer) begins to 

service such Group of Assets, as determined in accordance with Section 3.3 of the Transfer 

Agreement, it being understood and agreed that (a) the loan servicing records for each Group of 

Assets will be transferred to the Servicer’s system of records at the same time, but not necessarily 

at the same time as the loan servicing records for any other Group of Assets are transferred to the 

Servicer’s system of records, and (b) the Transferor (and the Initial Member) and the Company 

are to proceed (and the Manager is to cause the Servicer and any applicable Subservicer to proceed) 

with all commercially reasonable diligence to effect such transfer of loan servicing records as soon 

as is practicable after the Closing. 

“SFR Assets” means any Assets included in the Asset Schedule to the extent consisting of 

(i) one to four family residential properties or (ii) Loans secured by one to four family residential 

properties (and no other real property) or otherwise subject to, or intended to be covered by, either 

of the HFSH Act or RESPA, and are to include, as to any such Loan, any Acquired REO Property 

resulting from any exercise of remedies against the applicable Collateral, but only to the extent 

such Acquired REO Property consists of one to four family residential properties. 

“SFR Loan” means any Loan included in the SFR Assets. 

“Similar Law” means any non-U.S., or any U.S. federal, state or local, Law that is 

substantially similar to Section 406 of ERISA or Section 4975 of the Code. 

“Site Assessment” means either (a) a Transaction Screen Process consistent with ASTM 

Standard E 1528-06, conducted by an environmental professional, or (b) a Phase I environmental 

site assessment consistent with ASTM Standard E 1527-05, and which is consistent with 

customary industry standards for such Phase I environmental site assessments, conducted by an 

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environmental professional, as would customarily be undertaken or obtained by a prudent lender 

in order to ascertain whether there are any actual or threatened Environmental Hazards. 

“Special Purpose Entity” means: 

(a) with respect to an Ownership Entity, a corporation or limited liability 

company (i) that is organized under the Laws of any state of the United States or the District of 

Columbia, (ii) the equity of which is uncertificated (and, in the case of a limited liability company, 

does not by its terms expressly provide that such equity is to be governed by Article 8 of the UCC), 

(iii) that has no material assets other than Acquired Property, (iv) that is not engaged in any 

business operations except in connection with the Acquired Property and conducted pursuant to 

terms of the LLC Operating Agreement and the Transaction Documents, (v) that does or causes to 

be done all things necessary to preserve and keep in full force and effect its existence, rights 

(charter and statutory) and franchises, (vi) that at all times holds itself out to the public as a legal 

entity separate from any other Person (including any Affiliate), (vii) that except as expressly 

contemplated by the LLC Operating Agreement or the Transaction Documents, does not 

commingle its assets with assets of any other Person, (viii) that conducts its business in its own 

name and strictly complies with all organizational formalities to maintain its separate existence, 

(ix) that maintains an arm’s length relationship with any Affiliate upon terms that are commercially 

reasonable and on terms no less favorable to it than could be obtained in a comparable arm’s length 

transaction with an unrelated Person, (x) that has no Debt other than as expressly permitted by the 

Transaction Documents, and (xi) except as otherwise consented to in writing by the Initial Member 

or expressly permitted with respect to TRS Entities pursuant to Section 5.2 of Annex IV to the 

LLC Operating Agreement, is a pass-through or disregarded entity for Tax purposes; 

(b) with respect to the Company, a limited liability company (i) that is 

organized under the Laws of Delaware, (ii) the equity of which is uncertificated, (iii) that has no 

material assets other than the Assets, including Collateral and Ownership Entities, and its rights, 

title and interest in, to, and under the LLC Operating Agreement and the Transaction Documents, 

(iv) that is not engaged in any significant business operations except in connection with the Assets, 

including the Collateral and Ownership Entities and conducted in accordance with the terms of the 

LLC Operating Agreement and the Transaction Documents, (v) that does or causes to be done all 

things necessary to preserve and keep in full force and effect its existence, rights (charter and 

statutory) and franchises, (vi) that at all times holds itself out to the public as a legal entity separate 

from any other Person (including any Affiliate), (vii) that except as expressly contemplated by the 

LLC Operating Agreement or by any other Transaction Documents, does not commingle its assets 

with assets of any other Person, (viii) that conducts its business in its own name and strictly 

complies with all organizational formalities to maintain its separate existence, (ix) that maintains 

an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and 

on terms no less favorable to it than could be obtained in a comparable arm’s length transaction 

with an unrelated Person other than as expressly provided by the LLC Operating Agreement and 

the Transaction Documents, (x) that has no Debt other than as provided in the LLC Operating 

Agreement and the Transaction Documents and (xi) that except as otherwise consented to in 

writing by the Initial Member, is a pass-through entity for Tax purposes; and 

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(c) with respect to the Private Owner (or any Qualified Transferee thereof), a 

corporation or limited liability company (i) that is organized under the Laws of any state of the 

United States or the District of Columbia, (ii) the equity of which is uncertificated (and, in the case 

of a limited liability company, does not by its terms expressly provide that such equity shall be 

governed by Article 8 of the UCC), (iii) that has no material assets other than cash and cash 

equivalents and its rights, title and interest in, to, and under the LLC Operating Agreement and the 

Transaction Documents, (iv) that is not engaged in any significant business operations except in 

connection with the performance of its obligations under the LLC Operating Agreement and the 

Transaction Documents, (v) that does or causes to be done all things necessary to preserve and 

keep in full force and effect its existence, rights (charter and statutory) and franchises, (vi) that at 

all times holds itself out to the public as a legal entity separate from any other Person (including 

any Affiliate), (vii) that except as expressly contemplated by the LLC Operating Agreement or the 

Transaction Documents, does not commingle its assets with assets of any other Person, (viii) that 

conducts its business in its own name and strictly complies with all organizational formalities to 

maintain its separate existence, (ix) that maintains an arm’s length relationship with any Affiliate 

upon terms that are commercially reasonable and on terms no less favorable to it than could be 

obtained in a comparable arm’s length transaction with an unrelated Person other than as otherwise 

expressly provided by the LLC Operating Agreement and the Transaction Documents, (x) that has 

no Debt and, except as expressly permitted or required pursuant to the Transaction Documents, 

does not make any loans or advances to any other Person, (xi) that except as otherwise consented 

to in writing by the Initial Member, is a pass-through or disregarded entity for Tax purposes, (xii) 

that maintains its own separate books and records and its own accounts, in each case which are 

separate and apart from the books and records and accounts of any other Person, (xiii) that 

maintains separate financial statements, (xiv) that allocates fairly and reasonably any shared 

expenses, including any overhead for shared office space, (xv) that uses separate stationary, 

invoices and checks in its own name, (xvi) that maintains adequate capital in light of its 

contemplated business operations, and (xvii) that includes in its Organizational Documents 

applicable provisions and limitations requiring compliance with all the foregoing requirements in 

this clause (c), including an express requirement for the written consent of the Company (which 

consent of the Company in turn will require the written consent of the Initial Member) to any 

amendment or modification that would result in such Organizational Documents failing or ceasing 

to be in compliance with all such requirements in this clause (c). 

“Specified Date” means the 10th day of each month, or such other day as is agreed to by 

the Servicer and the Manager; provided, however, that, in any case, if such day is not a Business 

Day, the Specified Date will be the immediately preceding Business Day. 

“Specified Parent” means (a) with respect to the Private Owner, (i) subject to clause 

(a)(ii), each of The Community Preservation Corporation, a New York not-for-profit corporation, 

and Related Real Estate Fund III, L.P, a Delaware limited partnership, and/or (ii) any additional 

or substitute Person or Persons owning, directly or indirectly, more than 25% in value of all of the 

Ownership Interests in the Private Owner as the Initial Member may approve (in its sole discretion) 

in writing from time to time after the Closing Date as being designated a “Specified Parent” of the 

Private Owner for purposes of the LLC Operating Agreement; and (b) with respect to the Servicer, 

(i) subject to clause (b)(ii), The Community Preservation Corporation itself (as an entity that does 

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not have a parent entity), and/or (ii) any additional or substitute Person or Persons that the Manager 

and the Initial Member might agree from time to time after the Closing Date will be designated as 

a “Specified Parent” with respect to the Servicer. For avoidance of doubt, in each case, any such 

Specified Parent will include any successor by operation of Law. 

“Specified Proceeding” means (a) any Insolvency Proceeding with respect to the 

Company or the Private Owner or any of their respective Subsidiaries or (b) any proceeding for 

the appointment of a receiver, liquidator, conservator, custodian, trustee, sequestrator, rehabilitator 

or similar official for, or for any part of the property of, the Company or the Private Owner or any 

of their respective Subsidiaries, or for the ordering of the dissolution, winding-up or liquidation of 

the affairs of the Company or the Private Owner or any of their respective Subsidiaries. 

“Strategic Plan Report” has the meaning set forth in Section 7.8(a) of the LLC Operating 

Agreement. 

“Subservicer” means (a) any Person retained by the Servicer (in its individual capacity) to 

perform any of the Servicer’s obligations (with respect to Servicing) under the Servicing 

Agreement, and (b) in the event the Servicer is not a Rated Servicer, any other Person retained by 

such Person so retained by the Servicer pursuant to the foregoing clause (a) to perform any of such 

obligations (with respect to Servicing), in each case (for clause (a) and clause (b)), which retention 

shall be subject to applicable provisions in the LLC Operating Agreement and the Servicing 

Agreement (and any applicable Subservicing Agreement). 

“Subservicing Agreement” means any agreement whereby the Servicer or an applicable 

Subservicer (having been retained by a Servicer that is not a Rated Servicer) retains a Subservicer, 

which Subservicing Agreement is to be subject to applicable provisions in the LLC Operating 

Agreement and the Servicing Agreement and, if for engagement of a Rated Subservicer, further is 

to be acceptable to the Initial Member in all respects. 

“Subsidiary” means, with respect to any specified Person, each of (a) any other Person not 

less than a majority of the overall economic equity in which is owned, directly or indirectly through 

one of more intermediaries, by such specified Person, and (b) without limitation of clause (a), any 

other Person who or which, directly or indirectly through one or more intermediaries, is Controlled 

by such specified Person (it being understood with respect to clause (a) that a pledge for collateral 

security purposes of an equity interest in a Person will not be deemed to affect the ownership of 

such equity interest by the pledgor so long as such pledgor continues to be entitled, in all material 

respects, to all the income with respect to such equity interest). 

“Successor” means (a) with respect to a Member, any future Member which is a direct or 

indirect transferee (whether by Permitted Disposition, merger, consolidation or otherwise) of the 

LLC Interest of such Member; (b) with respect to any former Member, the current Member which 

is the direct or indirect transferee (whether by Permitted Disposition, merger, consolidation or 

otherwise) of the LLC Interest of such former Member and (c) with respect to the Initial Member, 

any Person that is a direct or indirect transferee (whether by Disposition, merger, consolidation or 

otherwise) of any of the Initial Member’s rights or interests pursuant to the LLC Operating 

Agreement or any other Transaction Document. 

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“Supplemental Delivery Certificate” has the meaning set forth in Section 6.1(d) of the 

Custodial and Paying Agency Agreement. 

“Tax” means any federal, state, county, local, or foreign tax, charge, fee, levy, duty, or 

other assessment, including any income, gross receipts, transfer, recording, capital, withholding, 

property, ad valorem, or other tax or governmental fee of any kind whatsoever, imposed or required 

to be withheld by any Governmental Authority having jurisdiction over the assessment, 

determination, collection, or other imposition of any of the foregoing, including any interest, 

penalties and additions imposed thereon or with respect thereto. 

“Tax Representative” has the meaning set forth in Section 7.5 of the LLC Operating 

Agreement. 

“Termination” has the meaning set forth in Section 8.1 of the Custodial and Paying 

Agency Agreement. 

“Termination Notice” means any written notice of termination required pursuant to 

Article VII of the Servicing Agreement. 

“Third Party Claim” has (a) for purposes of the LLC Operating Agreement, the meaning 

given therein, (b) for purposes of the Transfer Agreement, the meaning given therein, and (c) for 

purposes of the Servicing Agreement, the meaning given therein. 

“Total Asset Value” means, with respect to any Asset, an amount equal to the Equity Asset 

Value (or, in the event of any Excess Principal or Principal Deficiency, the Adjusted Equity Asset 

Value). 

“Transaction Documents” means the Agreement of Common Terms and Definitions, 

LLC Operating Agreement, the Transfer Agreement, the Servicing Agreement, the Custodial and 

Paying Agency Agreement, the Private Owner Pledged Account Control Agreement, any 

Qualifying Letter of Credit, and the Private Owner Interest Sale Agreement, in each case once 

executed and delivered, and any and all other agreements and instruments executed and delivered 

by, or executed and delivered to, the FDIC in connection with the Closing or the transactions 

contemplated thereby as contemplated by any Core Agreement, including any additional 

documents and agreements required to be so executed and delivered following the Closing 

pursuant to any such Core Agreement in the applicable form as attached thereto. 

“Transfer Agreement” means the Asset Transfer Agreement dated as of the Closing Date 

by and between the Transferor and the Company. 

“Transfer Documents” means the endorsements and allonges to Notes, Assignment and 

Lost Instrument Affidavits (if applicable), Mortgage Assignments, Omnibus Loan Assignments, 

Receiver’s Deeds, Omnibus Property Assignments, Receiver’s Quitclaim Deeds, assignment of 

leases, assignments of Ownership Entity interests, UCC financing statements (and assignments) 

and other documents of assignment, conveyance or transfer required pursuant to any applicable 

Law to evidence the transfer to the Company (or, as applicable, to an Ownership Entity) of the 

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Assets, the Collateral and the Collateral Documents and the Transferor’s rights with respect to the 

Assets and the Collateral (including, as applicable for purposes thereof, to evidence the transfer by 

Prior Transferor to the Failed Bank (or Transferor)). The form Allonge to be used in preparation 

of the Transfer Documents is attached to the Transfer Agreement as Attachment E, the form of 

Assignment and Lost Instrument Affidavit to be used in preparation of the Transfer Documents is 

attached to the Transfer Agreement as Attachment F, the forms of Assignment of Real Estate 

Mortgage and Assignment of Real Estate Deed of Trust to be used in the preparation of the 

Transfer Documents are attached to the Transfer Agreement as Attachments G-1 and G-2, 

respectively, the form of the Omnibus Loan Assignment to be used in the preparation of the 

Transfer Documents is attached to the Transfer Agreement as Attachment G-3, the form of the 

Assignment of Assignment of Leases and Rents and Other Loan Documents to be used in the 

preparation of the Transfer Documents is attached to the Transfer Agreement as Attachment H, 

the form of the Assignment and Acceptance of Limited Liability Company Interest to be used in 

the preparation of the Transfer Documents is attached to the Transfer Agreement as Attachment I, 

the form of the Receiver’s Deed to be used in the preparation of the Transfer Documents is attached 

to the Transfer Agreement as Attachment J-1, the form of the Omnibus Property Assignment to be 

used in the preparation of the Transfer Documents is attached to the Transfer Agreement as 

Attachment J-2, and the form of the Receiver’s Quitclaim Deed is attached to the Transfer 

Agreement as Attachment J-3. 

“Transfer Documents Preparation/Submission Deadline” means the date twelve 

months after the Closing Date; provided, however, that such twelve-month period is to be extended 

with respect to any particular Transfer Document if the delay in meeting such twelve-month 

deadline is due to a matter (other than the absence of, or the failure properly to record, a Transfer 

Document) noted as an Exception on the initial Collateral Certificate, but only for so long as the 

Private Owner is working diligently to locate the missing information or otherwise take such steps 

as might be necessary or appropriate to complete the preparation, and submission for recordation 

or filing, of the Transfer Documents. 

“Transfer Taxes” means any Taxes, assessments, levies, imposts, duties, deductions, fees, 

withholdings, or other charges of whatever nature (other than any taxes imposed on or measured 

by net income or any franchise Taxes), including interest and penalties thereon, required to be paid 

to any taxing authority with respect to the transfer of the Assets, the Collateral and the Collateral 

Documents or the rights in the Collateral or the assignment and assumption of the Obligations 

thereunder. 

“Transferor” means the Receiver as the “Transferor” under the Transfer Agreement. 

“Transferor Loan-Servicing Contract” means any contract between the Receiver and 

any third-party (including any Existing Servicer other than the Receiver) for the provision of loanservicing services with respect to the Loans (or any portion thereof). 

“Transferred Contract” means (a) any Note, any Asset Document, any Collateral 

Document, any Related Agreement or any other contract or instrument defined as included within 

any Loan or Acquired Property, or (b) any operating or similar agreement with respect to any 

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Entity formed by the Receiver or any predecessor in interest and transferred to the Company on 

the Closing Date pursuant to the Transfer Agreement; provided, however, that no contract or 

instrument that was disaffirmed or repudiated by the Receiver prior to the Cut-Off Date, and no 

Transferor Loan-Servicing Contract, will constitute a Transferred Contract. 

“Treasury Regulations” means the regulations promulgated by the United States 

Department of the Treasury pursuant to and in respect of provisions of the Code, and all references 

to sections of the Treasury Regulations shall include any corresponding provision or provisions of 

succeeding, substitute, proposed or final Treasury Regulations, as may be amended, supplemented, 

or modified from time to time. 

“TRS Costs” has the meaning set forth in Section 5.2(c) of Annex IV to the LLC Operating 

Agreement. 

“TRS Entity” has the meaning set forth in Section 5.2 of Annex IV to the LLC Operating 

Agreement. 

“Ultimate Parent Entity” means (a) (i) in relation to The Community Preservation 

Corporation, The Community Preservation Corporation itself (as an entity that does not have a 

parent entity) and (ii) in relation to Related Real Estate Fund III, L.P., Related Fund Management, 

LLC, a Delaware limited liability company, and (b) in relation to any Person becoming a 

“Specified Parent” pursuant to clause (a)(ii) of the definition of such term, the ultimate parent 

entities of such Person as agreed by the Private Owner and the Initial Member in connection with 

the consent to such Person becoming a “Specified Parent”. 

“Underlying Loan” means, with respect to any Receiver Acquired Property, any and 

all remaining right, title and interest of the Receiver, the Failed Bank or an Ownership Entity in 

and to the applicable Loan or Loan Participation (or other applicable loan, note and related 

documents) having been secured by such Receiver Acquired Property and with respect to which 

title to such Receiver Acquired Property has transferred to the Receiver, the Failed Bank or an 

Ownership Entity pursuant to a foreclosure sale, deed in lieu of foreclosure or any other exercise 

of remedies (in addition to any related Deficiency Balance). 

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in 

effect in any applicable jurisdiction, as may be amended, supplemented, or modified from time to 

time. 

“United States” and “U.S.” mean the United States of America. 

“United States Person” means a “United States person” as such term is defined in 

Section 7701(a) of the Code. 

“Unpaid Principal Balance” or “UPB” means, as of any date of determination, (a) when 

used in connection with multiple Assets (or multiple Loans and/or Acquired Property), an amount 

equal to the sum of the aggregate then outstanding principal balance of each such Asset (or Loan 

and/or Acquired Property), (b) when used with respect to a single Asset (or Loan and/or Acquired 

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Property), an amount equal to the then outstanding principal balance of such Asset (or Loan and/or 

Acquired Property), and (c) when used with respect to one or more Assets including Loan and 

Acquired Property components, an amount equal to the sum of the Unpaid Principal Balance of 

such Loan and the Unpaid Principal Balance of such Acquired Property; provided, however, that: 

(x) with respect to any Loan Participation (and any related Acquired Property), 

the Unpaid Principal Balance of such Loan Participation will include only the Company’s (or, with 

respect to any period prior to the effectiveness of the transfer of such Loan Participation to the 

Company on the Closing Date, the Receiver’s, or the Failed Bank’s, as applicable) allocable share 

thereof in accordance with the applicable Loan Participation Agreement; 

(y) for purposes of all determinations in connection with or relating to either a 

repurchase of an Asset pursuant to Article VI of the Transfer Agreement, any adjustment pursuant 

to Section 2.4 of the Transfer Agreement or the determination of an Excess Damage Liability: 

(i) with respect to any Acquired Property that is included among the 

Assets on the Closing Date, the Unpaid Principal Balance of such Acquired Property initially will 

be the book value set forth on the Asset Schedule, as adjusted to its Adjusted Unpaid Principal 

Balance pursuant to the Transfer Agreement, and thereafter as further adjusted pursuant to 

clause (y)(iii) below; 

(ii) in the case of an Asset (that was a Loan as of the Cut-Off Date) for 

which some or all the Collateral has been converted to Acquired Property, the unpaid principal 

balance of such Asset (including the resulting Loan and Acquired Property, which is to be 

considered as a single Asset for purposes of determination of the Unpaid Principal Balance 

pursuant to this clause (y)) is to be deemed, until such time as the Acquired Property is liquidated, 

to equal the amount of the unpaid principal balance of such Loan at the time at which such Asset 

was so converted (in whole or in part) to Acquired Property, as such unpaid principal balance with 

respect to such Loan might be adjusted in accordance with the applicable Asset Documents (but 

disregarding any credit on account of the applicable conversion of such Collateral to Acquired 

Property and any value (or Net Fair Value) of such Acquired Property, other than further 

adjustments pursuant to clause (y)(iii)) and, as to Acquired Property included in such Asset, as 

further adjusted pursuant to clause (y)(iii); 

(iii) in the case of clause (y)(i) (after the adjustment to the Adjusted 

Unpaid Principal Balance) or (y)(ii) (following any applicable conversion), the unpaid principal 

balance of any such Acquired Property or Asset including such Acquired Property is to be reduced 

by the net proceeds of any sales of any portions of such Acquired Property, and increased, without 

duplication, by the amount of (A) any advances or Interim Servicing Expenses by the Transferor 

(or the Initial Member) during the Interim Servicing Period under or as described in the Transfer 

Agreement (and applicable provisions of the LLC Operating Agreement) made with respect 

thereto and capitalized thereto in accordance with GAAP (and applicable Law), and (B) any 

expressly permitted expenditures for Development pursuant to Section 12.14 of the LLC Operating 

Agreement or Servicing Expenses for any construction or development (pursuant to clause (x) of 

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the proviso appearing as the last paragraph of the definition of “Servicing Expenses”), in each case 

paid with respect thereto and capitalized thereto in accordance with GAAP (and applicable Law); 

(z) for all purposes other than determinations in connection with or relating to 

either a repurchase of an Asset pursuant to Article VI of the Transfer Agreement, any adjustments 

pursuant to Section 2.4 of the Transfer Agreement or the determination of an Excess Damage 

Liability: 

(i) the Unpaid Principal Balance of Acquired Property will be the Net 

Fair Value of such Acquired Property; and 

(ii) the Unpaid Principal Balance of any Loan (including any such Loan 

as to which the Collateral has been converted in part to Acquired Property, it being understood 

that the Unpaid Principal Balance of any Loan converted in whole to Acquired Property will be 

zero) will be the unpaid principal balance of such Loan, as adjusted from time to time in accordance 

with the applicable Asset Documents (including as initially adjusted to the Adjusted Unpaid 

Principal Balance), subject to the following limitations and other applicable provisions of the 

Transaction Documents: 

(A) in connection with any partial release or sale of the 

Mortgaged Property securing such Loan, the Unpaid Principal Balance of such Loan is to be 

permanently reduced by the Release Price for such Mortgaged Property (notwithstanding that the 

net proceeds received and applied to such Loan in respect of such release or sale may be in a 

different amount); 

(B) in connection with any partial conversion of such Loan to 

Acquired Property, the Unpaid Principal Balance of such Loan is to be permanently reduced by 

the applicable Release Price for such Mortgaged Property (notwithstanding that the applicable 

amount credited to or otherwise deducted from the Loan balance owing by the applicable Borrower 

in respect of such partial conversion may be in a different amount); provided, however, that, in all 

instances, the sum of the Unpaid Principal Balance of such Loan and the Net Fair Value of such 

Acquired Property, as determined immediately after such conversion, will be in an amount not in 

excess of the Unpaid Principal Balance of such Loan immediately prior to giving effect to such 

conversion (and the Unpaid Principal Balance of the Loan is to be deemed permanently reduced 

by the amount of any such excess); 

(C) the Unpaid Principal Balance (or applicable outstanding 

principal amount for purposes of determination of such Unpaid Principal Balance) of any Loan or 

of any portion of such Loan constituting a charge-off (including as to amounts having been charged 

off by the Failed Bank or the Receiver prior to the Cut-Off Date), a Deficiency Balance or a 

Deficiency Judgment Claim, or of any Loan following (1) the conversion or disposition of all or 

substantially all in value of the Mortgaged Property (or other applicable Collateral) securing the 

same, or (2) a determination by the Manager, the Servicer or any Subservicer (including any such 

determination for purposes of financial statements of the Company, or in connection with any audit 

thereof) that no further payments or recoveries (other than purely de minimis payments or 

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“Working Capital Expenses” means any Servicing Expenses, Interim Servicing 

Expenses, Pre-Approved Charges, Required Funding Draws, Interim Servicing Fees, fees of the 

Custodian and Paying Agent, and all costs and expenses relating to or in connection with the 

dissolution of the Company, including any reserves established in connection with dissolution of 

the Company. 

“Working Capital Reserve” means a working capital reserve to be (a) funded initially on 

the Closing Date (in an aggregate amount equal to the WCR Account Deposit) pursuant to the 

LLC Operating Agreement and the payments contemplated in the Private Owner Interest Sale 

Agreement, and (b) thereafter held in the Working Capital Reserve Account and used and 

replenished from time to time pursuant to the applicable provisions in the LLC Operating 

Agreement and the Custodial and Paying Agency Agreement. 

“Working Capital Reserve Account” means the segregated trust or custodial account 

designated as the “Working Capital Reserve Account” pursuant to Section 3.6(a) of the Custodial 

and Paying Agency Agreement. 

“Working Capital Reserve Floor” means $86,101,008.85, or, with an applicable written 

approval from the Initial Member pursuant to Section 12.11(b) of the LLC Operating Agreement, 

such other amount as might be applicable pursuant to such written approval. 

“Working Capital Reserve Target” means the targeted amount of Working Capital 

Reserve as determined by the Manager with respect to each Distribution Date, to be not less than 

the Working Capital Reserve Floor; provided, however, that from and after the Final Monthly 

Distribution, the Working Capital Reserve Target will be as determined by the Manager in 

accordance with Sections 9.2 and 12.11(d) of the LLC Operating Agreement. 

Section 1.2. Application of the Rules of Construction. Except as provided in the next 

succeeding sentence, the Rules of Construction apply to this Agreement. Clauses (a) and (g) of 

the definition of the term “Rules of Construction” do not apply with respect to the definitions set 

forth in Section 1.1. 

ARTICLE II 

Common Terms 

Section 2.1. Common Terms. With respect to this Agreement and each other 

Transaction Document, unless and to the extent provided otherwise in any Transaction Document, 

the following common terms and conditions apply to such Transaction Document: 

(a) Counterparts. Such Transaction Document may be executed in any number 

of counterparts, each of which will be deemed to be an original copy of such Transaction 

Document and all of which, when taken together, will constitute one and the same instrument. It 

is not necessary for the counterparts to any Transaction Document other than this Agreement to 

bear the signature of all parties to this Agreement. 

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(b) Signatures; Electronic Delivery. Transmission by telecopier, facsimile, email, or other form of electronic transmission (including electronic document execution platforms 

such as DocuSign and Adobe Sign) of an executed counterpart of any Transaction Document will 

be deemed to constitute due and sufficient delivery of such counterpart. No signatory to such 

Transaction Document may raise the use of a telecopier machine, facsimile machine, e-mail, or 

other form of electronic transmission (including electronic document execution platforms such as 

DocuSign and Adobe Sign) for delivery of any counterpart of a Transaction Document as a defense 

to the formation or enforceability of such Transaction Document, and each such Person forever 

waives any such defense. 

(c) Expenses. Each party to such Transaction Document will be liable for and 

pay its own expenses (including legal, accounting investment banker, broker, or finder’s fees) 

incident to the negotiation and execution of such Transaction Document and (except as may 

otherwise be expressly provided in such Transaction Document) the performance of its obligations 

pursuant to such Transaction Document. 

(d) Binding Effect; Assignment. Such Transaction Document will be binding 

upon and inure to the benefit of the parties thereto and their respective permitted successors and 

permitted assigns. The FDIC, acting in any capacity as a party to such Transaction Document, 

may assign, transfer and delegate its rights and obligations (in whole or in part) pursuant to such 

Transaction Document without the consent of any other party thereto. No other party to such 

Transaction Document may assign, transfer or delegate any of its rights or obligations thereunder, 

including by merger (whether or not such party is the surviving entity), Change of Control, 

operation of law or any other manner, without the prior written consent of the FDIC, in any 

capacity to which the FDIC is a party to such Transaction Document, and any attempted 

assignment or delegation without such consent will be void ab initio. References to a party in such 

Transaction Document also refer to such party’s permitted successors and permitted assigns. 

(e) Compliance with Law. Each party to such Transaction Document, at its 

own expense unless otherwise specifically provided in such Transaction Document, is to obey and 

comply with all applicable Laws, as they might pertain to such party’s performance of its 

obligations pursuant to such Transaction Document. 

(f) Notices. All notices and other communications with respect to or in 

connection with such Transaction Document must be delivered in accordance with the provisions 

of the Notice Schedule; provided, however, that, service of any writ, process or summons in any 

suit, action or proceeding arising out of, relating to, or in connection with such Transaction 

Document will be subject to the applicable provisions in Section 2.1(l)(vii). 

(g) Severability. If any provision of such Transaction Document is determined 

to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or 

unenforceability will not render such provision invalid, illegal, or unenforceable in any other 

jurisdiction or, as long as the essential terms and conditions of such Transaction Document for 

each party remain valid, affect any other term or provision of such Transaction Document. If any 

provision held to be invalid, illegal, or unenforceable is invalid, illegal, or unenforceable only as 

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to a particular Person or Persons and/or under any particular circumstance or circumstances, such 

provision will be ineffective only with respect to such particular Person or Persons and/or under 

such particular circumstance or circumstances, as the case may be. Without limitation of the 

preceding sentence, in the event a court determines that any provision of such Transaction 

Document is invalid, illegal or unenforceable (because of the duration or scope (geographic or 

otherwise) of such provision, or for any other reason) such court will have the power and be entitled 

to (i) modify such provision (including without limitation, to the extent applicable, by limiting the 

duration or scope of such provision and/or the Persons against whom, and/or the circumstances 

under which, such provision will be effective in such jurisdiction for purposes of such court 

proceeding to the minimum extent necessary so that such provision, as so modified, may then be 

enforced in such proceeding and (ii) enforce such provision, as so modified pursuant to clause (i), 

in such proceeding. Nothing in this Section 2.1(g) is intended to, or will, limit (I) the ability of 

any party to such Transaction Document to appeal any court ruling or the effect of any favorable 

ruling on appeal or (II) the intended effect of Section 2.1(m). 

(h) No Presumption. Such Transaction Document is to be construed fairly as 

to each party thereto and, if at any time any term or condition thereof is desired or required to be 

interpreted or construed, no consideration is to be given to the issue of, and no presumption or 

burden of proof is to arise favoring or disfavoring any party as a result of, who actually prepared, 

drafted, or requested any term or condition of such Transaction Document or any agreement or 

instrument subject thereto. Such Transaction Document will be deemed conclusively to have been 

reviewed by the parties thereto and their respective legal counsel. 

(i) Entire Agreement. Such Transaction Document, together with the exhibits, 

schedules and annexes thereto and the other Transaction Documents (and any other agreements or 

instruments expressly contemplated by or executed in connection with the execution of such 

Transaction Document), constitute the entire agreement and understanding, and supersede all other 

prior agreements, understandings, representations and warranties, both written and oral, among the 

parties to and with respect to the subject matter of such Transaction Document; provided, however, 

that any confidentiality agreement between the FDIC and the Private Owner or any Affiliates of 

the Private Owner (including by way of joinder) with respect to the transaction that is the subject 

of the Transaction Documents (including each Confidentiality Agreement) will remain in full force 

and effect to the extent provided therein. 

(j) Headings. The table of contents and the article, section or paragraph titles 

or captions contained in such Transaction Document are inserted only as a matter of convenience 

and for reference and in no way define, limit, extend or describe the scope of such Transaction 

Document or the intent of any provisions thereof. 

(k) Amendments and Waivers. 

(i) Such Transaction Document may be amended or modified only by 

a written instrument signed by all parties thereto and the consent of any third-party beneficiaries 

that, pursuant to such Transaction Document, have the express right to consent to amendments 

thereof. 

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(ii) A party may, by written instrument signed by such party, extend the 

time for performance of any obligation or other act of another party due to it, waive any 

inaccuracies in the representations and warranties made to it, and waive compliance with any 

covenants, obligations, or conditions in its favor in such Transaction Document. No claim or right 

arising out of such Transaction Document can be waived by a party, in whole or in part, unless 

made in writing signed by such party. No course of conduct or dealing and no failure or delay by 

any party in exercising any right, power or privilege under such Transaction Document will operate 

as a waiver of such right, power or privilege, and no single or partial exercise of any such right, 

power or privilege will preclude any other or further exercise of such right, power or privilege or 

any other right, power or privilege. A waiver given by a party is applicable only to the specific 

instance in which it is given. 

(l) Jurisdiction and Venue. With respect to such Transaction Document, each 

of the parties thereto irrevocably and unconditionally: 

(i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it commenced by the FDIC (in 

any capacity) arising out of, relating to, or in connection with such Transaction Document, and 

waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the FDIC (in any capacity) files the 

suit, action or proceeding without the consent of such FDIC party; 

(B) assert that venue is improper in either the United States 

District Court for the Southern District of New York or the United States District Court for the 

District of Columbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of New 

York for any suit, action or proceeding against it commenced by the FDIC (in any capacity) arising 

out of, relating to, or in connection with such Transaction Document, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of such FDIC party; 

(B) assert that venue is improper in the Supreme Court of the 

State of New York, County of New York; or 

(C) assert that the Supreme Court of the State of New York, 

County of New York, is an inconvenient forum; 

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(iii) agrees to bring any suit, action or proceeding by it against the FDIC, 

in any capacity to which the FDIC is a party to such Transaction Document, in only either the 

United States District Court for the Southern District of New York or the United States District 

Court for the District of Columbia, and waives any right to remove or transfer such suit, action or 

proceeding to any other court or dispute-resolution forum without the consent of such FDIC party 

and agrees to consent thereafter to transfer of the suit, action or proceeding to either the United 

States District Court for the Southern District of New York or the United States District Court for 

the District of Columbia at the option of such FDIC party; 

(iv) agrees, if the United States District Court for the Southern District 

of New York and the United States District Court for the District of Columbia both lack jurisdiction 

to hear a suit, action or proceeding falling within Section 2.1(l)(iii), to bring that suit, action or 

proceeding in only the Supreme Court of the State of New York, County of New York, and waives 

any right to remove or transfer such suit, action or proceeding to any other court or disputeresolution forum without the consent of such FDIC party; 

(v) agrees, in any suit, action or proceeding that is brought in the 

Supreme Court of the State of New York for New York County in accordance with the above 

provisions of this Section 2.1(l), to request that such suit, action or proceeding be referred to the 

Commercial Division of such Court; 

(vi) agrees that any final judgment entered against it in any suit, action 

or proceeding falling within this Section 2.1(l) may be enforced in any court of competent 

jurisdiction; and 

(vii) agrees that (A) service of all writs, process and summonses in any 

suit, action or proceeding pursuant to Section 2.1(l) may be effected by the mailing of copies 

thereof by registered or certified mail, postage prepaid, to it at its address for notices pursuant to 

Section 2.1(f) (and the Notice Requirements) with copies to such other Persons as specified 

therein; provided, however, that the foregoing will not affect the right of any party to serve process 

in any other manner permitted by Law; and (B) any such service of writs, process or summonses 

in any suit, action or proceeding on the FDIC (in any capacity) must be made in accordance with 

requirements of applicable Law (including 12 CFR section 309.7(a)), with additional delivery of 

a copy of such writ, process or summons to the FDIC in each capacity to which it is a party to such 

Transaction Document pursuant to the notice provisions in Section 2.1(f) and the Notice 

Schedule); and 

(viii) agrees that nothing in this Section 2.1(l) constitutes (A) consent to 

jurisdiction in any court by the FDIC (in any capacity), other than as expressly provided in Section 

2.1(l)(iii) and Section 2.1(l)(iv), or (B) a waiver or limitation of any provision in the Federal 

Deposit Insurance Act or other applicable law relating to commencement, jurisdiction, venue, 

limitations, administrative exhaustion, judicial review, removal, remand, continuation or 

enforcement (including as to limitations on attachment or execution upon assets in the possession 

of the FDIC) of actions by or against the FDIC (in any capacity), or in which the FDIC (in any 

capacity) is a party, including 12 U.S.C. Sections 1819(b), 1821(c), 1821(d), and 1821(j). 

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(m) Governing Law. EXCEPT AS MIGHT BE SPECIFICALLY PROVIDED 

OTHERWISE IN SUCH TRANSACTION DOCUMENT, EACH PARTY TO SUCH 

TRANSACTION DOCUMENT AGREES AND ELECTS THAT, IN ACCORDANCE WITH 

SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW 

YORK, SUCH TRANSACTION DOCUMENT IS TO BE GOVERNED BY AND CONSTRUED 

IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUDING ANY 

CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE 

OR THE CONSTRUCTION OF SUCH TRANSACTION DOCUMENT TO THE LAWS OF 

ANOTHER JURISDICTION, AND EACH PARTY THERETO UNCONDITIONALLY AND 

IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAWS OF ANY OTHER 

JURISDICTION GOVERN SUCH TRANSACTION DOCUMENT. NOTHING IN THIS 

AGREEMENT REQUIRES. OR WILL REQUIRE, ANY UNLAWFUL ACTION OR 

INACTION BY ANY PARTY TO THIS AGREEMENT. 

(n) Waiver of Jury Trial. EACH OF THE PARTIES TO SUCH 

TRANSACTION DOCUMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY 

RIGHT IT MIGHT HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING OUT OF OR 

RELATING TO SUCH TRANSACTION DOCUMENT AND AGREES THAT ANY SUCH 

DISPUTE IS TO BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 

(o) Affiliates. Each of the parties to such Transaction Document, other than 

the FDIC, in any capacity to which the FDIC is a party to such Transaction Document, will cause 

each of its Affiliates over which it has the right to exercise control to comply with the provisions 

of Section 2.1(l). 

(p) Third Party Beneficiaries. Each of the FDIC and the Receiver, (each a 

“Specified Third Party Beneficiary”), and, as applicable, each Related Person in respect of such 

Specified Third Party Beneficiary, is constituted an express third party beneficiary of any 

Transaction Document (to which it is not, in such specific capacity, otherwise a signatory) with 

respect to any provisions of such Transaction Document that expressly grant rights or benefits to 

such Specified Third Party Beneficiary or, as applicable, to any Related Person in respect of such 

Specified Third Party Beneficiary. In connection with the foregoing, (i) each Specified Third Party 

Beneficiary, for itself and on behalf of any Related Person in respect of such Specified Third Party 

Beneficiary, is entitled to enforce such provisions as to which it or such Related Person is a third 

party beneficiary as if it were a party to the respective Transaction Documents, and (ii) no 

amendment, modification or waiver of any such provisions to which a Specified Third Party 

Beneficiary, or any Related Person in respect of such Specified Third Party Beneficiary, is a third 

party beneficiary (or of any other provision, including defined terms, to the extent relevant to the 

rights or benefits granted in, or enforcement of, such provisions to which it or such Related Person 

is a third party beneficiary) will be effective against, or otherwise limit or affect any rights, benefits 

or remedies of, such Specified Third Party Beneficiary, or any Related Person in respect of such 

Specified Third Party Beneficiary, without such Specified Third Party Beneficiary’s express 

written consent. 

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ARTICLE III 

Miscellaneous 

Section 3.1. Application of the Common Terms. The Common Terms apply to this 

Agreement. 

Section 3.2. Enforceability of this Agreement. Notwithstanding that this Agreement has 

not been executed by all parties described in this Agreement, this Agreement is enforceable against 

each party that has executed this Agreement. The parties that execute this Agreement acknowledge 

that the Transaction Documents are being (or were) executed by certain Persons, including, but 

not limited to, the parties to this Agreement, simultaneously or otherwise in connection with the 

execution of this Agreement, and that notwithstanding any failure by any party to this Agreement 

to execute this Agreement, such agreements will be effective and binding on the parties thereto in 

accordance with the terms thereof. 

Section 3.3. Waivers and Amendments. Except as otherwise provided in Section 2.1(p) 

of the Common Terms or Section 3.5, this Agreement may be amended or modified, and the terms 

of this Agreement may be waived, only by a written instrument signed by all parties signatories to 

this Agreement. Notwithstanding anything contained in this Agreement to the contrary, but subject 

specifically to the provisions of Section 3.5, (x) nothing in this Agreement governs, or modifies in 

any respect, the requirements for amending any Core Agreement (or other Transaction Document 

that includes definitions by reference to this Agreement), including with respect to any of the 

definitions included therein by reference to this Agreement, and (y) with respect to any Transaction 

Document, any capitalized terms defined in this Agreement may be amended (solely for purposes 

of usage of such capitalized terms in such Transaction Document) pursuant to an amendment to 

such Transaction Document that complies with the requirements for amendments of such 

Transaction Document). 

Section 3.4. Successors and Assigns. Without limiting the generality of Sections 2.1(d) 

and 2.1(p) of the Common Terms, this Agreement will be binding on and inure to the benefit of 

(a) any successor “Initial Member” pursuant to, and in accordance with, the LLC Operating 

Agreement, and (b) any successor “Private Owner” pursuant to, and in accordance with, the LLC 

Operating Agreement. Furthermore, in each case subject to, and without modifying rights or 

obligations pursuant to, Sections 3.1 (including any rights or benefits of applicable express third 

party beneficiaries pursuant to Section 2.1(p) of the Common Terms) and 3.3, to the extent that 

this Agreement (including as a result of terms defined in this Agreement being used in applicable 

Transaction Documents) confers directly any rights, remedies or other benefits upon or any other 

Person not a party to this Agreement, but otherwise a party to, or express third party beneficiary 

of, any Transaction Document, this Agreement (subject to Sections 2.1(l), (m) and (n) of the 

Common Terms as if such other Person were a party to this Agreement) also will inure to the 

benefit of, and may, in respect of such rights, remedies or other benefits, be enforced by, such 

Person. 

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Section 3.5. Custodian and Paying Agent Special Acknowledgments. The Custodian 

and Paying Agent acknowledges that, notwithstanding anything in any Transaction Document to 

the contrary, (a) it is not a party to, and is not to be deemed to be a party to, any Transaction 

Document other than the Custodial and Paying Agreement and, but only for the limited purposes 

set forth and described in this Agreement, this Agreement; (b) all Transaction Documents other 

than the Custodial and Paying Agency Agreement, and any exhibits, annexes, schedules or other 

attachments to such Transaction Documents, may be modified, amended, restated or supplemented 

by the parties to such Transaction Documents without the consent of or joinder by the Custodian 

and Paying Agent; and (c) that the parties to this Agreement may modify, amend, restate or 

supplement any provision of (including the Common Terms) or definition in this Agreement 

without the consent of or joinder by the Custodian and Paying Agent. Once any such modification, 

amendment, restatement, or supplement of this Agreement not requiring the consent of or joinder 

by the Custodian and Paying Agent (an “Agreement of Common Terms and Definitions 

Amendment”) becomes effective in accordance with the provisions of this Agreement, the 

Company will deliver to the Custodian and Paying Agent a written notice of such Agreement of 

Common Terms and Definitions Amendment. Upon the Custodian and Paying Agent’s receipt of 

any such notice from the Company, the terms used in the Custodial and Paying Agency Agreement 

that are defined in, or by reference in, this Agreement will have for all intents and purposes of this 

Agreement the definitions as so modified, amended, restated or supplemented by an Agreement of 

Common Definitions and Common Terms Amendment; provided, however, that if and to the 

extent that any such modification, amendment, restatement or supplement of this Agreement of 

Common Terms and Definitions has a materially adverse impact on the rights and benefits of the 

Bank in its individual capacity, or imposes any additional obligation or liability on the Custodian 

and Paying Agent, such modification, amendment, restatement or supplement of this Agreement 

will not be binding on the Custodian and Paying Agent unless the Custodian and Paying Agent 

consents in writing to such modification, amendment, restatement or supplement of this 

Agreement, such consent not to be withheld, delayed or conditioned unreasonably. 

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Private Owner 

SIG-23 PRIVATE OWNER LLC 

By: ______________________________________ 

Name: Rafael E. Cestero 

Title: Authorized Signatory 

Paying Agent and Custodian 

COMPUTERSHARE TRUST COMPANY, 

N.A., as Paying Agent and Custodian 

By: __ _________________________ 

Name: William Wood 

Title: Vice President 

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Schedule I 

SIG RCRS C MF 2023 Venture LLC 

Notice Schedule 

For purposes of each Transaction Document and any reference to (or incorporation of) all or any 

portion of this Notice Schedule therein, references in this Notice Schedule to this “Agreement” 

will mean and refer to such Transaction Document. 

Notices. 

(a) Subject to Sections (d) (as to reports to be uploaded) and (e) (as to service of writs, 

process and summonses) below, all notices, requests, demands and other communications required 

or permitted to be given or delivered to any Person listed (or otherwise referenced) in Section (b) 

below under or by reason of the provisions of this Agreement (and each other applicable 

Transaction Document, except as otherwise provided therein) are to be in writing and are to be 

delivered by electronic mail, directed to the applicable electronic mail address specified in (or 

updated pursuant to) this Notice Schedule. All such notices, requests, demands and other 

communications to any such Person pursuant to the foregoing are to be deemed delivered upon the 

earlier to occur of (i) actual receipt (or refusal thereof) by such Person or (ii) when delivered; 

provided, however, that any notice, request, demand or other communication that is delivered to 

any such electronic mail address other than during regular business hours of the recipient will be 

deemed to have been delivered at the opening of business on the next Business Day. In no event 

will a voice mail message or any electronic communication other than as expressly provided 

pursuant to the foregoing or pursuant to Section (d) below be effective as a notice, confirmation, 

or other communication pursuant to this Agreement. 

(b) For purposes of the foregoing, such notices, requests, demands and other 

communications should, as to each Person listed below, be sent to its respective address as follows: 

Schedule I-1 

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If to the Company after the Closing, to: 

SIG RCRS C MF 2023 Venture LLC 

c/o CPC, 220 East 42nd St. 16th Fl, New York, New York 10017 

E-mail Address: 

Attention: David Rothberg 

with a copy to: 

Andrea Gladstone 

c/o CPC, 220 East 42nd St. 16th Fl, New York, New York 10017 

E-mail Address: 

If to the Private Owner, to: 

Sig-23 Private Owner LLC 

c/o CPC, 220 East 42nd St. 16th Fl, New York, New York 10017 

E-mail Address: 

Attention: David Rothberg 

with a copy to: 

Andrea Gladstone 

c/o CPC, 220 East 42nd St. 16th Fl, New York, New York 10017 

E-mail Address: 

and 

Sullivan & Cromwell LLP 

125 Broad Street, New York, New York 10004 

Attention: Jared Fishman; Robert Schlein 

E-mail Address: 

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If to any PO Owner: 

To the address set forth for such PO Owner in its PO Owner Undertaking. 

If to any other party to this Agreement (for purposes of any Transaction Document 

not otherwise specified above): 

To the address set forth for such party in this Agreement. 

(c) From time to time any Person listed (or referenced) above may revise its address 

for delivery pursuant to this Notice Schedule by providing notice to such effect to the other 

applicable parties in the manner set forth in this Notice Schedule. Each party to this Agreement 

agrees that, as to all Transaction Documents to which it is a party (and except as may be 

expressly set forth otherwise therein), (i) any Person listed above may revise its applicable notice 

address (or, as to any applicable report to be delivered to the FDIC (in any capacity), the 

recipient may provide applicable instructions pursuant to Section (d) below) as to any or all 

Transaction Documents (or applicable reports) by means of a single notice delivered (in 

accordance with the foregoing) to any or all other applicable parties to such Transaction 

Documents (and such address or changes to report delivery instructions, as applicable, as revised 

will be effective as to each such party to whom such notice is so delivered in accordance with 

this provision), and (ii) subject to the foregoing, as to any Person listed above, the address or 

other means of delivery herein for such Person (as the same might be updated pursuant to the 

foregoing) will apply with respect to all Transaction Documents to which such Person is a party 

(or express third-party beneficiary). 

(d) Notwithstanding anything in the foregoing to the contrary (and in each case unless 

otherwise directed by the applicable recipient by written notice delivered pursuant to the foregoing 

provisions of this Notice Schedule), each of (i) each Monthly Report and other periodic report 

required to be delivered by the Manager pursuant to the Reporting and Access Schedule, (ii) such 

other reports required to be uploaded pursuant to the applicable instructions made available by the 

FDIC through Venue’s virtual data room indicated below or otherwise through a Reporting 

Service, and (iii) such other reports to the FDIC (in any capacity) as the recipient from time to time 

might request (by written notice delivered pursuant to the foregoing provisions of this Notice 

Schedule) to receive via such uploading, in each case is to be delivered exclusively by uploading 

the same to the following electronic portal maintained on behalf of the FDIC (through its Asset 

Management Division) at Venue’s virtual data room indicated below (or via such other method of 

transmission as may be directed by the FDIC (in any capacity) in connection with use of a 

Reporting Service). 

Initial Virtual Data Room Portal: “JVT – Community Preservation Corp”, which is found at 

Venue’s virtual data room website, in the folder named “1 - SIG RCRS C MF 2023”, subfolder 

1.3 FDIC-MM-CMC”, and to which the Manager hereby acknowledges to have received access 

prior to the date hereof (or such successor virtual data room, website, online address or Reporting 

Service as the FDIC might designate from time to time for such reporting requirements). 

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Any such report to be uploaded pursuant to the foregoing will be deemed delivered when so 

uploaded (in accordance with the applicable instructions available through the above-referenced 

website), with applicable online confirmation of successful completion of such upload (or as may 

otherwise be applicable in connection with transmission or delivery through a Reporting Service 

pursuant to Section 6 of the Reporting and Access Schedule). 

(e) Notwithstanding anything in the foregoing to the contrary, service of writs, process 

and summonses in any suit, action or proceeding arising out of, relating to, or in connection with 

this Agreement or any other Transaction Document is subject to any express provisions set forth 

in this Agreement or such other Transaction Document. 

Schedule I-5 

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