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~i~~'tt'~i~~i.. W;.t.n?ft¡.~ E~'~J Corus Transaction 

t~tI:.r,._n. to EXECUTION VERSION 

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REIMBURSEMENT, SECURITY AND GUARANTY AGREEMENT 

BY AND 
 AMONG

CORUS CONSTRUCTION VENTURE, LLC,
 

EACH OTHER GRANTOR FROM TIME TO TIME PARTY HERETO,
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

IN ITS CORPORATE CAPACITY AS NOTE GUARANTOR, 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

AS RECEIVER FOR CORUS BANK, N.A., 

AS ADVANCE FACILITY AGENT AND COLLATERAL AGENT,
 

AND
 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

AS RECEIVER FOR CORUS BANK, N.A., 

AS INITIAL MEMBER 

Dated as of October i 6, 2009 

I)oc#: liSI 57S~'14s\'i~ 
TABLE OF CONTENTS
 

ARTICLE I Definitions...................................................,................................................... 2
 

Section 1.1 Definitions....................................,.................................................. 2
 

Section 1.2 Other Interpretive Provisions .....................................,.................. 15
 

ARTICLE II Reimbursement..................................................................,......,....,.,...........16
 

Section 2.1 Reimbursement ..................... ........... ................. ........ ............... ..... 16
 

Section 2.2 Obligations Absolute.........,........................................................... 16
 

ARTICLE II Security Interest ......................................................................................... 17
 

Section 3.1 Granting of Security Interest......................... ...... ................. ........ 17
 

Section 3.2 Underlying Loan Defaults; Acquisition of CollateraL. .................. 19
 

Section 3.3 Continuing Security Interest.... ............... .......... ....... ................ ..... 20
 

Section 3.4 Destruction of Collateral....... .......... ..... ............... ...... .................... 20
 

Section 3.5 Releases of Underlying Loan Collateral................... ..... ...............20
 

Section 3.6 Financing Statements ................................................ ....... .............2 i
 

Scction 3.7 Power of Attomcy......................................................................... 21
 

ARTICLE iv Events of Default .......................................................................................2 i
 

Section 4.1 Events of Default......................................................................... 21
 

ARTICLE V Remedies 23
 

Section 5.1 Remedies. ............. ................... ................ ............... ....................... 23
 

Section 5.2 Application of Proceeds ............................................ ....................25
 

Section 5.3 Sale of CollateraL. ..........................................................................26
 

Section 5.4 No Impairment of Action .............................................................. 26
 

Section 5.5 Remedies Cumulative; Waiver ..................................................... 27
 

Section 5.6 Waiver of 
 Certain Rights and Remedies........,.............................. 27
 

ARTICLE Vi Guarantee ...................................................................................................27
 

Section 6.1 Guarantee. ..................................................................................... 27
 

Section 6.2 Right of Contribution ........................... .............................. ........... 28
 

Section 6.3 No Subrogation........................... ......... ................. ................. ....... 28
 

Section 6.4 Amendments, etc. with Respect to the Secured Obligations ........ 29
 

Section 6.5 Guarantee Absolute and Unconditional........................................ 29
 

Section 6.6 Reinstatement................................................................................ 30
 

Section 6.7 Payments ............................ ........................................................... 30
 

Section 6.8 Information...........................................,........................................30
 

ARTICLE vii Representations And WaITanties .............................................................. 31
 

Section 7.1 Representations and Warranties ....................................................31
 

ARTICLE ViiI Covenants ................................................................................................32
 

Section 8. i Debtor Accounts.. ................................................................ ..........32
 

Section 8.2 Grantor Status; Licensing.............................................................. 32
 

Section 8.3 LLC Operating Agreement ........................................................... 33
 

Section 8.4 Custodian/Paying Agent ............................................................... 33
 

(i) 
Seetion 8.5 Compliance with Law................................................................... 33
 

Section 8.6 Servicer .........................................................................................33
 

Section 8.7 Certain Restrictions .......................................................................33
 

Section 8.8 Change in Jurisdiction, Name, Location or Identity..................... 34
 

Section 8.9 Payment of Principal on Purchase Money Notes; Payment
 

of Advance Facility Obligations; Reimbursement of
 

Collateral Agent ....... ............... .............. ................ ..... ......... .......... 34
 

Section 8.10 Protection of Collateral; Further Assurances .......... .......... ............ 35
 

Section 8.11 Guaranties and Mortgages............................................................. 35
 

Section 8.12 Additional Grantors.......................................................................36
 

Section 8.13 Transaction with Affiliates...................................... ......................36
 

Section 8.14 Books and Records; Reports; Certifications; Audits. ...................36
 

Section 8.15 Insurance .............,......................................................................... 39
 

Section 8.16 Recovery of Expenses; Interest................, ............... ....................40
 

Section 8.17 Debtor's Duty To Advise Collateral Agent, Notc Guarantor
 Certain Notices ...........40
 and Advancc Facility Agent; Delivery of 


Section 8. I 8 Administration of REO Properties... .............. ........... ..... ............... 41
 

ARTICLE IX Required Consent; Limits On Liability...................................................... 47
 

Section 9. i Required Consents; Limits On Liability....................................... 47
 

Section 9.2 Limitation of Liability. ..................................................................48
 

Section 9.3 Consents Considered Obtained Through Approved
 

Business Plans............................................................................... 49
 

ARTICLE X Release Of Collateral. ........,.. ........................... ........... ................... ............. 49
 

ARTICLE XI Liquidation of Underlying Loans and Acquired Collateral....................... 49
 

Section i 1.1 Rights to Liquidate Underlying Loans and Acquired 

Collateral............................................................................,.......... 49
 

Scction 11.2 Exercise of Rights to Liquidate Underlying Loans and
 

Acquired Collateral....................................................................... 49
 

ARTICLE XII Collateral Agcnt........................................................................................50
 Collateral Agent................... 50
 

Section 12.1
 Appointment and Authorization of


Section 12.2 Delegation of Duties ..................................................................... 50
 

Section 12.3 Liability of Collateral Agent ......................................................... 51
 

Section 12.4 Reliance by Collateral Agent ........................................................ 51
 

Section 12.5 Liability of Collateral Agent .........................................................52
 

Section 12.6 Successor Collateral Agent ............................... ............................52
 

ARTICLE XII Miscellaneous.............,............................................................................52
 

Section 13.1 Attorney-in-Fact............................................................................52
 

Section 13.3 Reimbursement of Expenses ......................................................... 53
 

Section 1 3.4 Termination of Security Interest ................................................... 53
 

Section 13.5 Indemnification. ... ................... .......................... ..... .......................53
 

Section 13.6 Governing Law.............................................................................. 55
 

Section 13.2
 No Petition ......... ............................. .................. ................. ...........52
 

(ii) 
Section 13.7 Jurisdiction, Venue and Service. ................................................... 55
 .....57 of Jury..........................................................................
 Section 13.8 Waiver 


Section 13.9 Notices........................................................................................... 57
 

Section 13.10 Assignment..... .................... ........ ...... ......... ..................... ............... 59
 

Section 13.1 i Entire Agreement .......................................................................... 59
 

Section 13.12 Amendments and Waivers ............................................................60
 

Section 13. i 3 Confidentiality ..............................................................................60
 

Section 13.14 Reinstatement................................................................................60
 

Section 13.15 Interpretation; No Presumption.. ..... ................... ................. .......... 61
 

Section 13.16 Severability ................................................................................... 61
 

Section 13.17 Survival.........................................................................................61
 

Section i 3.18 No Third Party Beneficiaries ........................................................ 61
 

Section 13.19 Counterparts: Facsimile Signatures............................................... 62
 

Schedule A Underlying Loan Schedule 

Exhibit A Joinder Agreement
 

( iii) 
REIMBURSEMENT, SECURITY AND GUARANTY AGREEMENT 

THIS REIMBURSEMENT, SECURITY AND GUARANTY 

October i 6,2009 (this "AgreemenC), is entered into by AGREEMENT, effective as of 


and among CORUS CONSTRUCTION VENTURE, LLC, a Delaware limited liability 

company ("Debtor"), each of the other entities listed on the signature pages hereof or 

that becomes a party hereto pursuant to Section 8.12 (collectively, the "Subsidiary 

Grantors" and, each, a "Subsidiary Grantor"; the Subsidiary Grantors together with
 

Debtor, collectively, the "Grantors" and, each, a "Grantor"), FEDERAL DEPOSIT 

INSURANCE CORPORATION, acting in its corporate capacity ("Note Guarantor"), 

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Corus Bank, 

N.A. (in such capacity, "Receiver"), as Administrative Agent under the Advance Facility 

Agreement rcfcrred to below (in such capacity, together with any successor agent, 

"Advance Facilty Agent") and as Collatcral Agent for the Secured Parties (as defined 

below) (in such capacity, together with any successor collatcral agent, "Collateral Sections 4, He), 1J, 5.1(a)(vi) - (viii), U1, Agent"), and, solely for purposes of 


il, 22, il, 11.2 and 13.6 - 13.19, FEDERAL DEPOSIT INSURANCE
 

CORPORATION, as Receiver, as Initial Mcmber under the LLC Operating Agreement
 

refelTed to below (in such capacity, the "Initial Member").
 

WHEREAS, pursuant to that certain Loan Contribution and Sale 

Agreement, datcd as of October 16, 2009 (the "Contribution Agreement"). between 

Debtor and Receiver, Receiver has transferred the Underlying Loans (as defined below), 

ineluding Equity Interests in Ownership Entities and ccrtain REO Property (as each such 

tenn is dcfined below), to Debtor partly as a salc and paiily as a capital contribution, and 

in return for such assets, Dcbtor has issued to Rccciver onc or more Purchase Moncy 

Notcs, dated of even date herewith, in the aggregate principal face amount of 

$1,377,35 i ,000 (the "Purchase Money Notes"); 

WHEREAS, to provide support for the payment and performance of
 

Debtor's obligations under the Purchase Money Notes, Note Guarantor and Receiver
 

have entered into that certain Guaranty Agreement, dated as of October 16, 2009 (the 

"Purchase MoneY Notc Guaranty");
 

WHEREAS, the Receiver has agreed to makc advances to Debtor to (i) 

pcrmit Debtor to issue advances to borrowers under the unfunded commitmcnts 

associated with the Underlying Loans (as dcfined below), (ii) fund certain costs and 

expenses incurred by Debtor in connection with the administration and enforcement of 

the Underlying Loans, (iii) fund construction costs with respect to the REO Property (as 

defined below) and (iv) pay certain Working Capital Expenses (as defined in the 

Advance Facility Abrrceinent referred to below) pursuant to an Advance Facility 

Agrecment dated as of o.ctober 16,2009 (the "Advance Faciltv Agrcement"), among 

Debtor, the lenders party thereto ("Advance Lenders") and the Advance Facility Agent; 

and 

WHEREAS, in connection with the foregoing, cach Grantor has abrreed to 

(a) provide Collateral Agcnt, for the benefit of the Secured Parties, with the collateral 
the Secured Obligations (as defined below) identified herein and (b) guaranty payment of 


in order to induce (i) Note Guarantor to enter into the Purchase Money Note Guaranty 

and to secure Debtor's obligation to reimburse Note Guarantor for any payments made by 

Note Guarantor thereunder and (ii) Advance Lenders to enter into the Advance Facility 

Agreement and make the advances to Debtor contemplated thereunder and to secure 

Debtor's obligations thereunder; 

the promises contained herein NOW, THEREFORE, in consideration of 
 which are and for other good and valuable consideration, the receipt and adequacy of 


hereby acknowledged, each Grantor, Note Guarantor, Advance Facility Agent, Collateral 

Agent and Initial Member agree as follows: 

ARTICLE I 

Definitions 

Section 1.1 Definitions. (a) Unless otherwise defined herein,
 

capitalized tenns used in this Agreement have the meanings provided in, or by reference 

in, the Contribution Agreement as in effect on the date hereof. The following terms shall 

have the following meanings: 

"Average (Select Scrvicer "Acceptable Rating" shall mean (i) a rating of 


List)" for construction loan servicers by Standard and Poor's Ratings Service. a division 

of The McGraw-Hil Companies, Inc., (ii) a rating of"Acceptable" for construction loan "Approved" for construction loan servicers by servicers by Fitch, Inc., or (iii) a rating of 


Moody's Investors Service. 

"Account Control Agreement" shall mean one or more Account Control 

Agreements among Debtor, the Custodian/Paying Agent and Secured Party entered into 

in accordance with the Custodial and Paying Agency A!:'Teement.
 

"Acquired Collateral" shall mean Underlying Collateral to which title is 

or, prior to the Effcctive Date, was acquired by or on behalf of Debtor or any Ownership 

Entity, the Failcd Bank or the Receiver by foreclosure, by deed in lieu of foreclosurc, by 

power of sale or by sale pursuant to the Uniform Commercial Code, ineluding Ownership 

Entities and REO Property. 

"Advance Facilty Agent" shall havc the meaning given in the
 

introductory paragraph to this Agreement.
 

"Advance Facilty Agreement" shall have the meaning given in the
 

preamble to this Agreement.
 

"Advance Facilty Obligations" shall have the meaning given to the term 

"Obligations" in the Advance Facility Agreement. 

"Advance Lender Escrow Account" shall have the meaning given in the 

Custodial and Paying Agency Agreement. 

2 
"Advance Lenders" shall have the meaning given in the preamble to this 

Agreement. 

"Affliate" shall mean, with respect to any specified Person, (i) any other
 

Person directly or indirectly Controlling or Controlled by or under common Control with 

such specified Person, (ii) any Person owning or Controlling ten percent (10%) or more 

of the outstanding voting securities, voting equity interests, or beneficial interests of the 

Person specified, (iii) any officer, director, general partner, managing member, trustee, 

employee or promoter of 
 the Person specified or any Immediate Family Member of such

offcer, director, general partner, managing member, trustee, employee or promoter, (iv) 

any corporation, partnership, limited liability company or trust for which any Person 

referred to in clause (ii) or (iii) acts in that capacity, or (v) any Pcrson who is an officer, 

director, general partner, managing member, trustee or holder often percent (10%) or 

the outstanding voting sccurities, voting equity interests or beneficial interests of 

any Person described in clauses (i) through (iv); provided, however, that for the purposes 

the Collateral Agent, the Note Guarantor, the Advance Facility 

more of 


of this Agreement none of 

Agent, the initial Advance Lender or the Initial Member shall be deemed an Affliate of 

Debtor or any Subsidiary Grantor or of any Affiliate of Debtor or any Subsidiary Grantor. 

"Agreement" shall mean this Reimbursement and Security Agreement. 

this Agreement. "Allonge" shall havc the meaning given in Section 3.1 of 


"Ancilarv Documents" shall mean the LLC Operating Agrecmcnt, the 

Servicing Ah'Tcement, one or more Account Control Agreements, the Contribution 

Agreement, the LLC Interest Sale Agreement, the Advance Facility, the Purchase Money 

Notes and the Custodial and Paying Agency Agreement, in each case once executed and 

delivered, and any and all other agreements and instruments exccuted and delivered in 

connection with the Closing and the transactions contemplate thereby. 

"Approved Business Plan" shall have the meaning given in the Advance 

Facility. 

"Assignment of Mortgage" shall mean, with respect to each Underlying 

Loan, a collateral assignment of the mortgage; deed of trust, trust deed or deed to secure 

debt securing sueh Undcrlying Loan ("Underlving Mortgage") or an assignment in 

blank of such Underlying Mortgage, in each case in form suitable for recording in thc 

appropriate public records and otherwise in form reasonably satisfactory to the Collatcral 

Agent. 

"Change of Control" shall have the meaning given in thc LLC Operating 

Agreement. 

"Closing" shall mean the consummation of the transactions contemplated 

in the LLC Interest Sale Agrccment. 

3 
"Collateral" shall have the meaning given in Section 3.1 of this 

Agreement. I".;. 

"Collateral Agent" shall have the meaning given in the introductory 

paragraph to this Agreement. 

"Collateral Documents" shall mean, collectively, this Agreement, the 

Account Control Agreements, the REO Mortgages, the Custodial and Paying Agency 

the other agreements, instruments or documents that creates or 

purports to create a Lien or guaranty in favor of the Collateral Agent for the benefit of the 

Agreement and each of 


Secured Parties. 

"Collection Account" shall have the meaning given in the Custodial and 

Paying Agency Agreement. 

"Company Account" shall have the meaning given in the Custodial and 

Paying Agency Agreement. 

"Contribution Agreement" shall have the mcaning givcn in the preamble 

to this Agrecment. 

"Control" when used with respect to any specified Person shall mean the the the power to direct or cause the direction of
 possession, direct or indirect, of 


management and policies of sueh Person, whether through the ownership of voting 

securities or interests, by contract or otherwise. 

"Controllng Party" shall mean (a) while any Advance Facility
 

Obligations are outstanding, Advance Facility Agent and (b) after the Advance Facility 

Obligations have been diseharged and paid in full, Note Guarantor. 

"Custodial and Paying Agencv Agreement" shall mean the Custodial 

the date hereof, among Debtor, the and Paying Agency Agreement dated as of 


Custodian/Paying Agent, the Notc Guarantor, the Advance Facility Agent and the 

Collateral Agent and shall includc any substantially similar agreement entered into by 

Debtor, the Note Guarantor, the Advance Facility Agent and the Collateral Agent and any 

new or successor Custodian/Paying Agent in accordance with thc LLC Opcrating 

Agreement. 

"Custodial Documents" shall have thc meaning set forth in the Custodial 

and Paying Agency Agreemcnt. 

"Custodian/Paying Agent" shall mean Wclls Fargo Bank, N.A., a 

national banking association, and any successor custodian/paying agent that is a Qualified 

Custodian. 

"Debtor" shall have thc meaning given in the introductory paragraph to 

this Abrrcement. 

4 
"Debtor Accounts" shall mean, collectively, the Company Account, the 

Collection Account, the Distribution Account, the Defeasance Account and the Advance 

Lender Escrow Account. 

the United States Code (1 i "Debtor Relief 
 Laws" shall mean Title 11 of


U .S.c. §§ 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. 

"Default" means any event or condition that constitutes an Event of 

Default or that, with the giving of any notice, the passage of time, or both, would 

constitute an Evcnt of Default. 

"Defeasance Account" shall have the meaning given in the Custodial and 

Paying Agency Agreement 

"Determination Date" shall have the meaning given in the Custodial and 

Paying Agcncy Agreement. 

"Distribution Account" shall have the meaning given in the Custodial
 

and Paying Agency Agreement.
 

"Distribution Date" shall have the meaning given in the Custodial and
 

Paying Agcncy Agreement. 

"Effective Date" shall mean October 16,2009. 

"Environmental Hazard" shall mean the presence at, in or under any 

Underlying Collateral (whether held in fee simple or subject to a !,'Tound lease of 

otherwisc, and including any improvements whether by buildings or facilities, and any 

personal property, fixturcs, leases and other property or rights pertaining thereto), of any 

Hazardous Material in a circumstance or conditions that could reasonably be expeeted to 

result in liability or obligation pursuant to Environmental Laws. 

"Environmental Laws" means any and all federal, state, locaL, and 

foreign Laws, regulations, judgments, orders, decrees, permits, concessions, grants, 

franchises, licenses, agreemcnts or governmental restrictions relating to pollution, the 

protection of the cnvironment, natural resources, or, to the extent relating to exposure to 

Hazardous Materials, human health or to the release of any matcrials into the 

environment, ineluding those related to Hazardous Materials, air emissions and 

discharges to waste or public systems. 

the '"Events of Default" described "Event of Default' shall mean each of 


in Scction 4.1 of 
 this Agreement.

5 
"Final Distribution" shall mean the distribution of all remaining the Custodial and Paying Underlying Loan Proceeds in accordance with the terms of 


the Underlying Loans and related Agency Agreement after liquidation of all of 


Underlying Collateral (ineluding Acquired Collateral). 

"Grantor" and "Grantors" shall have the meanings set forth in the 

introductory paragraph of this Agreement. 

"Guarantee" shall mean, with respect to any particular indebtedness or by a Person other than the other obligation, (a) any direct or indireet guarantee thereof 


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 payor 

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 lesscc 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 indebtcdness or 

other obligation (including any agreement to pay for property or serviccs 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 othcr 

obligation or to assure the holder or other obligee of such indebtedness or other 

obligation against loss, or (iii) otherwisc to assure the obligee of such indebtedness or 

other obligation against loss with rcspect thereto, or (b) any grant (or agreement in favor 

of the obligec of such indebtedness or other obligation to grant such obligce, under any 

circumstances) by a Person other than thc 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. 

"Guaranteed Obligations" shall have the meaning given in the Purchase 

Money Note Guaranty. 

"Immediate Familv Member" shall mean, with respect to any individual, 

his or her spouse, parents, parents-in-law, grandparents, descendants, nephews, nieces, 

brothers, sisters, brothers-in-law, sisters-in-law, children (whcther natural or adopted), 

children-in-Iaw, stepchildren, grandchildren and grandchildren-in-Iaw. 

"Indebtedness" mcans, as applied to any Person, without duplication, 

(i) all indebtedness of such Person for borrowed money, (ii) all obligations of such property or services (excluding trade payablcs Person for the deferred purchase price of 


arising in the ordinary course of business), (iii) all obligations of such Person evidcnccd 

by notes, bonds, debentures or other similar instruments, (iv) all indebtedness created or 

arising undcr any conditional sale or other titlc retention agreement with respect to 

property acquired by such Pcrson (even though the rights and rcmedics of the seller or 

lender under such agrcement in the event of default are limited to repossession or sale of 

such property), (v) all obligations of such Person as lessee under Icases that have been or 

6 
should be, in accordance with GAAP, recorded as capitalized leases, or (vi) all the kinds referred to in clauses (i) through indebtedness or obligations of others of 


which such Person has entered into or issued any Guarantee. (v) above in respect of 


"Indemnifed Parties" shall have the meaning given in Section 13.5(a) of 

this Agreement. 

"Initial Member" shall have the meaning given in the introductory 

paragraph to this Agreement. 

"Insolvency Event" shall mean, with respect to any specified Person, the 

occurrence of any of the following events: 

(i) the specified Person makes an assignmcnt for the benefit of
 

creditors; 

in any (ii) the specified Person files a voluntary pctition for relief 


Insolvcncy Proceeding;
 

(iii) the specified Person is adjudged bankrupt or insolvent or there is
 

entered against the specified Pcrson an order for relief in any Insolvency Proceeding; 

(iv) the specified Pcrson ties a petition or answer seeking for thc
 

specified Person any reorganization, arrangement, composition, readjustment, liquidation, 

dissolution, or similar relief under any Law; 

(v) thc specified Person secks, consents to, or acquiesces in the
 

appointment of a trustee, rcceiver or liquidator of the specified Person or of all or any 

the specified Person's properties; substantial pai1 of 


(vi) the spccified Person files an answer or other pleading admitting or
 

failing to contest the material allegations of a pctition filed against the specified Person in 

any proceeding described in clauses (i) through (v) above; 

(vii) the spccified Person becomes unable to pay its obligations (other
 

than, with respect to Debtor, the Purchase Money Notes, unless a Purchase Money Note 

Trigger Event has occurred and is continuing and is not cured within tcn (10) Business 

Days) as they becomc due; or 

(viii) at least sixty (60) days have passed following the commencement 

of any proceeding against the specified Person seeking reorganization, arrangement, under any Law, and composition, rcadjustment, liquidation, dissolution or similar relief 


such proceeding has not been dismissed, or at least sixty (60) days have passed following 

the appointment of a trustee, receiver or liquidator for the specified Person or all or any 

substantial part ofthc specified Person's properties without the spccified Person's 

agrecment or acquiescence, and such appointment has not bcen vacated or stayed, or if 

such appointment has been staycd, at least sixty (60) days have passed following the 

expiration of the stay if such appointment has not been vacated. 

7 
"Insolvency Proceeding" shall mean any proceeding under Title 11 of the 

United States Code (11 U.S.c. §§101, et seq.) or any proceeding under any other Debtor 

Relief Law.

"Intellectual Property" means all United States or foreign intellectual 

and similar propery of every kind and nature, including, without limitation, inventions, 

designs, patents, copyrghts, 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 

the foregoing and all rights to sue at law or in equity for any in connection with, any of 


infrngement or other violation thereof, including the right to receive all proceeds and 

damages therefrom. 

"LLC Interest Sale Agreement" shall mean the Limited Liability 

Company Interest Sale and Assignment Agrcement by and among CCV Managing the date hereof. Member, LLC, the Receiver and the Initial Member dated as of 


"LLC Operating Agreement" shall mean the Amended and Restated
 

Limited Liability Company Operating Agreement by and among the Receiver, CCV
 the date hereof. Managing Member, LLC and Debtor dated as of 


"Loan Participation" shall mean any asset subject to a shared credit,
 

participation, co-lending or similar intercreditor agreement under which the Failed Bank
 

or the Receiver was and, after the Effective Date, Debtor is the lead or agcnt financial
 

depository institution or othcrwise managed or held the credit or sold participations, or
 

under which the Failed Bank or the Receiver was and, after the Effective Date, Debtor is 

a participating financial depository institution or purchased participations in a credit 

managed by another Person. 

"Loan Participation Agreement" shall mean an agreement under which
 

the Failed Bank or the Rcceiver was and, after the Effective Date, Debtor is the lead or 

agent financial depository institution or otherwise managed or held a shared crcdit or sold 

participations, or under which the Failed Bank or the Receivcr was and, after the 

Effective Date, Debtor is a participating financial depository institution or purchased 

participations in a credit managed by another Person. 

"Loan Schedule" shall mean Schedule A to this Agreemcnt. 

this "Losses" shall have the meaning given in Section I3.5(a) of 


Agreement. 

"Managing Member" shall have the meaning given in the LLC Operating 

Agreement. 

8 
"Modification" shall mean 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. 

"Note Guarantor" shall have the meaning given in the introductory 

paragraph to this Agreement. 

"NY UCC" shall mean the Uniform Commercial Code as in effect on the 

New York, as amended from time to time, and any successor date hercof in the State of 


statute. 

"Organization Documents" shall have the meaning given in the Advancc
 

Facility Agreement.
 

"Ownership Entity" shall mean a Single Purpose Entity that is a
 

Subsidiary (as defined in thc LLC Operating Agrecment) of Debtor, whether contributcd
 

by thc Initial Member on the Effective Date or formed or acquired by Debtor thcreafter;
 

provided that, with respect to any entity transferred to Debtor on the Effective Date
 

pursuant to the Contribution Agreement that is not a Singlc Purpose Entity as of such
 

date, any such entity shall be deemed to be aD Ownership Entity; provided, further, that,
 

Debtor shall take all necessary and appropriate actions to cause such entity to become a
 

Single Purpose Entity as promptly as possible after the Closing.
 

"Perfection Requirement" shall have the meaning given in Section 7. i (e) 

of this Agreement.

"Private Owner" shall mean CCV Managing Member, LLC. 

"Proceedings" shall mcan any suit in equity, action at law or other 

judicial or administrative procceding. 

"Purchase Money Note Guaranty" shall have the meaning given in the 

preamble to this Agreement. 

"Purchase Money Note Trigger Event" shall mean an event that shall be 

any time during the pcriods set forth below, (a) the total dccmcd to have occurred if, as of 


amount then on deposit in the Defeasance Account (without giving effect to any net
 

losses thereon arising from the investment of such amounts in accordance with the
 

Custodial and Paying Agency Agreement), plus the sum ofthc agbrregatc amount from
 

the Defeasance Account prcviously paid by thc Company to all Holders (as defined in the
 

Custodial and Paying Agency Agreement) to repay any Purchase Money Note and the
 

aggregate amount previously paid to Note Guarantor to reimburse Note Guarantor for
 

payments it has madc under the Purchase Money Note Guaranty, divided by (b) the
 

original aggregate principal amount ofthc Purchase Money Notes, as ofthc Effcctive
 

Date is less than:
 

9 
Fifth (Slh) anniversary to and including the day

before sixth (6th) anniversary of 
 the Effective Date: 25%

Sixth (6Ih) anniversary to and including the day
 

before seventh (7lh) anniversary of the Effective Date: 40%
 

Seventh (7lh) anniversary to and including the day the Effective Date: 60% before eighth (8Ih) anniversary of 


Eighth (8th) anniversary to and including the day
 

before ninth Wh) anniversary of the Effective Date: 75%
 

Ninth (9th) anniversary to and ineluding the day the Effective Date: 90% before tenth (iOll') anniversary of 


"Purchase Money Notes" shall have the meaning given in the preamble 

to this Agreement and shall include any promissory note issued to refinance a Purchase 

Money Note in accordance with Section 2.8 ofthe Custodial and Paying Agency 

Agreement. 

''Qualified Custodian" shall mean any Person that (i) is a bank, trust 

company or title insurance company subject to supervision and examination by any the type federal or state rcgulatory authority, (ii) is experienced in providing services of 


required to be performed by the Custodian/Paying Agent under the Custodial and Paying 

Agency Agreement, (iii) is qualified and licensed to do business in each such jurisdiction 

to the extent required unless and to the extent the failure to be so qualified or licensed the will not have a material adverse effect on the Custodian/Paying Agent or the ability of 


Custodian/Paying Agent to perform its obligations under the Custodial and Paying 

Agency Agreement, (iv) is not prohibited from exercising custodial powers in any 

jurisdiction in which thc Custodial Documents are or will be held, (v) has combined 

capital and surplus of at least $50,000,000 as reported in its most recent report of 

condition, (vi) has the facilities to safeguard the Underlying Loan Documents and other 

Custodial Documents as requircd by the Custodial and Paying Agency Agreement, (vii) 

the Debtor or the Servicer, and (viii) is acceptable to and approved
 

by Collateral Agent (such approval not to be unreasonably withheld, delayed or
 

conditioned).
 

is not an Affliate of 


"Qualified Servicer" shall mean any Person that (i) is properly licensed
 

and qualified to conduct business in each jurisdiction in which such licenses and
 the Underlying Loans qualifications to conduct business are necessary for the servicing of 


the Underlying Collateral and the Acquired Collateral, (ii) has the 

the type held by thc Grantors, and management of 


management capacity and experience to service loans of 


especially performing and non-performing construction loans secured by multi-family 

residential properties or commercial properties, as applicable, ineluding the number and 

loans serviced, and the ability to track, process and post payments, to furnish tax 

reports to borrowers, to monitor construetion, and to approve and disburse construction 

types of 


10 
draws, and (iii) either (x) has an Acceptable Rating or (y) is acceptable to and approved 

by the Initial Member and the Collateral Agent, each in its sole discretion. 

"Receiver" shall have the meaning given in the introductory paragraph to 

this Agreement. 

"Reimbursement Obligations" shall have the meaning given in Section 

U of this Agreement. 

"Related Agreement" shall mean (i) any agreement, document or 

instrument (other than the Underlying Note and Underlying Collateral Documents) 

relating to or evidencing any obligation to payor securing any Underlying Loan 

(including any equipment lease, letter of credit, bankers' acceptance, draft, system transaction, loan history, affidavit, general collection information, and
 

correspondence and comments relating to any obligation), (ii) any agreement relating to
 

the construction, ownership, operation, management, sale or leasing of real property or
 

rights in or to any real property (including leases, property or asset management
 

agreements, brokerage agreements, service contracts, and concession agreements, license 

agreements or other agreements granting rights of occupancy or use) related specifically 

confirmation of 


them and (iii) any only to the Underlying Collateral or Acquired Collateral or any of 


collection or contingency fee, and tax and other service agreements (including those
 

referred to in Section 4.2 of the Contribution Agreement) that are specific only to the
 

them) and that are assignable.
 Underlying Loans (or any of 


"Related Entities" shall have the meaning given in Section 13.5(a) of this 

Agreement. 

"REO Mortgage" means, with rcspect to each REO Propcrty, a mortgage, 

deed of trust, trust deed or deed to secure debt securing the Secured Obligations in form 

suitable for recording in the appropriate public records and otherwise in form and the substanee satisfactory to the Collateral Agent (which REO Mortgage may, if 
 the Underlying Mortgage on the applicable REO Property has not been discharged and if 


Collateral Agent agrccs, consist of such Underlying Mortgage, as assigned to the 

Collateral Agent and including such modifications thereto as the Collateral Agent may 

require). 

"REO Property" shall mean real property to which title is acquircd by or 

on behalf of Debtor or any Ownership Entity, the Failed Bank or the Receiver by 

foreclosurc, by dced in lieu of foreelosurc, by power of salc or by sale pursuant to the 

Unifonn Commercial Code, in any such case, whether before or after the Closing. 

"Sale" shall have the meaning given in Section 5.3 of this Agreement. 

"Secured Obligations" shall mean, collectively, the Reimbursement 

Obligations and the Advance Facility Obligations, 

i i
 
"Secured Parties" shall mean, collectively, Collateral Agent, each coagent or sub-agent appointed by the Collateral Agent from time to time pursuant hereto, 

Advance Facility Agent, the Advance Lenders and Note Guarantor. 

"Servicer" shall have the meaning given in the Custodial and Paying 

Agency Agreement. 

"Servicing Agreement" shall have the meaning given in the Custodial 

and Paying Agency Agreement. 

"Servicing Expenses" shall have the meaning given in the LLC Operating 

Agreement. 

"Servicing Obligations" shall have the meaning given in the LLC 

Operating A!,'Teement.
 

"Servicing Standard" shall have the meaning given in the LLC Operating 

Agreement. 

"Single Purpose Entitv" shall mean 

(A) with respect to an Ownership Entity, a limited liability company 

that (i) is organized under the laws of any state of the United States or the District of 

Columbia, (ii) the equity of which is uncertificated, (iii) has no material assets other than 

Acquired Collateral, (iv) is not engaged in any significant business operations except in 

connection with its ownership and operation of Acquired Collateral and conducted
 

pursuant to the terms of this Agrecment and the Ancillary Documents; (v) does or causes 

to be done all things necessary to preserve and keep in full force and cffect its existence, 

rights (charter and statutory) and franchises, (vi) at all times holds itself out to the public 

as a legal entity separate from any other Person (ineluding any Affiliate), (vii) except as 

expressly eontemplated by this Agreement, or the Ancillary Documents, does not 

commingle its assets with assets of any other Person, (viii) conducts its business in its 

own name and strictly complies with all organizational foimalities to maintain its 

separate existence, (ix) maintains an arm's length relationship with any Affiiate 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) has no 

Debt other than as expressly peritted by the Ancilary Documents and (xi) except as 

otherwise consented to in writing by the Initial Member, is a pass-through entity for tax 

purposes; 

(B) with respect to Debtor, a limited liability company that (i) is 

organized under the laws of Delaware, (ii) the equity of which is uncertificated, (iii) has 

no material assets othcr than ,the Underlying Loans, including Underlying Collatcral and 

Owncrship Entities, and its rights, title and interest in, to, and under the LLC Operating 

Agreement and the Ancillary Documents, (iv) is not engaged in any significant busincss 

operations cxcept in connection with the Undcrlying Loans, including the Underlying the Collateral and Ownership Entities and conducted in accordance with the terms of 


LLC Operating Agreement and the Ancillary Documents, (v) does or causes to be done 

12 
all things necessary to prcserve and keep in full force and effect its existence, rights out to the public as a (charter and statutory) and franchises, (vi) at all times holds itself 


legal entity separate from any other Person (including any Affiliate), (vii) except as 

expressly contemplated by the LLC Operating Agreement or by any other Ancillary 

Documents, does not commingle its assets with assets of any other Person, (viii) conducts 

its business in its own name and strictly complies with all organizational formalities to 

maintain its separate existence, (ix) maintains an arm's length relationship with any 

Affliate upon terms that are commercially reasonable and on terms no less favorable to it 

than could be obtained in a comparable arn1's length transaction with an unrelated Person 

other than as expressly provided by the LLC Operating Agreement and the Ancilary 

Documents, (x) has no Debt other than as provided in the LLC Operating Agreement and 

the Ancillary Documents and (xi) except as otherwise consented to in writing by the 

Initial Member, is a pass-through cntity for tax purposes. 

this "Site Assessment" shall have the meaning given in Section 3.2(b) of 


Agreement. 

"Subsidiary Grantor" and "Subsidiary Grantors" shall have the 

mcanings given in the introductory paragraph to this Agreement. 

"Successor Servicer" shall have the meaning given in Section 5.1 (a)(vi) 

of this Agreement. 

"Third Party Claims" shall have thc mcaning given in Section I 3.5(a) of 

this Agreement. 

"Transaction Documents" shall havc thc meaning given in thc Advancc
 

Facility Agrecment.
 

"Underlying Borrower" shall mean the borrower or any other obligor
 

with rcspect to an Underlying Loan.
 

"Underlying Collateral" shall mean any and all real or personal property. 

whether tangible or intangiblc, securing or pledged to sccurc an Underlying Loan, 

ineluding any account, cquipment, guarantee or contract right, equity, partnership or 

other intcrcst that is thc subjcct of any Underlying Collateral Document and, as the 

context requires, includes Acquired Collateral, whcther or not so cxpressly specified. 

"Underlying Collateral Document" shall mean any pledgc agreement, trust, deed to secure sccurity agreement, personal, corporate or othcr guaranty, deed of 


debt, trust dced, mortgage, contract for the sale of real property, assignment. collatcral 

agreement or othcr agrcement or document of any kind, whether an original or a copy, 

whether similar to or different from those enumeratcd, (i) securing in any manner the 

perfonnance or payment by any Undcrlying Borrower of its obligations or the obligations 

the Underlying Loans or the Underlying of any other Underlying Borrowcr under any of 


Notes evidencing thc Underlying Loans or (ii) evidencing ownership of any Acquired 

CollateraL. 

13 
"Underlying Guarantor" shall mean any guarantor of all or any portion 

of any Underlying Loan or all or any of any Underlying Borrower's obligations set forth 

and described in the Underlying Loan Documents. 

"Underlying Loan" shall mean any loan, Loan Participation, Ownership 

Entity (including any cash and cash equivalents held directly or indirectly by such 

Ownership Entities (excluding security deposits, deposits made by prospective purchasers 

of condominium or cooperative units or other portions of or interests in the Acquired 

Collateral and other cash and cash equivalents to the extent such Ownership Entity has a 

corresponding liability to a third party)) or Acquired Collateral listed on the Loan 

Schedule, and any loan into which any listed loan or Loan Participation is refinanced or 

modified, and includes with respect to each such loan, Loan Participation, Ownership 

Entity, Acquired Collateral or other related asset or any Related Agreement: (i) any 

obligation evidenced by an Underlying Note; (ii) all rights, powers or Liens of Debtor or 

any Ownership Entity in or under thc Underlying Collateral and Underlying Collateral 

Documents and in and to Acquired Collateral (including all Ownership Entities and REO the rights of
 Debtor or any Ownership Property held by an Ownership Entity); (iii) all of 


Entity under any lease and the related Icased property; (iv) 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 Debtor or any Ownership Entity with respect to the Underlying 

Loans, the Underlying Collateral or the ownership, use, function, value of or other rights 

pertaining thereto, whether arising by way of counterclaim or otherwise; (v) all 

any guaranties, warranties, indemnities and similar rights in favor of Dcbtor Of 


the Underlying Loans and (vi) all rights of Ownership Entity with respect to any of 


Debtor or any Ownership Entity under the Related Agrcements. 

"Underlying Loan Documents" shall mean all documents, agreements, 

certificates, instruments and other writings (ineluding all Underlying Collateral 

Documents) now or hereafter cxecutcd by or delivered or caused to be delivered by any 

Underlying Borrowcr, any Underlying Guarantor or any other obligor evidencing, 

creating, guarantceing or securing, or otherwise cxecuted or delivered in respect of: all or 

any part of an Undcrlying Loan or any Acquired Collateral or evidencing any transaction 

contemplated thereby (ineluding, for this purpose, title insurance policies and 

endorsements thcreto), and allModifications thcreto. 

"Underlying Loan Proceeds" shall have the meaning given the tenn
 

"Loan Proceeds" in the LLC Operating Agreement.
 

"Underlving Mortgage" has the meaning specitied in the definition of 

"Assignment of M0I1gage."
 

"Underlying Mortgaged Property" shall mcan any underlying real 

the Underlying Collateral for any Underlying Loan, whethcr 

held in fce simple cstatc or subjcct to a ground lease or otherwise, and whether or not 

improved by buildings or facilities, and any pcrsonal property, fixtures, leases and other 

propcrty or rights pertaining thereto. 

propei1y constituting part of 


14 
"Underlying Note" shall mean each note or promissory note, lost 

instrment 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 evidencing an Underlying 

Loan, and all Modifications to the foregoing. 

"Uniform Commercial Code" shall mean the Uniform Commercial Code 

as in effect in any applicable jurisdiction, as amended from time to timc. 

(b) UCC Terms. Thc following terms have the meanings given to 

them in the UCC and terms used herein without definition that are defined in the UCC 

have the meanings given to them in thc UCC (such meanings to be equally applicable to the terms defined): "account", "chattel paper", both the singular and plural forms of 


"commercial tort elaim", "deposit account", "equipment", "fixture", "general intangible", 

"goods", "instruments", "inventory", "investment property", "letter-of-credit right'. 

"proceeds", "security" and "supporting obligation". 

Section 1.2 Other 1nterprctive Provisions. With reference to this 

Agreement and each othcr Collateral Document, unless otherwise specified herein or in 

such other Collateral Document: 

(a) References to "Affliates" include, with respcet to any specified
 

Person, only such other Persons which from timc to time constitute "Affliates" of such 

specified Person, and do not include, at any paricular time, other Persons that may have 

been, but at such timc have ceased to be, ,. Af1liatcs" of such specified Person, except to 

thc extent that any such reference specifically provides otherwise. 

(b) Thc tcnn "or" is not exclusive.
 

(c) A reference to a Law includes any amendment, modification or
 

replacement to such Law. 

(d) References to any document, instrument or agreement (including
 

this Agreement) (a) shall be deemed to include all appendices, exhibits, schedules and 

other attachments thereto and all documents, instruments or agreerrents issued or 

executed in replaccment thereof, and (b) shall mcan such document, instrument or 

agreement, or replacement thereto, as amended, modified and supplemented from time to 

time in accordance with its terms and as the same is in effect at any given time. 

(c) Unless otherwise specificd. the words "hereof." "herein" and
 

"hereunder" and words of similar import shall refer to this Agreement as a whole and not 

this Agrecmcnt. to any particular provision of 


(f) The words "include" and "including" and words of similar impoi1
 

are not limiting, and shall be construcd to be followed by the words "without limitation." 

whether or not they are in fact followed by such words. 

15 
time shall (g) The word "during" when used with respect to a period of 


be construed to mean coIDmeneing at the beginning of such period and continuing until 

the end of such perod. 

(h) Unless the context otherwise requires, singular nouns and
 elude the plural and vice versa and pronouns when used herein shall be deemed to in 
 the appropriate impersonal pronouns shall be deemed to include the personal pronoun of 


gender. 

ARTICLE II
 

Reimbursement
 

Section 2.1 Reimbursement. Debtor agrees to pay to Note Guarantor 

(collectively, the "Reimbursement Obligations") (i) on the Distribution Date following 

any payment by Note Guarantor with respect to the Guaranteed Obligations, the amount
 

of such payment (provided, that any such payment by Note Guarantor occurrng after the
 

Determination Date immediately preceding such Distribution Date shall be payable on
 

the second Distribution Date following such payment); and (ii) for any day on which a
 

Purchase Money Note Trigger Event is continuing, interest on an amount equal to the
 

Jesser of (A) the amount, if any, necessary to be added to the Defeasance Account
 

(without giving effect to any net losses thereon arising from the investment of such
 

amounts in accordance with the Custodial and Paying Agency Agreement) to cure the
 

Purchase Money Note Trigger Event and (B) any amount remaining unpaid by Debtor
 

this Section 2.1 for cach day unpaid, from the occurrence of a 

Purchase Money Note Trigger Evcnt until the earlier of (X) the day such Purchase Money 

Note Trigger Event is cured and (Y) the day all amounts owing to the Note Guarantor 

under elause (i) of this Section 2.1 are reimbursed in full (both before and after 

judgment), payable in accordance with Section 5.1 of the Custodial and Paying Agency 

Agreement at a rate per annum equal to the non-default interest rate applicable from time 

to time to loans outstanding under the Advance Facility Agreement. All payments by 

Dcbtor to Note Guarantor hereunder shall be made free and elear of set-off or 

under clause (i) of 


the United States and in immediately available funds. counterelaim in lawful currency of 


Scction 2.2 Obligations Absolute. The obligations of Debtor under this 

Agreement shall be absolute, unconditional and irrevocablc, and shall be discharged 

strictly in accordance with the terms set forth herein, under all circumstances whatsoever, 

including, without limitation, thc following circumstances: 

this Agreement, any validity or enforceability of 
 (a) any lack of 


Purchase Money Note, the Purchase Money Note Guaranty, or any other agreement or 

instrumcnt relating thereto; 

(b) any amendment or waiver of or any consent to departure from all 

the provisions of
 this Agreement, any Purchase Money Note or the Purchase or any of 


Money Note Guaranty; 

16 
(c) the existence of any claim, setoff, defense or other right which
 

Debtor may have at any time against Note Guarantor, Receiver or any other Person, 

whether in connection with this Agreement, any Purchase Money Note, or any unrelated 

transaction; 

(d) payment by Note Guarantor under the Purchase Money Note
 the Receiver that does not comply with the terms of
 Guaranty against demand of 


Purchase Money Note Guaranty; and 

any kind by Note (e) any other act or omission to act or delay of 


Guarantor or any other Person or any other event or circumstance whatsoever that might, 

this Section, constitute a legal or equitable discharge of or but for the provisions of 


defense to the Debtor's obligations hereunder. 

ARTICLE III 

Security Interest
 

Section 3.1 Granting of Security Interest. To secure Debtor's payment
 

and performance ofthc Secured Obligations and each Subsidiary Grantor's guarantee of. 

payment of 
 the Secured Obligations, each Grantor hereby transfers, assigns, sets over, this conveys, mortgages and grants to Collateral Agent, subject to the terms of 


Agreement, thc Advance Facility Agreement and the Purchase Money Notes (and any
 

substitute purchase money notes that may be issued), a continuing security interest in,
 

lien on and right of setoff against all of its right, title and interest in and to all accounts,
 

"chattel paper, deposit accounts, documents (as defined in the UCC), equipment, fixtures, 

general intangibles, Intellectual Property, instruments, Insurance, inventory, investment 

property, letter-of-credit rights, money (as defined in the UCC) and other personal 

property and any supporting obligations related thereto, in each case, whether now owned whether such property is in the future subdivided into or hereafter aequired, regardless of 


one or more groups to separately secure the Debtor's and each Subsidiary Grantor's 

obligations hereunder, including:
 

(a)
 the Underlying Loans, including all future advances made with

rcspect thereto;
 

the Underlying Loan Documents; (b) 

(c) all amounts payable to such Grantor under the Underlying Loan
 

Documents and all obligations owed to such Grantor in connection with the Underlying 

Loans and the Undcrlying Loan Documents; 

(d) all Underlying Collateral, including all Acquired Collateral;
 

(e) all elaims, suits, causcs of action and any other right of such
 

Grantor, whether known or unknown, against an Underlying Borrowcr, any Underlying 

their respective Affliates, agents, representatives,
 Guarantor or other obligor or any of 


contractors, advisors or any othcr Person arising under or in connection with the 

17 
Underlying Loans or the Underlying Loan Documents or that is in any way based on or 

related to any of the foregoing, ineluding contract claims, tort claims, malpractice claims, 

statutory claims and all other elaims at law or in equity arising under or in connection 

with the Underlying Loan Documents or the transactions related thereto or contemplated 

thereby; 

(f) all cash, securities and other property received or applied by or for
 

the account of such Grantor under the Underlying Loans, including all distributions 

received through redemption, consummation of a plan of reorganization, restructuring, 

liquidation or otherwise of an Underlying Borrower, Underlying Guarantor or other 

obligor under or with respect to the Underlying Loans, and any securities, interest, the dividends or other property that may be distributed or collected with respect to any of 


foregoing; 

(g) the Debtor Accounts and any other accounts established by Debtor
 

pursuant to the Custodial and Paying Agency Agrcement, and all amounts on deposit
 

therein; provided that (i) the security interest in, lien on and right of setoff against the
 

Defeasance Account and all amounts on deposit therein shall only secure Debtor's
 the Reimbursement Obligations and (2) the security interest payment and perforn1ance of 


in, lien on and right of setoff against the Advance Lender Escrow Account and the 

Company Account and all amounts on deposit therein shall only secure Debtor's payment 

the Advance Facility Obligations; and perfonnance of 


(h) the equity interests in all Ownership Entities;
 

(i) all of such Grantor's right, title and interest in and to all insurance
 

policics; and 

U) any and all distributions on, or procceds or products of or with 

respect to, any of thc foregoing, and the rights to receivc such proceeds and products (all 

ofthc foregoing property described in this Section 3. i, the "Collateral'"). 

This brrant of a security interest in the Collateral is expressly intended to remain in full
 

force and effect from the date hereof until the Secured Obligations, as such may hc
 this Agreement, thc Purchase Money modified in connection with thc amendment of 


Note Guaranty, the Advance Facility Agreement or any Ancillary Document, have been 

satisfied in fulL. 

All of the Underlying Notes and other Custodial Documents shaH be held hy thc 

Custodian/Paying Agent as set forth in Section 8.4 (cxcept and to the extent the same are 

pern1itted to be removed from the Custodian/Paying Agents possession as provided in 

the Custodial and Paying Agency Agreement). The Collateral Agent shall retain 

possession of the Undcrlying Notes and othcr Custodial Documents with respect to the 

Underlying Loans until such time as Debtor retains the Custodian/Paying Agent pursuant 

to the provisions of Section 8.4 and, at such time, shall cause the Custodian/Paying Agent 

to take posscssion of the Underlying Notes and other Custodial Documents with rcspcct 

to thc Underlying Loans on behalf of Collateral Agent. Debtor shall deliver to Collateral 

18 
Agent within sixty (60) days after the Effective Date, (i) for each Underlying Loan, an 

allonge, endorsed in blank, and executed by Debtor (an "Allonge"), and (ii) for each 

Underlying Loan, a Mortgage Assignment, in blank, and executed by Debtor. Such 

allonges and Mortgage Assignments shall be held by the Custodian/Paying Agent with 

the Underlying Notes and other Custodial Documents. Reasonable and customary 

expenses paid to third parties actually incurred by the Debtor in preparing and deliverng 

such allonges and Mortgage Assignments shall constitute Pre-Approved Charges for 

the Custodial and Paying Agency Agreement. Collateral Agent may use the 

allonge to effect the endorsement of an Underlying Note or the Mortgage Assignment to 

effect the assignment of a mortgage to Collateral Agent at any time if an Event of Default 

purpses of 


occurs and is continuing. 

Section 3.2 Undcrlying Loan Defaults; Acquisition of CollateraL. 

(a) Discretion of Debtor in Responding to Defaults of Underlying
 

Borrower. Upon the occurrence of an event of default under any of the Underlying Loan this Agreement and the Documents, but subject to thc other terms and conditions of 


Advance Facility A!,'Teement applicable thereto, Debtor shall cause to be determined the 

response to such default and course of action with respect to such default, ineluding (i) 

the selection of attorneys to be used in connection with any action, whether judicial or 

otherwise, to protect the respective interests of Debtor and Collateral Agent in the 

applicable Underlying Loan and the Collateral, (ii) the declaration and recording of a the maturity of 
 the Underlying Loan, (iii) notice of such default and the acceleration of 


the institution of proceedings to foreclose the Underlying Loan Documents securing the 

Underlying Loan pursuant to the power of sale contained therein or through a judicial 

action, (iv) the institution of proceedings against any Underlying Guarantor, (v) the 

acceptance of a deed in lieu of foreclosure, (vi) the purchase of the real propertythe Undcrlying Collateral at a foreclosure sale or trustee's sale or the purchase of 


personal property Underlying Collateral at a Uniform Commercial Code sale, and (vii)
 proceedings to obtain a deficiency jud!,rrent against
 the institution or continuation of 


such Underlying Borrower or any Underlying Guarantor. 

(b) Acquisition of CollateraL. Nothing in this Section 3.2 or anything
 

else in this Agreement shall be deemed to affirmatively require any Grantor to cause to 

be acquired all or any portion of any Underlying Collateral with rcspect to which there title to any Underlying exists any Environmental Hazard. Prior to acquisition of 


Collateral (whether by foreelosure, deed in lieu of foreelosurc, by power of sale or by 

sale pursuant to thc Unifonn Commercial Code, or otherwise), Debtor shall cause to be 

commissioncd with respect to such Underlying Collateral either (i) a Transaction Screen 

Process consistent with ASTM Standard E 1528-06, by an environmental professional or 

(ii) such other site inspeetions and assessments by a Person who regularly conducts 

environmental audits using customary industry standards as would customarily be 

undertaken or obtained by a prudent lender in order to ascertain whether there are any 

actual or threatened Environmental Hazards (a "Site Assessment'.), and the cost of such 

Sitc Assessment shall be reimbursable as if it were a Servicing Expensc as long as thc 

costs for such Sitc Assessment were not paid to any Affiliatc of Debtor, or any Affiiate title to any Underlying Collateral with respect to which of any Servicer or subservicer. If 


19 

",":. 

l! ; 
there exists any Environmental Hazard is to be acquired by foreclosure, by deed in lieu of 

foreclosure, by power of sale or by sale pursuant to the Uniform Commercial Code, or 

otherwise, title to such Underlying Collateral shall be taken and held in the name of an 

Ownership Entity, whether already in existence or formed by Debtor for such purpose, 

provided that each Ownership Entity may only hold title to a single property constituting 

Underlying Collateral with respect to which there exists any Environmental Hazard. The 

the Ownership Entity shall be to hold the Acquired Collateral pending sale, 

to complete construction of such Acquired Collateral and to operate the Acquired 

Collateral as effciently as possible in order to minimize financial loss to Debtor and 

Collateral Agent and to sell the Acquired Collateral as promptly as practicable in a way loss to Debtor and Collateral Agent, in each case, in 

purposes of 


designed to minimize financial 


eonformity with the Advance Facility Agreement and any applicable Approved Business
 

Plan.
 

(c) REO Property. Iftitlc to any REO Property is to be acquired by 

Debtor by foreclosure, by deed in licu of foreclosure, by power of sale or by sale pursuant 

to the Uniform Commercial Code, or otherwise, title to such REO Property shall be taken 

and held in the name of an Ownership Entity, whether already in existence or formed by 

Debtor for such purpose. Debtor shall be the sole membcr of any Ownership Entity. The 

the Ownership Entity shall be to hold thc REO Property pending salc, to 

complete construction of such REO Property and to opcrate the REO Property as 

effciently as possible in order to minimize financial loss to Debtor and Collateral Agent 

and to sell the REO Property as promptly as practicable in a way designed to minimize
 

financial loss to Debtor and Collateral Agent, in each casc, in conformity with thc
 

Advance Facility Agreement and any applicable Approved Business Plan.
 

purposes of 


Section 3.3 Continuing Security Interest. This Agrcement shall create the Collateral, and shall remain in full a continuing security interest in any and all of 


the Purchase Money Notc Guaranty and thc force and effect until the termination of 


Advance Facility Abrreement in aecordance with their respective terms and the
 

satisfaction and discharge of all Secured Obligations in fulL. It is the intent of cach
 

Grantor and Collateral Agent to create a continuing, perfected first priority security
 the security the Secured Parties. The release of 
 intcrest in the Collateral for the benefit of 


interest in any or all of the Collateral, the taking or acceptance of additional security, or 

the resort by Collatcral Agent to any security it may have in any order it may decm 

appropriate, shall not affect the liability of any Pcrson on the Secured Obligations secured 

hereby or the security interest and Lien granted hereby (other than in respect of thc 

released Collateral). 

Section 3.4 Destruction of CollateraL. No injury to, or loss or 

dcstruction of, the Collateral or any part thereof shall relieve any Grantor of any of its the Secured Obligations. obligations hcreunder or any of 


Section 3.5 Releases of Underlying Loan CollateraL. Each Grantor is
 

case or assignment of any Lien granted to or held by such authorized to cause the reI 


Grantor on any Underlying Collateral, solely to the extent necessary, (a) upon a final, 

nonappealable order of a court of competcnt jurisdiction permitting or directing 

20 
any Underlying Loan in full and satisfaction in disposition thereof, (b) upon payment of 


the secured obligations with respect to an Underlying Loan or upon receipt 

of a discounted payoff as payment in full of an Underlying Loan, (c) as is necessary in 

connection with the foreelosure on a Mortgaged Propery, acceptance of a deed in lieu the terms thereof, (d) in connection with such 

full of all of 


thereof or modification or restructuring of 


Grantor's sale of an Underlying Loan or any Underlying Collateral or (e) in the case of the Underlying land parcels and similar portions of
 condominium units, individual 


Collateral, as are permitted in, and to the extent required by, the applicable Underlying 

Loan Documents; provided, that any such transaction is consistent with the Advance 

Facility Agreement and any applicable Approved Business Plan and the proceeds of such payments set forth in sale or disposition are applied in accordance with the priority of 


Section 5.1 of 
 the Custodial and Paying Agency Agreement and the other terms thereof.

Section 3.6 Financing Statements. Each Grantor hereby irrevocably
 

authorizes, and ratifies and retroactively authorizes any fiing madc on or prior to the date 

hcreof, the fiing, at any time and from time to time, of any financing statements or 

continuation statemcnts, and amendments to such financing statements or any similar 

document in such jurisdictions and with such fiing offces as Collateral Agcnt may 

detcrmine are nccessary or advisable to perfect the security interest granted to it 

hereunder. Such financing statements may indicate the Collateral as all assets of such 

Grantor or words of similar effect as being of any equal or lesser scope or with greater 

detail or in any other manner as Collateral Agent may determine is necessary, advisable the security interest in the Collateral granted to or prudent to ensurc the perfection of 


Collateral Agent herein pursuant to the tenns hereof. 

Section 3.7 Powcr of Attorney. Each Grantor hcreby irrevocably
 

appoints Collateral Agent its lawful attorney-in-fact, with full authority in the place and 

stead of such Grantor and in the name of such Grantor, Collateral Agent or otherwise, 

and with full power of substitution in thc premises (which power of attorney, being 

coupled with an interest, is irrevocable for so long as this Agreement shall bc in effcct), 

from time to time in Collateral Agent's discretion, following a failure by Debtor to the Contribution promptly satisfy its obligations under Section 3. i or Section 3.? of 


Agreement as it relates to the transfer and/or recording of any of the Transfer Documents 

or any other relevant matter set forth therein, to execute all relevant Transfer ,Documcnts 

and other documents as may be reasonably necessary to satisfy the transfer and recording 

obligations of Debtor under Section 3.1 and Scction 3.2 of the Contribution Agreement. 

ARTICLE IV 

Events of Default 

Section 4.1 Evcnts of Default. Anyone of thc following events 

(whatever the reason for such Evcnt of Default and whether it shall bc voluntary or 

involuntary or be cffected by operation of law or pursuant to any judgment, decree or 

order of any court or any order, rule or regulation of any administrative or governmental 

body) shall constitute an "Event of De1àult" hereunder: 

21 
(a) (reserved); or
 

(b) the occurrence of any Insolvency Event (without any cure period
 

other than as may be provided for in the definition ofInsolvency Event) with respect to 

(i) Debtor, (ii) the Managing Member, (iii) the Private Owner or (iv) the Servicer; or 

(c) any failure of Debtor to pay any Servicing Expense when due,
 thirty (30) days after the date on which failure continues unremedied for a period of 


which written notice of such failure requiring the same to be remedied shall have been 

given to Debtor; or 

Debtor or the Managing Member to comply in any (d) the failure of 
 the LLC Operating Agreement, which material respect with and enforce the provisions of 


thirty (30) days after the date on which written continues unremedied for a period of 


notice of such failure requiring the same to be remedied shall have been given to the 

Managing Member; or 

(e) the occurrence of either (i) a failure by thc Servicer to perfonn in
 

any material respect its obligations under the Servicing Agreement, which continues
 

unremedied for a period of thirty (30) days after the date on which written notice of such'
 

failure requiring thc same to be remedied shall have been given by the Initial Member or
 

the Managing Member to the Servicer or by Note Guarantor or Advance Facility Agent to
 

Debtor, or (ii) a failure by the Managing Member to rcplace the Servicer upon the
 

occurrence of either an Event of Default under this Agreement as a result of the
 

Servicer's acts or omissions or a material breach of or event of default under the
 

Servicing Agreement by the Servicer, in either case which continues unremedied for a
 such failure requiring pcriod of thirty (30) days after the date on which written notice of 


the same to be remedied shall have been given to the Managing Member; or 

the Managing Member to comply in any material (f) the tàilure of 


respect with its obligations under the Servicing Agreement or Debtor to comply in any 

material respect with its obligations under the Custodial and Paying Agency Agreement 

(including any failure to pay fees or expenses due thereunder) which, in either case, thirty (30) days after the date on which written notice remains unremedicd for a period of 


of such failure requiring the same to bc remedied shall have been given to the Managing 

Member or Debtor, as applicable; or 

(g) there shall be a change in the Managing Member or the Private
 

Owner or thcre shall occur a Change of Control with respect to the Managing Member or Note Guarantor and Advance the Private Owner, in either case without thc consent of 


Facility Agent; or 

the Managing Member to remit or cause to be (h) the failure of 


~~",! remitted all Underlying Loan Procceds to the Custodian/Paying Agent as and when 

required; or 

(i) any material breach of a representation or warranty made by
 thirty (30) days Debtor in this Agreement, which remains unremedied for a period of 


22 
after the date on which written notice of such breach requiring the same to be remedied 

shall have been given to Debtor; or 

(j) the failure of Debtor or the Managing Member to cause the
 

liquidation of the Underlying Loans and any Acquired Collateral in accordance with the rights ofInitial Member, Note Guarantor and Section 11.2 upon the exercise of 


Advance Facility Agent in Section 11.1; or 

subsections (k) any other failure (other than those specified in any of 


(a) through (j) above) on the part of Debtor duly to observe or perorm in any material 

respect any other covenants or agreements on the part of Debtor contained in this 

Agreement (including any obligations imposed upon any Servicer or subservicer but 

excluding any failure to pay any amount payable under Section 2.1), which continues 

unremedied for a period of 
 thirty (30) days after the date on which written notice of such

failure requiring the same to be remedied shall have been given to Debtor; provided, 

however, that in the case of a failure that cannot be cured within thirty (30) days, the cure 

pcriod shall be extended for an additional thirty (30) days if Debtor can demonstrate to 

Note Guarantor and Advance Facility Agent that Debtor is the reasonable satisfaction of 


diligently pursuing remedial action; or 

(I) the occurrence of any "Event of Dcfault" under and as defined in
 

thc Advance Facility Agreement; or 

(m) the occurrence of a Purchase Money Note Trigger Event unless
 

such Purchasc Money Note Trigger Event is cured within ten (10) Business Days.
 

ARTICLE V
 

Remedies 

Section 5.1 Remedies. 

Default shall have occurred and be continuing: (a) Ifan Event of 


(i) Note Guarantor may cause the Holders (as defined in each
 

Purchase Money Note) to declare the Purchase Money Notes to be immediately due and 

payable, by a notice in writing to Debtor, and upon any such deelaration the unpaid 

principal amount of each Purchase Money Note, together with all other accrued and 

unpaid amounts in respeet thcreof through the datc of acceleration, shall become 

immediately due and payable; provided, howevcr, that with respect to an Event of 

Default under Section 4.1 (b iei), thc unpaid principal amount of and such amounts in 

respect of each Purchase Money Note shall automatically becomc immediately due and 

payable; 

(ii) Notc Guarantor may institute Proceedings for the collcction
 

of all amounts then payable by Debtor under Section 2.1 of this Ab'Teement and Collateral 

Agent may institute Proceedings for the collection of all other amounts then payable by 

23 
Debtor under this Agreement, whether by declaration or otherwise, enforce any judgment 

obtained, and collect from Debtor moneys adjudged due; 

(iii) Collateral Agent may institute Proceedings from time to
 

the Collateral or collateral under any other time for the complete or partial foreclosure of 


Collateral Document; 

(iv) Collateral Agent may exercise any remedies of a secured
 

party under the NY UCC and take any other appropriate action to protect and enforce the 

rights and remedies of Collateral Agent; 

(v) Collateral Agent may sell the Collateral or any portion
 

thereof or rights or interest therein; 

(vi) if an "Event of Default" as defined in the LLC Operating
 

Agreement has occurred, Note Guarantor or Advance Facility Agent may direct the 

Initial Member to exercise its right, and Initial Member shall exercise such right, pursuant 

to the LLC Operating Agreement to tern1Ïnate the Servicer (and any subservicers) and 

cause the Managing Member to enter into a new Servicing Abrreement with a servicer (a 

"Successor Servicer") selected by the Initial Member (in its sole and absolute 

discrction); 

(vii) if an "Event of Default" as defined in the LLC Operating
 

Agreement has occurred, Notc Guarantor or Advance Facility Agent may direct the
 

Initial Membcr to exercise its right, and Initial Member shall excrcisc its right, pursuant
 

to the LLC Operating Agrecment to terminate the existing Managing Member and
 

appoint a new Managing Mcmber selected by the Initial Member (in its sole and absolute
 

discretion);
 

(viii) Initial Member may institute Prot:eedings from time to time
 

for the complete or partial foreclosure of any Equity Interests in Debtor that have been
 

pledged to Initial Member pursuant to the LLC Operating Agreement to secure Debtor's
 

obligations thereunder; and
 

(ix) the Advance Facility Agent may exercise its remedies
 

the Advance Facility Agreement. under Section 8.02 of 


(h) Appointment of Successor Servicer. If Initial Member exerciscs its
 

right to appoint a Successor Servicer pursuant to Section 5.1 (a)(vi), the costs and
 

expenses associated with such Successor Servicer (ineluding any servicing fees) shall be
 

borne by Managing Membcr (and not Initial Member or Debtor), and no termination or
 

other fee shall be due to Managing Member or the Servicer or any subservicer in
 

connection with or as a result of any such action. All authority and power of Managing
 

Membcr to act with respect to the terminated Servicer shall pass to and be vested in
 

Initial Mcmber under this Article 5 and, without limitation, Initial Member is hereby
 

authorized and empowercd, as attorney-in-fact or otherwise, to execute and deliver, on,
 

bchalf of and at the expense of Managing Member, any and all documents and other
 

24 , ' c " 

" 
instruments and to do or take any and all acts necessary or appropriate to effect the the Servicer with a Successor Servicer. termination of 
 the Servicer and the replacement of


(c) Cooperation to Facilitate Transfer. In any event, if a Servicer or this Article 5, Managing Member subservicer is terminated pursuant to the provisions of 


shall, and shall cause any ServiceI' (and any subservicer) to, provide Initial Member, Note 

Guarantor and Advance Facility Agent and any suceessor Servicer in a timely manner 

with all documents, records and data (including electronic documents, records and data) 

requested by Initial Member, Note Guarantor or Advance Facility Agent or any 

Successor Servicer to enable it and any Successor Servicer to assume the responsibilities 

as servicer, and to cooperate with Initial Member, Note Guarantor and Advance Faeility 

Agent in effecting the termination of any Servicer (or subservicer), including (i) the 

transfer within one (1) Business Day of all cash amounts which, at the time, shall be or 

should have been credited to the Collection Account or arc thereafter received with 

respect to any Underlying Loans or Acquired Collateral, and (ii) the transfer of all 

lockbox accounts with respect to which payments or other amounts with respcct to the 

Underlying Loans are directed or the rcdirection of all such paymcnts and other amounts 

to such account as Initial Member, Note Guarantor or Advance Facility Agent may the right to access all such specify, and (iii) the assignment to Collateral Agent of 


10ckbox accounts, the Debtor Accounts and any other account into which Underlying 

Loan Proceeds or Underlying Borrower escrow or other payments are deposited or held; 

provided, that the documents, records and data delivered by thc Servicer (and any 

subservicer) to Initial Member, Note Guarantor and Advance Facility Agent and any 

successor Servicer pursuant to this Section 5.1 (c) shall be limited to those documents in 

such Servicer's posscssion at the time of such transfer or which the Servicer acquires 

thereafter and shall not inelude or be deemed to include any documents, records or data in 

the Custodian/Paying Agent. Managing Member shall be liable for all 

costs and expenses incurred by Initial Membcr, Note Guarantor, Advance Facility Agent 

the possession of 


the servicing data, (B) and Collateral Agent (A) associated with the complete; transfer of 


associated with the completion, correction or manipulation of servicing data as may be 

required to correct errors or insufficiencies in thc servicing data to enable Collateral 

Agent and any successor Servicer (and subscrvicers) to service the Underlying Loans and 

Acquired Collateral properly and effectively, and (C) to retain and maintain the services 

of a Successor Servicer (and any subserviccrs). Within a reasonable time after receipt of 

a written requést of Managing Member for the same, Initial Member, Note Guarantor, 

Advance Facility Agent and Collateral Agent shall provide reasonable documentation 

evidencing such costs and expenses. 

Section 5.2 Application of Proceeds. If Collatcral Agent collects any 

money or property pursuant to Section 5.1 of this Agreement, it shall payout the money the Custodial and Paying Agcncy Agreement, in the ordcr set forth in Section 5.1 (b) of 


notwithstanding anything in the Advance Facility Agreement, any Purchase Money Note, 

the Purchase Money Note Guaranty, thc Scrvicing Agreement or the Contribution 

Agreement to the contrary; provided that (a) if Collateral Agent collects any money or the Defeasance Account, this Agrecment in respect of
 property pursuant to Section 5.1 of 


it shall payout the money pursuant to directions received from the Note Guarantor and this Collateral Agent collects any money or property pursuant to Section 5.1 of
 (b) if 


25
 
'\ 

Agreement in respect ofthe Advance Lender Escrow Account or the Company Account, 

it shall payout the money pursuant to directions received from the Advance Facility 

Agent. 

Section 5.3
 Sale of CollateraL.


(a) The power to effect any sale or other disposition (a "Sale") of any any one or more Sales as to any portion of the Collateral shall not be exhausted by 


the Collateral remaining unsold, but shall continue unimpaired until the entire 

Collateral shall have been sold or all Secured Obligations shall have been paid. 

Collateral Agent may from time to time postpone any public Sale by public 

announcement made at the time and place of such Sale. Collateral Agcnt hereby 

expressly waives its right to any amount fixed by law as compensation for any Sale. 

portion of 


(b) In connection with a Sale of all or any portion of the Collateral:
 

(i) Collateral Agent may bid for and purchase the property
 

offered for sale, and upon compliance with the terms of salc may hold, retain and possess
 

and dispose of such property, without further accountability;
 

(ii) Collateral Agent may bid for and acquire thc property
 

offered for Sale in connection with any Sale thercof, and, subject to any requirements of,
 

and to the extent permitted by, applicable Law in connection therewith, may purchase all
 paying cash therefor, may the Collateral in a private sale, and, in lieu of
 or any portion of 


make settlement for the purchase price by crcditing the gross Sale price against the sum
 

of (A) the amount which would be distributable to Collateral Agent as a result of such
 

Sale in accordance with Seetion 5.2 on the Distribution Date next succceding the date of
 the Sale and of any Proceedings in connection such Sale and (B) the expenses of 


therewith which are reimbursable to it; 

(iii) Collateral Agent shall cxecute and deliver an appropriate
 

instrument of conveyance prepared by the Servicer transferrng its interest in any portion 

of the Collateral in connection with a Sale thereof;

this (iv) Collateral Agent is, pursuant to Section 13.1 of 


Agreement, appointed the agent and attorney-in-fact of each Grantor to transfcr and
 the Collateral in connection with a Sale thereof, and
 convey its interest in any portion of 


to take all action necessary to effect such Sale; and 

(v) no purchaser or transferee at such a Salc shall be bound to
 

ascertain Collateral Agent's authority, inquire into the satisfaction of any conditions
 

precedent or see to the application of any moneys.
 

Section 5.4 No Impairment of Action. Collateral Agents right to seek
 

and recover judhiment under this Agreement shall not be affected by the sceking,
 

obtaining or application of any other relief under or with respect to this Agreement.
 

Neither the Lien of this Agreement nor any rights or remedies of Collateral Agent shall
 

be impaired by the recovery of any judgment by Collateral Agent against any Grantor or
 

26 
by the levy of any execution under such judgment upon any portion of the Collateral or 

upon any of the assets of such Grantor. Any money or property collected by Collateral 

Agent shall be applied in accordance with Section 5.2. 

Collateral Section 5.5 Remedies Cumulative; Waiver. Each of 


Agent's, Note Guarantor's, Initial Member's and Advance Facility Agent's rights under 

this Agreement shall be in addition to, and not in limitation or exclusion of, any other 

rights and remedies that it may have (whether by operation oflaw, in equity, under 

contract or otherwise) and without prejudice and in addition to any right of setoff, 

recoupment, combination of accounts, Lien or other right to which it is at any time 

entitled. Each of Collateral Agent, Notc Guarantor, Initial Member and Advance Facility 

Agent may enforce any of its remedies under this Agreement successively or 

concurrently in its solc discretion. No delay or failure on the part of Collatcral Agent, 

Note Guarantor, Initial Member or Advance Facility Agent to exercise any right or Default shall remedy to which it may become entitled hereunder upon an Event of 


constitute abandonment or waivcr of any such right and Collateral Agent, Note
 

Guarantor, Initial Member or Advance Facility Agent shall be entitled to exercisc such
 

right or remedy at any timc during the continuance of a Evcnt of Default.
 

Section 5.6 Waivcr of Certain Rights and Remedies. To the extent
 

permitted under applicable Law, each Grantor hcrcby waives all rights and remedies of a
 

debtor or grantor undcr the NY UCC or other applicable Law, and all formalities
 the Collateral (other than notice of prescribed by law relative to the salc or disposition of 


s.ale and any other formalities expressly provided in this Agreement), after the occurrcnce 

and during the continuation of an Event of Dcfault and, except as otherwise sct forth 

hcrcin, all other rights and remedies of such Grantor with respect thereto. 

ARTICLE Vi 

Guarantee 

Scction 6. i Guarantee.

(a) Each Subsidiary Grantor hcreby, jointly and severally, 

unconditionally and irrevocably, guarantees to the Collateral Agent, for thc benefit of the 

Secured Parties and their respective succcssors, indorsees, transferees and assigns, thc 

prompt and complete payment and perforn1ance by Dcbtor whcn due (whether at the the Secured Obligations. statcd maturity, by acceleration or otherwise) of 


(b) Anything herein or in any other Ancillary Document to the
 

contrary notwithstanding, the maximum liability of each Subsidiary Grantor hereunder 

and under the Ancilary Documents shall in no event exceed the amount which can be 

validly guarantied by such Subsidiary Grantor, if any, under applicable federal and state 

laws relating to the insolvency of dcbtors (aftcr giving cffect to the right of contribution this Agreement). established in Section 6.2 of 


(c) Each Subsidiary Grantor agrees that thc Securcd Obligations may
 

at any time and from time to timc excecd the amount of thc liability of such Subsidiary 

'2
 
Grantor hereunder without impairing the guarantee contained in this Section 6.1 or 

the Secured Parties hereunder. affecting the rights and remedies of 


(d) The guarantee contained in this Section 6.1 shall remain in full 

forcc and effect until the termination of this Agreement, notwithstanding that from time 

to time prior thereto Debtor may be free from any Secured Obligations. 

(e) No payment made by Debtor, any of the Subsidiary Grantors, any 

other guarantor or any other Person or received or collected by the Secured Parties from 

Dcbtor, any of the Subsidiary Grantors, any other guarantor or any other Person by virtue 

of any action or proceeding or any set-off or appropriation or application at any time or 

from time to time in reduction of or in payment of the Secured Obligations shall be
 

dcemed to modify, reduce, release or otherwise affect the liability of any Subsidiary 

Grantor hereunder which shall, notwithstanding any such payment (other than any 

payment made by such Subsidiary Grantor in respect of the Secured Obligations or any 

payment received or collected from such Subsidiary Grantor in respect of the Secured 

Obligations), remain liable for the Secured Obligations up to the maximum liability of this Agreement. such Subsidiary Grantor hereunder until the termination of 


Section 6.2 Right of Contribution. Each Subsidiary Grantor hereby
 

agrees that to the extent that a Subsidiary Grantor shall have paid more than its 

proportionate sharc of any payment made hereunder, such Subsidiary Grantor shall be 

entitled to seek and receive contribution from and against any other Subsidiary Grantor 

hereunder which has not paid its proportionate share of such payment. Eaeh Subsidiary Section 6.3. Grantor's right of 
 contribution shall be subject to thc terms and conditions of


this Section 6.2 shall in no respect limit the obligations and liabilities
 

of any Subsidiary Grantor to the Sccurcd Parties, and cach Subsidiary Grantor shall
 

rcmain liable to the Secured Parties for the full amount guarantied by such Subsidiary
 

The provisions of 


Grantor hercunder.
 

Section 6.3 No Subrogation. Notwithstanding any payment made by
 

any Subsidiary Grantor hereunder or any set-off or application of funds of any Subsidiary 

Grantor by the Secured Partics, no Subsidiary Grantor shall bc entitled to be subrogated 

the Secured Parties against Debtor or any other Subsidiary Grantor 

or any collateral security or guarantee or right of offset held by any Secured Party for the 

to any of the rights of 


the Securcd Obligations, nor shall any Subsidiary Grantor seek or be entitled 

to seek any contribution or reimbursement from Debtor or any other Subsidiary Grantor 

in rcspcct ofpayinents made by such Subsidiary Grantor hereunder, until the termination 

of this Agreement. If any amount shall be paid to any Subsidiary Grantor on account of 

such subrogation, contribution or reimbursemcnt rights at any time when all of the 

Secured Obligations shall not havc becn paid in full, such amount shall constitute 

Underlying Loan Proceeds and shall be held by such Subsidiary Grantor in trust for the 

Secured Parties, segregated from othcr funds of such Subsidiary Grantor, and shall, 

immediately upon receipt by such Subsidiary Grantor, be deposited into the Collection 

Account, to be applied in accordance with the Priority of Paymcnts (as defined in the 

payment of 


Custodial and Paying Agency Ab'TCemcnt).
 

28 
Section 6.4 Amendments, ctc. with Respect to the Secured Obligations. 

Each Subsidiary Grantor shall remain obligated hereunder notwithstanding that, without 

rights against any Subsidiar Grantor and without notice to or further any reservation of 


assent by any Subsidiary Grantor, any demand for payment of any of the Seeured 

Obligations made by the Collateral Agent, Advance Facility Agent or Note Guarantor the Secured Obligations continued, and the may be rescinded by such Person and any of 


Secured Obligations, or the liability of any other Person upon or for any part thereof, or 

any collateral security or guarantee therefor or right of offset with respect thereto, may, 

from time to time, in whole or in part, be renewed, extended, amended, modified, 

aecelerated, compromised, waived, surrendered or released by the Collateral Agent, 

Advance Facility Agent or Note Guarantor, and the Advance Facility Agreement, the 

Purchase Moncy Note Guaranty, any Purchase Money Note and the other Ancillary 

Documents and any other documents executed and delivered in connection therewith may 

be amended, modified, supplemented or terminated, in whole or in part, as the Collateral 

Agent, Advance Facility Agent or Note Guarantor may deem reasonably advisable from 

time to time, and any collateral security, guarantee or right of offset at any time held by 

the Collateral Agcnt for the payment of the Sccured Obligations may be sold (in the case 

of any such collateral security), exchanged, waived, surrendered or released. The 

, Collateral Agent shall not havc any obligation to protect, secure, pcrfect or insure any 

Lien at any time held by it as security for the Secured Obligations or for the guarantee 

contained in this Article VI or any property subject thereto. 

Section 6.5 Guarantee Absolute and UnconditionaL. Each Subsidiary
 

Grantor waives any and all notice of the creation, rcnewal, extension or accrual of any of 

the Secured Obligations and notice of or proof of reliance by the Collateral Agent upon the guarantee contained in this the guarantee contained in this Article VI or acceptance of 


them, shall conclusively be deemed to Artiele VI; the Secured Obligations, and any of 


have becn created, contractcd or incurred, or renewed, extcndcd, amended, modified or the waived, in reliance upon the guarantt:e contained in this Article VI and the grant of 


security intcrests pursuant to Section 3.1; and all dealings between Debtor and any ofthc 

Subsidiary Grantors, on the one hand, and the Collateral Agent, on the other hand, 

likewise shall be conelusively presumed to have been had or consummated in reliance the security interests upon the .b'Uarantee contained in this Article VI and the grant of 


pursuant to Section 3. i. Each Subsidiary Grantor waives diligence, presentment, protest, the demand for payment and notice of dcfault or nonpayment to or upon Debtor or any of 


Subsidiary Grantors with respect to the Sceured Obligations. Each Subsidiary Grantor cd in this Article VI and thc grant of the understands and agrees that the guarantee contain 


security interests pursuant to Section 3. i shall bc, and shall be construed to be, a payment and perfonnance without continuing, absolute and unconditional guarantee of 


the Advance Facility Agrcement, the regard to (a) the validity or enforceability of 


Purchase Money Note Guaranty, any Purchase Money Note or any other Ancillary 

Document, any of the Secured Obligations or any other collateral security therefor or 

guarantee or right of offset with rcspect thcrcto at any time or from time to timc held by 

the Collateral Agent, for the benefit of thc Secured Parties, (b) any defcnse, set-off or payment or performance) which may at any time be counterclaim (other than a defense of 


available to or bc asserted by Debtor or any other Pcrson against the Collatcral Agent, or 

29
 
Debtor (c) any other circumstance whatsoever (with or without notice to or knowledge of 


or such Subsidiary Grantor) which constitutes, or might be construed to constitute, an 

equitable or legal discharge of Debtor for the Secured Obligations, or of such Subsidiar the security Grantor under thc guarantee contained in this Article VI and the grant of 


interests pursuant to Section 3.1, in bankrptcy or in any other instance. When making 

any demand hereunder or otherwise pursuing its rights and remedies hereundcr against 

any Subsidiary Grantor, the Collateral Agent may, but shall be under no obligation to, 

make a similar demand on or otherwise pursue such rights and remedies as it may have 

against Debtor, any Subsidiary Grantor or any other Person or against any collateral 

security or guarantee for the Secured Obligations or any right of offset with respect 

thereto, and any failure by the Collateral Agent to make any such demand, to pursue such 

other rights or remedies or to collect any payments from Debtor, any Subsidiary Grantor 

or any other Person or to realize upon any such collateral security or guarantee or to 

exercise any such right of offsct, or any release Dcbtor, any Subsidiary Grantor or any 

other Person or any such collateral sccurity, guarantee or right of offset, shall not relieve 

any Subsidiary Grantor of any obligation or liability hereunder, and shall not impair or 

affect the rights and remedies, whether express, implied or available as a matter oflaw, of 

the Collateral Agent against any Subsidiary Grantor. For the purposes hereof "demand" 

shall includc the commencement and continuance of any legal proceedings. 

Section 6.6 Reinstatement. The guarantee contained in this Article VI 

shall continue to be effective, or be reinstated, as thc case may be, if at any time payment, 

or any pai1 thcreof, of any of the Secured Obligations is rescinded or must otherwise be 

restored or returncd by the Collateral Agent upon the insolvency. bankruptcy, dissolution, 

liquidation or reorganization of Debtor or any Subsidiary Grantor, or upon or as a result 

of the appointmcnt of a receiver, intervenor or conscrvator of, or trustee or similar offcer 

for, Debtor or any Subsidiary Grantor or any substantial part of its property, or otherwisc, 

all as though such payments had not bcen made. 

Section 6.7 Payments. Each Subsidiary Grantor hereby guaranties that 

payments under this Article VI will constitute Underlying Loan Proceeds and will be 

deposited into the Collcction Account, to be applied in accordance with thc Priority of 

Payments (as defined in the Custodial and Paying Agency Agreement). 

Section 6.8 Infom1ation. Each Subsidiary Grantor assumes all
 

responsibility for being and keeping itself reasonably informed of Debtor's and each 

othcr Subsidiary Grantor's financial condition and assets. and of all other circumstances 

bearing upon the risk of nonpayment of the Secured Obligations and the nature, scope 

and extent of the risks that such Subsidiary Grantor assumes and incurs hereunder, and 

agrees that neither the Collateral Agent nor any other Securcd Party will have any duty to 

advisc such Subsidiary Grantor of infonnation known to it or any of them regarding such 

circumstances or risks. 

30
 
ARTICLE VII
 

Representations And Warranties
 

Section 7.1 Representations and Warranties. Each Grantor hereby
 

represents and warrants to Note Guarantor, Advance Facility Agent and Collateral Agent 

as of 
 the date hereof and at all times while the Secured Obligations remain unsatisfied 

and undischarged in full, that: 

(a) This Agreement has been duly exccuted by such Grantor and
 

constitutes a legal, valid and binding obligation of such Grantor, enforceable against such 

Grantor in accordance with its terms, except as such enforceability may be limited by 

Debtor Relief Laws and by general prineiples of equity; 

(b) There are no actions, suits, proceedings, claims or disputes pending
 

or, to the knowledge of Managing Member or such Grantor, threatened in writing, at law, 

in equity, in arbitration or before any Governmental Authority affecting such Grantor or 

any of its properties or revenues that may adversely affect the grant by such Grantor, or 

the perfection, ofthe security interest purported to be created hereby in the Collateral, or 

the exercise by Collateral Agent, Note Guarantor or Advance Facility Agent of any of its 

rights or remedies hereundcr; 

(c) The Grantors are and will bc at all times the sole and exelusive
 

owners of, or otherwise have and wil have rights in, the Collateral free and clear of any 

the Collateral Agent and other Liens expressly permitted 

under the Transaction Documents. No effective financing statement or other instrument 

Lien other than Liens in favor of 


the Collateral (except in favor of the Collateral similar in effect covering all or any part of 


Agent) is on filc in any recording or filing offce; 

(d) The transactions provided for herein (i) have been duly authorized
 

by all requisite limited liability company action, and (ii) do not and will not (A) violate 

(1) any applicable provision of any Law or of the certificate of formation or operating 

agreement of such Grantor, (2) any order of any Governmental Authority or arbitrator or 

(3) any material provision of any indenture or any agreement or other instrument to 

which such Grantor is a party or by which it or the Collateral is or may bc bound, (B) be 

time or
 in conflict with, result in.a breach of or constitute (alone or with notice or lapse of 


both) a default under any such indenture or agreement or other instrument, (C) result in 

the creation or imposition of any security interest in or Lien upon the Collateral (other 

than the security interest and Lien created thereon under this Agrecment) or (D) requirc 

the conscnt of any party for the granting ofthc security interest created hereby; 

(e) No authorization or approval or other action by, and no notice to or 

fiing with, any Governmental Authority or other regulatory body, or any other Person, is 

required on the date hereoffor (i) the due execution, dclivery and performance by such 

the security interest 

purported to be created hereby in the Collateral or (iii) the exercise by Collateral Agent, 

Note Guarantor or Advance Facility Agent of any of its rights and remedies hereunder. 

No authorization or approval or other action by, and no notice to or filing with, any 

Grantor of this Agreement, (ii) the grant by such Grantor of 


31 
Governental Authority or other regulatory body, or any other Person, is required for the 

perfeetion of the security interest purported to be created hereby in the Collateral, except 

for (A) the fiing of a UCC-l finaneing statement properly describing the Collateral and
 

identifyng such Grantor and Collateral Agent in the applicable jurisdiction required 

pursuant to the Uniform Commercial Code, (B) execution and delivery by the 

Custodian/Paying Agent of 
 the Custodial and Paying Agency Agreement containing an

acknowledgment by the Custodianlaying Agent that it holds possession of the Custodial 

Documents for the Collateral Agent's benefit, and (C) the taking of any action required to 

maintain eontinuing perfection with respect to proceeds which cannot be perfected by the 

financing statements under the Uniform Commercial Code (subelauses (A), (B) 

and (C), each a "Perfection Requirement" and collectively, the "Perfection 

filing of 


Requirements"); and
 

(f) This Ah'Teement creates a legal, valid and enforceable security
 

interest in favor of Collateral Agent, for the benefit of the Secured Parties, in thc 

Collateral, as security for the Secured Obligations. The compliance with the Perfection 

Requirements will result in the perfection of such sccurity interests. After compliance 

with the Perfcction Requirements, such security interests, including in the case of 

Collateral in which such Grantor obtains rights after the date hereof, wil be perfected, 

first priority security interests. Such Pcrfection Requirements and all other action 

necessary or desirable to perfect and protect such security interest have been duly made 

or taken, except for the other fiings and recordations and actions described in Section 

1l above.
 

ARTICLE ViII
 

Covenants
 

Section 8. I Debtor Accounts. Debtor shall establish and maintain with
 

the Custodian/Paying Agent the Debtor Accounts (exeluding the Escrow Accounts, 

which shall be established and maintained by the Servicer). 

Section 8.2 Grantor Status; Licensing. Debtor shall, at all times, Delawarc constitutc a limited liability company organized under the laws ofthc State of 


and a Single Purpose Entity. Each Subsidiary Grantor shall at all times be a Single 

Purpose Entity. As soon as reasonably practical after the Eftèctive Date, Debtor (on its

or, if applicable, on behalf
 of the Ownership Entities which hold Acquired own behalf 


Collateral) shall apply for and, thereafter, use its reasonable best efforts to obtain as 

quickly as possible, and maintain, all such licenses as are required to conduct its business, 

including qualifications to conduct business in jurisdictions other than Delaware and 

licenses to purchase, own or service the Underlying Loans and, if applicable, operate, the failure to so obtain such licenses manage, lease and dispose of Acquired Collateral, if 


would reasonably be expected to result in the imposition of fines, penalties or other 

liabilities on Debtor, elaims and defenses being asserted against Debtor (including 

eountcrelaims and defense asscrted by Underlying Borrowers), or materially advcrsely 

affect Debtor or Debtor"s ability to forcclose on the Underlying Collateral securing or 

otherwisc realize the full value of any Underlying Loan or Acquired CollateraL. 

32 
Section 8.3 LLC Operating Agreement. Debtor (a) shaH at aH times 

have in effect and be subject to the LLC Operating Agreement, (b) except as is otherwise 

expressly permitted therein, shall not amend or modify in any material respect the LLC 

Operating Agreement without the prior written approval of each of Note Guarantor and 

Advance Facility Agent, and (c) shaH not enter into or allow itse1fto become subject to 

any other constituent documents inconsistent with any terms of the LLC Operating 

Agreement. 

Section 8.4 Custodian/Paying Agent. Debtor shall retain the 

Custodian/Paying Agent and shaH enter into and at all times be a party to a Custodial and 

Paying Agency Agreement with the Custodian/Paying Agent. The Custodian/Paying the Underlying Notes and other Agent shall at all times have custody and possession of 


Custodial Documents to the extent required under the Custodial and Paying Agency 

Agreement. At no time shall Debtor have more than one Gtistodian/Paying Agent. The 

fees and expenses paid to the Custodian/Paying Agent shall be no morc than market rates 

and the Custodian/Paying Agent shall be terminable by Note Guarantor and Advance 

Facility Agent upon no more than thirty (30) days notice without cause thereunder. In the 

event that Debtor (or any Servicer or subservicer) rcmoves any Underlying Notes or other the Custodian/Paying Agent (which shall be Custodial Documents from the possession of 


done only in accordance with the Custodial and Paying Agcncy Agreement), (a) any loss 

or destruction of or damage to such Underlying Notes or Custodial Documents shaH be 

the liability of Debtor (who, along with the Servicer and any subservicer shall be 

responsible for safeguarding such Underlying Notes and Custodial Documents), and (b) 

such Underlying Notes shall be rcturned to the Custodian/Paying Agent within the time 

provided under the Uniform Commercial Code to maintain Collateral Agent's perfection 

by possession. If any Underlying Notes or other Custodial Documents are 

removed in connection with the modification or restructuring of an Underlying Loan, the 

modified or restructured Underlying Notes and othcr Custodial Documents removcd in 

conncction therewith shall be returned to the Custodian/Paying Agent as soon as possible 

the restructuring or modification (and, in any event, in 

thereof 

following the completion of 


the immediately preceding sentence). Debtor shall ensure accordance with elause (b) of 


Note Guarantor and Advance Facility Agent rcceives a copy of each demand, 

notice or other communication givcn under the Custodial and Paying Agency Agrcement 

at the time that such notice or other communication is given thereundcr. 

that each of 


Section 8.5 Compliance with Law. Each Grantor shall, at all times, 

comply with applicable Law in connection with the perfonnance of its obligations under 

this Agreement. 

Section 8.6 Serviccr. Dcbtor shall at all times cause the Servicing which shall be a Obligations to be pcrformed by a Servicer or a subservicer, cach of 


Qualified Servicer. 

'1.:1 

Section 8.7 Certain Restrictions. Debtor shall not: 

(a) at any timc, without limiting its obligation to constitutc a Singlc
 

Purpose Entity, incur any Indebtedncss (other than thc Indebtedness evidenced by the 

33 
the Purchase Money Notes and under this Agreement, Indebtedness in respect of 


Excess Working Capital Advance Facility Agreement, Indebtedness in respect of 


the Advance Advances and Indebtedness permitted pursuant to Section 7.0l(e) of 


Facility); 

(b) dissolve or liquidatc at any time prior to such time as Debtor
 

makes the Final Distrbution and this Agreement is terminated; 

(c) (i) file a voluntary petition for bankruptcy, (ii) fie a petition or
 

answer seeking any reorganization, arrangement, composition, readjustment, liquidation, 

dissolution or similar relief under any Law, (iii) make an assignment for the benefit of 

creditors, (iv) seek, consent or acquiesce in the appointment of a trustee, receiver or 

liquidator or of all or any substantial part of its properties, (v) filc an answer or other 

pleading admitting or failing to contest the material allegations of (A) a petition filed 

against it in any proceeding described in clause (i) through (iv), or (B) any order 

adjudging it a bankrupt or insolvent or for relief against it in any bankruptcy or to become unable to pay its obligations as they insolvency proceeding, or (vi) allow itself 


its property, at a fair its debts to be greater than all of
 become due or allow the sum of 


valuation; or 

(d) place or pennit (voluntarily or involuntarily) any Lien to be placed
 

the Collateral (other than the security interest granted to Collateral Agent 

hcreunder and Liens cxpressly permitted under thc Transaction Documents), and shall not 

takc any action to interfere with Collateral Agent's rights as a secured party with respect 

on any of 


to the CollateraL.
 

Section 8.8 Change in Jurisdiction, Name, Location or Idcntity. Each 

Grantor agrees to provide Collateral Agent with not less than ten (W) days' prior written
 

notice of any change (a) in thc jurisdiction in which it is organizcd, (b) in its company
 

its principal place of
 business, or (d) in its federal taxpayer
 name, (c) in the location of 


identification number. Each Grantor agrees not to effect or pcrmit any change referred to 

in the preceding scntcnce unless all filings have been inade under the Uniform 

Commercial Code or otherwise that are required in order for Collateral Agent to continue 

following such changc to have a valid, legal and perfcctcd first priority seeurity interest 

in thc Collateral to thc extcnt a security interest thercin may be perfected by filing 

pursuant to the Unifonn Commercial Code. 

Section 8.9 Payment of Principal on Purchase Möney Notes; Payment
 

of Advance Facility Oblil!ations; Reimburseinent of Collateral Agent. Debtor will duly the and punctually pay, or cause the Custodian/Paying Agent to pay, the principal of 


Purchase Money Notes in accordancc with the terms ofthc Purchase Money Notes, and the Advance Facility the Advancc Facility Obligations in accordancc with thc terms of 


Agreement, and this Agreement, and the Custodial and Paying Agency Agreement and 

from moneys on deposi t in thc Distribution Account. On each Distribution Date, Dcbtor 

will dircct the Custodian/Paying Agent to distribute amounts on deposit in the 

Distribution Account to Collateral Agent in payment of any amounts owed by Debtor to 

Note Guarantor or Collateral Agent under this Agreement and or Advance Facility Agent 

34
 
under the Advance Facility Agreement, subject to the priority of payments set forth in 

Section 5.1 of 
 the Custodial and Paying Agency Agreement and the other terms thereof.

Section 8.10 Protection of Collateral; Further Assurances. From time to 

time, at its cost and expense, each Grantor promptly shall execute and deliver all further 

instruments and documents, and take all further action, that may be necessary, or that 

Collateral Agent may reasonably request, in order to perfect, to ensure the continued 

perfection of, and to protect thc assignment and security interest granted or intended to be 

granted hereby or to enable Collateral Agent to exercise and enforce its rights and 

remedies hereunder with respect to any CollateraL. 

Section 8.11 Guaranties and Mortgages. If any Subsidiary (as defined in 

Debtor acquires any REO Property after the Effective 

Date, then, within fifteen (15) Business Days after the foreclosure, conveyance in lieu of 

foreclosure or othcr event which resulted in such property becoming REO Property, 

Debtor shall promptly cause such Subsidiary (as defined in the LLC Operating 

Agreement) to execute and deliver to the Collateral Agent (in addition to the Joinder 

Agreement provided for in Section 8. i 2) an REO Mortgage with respect to such REO 

thc LLC Operating Agreement) of 


the Collateral Agent for thc benefit of the Secured Partics in form Property in favor of 


and substance satisfactory to the Collateral Agent (which mortgage shall (i) secure all of 

the Secured Obligations (or, in jurisdictions with a mortgagc recording tax that would be 

payable on the full amount otthe Seeured Obligations or on successive reborrowings of 

the Working Capital Loans (as defined in the Advanee Facility Agreement), such portion 

or components of the Sccured Obligations as thc Collateral Agent shall reasonably REO Property consisting of require), (ii) providc for a rclease price (or, in the ease of 


case prices for individual condominiums or cooperative units or separate land parcels, rei 


units or parccls) based on the applicable Approved Business Plan or otheiwise 

satisfactory to the Collateral Agent and (iii) shall contain such other provisions (in 

addition to those included in the Underlying Loan Documents) as the Collatcral Agent 

such REO Propcrty). shall require in light of 
 the particular nature or characteristics of


Such REO Mortgage shall be accompanied by such related documentation and deliveries 

as the Collateral Agent may reasonably request, each in fonn and substance satisfactory 

to the Collateral Agent, including, without limitation. opinions of counsel, lender's 

title insurance (togethcr with all endorsements thereto reasonably required by 

the Collateral Agent, including endorsements with respect to future advances), 

amendments to the Transaction Documcnts deemed necessary or advisable by the 

Collatcral Agent to reflect the particular nature and characteristics of the REO Property in 

question and the requirements of local law and such additional itcms as an institutional 

lender would customarily require in a construction or pennanent, as applicable, loan 

transaction involving a property similar to such REO Property (all of the foregoing to be 

in form and substance satisfactory to the Collateral Agent). Such REO Mortgagc shall be 

duly recorded or fied in such manner and in such places as are required by applicable 

polieies of 


the Collateral Agent law to establish, perfect, preserve and protect the Liens in favor of 


granted pursuant to such REO Mortgage and all taxes, fees and other charges payable in 

conncction therewith shall be paid in fulL. The cost of preparing, negotiating and 

recording such REO Mortgage (ineluding mortgage recording taxes) and the costs 

35 
'f 

associated with such additional documentation and de1iverables shall be Servicing 

Expenses. At Debtor,'s request, the Collateral Agent shall prepare and deliver to Debtor a 

form of REO Mortgage which (with such modifications as the Collateral Agent shall 

agree to in its sole discretion) shall serve as a model for subsequent REO Mortgages 

(subject to changes necessary or advisable, in the Collateral Agent's judgment, to reflect the REO Property in question). local law and the particular nature and charactcristics of 


Notwithstanding anything to the contrary contained in the foregoing, with respect to 

Aequired Collateral consisting of REO Property on the date hereof, Debtor shall deliver 

(and/or shall cause the applicable Ownership Entity to deliver) to the Collateral Agent the 

REO Mortgages and other items required to be delivered pursuant to this Section 8. i 1 

within thirty (30) days after the Effective Date. 

Section 8.12 Additional Grantors. If Debtor shall form any Subsidiary
 

(as defined in the LLC Operating Agreemcnt), Debtor shall cause such Subsidiary (as 

defined in the LLC Operating Agreemcnt) to become a Subsidiary Grantor hereunder, 

such Subsidiary (as defined in the LLC Operating Agreement) shall execute and deliver 

to Collateral Agent a Joinder Agreement substantially in the form of Exhibit A and shall 

thereafter for all purposes be a party hereto and have the same rights, benefits and 

obligations as a Grantor party hereto on the Effective Date. Each Grantor expressly 

agrees that its obligations arising hereunder shall not be affected or diminished by the 

addition or release of any other Grantor hereunder, nor by any election of the Collateral 

Agent not to cause any Subsidiary (as defincd in the LLC Operating Agreement) of 

Debtor to become a Grantor hereunder. This Agreement shall bc fully effective as to any 

Grantor that is or becomes a party hereto regardless of whether any other Person becomes 

or fails to become or ceases to be a Grantor hereunder. 

Section 8. I 3 Transaction with Affiliates. No Grantor shall enter into any 

transaction with any Affliate, except as expressly permitted under Section 3.5 ofthc the Collateral Agent. LLC Operating Agreement, without the prior written consent of 


Section 8.14 Books and Rccords; Reports; Certifications; Audits. 

Books and Records. Debtor shall cause to be kcpt (a) Maintenance of 


and maintained (including by the Servicer and any Ownership Entity and including the . records transfcrred by Receiver to Debtor in connection with its conveyanee of 


Underlying Loans and any Acquired Collateral to Debtor under the Contribution 

Agreement), at all times. at Debtor's chicf executive office, a complete and accurate set 

offiles, books and records regarding thc Collateral, the Underlying Loans, thc 

Underlying Collateral and the Acquired Collateral and Debtor's, any Owncrship Entity's 

and the Collateral Agents interests in the Collateral, the Underlying Loans, the 

Underlying Collateral and the Acquired Collateral, including records relating to the 

Debtor Accounts and the disbursement of all Underlying Loan Proceeds. This obligation 

to maintain a complete and accurate set of records shall encompass all fies in Debtor" s 

custody, possession or control pcrtaining to thc Collateral, the Underlying Loans, thc 

Underlying Collateral and the Acquired Collatcral, including (except as required to bc 

held by the Custodian/Paying agent pursuant to the Custodial and Paying Agency 

Agreement) all original and other documentation pertaining to the Collateral, the 

36
 
Underlying Loans, the Underlying Collateral and the Acquired Collateral, all 

documentation relating to items of income and expense pertaining to the Collateral, the 

Underlying Loans, the Underlying Collateral and the Acquired Collateral, and all of 

Debtor's (and Servicer's and each subservicer's) internal memoranda pertaining thereto. 

The books of account shall be maintained in a manner that provides sufficient assurance 

that: (a) transactions of 
 Debtor are executed in accordance with the general or specific the LLC the Managing Member consistent with the provisions of
 authorization of 


Operating Agreement and the other Transaction Documents; and (b) transactions of 

Debtor are recorded in such form and manner as will: (i) permit preparation of federal, 

state and local income and franehise tax returns and information returns in accordance 

with the LLC Operating Agreement and the other Transaction Documents and as required 

by Law; (ii) permit preparation of Debtor's financial statements in accordance with 

GAAP and as otherwise set forth in the LLC Operating Abrreement and the other 

Transaction Documents; and (iii) maintain accountability for Debtor's assets. 

(b) Retention of Books and Records. Debtor shall cause all such
 

books and records to bc maintained and retained until thc date that is the later often (10) 

years after the Effective Date or three (3) years after thc date on which the Final 

Distribution is made. All such books and records shall be available during such pedod 

for inspection by Collateral Agent, Note Guarantor or Advance Facility Agent or their 

respective representatives (including any Governmental Authority) and agents at the chief 

Debtor at all reasonable times during busincss hours on any Business 

Day (or, in the case of any such inspection after thc terni hereof, at such other location as 

is provided by notice to Collateral Agent, Note Guarantor and Advance Facility Agent), 

in each instance upon not less than two (2) Business Days' prior notice to Debtor unless 

executive office of 


Default shall have occurred and be continuing. Upon rcquest by Collateral
 

Agent, Note Guarantor or Advance Facility Agcnt, Debtor, at the sole cost and expense
 

an Event of 


of Collateral Agent, Notc Guarantor or Advance Facility Agent, as thc case may be, shall which shall bc rcasonable) of such books promptly send copies (thc number of copies of 


and records to Collateral Agent, Note Guarantor or Advance Facility Agent. Debtor shall 

provide Collateral Agent, Note Guarantor and Advance Facility Agent with reasonable 

advance notice of Debtor's intention to destroy or dispose of any documents or files 

relating to the Undcrlying Loans and, upon the request of Collateral Agent, Note 

Guarantor or Advance Facility Agent, shall allow such Person, at its own expense, to 

recover thc same from Debtor. 

(c) Reporting.
 

(i) As soon as practicable following, but no later than ninety
 

(90) days immediatcly after, the end of each Fiscal Year (as defined in the LLC 

Operating Agreement), Debtor shall deliver to Note Guarantor and Advancc 

Facility Agent an audited consolidated balance shcct of Debtor and its 

Subsidiaries (as defined in the LLC Operating Agrecmcnt) as at thc end of such 

Fiscal Year (as defined in the LLC Operating Agrcement), and audited
 

consolidated statements of operations and cash flow of Debtor and its Subsidiaries 

(as defined in the LLC Operating Agreemcnt) for such Fiscal Year (as defined in 

the LLC Operating Agreement), each prcpared in accordancc with GAAP (as 

37 
defined in the LLC Operating Agreement) and accompanied by the Accountants' 

(as defined in the LLC Operating Agreement) report thereon, which shall be 

certified in the customary manner by the Accountants (as defined in the LLC 

Operating Agreement). 

(ii) As soon as practicable following, but no later than thirty
 

(30) days immediately after, the end of each quarter of each Fiscal Year (as 

defined in the LLC Operating Agreement) (other than the last quarter of such 

Fiscal Year (as defined in the LLC Operating Agreement)), Debtor shall deliver to 

Note Guarantor and Advance Facility Agent an unaudited consolidated balance 

sheet of Debtor and its Subsidiaries (as defined in the LLC Operating Agreement) 

as at the end of such calendar quarter, and unaudited consolidated statements of 

operations and cash flow of Debtor and its Subsidiaries (as defined in the LLC 

Operating Agreement) for such calendar quarter, each prepared in accordancc

with GAAP (as defined in the LLC Operating Agreement) and certificd by a 

Responsible Offcer (as defined in the Advance Facility Agreement) of the
 

Managing Mcmber on behalf of Debtor as fairly presenting in all matcrial respects 

the financial condition, results or operations, stockholders' equity and cash flows 

for Debtor and its Subsidiaries (as defined in the LLC Operating Agreement) in 

accordance with GAAP (as defined in the LLC Opcrating Agreement), subject 

only to normal year-end audit adjustments and the absence of footnotes. 

(d) Monthly Reports. Debtor shall cause to be furnished to Collateral 

Agent, Note Guarantor and Advance Facility Agent on or prior to the fifteenth (15th) day 

the fifteenth (15th) day is not a Business Day, thcn the first Business 

Day thereafter), commencing on the fifteenth (i 5th) day of the first month following the 

calendar month in which the Effective Date occurs, an electronic rcport on thc Collateral 

(including the Debtor Accounts and the disbursement of all Underlying Loan Proceeds) 

containing the information and substantially in the form set forth on Exhibit I to the 

Custodial and Paying Agency Agreement or as may otherwise bc agreed by the parties. 

of each month (or if 

(e) Annual Compliance Certificates. Debtor shall, and shall cause the 

Servicer and any subservicer to, deliver to Collateral Agent, Note Guarantor and Advance 

Facility Agent on or bcfore March 15 of each year, commencing in the year 2010, an 

offcer's certificatc stating, as to the signer thereof, that (i) a review of such party's 

activities during the preceding calendar year (or portion thercof) and of its performance 

under this Agreement and the Advance Facility Agreement (or the Servicing Agrcemcnt) 

has been madc under such offcer's supervision. and (ii) to the best of such offcer's 

knowlcdge and belief, bascd on such review, such party has fulfilled all of its obligations 

undcr this Agreement and the Advance Facility Agreement (or the Servicing Agreement) 

in all material respects throughout such year or portion thereof or, if there has been a 

failure to fulfill any such obligation in any material respect, specifying each such failure 

and the nature and status thereof. In thc event the Servicer or any subservicer was 

tcrminated, resigned or othcrwise pcrfonned in such capacity for only part of a year, such 

party shall provide an offcer's certificate pursuant to this Section 8, 14(d) with respect to
 

such portion of the year. 

38 
(f) Annual Complianee Report. On or before March 15 of each year,
 

commencing in the year 2010, Debtor shall cause the Sericer and any subservicer, at its 

the Managing Member, to provide a report (copies of 

which will be delivered to Collateral Agent, Note Guarantor and Advance Facility Agent) 

prepared by a nationally recognized firm of independent certified public accountants to 

the effeet that, with respect to the most recently ended fiscal year, such firm has 

examined certain records and documents relating to compliance with the servicing 

requirements in the Servicing Agreement and that, on the basis of sueh examination 

conducted substantially in compliance with either the Uniform Single Attestation 

Program for Mortgage Bankers or an attestation report satisfying the requirements of 

Item 1122 of Regulation AB, such firm is of the opinion that Debtor or the Servicer's or 

any subservicer's activities have been conducted in compliance with this Agreement and 

the Servicing Agreement, as applicable (including, to the extent applicable, Regulation 

AB), or that such examination has disclosed no material items of noncompliance except 

for (i) such exceptions as such firm believes to be immaterial, and (ii) such other 

exceptions as are set forth in the report. 

own expense or the expense of 


(g) Audits. Until the later of the date that is ten (10) years after the 

Effective Date and the date that is three (3) years after the Final Distribution, Debtor 

shall, and shall cause thc Servicer and any subservicer to, (i) provide any representative 

Collateral Agent, Note Guarantor or Advance Facility Agent (ineluding any 

Government Authority), during normal business hours and on reasonable notice, with 

access to all of the books of aceount, reports and records relating to the Collateral, the 

Servicing Obligations, the Debtor Accounts, or any other matters relating to this 

Agreement or the rights or obligations hereunder, (ii) permit such representatives to make 

copies of and extracts from the same, (iii) allow Collateral Agent, Note Guarantor and 

Advance Facility Agcnt to cause such books to be audited by accountants selected by 

Collateral Agent, Note Guarantor or Advance Facility Agent and (iv) allow 

representatives of Collateral Agent, Note Guarantor or Advance Facility Agent to discuss 

Debtor's and the Scrviccr's or subservicer"s affairs, finances and accounts, as they relate 

to the Underlying Loans, the Underlying Collateral (including Acquired Collateral), the 

Servicing Obligations, the Debtor Accounts, or any other matters relating to this 

Agreement, the Secured Obligations or the rights or obligations hereunder, with its 

offcers, directors, employees, accountants (and by this provision Debtor hereby 

authorizes such accountants to discuss such affairs, finances and accounts with such 

represcntatives), the Servicer, any subservicer, and attorneys. Any expense incurred by 

Collateral Agent, Note Guarantor or Advance Facility Agent and any reasonable out-ofpocket expense incurred by Debtor in connection with the exercise by Collatcral Agent, 

Note Guarantor or Advance Facility Agent of its rights in this Section 8.14(Ð shall be 

borne by such party; provided, however, that any expense incident to the exercise by 

Collateral Agent, Notc Guarantor or Advance Facility Agent of its rights pursuant to this 

Seetion 8 .I4(g) as a rcsult of or during the continuance of an Event of Default shall in all 

cases be borne by the Managing Member. 

of 

Scction 8.15 Insurance.
 

39
 
~'",. 

(a) Debtor shall cause insurance coverage to be maintained for the
 

Underlying Collateral (ineluding REO Property) from an insurer (unless provided for in 

the then-applicable Approved Business Plan for such Asset) reasonably acceptable to 

Note Guarantor and Advance Facility Agent for any Asset with respect to which the 

Underlying Borrower has failed to maintain required fire, hurrcane, flood and hazard 

insurance with extended coverage as is customary in the area in which the Collateral or 

Acquired Collateral is located and in such amounts and with such deductibles as, from 

time to time, are approved by Note Guarantor and Advanee Facility Agent (unless 

provided for in the then-applicable Approved Business Plan for such Asset). 

(b) All such insurance shall (i) provide that no cancellation, material
 

reduction in amount or material change in coverage thereof shall be effective until at least 

thirty (30) days after receipt by the Collateral Agent of written notice thereof, (ii) with 

respect to any policy insuring a Grantor or Collateral, name the Collateral Agent as 

additional insured on behalf of the Secured Parties (in the case of liability insurance) or 

loss payee (in the ease of property insurancc). 

Section 8. I 6 Recovery of Expenses; Interest. Dcbtor shall cause 

commercially reasonable efforts to be used to recover from Underlying Borrowers and 

Underlying Guarantors those Servicing Expcnses which such Underlying Borrowers or 

Underlying Guarantors are obligated to pay. No Servicing Expenses shall bear interest 

chargeable in any way to Collateral Agent, Note Guarantor or Advance Faeility Agent. 

Section 8,17 Debtor's Dutv To Advise Collatcral Agent, Note Guarantor
 

tJnd Advance Facility Agent; Delivery of Certain Notices. In addition to such other

reports and access to records and reports as are required to be provided to Collateral 

Agent, Note Guarantor and Advance Facility Agent hereunder, Debtor shall cause to be 

delivered to Collateral Agent, Note Guarantor or Advance Facility Agent such 

information relating to the Underlying Loans, the Collateral, the Acquired Collateral, 

Debtor and the Servicer and any subservicer as Collateral Agent, Note Guarantor or 

Advance Facility Agent may reasonably rcquest from time to time and, in any case, shall 

ensure that Collateral Agent, Note Guarantor and Advance Facility Agent are promptly 

advised, in writing, of any matter of which Debtor, the ServiceI' or any subservicer 

becomes aware relating to the Underlying Loans, the Collateral, the Acquired Collateral, 

the Debtor Accounts, or any Underlying Borrower or Underlying Guarantor that 

materially and adversely affects the intcrests of Collateral Agent, Note Guarantor or 

Advance Facility Agent hereundcr. Without limiting the generality of 
 the foregoing,

Debtor shall cause to be delivercd to Collateral Agent, Note Guarantor and Advance 

Facility Agcnt information indicating any possible Environmcntal Hazards with respect 

to any Collateral or Underlying Collateral and any notice or report provided to Debtor or 

thc Managing Membcr under Section 5.5 of 
 the Servicing Ah'Teement as in effect on the

date hereof. To thc cxtent Collateral Agent requests infonnation whieh is dependent 

upon obtaining such information from an Undcrlying Borrower, Underlying Guarantor or 

other third party, Debtor shall cause to be made commercially reasonable efforts to obtain 

such information but it shall not be a breach by Debtor of 
 this Agrcement if Debtor fails

to cause such infonnation to be provided to Collateral Agent because an Underlying 

40 
Borrower, Underlying Guarantor or other Person (other than Servicer or any subservicer) 

has failed to provide such information after such efforts have been made. 

Section 8.18 Administration of REO Properties. The following terms 

and conditions shall be binding on Debtor and the Ownership Entities with respect to any 

REO Properties, in addition to any other terms and conditions concerning the same the other Transaction Documents. subject matter set forth in this Agreement and any of 


the Underlying Loan Notwithstanding the forcgoing, to the extent that the terms of 


Documents that were applicable to such REO Property prior to its becoming an REO 

Property impose requirements that are more stringent than the terms set forth below, then the terms of such the terms of such Underlying Loan Documents shall apply as if 


Underlying Documents were still effective, Collateral Agent were the lender under such 

Underlying Loan Documents and Debtor or the applicable Ownership Entity were the 

Underlying Borrower thereunder: 

(a) Insurance. With respect to each REO Propcrty, Debtor shall cause
 

thc applicable Owncrship Entity to maintain, with financially sound and reputable
 

insurers reasonably acceptable to Advance Facility Agent and Note Guarantor, (A) such 

insurance (i) as was required to be maintained by the Underlying Borrower under the 

Undcrlying Loan Documents prior to such REO Property's becoming an REO Property
 

and (ii) as is provided for under the applicable Approved Business Plan and (B) at the
 

request of Collateral Agent, such additional public liability insurance, property insurance,
 

flood insurancc, boiler and machinery insurance, business interrption or rent insurance
 

and other insurance as may from time to time customarily be required by institutional 

lenders for othcr rca! property and buildings similar to such REO Property, in cach case
 

in such amounts, with such deductibles, covering such risks and otherwise on such terms
 

and conditions as shall be customarily required by institutional lenders for such 

comparable propcrtics. All insurance policies shall be in form reasonably satisfactory to
 

Collateral Agent and shall name Collateral Agcnt as an additional insured, loss payee or
 

mortgagec thercunder, as applicable, as its interest may appear. Each policy shall provide
 

that such policy may not be cancelled or materially changed except upon thirty (30)
 

days' prior written notice to Collateral Agent and that no act or thing done by the 

applicable Ownership Entity shall invalidate any policy as against Collateral Agent.
 

Debtor shall cause the Ownership Entities to deliver certificates of insurance, in a fonnat
 

reasonably acceptable to Collateral Agent, evidencing the policies maintained by each
 

such Ownership Entity (which certificates shall be delivered to Collateral Agent not later
 the then-current policies). than thirty (30) days prior to the expiration of 


(b) Use and Application of Insurance Proceeds. In the event of any
 \ 

casualty affecting an REO Property, Debtor shall cause the applicable Ownership Entity 

to givc notice thereof 
 to Collateral Agent within five (5) Business Days after the

occurrcnce of 
 the same. Collateral Agcnt shall be entitled to participate in the adjustment

of any elaim under any insurance policy insuring the loss resulting from such casualty,
 

and Collateral Agent" s reasonable costs and expenses associated with such participation
 

shall be paid out ofthc insurancc proceeds. All insurance proceeds with respect to any
 

casualty, net of such costs and expenses, shall be paid to the Collateral Agent and shall
 

constitute CollateraL. Ifthe estimated cost ofrestoring the applicable REO Property, as
 

41 
determined in good faith by Collateral Agent, is equal to or less than $500,000, such 

proceeds shall be paid over by Collateral Agent to the applicable Ownership Entity for 

and shall be applied to the restoration of such REO Property. If such estimated cost 

exceeds $500,000, such proceeds shall be held by Collateral Agent and be disbursed to 

the applicable Ownership Entity for restoration of such REO Property in the same 

manner as proceeds of Advance Loans under the Advance Facility Agreement or, if 

the applicable REO Property has been completed, in accordance with 

disbursement procedures consistent with prudent institutional lending practices. Any 

such proceeds remaining after such restoration shall be paid over to the Custodian/Paying 

Agent and shall constitute Loan Proceeds (as defined in the Custodial and Paying Agency 

Agreement). 

construction of 


(c) Condcmnation Awards. Debtor, promptly after obtaining 

knowledge of any pending or threatened taking of any portion of any REO Property by 

its power of condemnation or eminent any Governmental Authority in the exercise of 


domain, or by agreement in lieu of condcmnation, shall notify Collateral Agent of such 

pending or threatened taking. Collatcra1 Agcnt shall have thc right to participate in all the award relating thereto (and proceedings relating to such taking and the settlement of 


Collateral Agent's reasonable costs and cxpenses associatcd with such participation shall 

the award). Such award, net of such costs and expenses, shall be paid to 

Collateral Agent (and shall constitute Collateral) and shall be disposed of as hcreinafter 

be paid out of 


provided. If such taking shall render it impracticable, in Collateral Agent's good faith 

judgment, to restore such REO Propcrty and to continue to operate it as a viable 

economic unit for its intended purpose, then the award shall be paid over to the 

Custodian/Paying Agent and shall constitute Loan Proceeds (as defined in thc Custodial the estimated and Paying Agency Agreement). In all other events, such award shall, if 


cost of restoring such REO Propcrty as nearly as practicable to its condition prior to the 

taking (as determined in good faith by the Collateral Agent) is equal to or lcss than 

$500,000, be paid over to the Ownership Entity to be used for such restoration. If such 

estimated cost is greater than $500,000, such award shall be disbursed to the Ownership 

Entity for such restoration in the same manner as proceeds of Advance Loans under the 

Advance Facility Agreement or, if construction of such REO Property has been 

completed, in accordance with disbursement procedures consistent with prudent 

institutional lending practices. Any award remaining after such restoration shall be paid 

over to the Custodian/Paying Agent and shall constitute Loan Proceeds (as defined in the 

Custodial and Paying Agency Agreement). 

(d) Leasing Matters. With respect to REO Properties, without the
 

prior written consent of Collateral Agcnt, Dcbtor shall not pcnnit any Ownership Entity 

to: 

(i) Enter into any lease (or any matcrial amendment or
 

an REO Property, modification of any existing lease) for all or any portion of 


(x) unless the tenns and conditions of such proposed lease (as so amended or 

modified) conform to the leasing parameters contained in the applicable whether the tenns and conditions of Approved Business Plan and (y) regardless of 


such proposed lease (as so amended or modificd) conform to such leasing 

42
 
parameters, if such lease is not a residential lease and the rentable square footage 

of the space demised thereunder exceeds the greater of (A) 10,000 square feet 

and (B) 15% of the rentable square footage of the building in which such demised 

the land underlying space is located or such lease demises a material portion of 


such REO Property (any lease described in this clause (y), a "Maior Lease"). 

Debtor shall cause the applicable Ownership Entity to deliver to Collateral Agent 

and Advance Facility Agent a fully executed copy of each Major Lease or 

amendment or modification thereof entered into by an Ownership Entity within 

thirty (30) days from the complete execution and delivery thereof; 

more than (ii) Collect any rents under a lease for a period of 


one (1) month in advance (other than customary escalations for taxes and 

operating expenses); or 

(iii) Tenninate or accept surrender of any Major Lease (except
 

(A) in the case of a tenant default or (B) to the extent the Ownership Entity is 

contractually obligated to accept such surrender). 

(e) Other Leasing Covenants. With respect to each REO Property,
 

Debtor shall cause the applicable Ownership Entity to: (i) perforn1 the obligations which 

such Ownership Entity is required to perform under the leases to which it is a party in all 

material respects; (ii) enforce, in accordance with commercially reasonablc practices for 

propertics similar to the applicable REO Property, the material obligations to be 

performed by the tenants under such leases; (iii) promptly furnish to Collateral Agent any 

material default or termination received from any tenant under a Major Lease, 

and any notice of default or termination given by the applicable Ownership Entity to any 

such tenant; and (iv) in the case of non-residential leases, request and use commercially 

reasonable efforts to obtain and furnish to Collateral Agent, as and when rcquested by 

Collateral Agent, written estoppel letters in fonn and substance reasonably satisfactory to 

Collateral Agent or on the form required by the relevant lease. All leases entered into 

notice of 


this Agrcemcnt (except for residential leases, ifthc provisions hereinafter 

describcd in this situation are not customary in residential leases in the area in which such 

REO Property is located) shall providc that they are subordinatc to any mortgage or deed 

of trust then existing or thereafter placed on such REO Property, and that in the cvent of a 

forcelosure or similar proceeding relating to such REO Propcrty the tenant thercunder 

shall attorn to the holder of such mortgage or deed of trust or to the purchaser at the 

foreclosure or other sale. 

after the date of 


(f) Zoning. Except to the extent provided for undcr an Approved
 

Business Plan, Debtor shall not permit any Ownership Entity to initiate or consent to any 

zoning reclassification of any portion of the REO Property owned by such Ownership 

Entity, seek any variance undcr any existing zoning ordinance, or use or pennit the use of 

any portion of an REO Property in any manner that could result in such usc becoming a
 

non-confonning use under any zoning ordinance or any other applicable land use law,
 

rule or regulation, without the prior consent of Collateral Agent.
 

i 

43 
(g) No Joint Assessment. Debtor shall not permit any Ownership
 

Entity to suffer, permit or initiate the joint assessment of REO Property (i) with any other 

real property constituting a tax lot separate from such REO Property, and (ii) with any 

portion of an REO Property which may be deemed to constitute personal property, or any 

other procedure whereby the lien of any taxes which may be levied against such personal 

property shall be assessed or levied or charged to such REO Property. 

(h) Maintenance, Repairs and Alterations. From and after the
 

completion of any buildings or other improvements at an REO Property: 

(i) Debtor shall cause the applicable Ownership Entity to
 

maintain such REO Property in a good and safe condition and repair and in 

accordance with applicable Law and shall not permit any Ownership Entity to 

remove, demolish or alter such REO Property (except for Alterations ("Permitted 

Alterations") which are not Material Alterations (as defined below) or 

alterations consented to by the Collateral Agent and normal replacement of 

equipment with cquipment of equivalent value and functionality); 

(ii) Dcbtor shall not pennit any Ownership Entity to pcrform
 

any alterations that arc not Pcnnittcd Alterations without Collateral Agent's prior 

written consent. Collateral Agent may, as a condition to giving its consent to any 

non-Permitted Alteration, require that Debtor or applieable Ownership Entity 

agree to deliver to Collateral Agent, for Collateral Agent's approval plans and 

specifications, construction contracts, schedules and budgets. As uscd herein, the 

term "Material Alteration" means any alteration or series of related alterations 

of an REO Property not contcmplated by the applicable Approved Busincss Plan, 

the aggregate reasonably estimated cost of which exceeds $1,000,000. 

(i) Condominiums. Debtor shall cause the Ownership Entities to
 

comply in all material respects with all applicablc condominium, homeowners'
 

association and similar documents, including, without limitation, the by-laws and
 

declaration of any condominium of which any REO Property constitutes a part. Debtor 

shall not permit an Ownership Entity to approve or vote in favor of any material 

modification to any condominium plan or similar document, or of any by-laws, or 

declaration of any condominium or homeowners' association or similar entity, without 

the prior written consent of Collateral Agent. Should any employce, offcer or Affliate 

of Debtor or any Servicer or subservicer thereof bc appointed to the board of managers or 

similar body of any condominium, homeowners' association or similar entity, Debtor 

shall deliver to Collateral Agent, at Collateral Agents request, the signed resignation 

letter of such Person, which resignation letter shall be in fonn and substance reasonably 

satisfactory to Collateral Agent and which shall be undated. Upon the occurrence and 

during the continuance of an Evcnt of Default, Collateral Agent shall have thc immcdiate 

right to submit to the board of managers or similar body such resignations, which 

resignations shall be cffectivc immediatcly, and Debtor shall cause such board of 

managers or similar body to appoint Collateral Agent's designees to such board of 

managers as substitute representatives or managers. Without the consent of Collateral 

44
 
Agent, Debtor shall not permit any sales of any condominium units by any Ownership 

Entity, except to the extent provided under the applicable Approved Business Plan. 

(j) Property Management. All property management, leasing and
 

brokerage agreements entered into or amended on or after the Effective Date relating to 

an REO Property, and all material amendments thereof, shall be subject to the prior 

written consent of Collateral Agent. All property managers shall, in their respective 

property management agreements or by separate agreement, subordinate their rights 

under such agreements (ineluding their right to receive management fees) to the rights 

the Collateral Agent under the applicable REO Mortgage. No property 

manager, leasing agent or broker shall be replaced without the prior written consent of 

Collateral Agent. 

and interest of 


(k) Ground Leases. The following shall apply to any REO Property
 

which is leased under a ground or other lease (in each case, a "ground lease"): 

(i) Debtor shall cause the applicable Ownership Entity to (i)
 

pay all rents and other sums required to be paid by the tenant under and pursuant 

to the provisions of the applicable ground lease as and when such rent or other 

charge is payable, (ii) diligently and timely perform and observe all of the terms, 

covenants and conditions binding on the tenant under the ground lease, and (iii) 

deliver to thc Collateral Agcnt a copy of any notice reccived from the lessor under 

the ground lease concerning any default by such Ownership Entity in the 

perfonnancc or observance of any of the terms, covenants or conditions of the 

ground lease. 

(ii) Dcbtor shall not permit the applicable Owncrship Entity,
 

without the prior consent of Collatcral Agent, to surrender the lcasehold estate 

created by the ground lease, terminate or cancel the !,rround leasc or modify or 

amend the ground Icase. 

(iii) Debtor shall eause the applicable Ownership Entity to
 

exercise each option to extend or renew the term of the applicable ground lease, if 

any, upon demand by the Collateral Agent made at any timc within the one-year 

period expiring on the last day upon which such option may be exercised, and if 

the Ownership Entity shall fail to do so, the Collatcral Agent may exercise any 

such option in the name of and upon behalf ofthc applicable Ownership Entity. 

(iv) Debtor shall not pem1it the applicable Ownership Entity to
 

subordinate or consent to the subordination of the !,rround lease to any mortgage, 

lease or other interest on or in the ground lessor's interest in the applicable REO 

Property without the prior consent of the Collateral Agent unless such
 

subordination is required under the provisions of the ground lease. 

(I) Additional Construction Covenants.
 

(i) Debtor shall not pennit any Ownership Entity to materially
 

amend, or to terminate, any agreemcnt with the general contractor, construction 

45
 
manager or architect for a Projeet, or replace any such Person, without the prior 

written consent of Collateral Agent. 

(ii) Debtor shall cause each Ownership Entity to pursue with
 

diligence the construction of the REO Property owned by such Ownership Entity 

(i) in conformance with all applicable milestones set forth in the applicable 

Approved Construction Schedule (as defined in the Advance Facility Agreement), 

(ii) in accordance with the construction, construction management (if any) and all 

other material contracts relating to such constrction, and all requirements of 

Law, all restrictions, covenants and easements affecting such REO Property, and 

all applicable governmental approvals, (iii) in substantial compliance with the 

approved plans and specifications therefor as in existence on the Effective Date 

and as thereafter modified in accordance with the Underlying Loan Documents 

and the Transaction Documents (the "Approved Plans and Specifcations"), (iv)
 

in a good and workmanlike manner and free of defects, (v) in a manner such that 

such REO Property remains free from any Liens, claims or assessments (actual or 

contingent) for any material, labor or other item furnished in connection therewith 

and (vi) in accordanee with the applicable Approved Business Plan. The Debtor 

shall cause each Ownership Entity to promptly correct all defects in construction 

or any departure from the Approved Plans and Specifications that is not in 

compliance with the Transaction Documents. 

(iii) Debtor shall not permit any Ownership Entity to (i) make
 

or agree to any material change order or other material deviation from or 

amendment to the Approved Plans and Specifications without the prior approval 

of the Collateral Agent; provided, however, Debtor may permit to be made any 

such ehange orders or other deviations or amendments without the Collateral 

Agent's prior written approval (A) upon prior notice to the Collateral Agent, so 

long as the same does not (I) materially change the design of such REO Property, 

(2) cause any line item in any Approved Budgct (as defined in the Advance 

Facility Agreement) to be cxceeded unless Debtor shall demonstrate to Collateral 

Agent's reasonable satisfaction that a cost savings has been or will be realized 

with respect to any other line item, in which case Debtor may reallocate the 

applicable portion of such overbudgeted line item to another line item so long as a 

revised budgct indicating such proposed reallocation is furnished to Collateral 

Agent, or (3) increase the likelihood that any applicable construction milestones 

will not be met, or (B) such change orders or other material deviations or 

amendments as are required by applicable Law or are mandated by health, life or 

safety reasons, provided that in such case the Debtor shall, to the extent 

practicable, provide prior notice to the Collateral Agent of any such change orders 

or other material deviations or amendments, 

this (m) REO Generally. Notwithstanding any other provision of 


Section 8.18, (i) in operating, managing, leasing or disposing of any REO Property, 

Debtor shall act in accordance with the applicable Approved Business Plan and (ii) 

Debtor shall not be required to act in accordancc with a specific provision of this Section 

8.18 if 
 the applicable Approved Business Plan provides otheiwise.

46
 
(n) Reports. Debtor shall furnish to Collateral Agent such reports
 

regarding the construction, leasing and sales efforts of or relating to the REO Property as 

Collateral Agent shall reasonably request. 

ARTICLE ix
 

Required Consent; Limits On Liabilty 

Section 9.1 Required Consents; Limits On Liability. Notwithstanding
 

this 

Section 9.1 and Section 9.3), Debtor shall not permit to be taken any action enumerated 

anything to the contrary contained in this Agreement (other than the last sentence of 


the LLC Operating Agreement 

or below without thc prior written consent of Collateral Agent, which may be withheld or 

conditioned in Collateral Agent's sole and absolute discretion: 

in Section 6.1 of the Servicing Agreement, Section 3.4 of 


the (a) any amendment or modification to, or waiver of, any terms of 


LLC Operating Agreement that relate to the manner in which the Serviccr serviees the 

Underlying Loans or Acquired Collateral, including, without limitation, the Servicing 

Obligations and the Servicing Standard; 

(b) the replacement of thc Scrviccr;
 

(c) the payment of any fees to, or entering into any transaction with, any Affiiate of 
 Dcbtor, except as expressly contcmplated by thc Transaction Documents;

(d) any amendment, modification to or,change in any mateiial respect, 

or provide a material waiver of any provision of, the Organization Documents of Dcbtor; 

Control; (e) any Change of 


(f) except as pennitted under Section 6. i 1(c) of the Advance Facility
 

Agrcemcnt, the agreement to any reduction in the sale price of condominiums or
 

cooperative units or any reduction in the rental charges related to a project from those 

provided for in the applicable Approved Business Plan; or 

(g) incur, create or assume any Indebtedness other than in respect of
 

the Purchase Money Notcs, this Ab'Teement, any Excess Working Capital Advances (as 

defined in the LLC Opcrating Agreement) or the Advancc Facility Obligations. 

Notwithstanding the foregoing, Debtor may pennit to be taken any action 

enumerated in elause (ii), (v) or (viii) (with rcspect to waivers and decisions) of Section 

§. of 
 the Servicing Agreement without thc Collateral Agent's approval ifsuch action 

the Advance Facility Agreement or if such action or 

the subject matter thereof is not material to the value ofthc Underlying Loan or 

is permitted under Section 2. I i (c) of 


Undcrlying Collateral in question or to the interests of the Secured Partics. 

47
 
Section 9.2 Limitation of Liability. 

(a) Liability Generally. Neither Collateral Agent, Note Guarantor,
 their respective Affiliates, Advance Facility Agent or any other Secured Party nor any of 


their respective offeers, directors, employees, parners, principals or agents, 

including the Servicer and any subservicer, shall be liable for any action taken or omitted 

nor any of 


them under this Agreement or in connection with any 

Collateral or any portion thereof, except for any act or omission constituting gross 

negligence, bad faith or willful misconduct (ineluding any act or omission constituting 

theft, embezzlement, breach oftrust or violation of any Law). In the event Collateral 

Agent, Note Guarantor, Advance Facility Agent or any Secured Party exercises its rights 

pursuant to Article 5 of this Agreement, none of Collateral Agent, Note Guarantor, 

to be taken by them or anyone of 


their respective Affliates, nor Advance Facility Agent or any Secured Party, nor any of 


any of their respective offcers, directors, employees, partners, principals or agents, 

any ofthc
 including the Servicer and any subservicer when acting as an agent of 


foregoing, shall bc liable for any action taken or omitted to be taken by them or anyone 

them undcr this Agreement or in conncction with any Collateral or any portion thereof, 

except for any act or omission constituting willful misconduct. 

of 

(b) Reliance on Noticcs, ctc. Neither Debtor nor Collateral Agent,
 

Note Guarantor or Advance Facility Agent shall incur any liability to the other by acting 

in good faith upon any notice, consent, ccrtificate or other instrument or writing 

(including telegram, cable, telex or telecopy) that is reasonably believed by Debtor or 

Collateral Agcnt, Note Guarantor or Advance Facility Agent as applicable, to be genuine 

and to have bcen signed or sent by the proper party and that on its face is properly 

executed. 

(c) No Consequential Damages. Rcgardless ofthc legal theory upon
 

which any claim by or against Debtor or Collateral Agent, Note Guarantor or Advance 

Facility Agent is based, including any claim based on contract, tort, strict liability, or 

Collateral Agent, Note Guarantor or Advance Facility Agent or Debtor 

shall be liable for, or may recover from thc other, any amounts other than actual losses, 

costs and expcnses (including reasonable attorneys' fees and litigation and similar costs 

to pursue such recovery) incurred by the party asserting the claim. Without limiting the 

foregoing, neither party shall bc liable for, or entitled to recover from the other party, any 

consequential, spccial, indirect, punitive, treble, nominal or cxemplary damages, business 

interrption costs or expenses, or damages for lost profits, opcrating losses or lost 

investment opportunity (regardless of whether any such damages are characterized as 

direct or indirect), cach of which is and all of which arc hercby excluded by agreement of 

Collateral Agent, Note Guarantor, Advancc Facility Agent and Debtor, regardless of 

fraud, none of 


the whether the party against whom such damages may be claimed has been advised of 


possibility of any such damages, unless (in cach case) such losses arc incuITed by the 

pary asserting the claim as a direct result of a claim asserted against such party by a third 

this Section 9.2, the following elaims shall not constitute elaims 

asserted by a third party: (i) with respect to Debtor, any elaims asserted by (A) the 

Servicer or any subservicer, (B) any Affliate of Debtor or the Servicer or any 

subservicer, and (C) any officcr, director, employec, partner, principal or agent of Debtor 

party. For purposes of 


48
 
or the Servicer or any subservicer, or any Affiiate of Debtor or the Servicer or any 

subservicer; and (ii) with respect to Collateral Agent, any elaims asserted by any Affliate 

or offcer, director, employee, parner, principal or agent of Collateral Agent, Note 

Guarantor, Advance Facility Agent or any Affiliate of any of them. 

Section 9.3 Consents Considered Obtained Through Approved
 

this Agreement, Debtor shall be Business Plans. Notwithstanding any other provision of 


considered to have obtained the Collateral Agent's consent to an act or action if such act 

or action has been described in all material respects in any Approved Business Plan. 

X 

Release Of Collateral 

ARTICLE 

Each DfNotc Guarantor and Advance Facility Agent hereby authorizes 

Collateral Agent to, and Collateral Agent agrees that it shall, release its Lien on any 

Collateral, solely to the extent necessary, (a) upon a final, nonappealable order of a court 

of eompetent jurisdiction pcrmitting or directing disposition thereof, (b) upon payment of the secured obligations with any Underlying Loan in full and satisfaction in full of all of 


respect to an Underlying Loan or upon receipt of a discounted payoff as payment in full 

of an Underlying Loan, (c) as is necessary in connection with the foreclosure on an 

Underlying Mortgaged Property, acceptance of a deed in lieu thereof or modification or 

the terms thereof, or (d) in connection with Debtor's sale of an 

Underlying Loan or any Collateral to the extent permitted under the Transaction 

Documents, provided, that the proceeds of such sale or disposition are applied in 

restructuring of 


payments set forth in Section 5.1 of
 the Custodial and accordance with the priority of 


Paying Agency Agrecment and the othcr terms thereof. 

ARTICLE XI 

Liquidation of Underlying Loans and Acquired Collateral 

Section i 1.1 Rights to Liquidate Underlying Loans and Acquired 

CollateraL. Each of Initial Member, Note Guarantor and Advancc Facility Agent shall 

have the right, exercisable in its solc and absolute diseretion, to rcquire the liquidation 

and sale, for cash consideration, of any remaining Underlying Loans, othcr Collateral or 

Acquired Collateral held by Debtor or any Ownership Entity at any timc after the tenth 

(I Olh) anniversary of the Effective Date. 

Section i 1.2 Exercise of Rights to Liquidate Underlying Loans and
 

Acquired CollateraL. In order to exercise its rights under Section 11.1, Initial Member,
 

Note Guarantor or Advance Facility Agent shall give notice in writing to Collateral
 to Initial Member, Agent, the Custodian/Paying Agent and Debtor (with copies thereof 


Note Guarantor or Advance Facility Agent, as applicable), setting foith the date by which 

the remaining Underlying Loans, other Collateral or Acquired Collateral are to bc 

liquidated by Collateral Agent. Debtor shall, and shall cause the Custodian/Paying Agent the liquidation of the to, cooperate and assist Collateral Agent with any and all aspects of 

remaining Underlying Loans, other Collateral and Acquired Collateral to the extent 

49
 
reasonably requested by Collateral Agent. In the event Debtor or any Affliate thereof
 

desires to bid to acquire the remaining Underlying Loans, other Collateral or Acquired 

Collateral, then Collateral Agent shall be entitled to liquidate the remaining Underlying 

Loans, other Collateral and Acquired Collateral in its discretion. In the event Collateral 

Agent underakes to liquidate the remaining Underlying Loans, other Collateral or 

Acquired Collateral pursuant to this Section 11.2, the proceeds thereof shall be applied on 

the Distribution Date following any such liquidation in accordance with the priority of 

payments set forth in Section 5. i of 
 the Custodial and Paying Agency Agreement and the

other terms thereof; provided, however, that, notwithstanding such priority of payments, 

no portion of such proceeds shall be paid pursuant to Section 5.Hb )(viii) of the Custodial 

and Paying Agency Agreement until the Secured Obligations have been repaid in fulL. 

ARTICLE XII
 

Collateral Agent
 

Section 12.1 Appointment and Authorization of Collateral Agent. Each 

of Advance Facility Agent and Note Guarantor hcrcby irrevocably appoints, designates 

and authorizes Advance Facility Agent to act as Collateral Agent under this Agreement 

to act as the agent of (and to hold any seeurity interest created by the Collateral 

Documents for and on behalf of or on trust for) Advance Facility Agent, Note Guarantor 

and each other Secured Party for purposes of acquiring, holding and enforcing any and all the Secured Obligations, Liens on Collateral granted by any Grantor to secure any of 


together with such powers and diseretion as are reasonably incidental thereto. In this 

capacity, Collateral Agent (and any co-agents, sub-agents and attorneys-in-faet appointed 

holding or cnforcing any Licn on the Collateral (or by Collateral Agent for purposes of 


any portion thercof) granted under the Collateral Documents, or for exercising any rights 

and rcmcdies thereunder at the direction of Collateral Agent), shall be entitled to thc 

this Article XII as though such co-agents, sub-agents and 

attorneys-in-fact were Collateral Agent hereunder. Notwithstanding any provision to the 

contrary contained elsewhere herein or in any other Transaction Document, Collateral 

Agent shall have no duties or responsibilities, except those expressly set forth herein, nor 

shall Collateral Agent have or be deemed to have any fiduciary relationship with any 

Secured Party or participant of a Securcd Party, and no implied covcnants, functions, 

benefits of all provisions of 


responsibilities, duties, obligations or liabilities shall be read into this A¡"rreement or any
 

other Transaction Document or otherwise exist against Collateral Agent. Without the term "agent" herein and in limiting the generality ofthc foregoing sentence, the use of 


the other Transaction Documents with referencc to Collateral Agcnt is not intcnded to 

connote any fiduciary or other implied (or express) obligations arising under agency 

doctrine of any applicable Law. Instead, such tenn is used merely as a matter of markct 

custom, and is intended to crcate or reflect only an administrative relationship betwecn 

indepcndent contracting parties. 

Section 12.2 Delegation of Duties. Collateral Agcnt may execute any of
 

its duties under this Agreement or any other Collateral Document (including for purposes 

holding or enforcing any Lien on the collateral (or any portion thereof) granted undcr 

the Collateral Documcnts or of exercising any rights and remedies thereunder) by or 

of 

50 
through agents, sub-agents, employees or attorneys-in-fact as shall be deemed necessar 

by Collateral Agent and shall be entitled to advice of counsel and other consultants or 

experts concerning all matters pertaining to such duties. Collateral Agent shall not be 

responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact 

that it seleets in the absence of gross negligence or willful misconduct (as determined in 

the final judgment of a court of competent jurisdiction). 

Section 12.3 Liability of Collateral Agent. Neither Collateral Agent, nor 

any of its Affliates or offcers, directors, employees, agents, sub-agents or attorneys-infact ofany of 
 them shall (a) be liable for any action taken or omitted to be taken by any

of them under or in connection with this Agreement or any other Transaction Document 

or the transactions contemplated hereby (except for its own gross negligence or willful 

misconduct, as determined by the final judgment of a court of competent jurisdiction, in 

connection with its duties expressly set forth herein), or (b) be responsible in any manner 

to any Secured Party for any recital, statement, representation or warranty made by any 

Grantor or any offcer thereof, containcd herein or in any other Transaction Document, or 

in any certificate, repoit, statement or other document referred to or provided for in, or 

reccivcd by the Collateral Agent under or in connection with, this Agreement or any 

other Transaction Document, or the validity, effectiveness, genuineness, enforceability or 

this Agreement or any other Transaction Document, or the perfection or 

priority of any Lien or security interest created or purported to be created under the 

Collateral Documents, or for any failure of any Grantor or any other party to any 

Transaction Document to perform its obligations hereunder or thereunder. 

suftciency of 


Section 12.4 Reliance by Collatcral Agent. 

(a) Collateral Agent shall be entitled to rely, and shall be fully
 

protected in relying, upon any writing, communication, signature, resolution, 

representation, notice, consent, certificate, aftdavit, letter, telegram, facsimile, telex or 

telephone message, electronic mail message, statement or other document or conversation 

believed by it to be gcnuine and correct and to have been signed, scnt or made by the 

proper Person or Persons, and upon advice and statements of legal counsel (ineluding 

counsel to Debtor), independent accountants and other experts selected by Collateral 

Agent. Collateral Agent shall be fully justificd in failing or refusing to take any action 

under any Collateral Document unless it shall first receive such advice or concurrence of 

the Controlling Party as it dcems appropriate. Collateral Agent shall in all cases be fully 

protected in acting, or in refraining from acting, under this Agreement or any other 

Collateral Document in accordance with a request or conscnt of the Controlling Party and 

such request and any action taken or failure to act pursuant thereto shall be binding upon 

all the Secured Parties. 

Note Guarantor and Advance Facility Agent, by its (b) Each of 


this Agreement shall be deemed to have consented to, approved or accepted 

or to be satisfied with, each document or other matter required to be conscnted to or 

approved by or acceptable or satisfactory to Collateral Agent unless Collateral Agent 

shall have received notice from Note Guarantor or Advance Facility Agent prior to the 

proposed Effcctive Date specifying its objection thereto. 

execution of 


5 i 
Section 12.5 Liability of Collateral Agent. Collateral Agent shall not be 

the occurrence ofany Default or Event of deemed to have knowledge or notice of 


Default, unless Collateral Agent shall have received written notice from a Grantor or any Default Secured Party referrng to this Agreement, describing such Default or Event of 


and stating that such notice is a "notice of default." Collateral Agent wil notify Note 

Guarantor and Advance Facility Agent of its receipt of any such notice. The Collateral 

Agent shall take such action with respect to any Event of Default as may be directed by 

the Controlling Party in accordance with Artiele V; provided that unless and until the 

Collateral Agent has received any such direction, Collateral Agent may (but shall not be 

obligated to) take such action, or refrain from taking such action, with respect to such 

Event of 
 Default as it shall deem advisable or in the best interest ofthe Secured Parties.

Section 12.6 Successor Collateral Agent.
 

The Collateral Agent may resign as the Collateral Agent upon thirty (30) 

days' notice to the Note Guarantor, Advance Facility Agent and the Debtor; provided that 

the Note Guarantor, Advance Facility Agent and the Debtor 

will be required prior to the effectiveness of any such resignation. If Collateral Agent 

resigns under this Agreement, the Controlling Party, with the written consent of Debtor, 

shall appoint a successor collateral agent for the Secured Parties. If no successor the resignation of the Collateral 

the prior written consent of 


collateral agent is appointed prior to the effective date of 


Agent, the retiring Collateral Agent may appoint, after consulting with Note Guarantor, 

Advance Facility Agent and Debtor, a successor collateral agent. Upon the acceptance of 

its appointment as successor collateral agent hereunder, the Person acting as such the retiring Collateral successor agent shall succeed to all the rights, powers and duties of 


Agcnt and the tern1 "Collateral Agent." shall mean such successor collateral agent, and 

thc retiring Collateral Agents appointment, powers and dutics as the Collateral Agent 

shall be tern1inated.
 

ARTICLE XIII
 

Miscellaneous
 

Section 13.1 Attorney-in-Fact. Each Grantor hereby constitutes and
 

appoints Collateral Agent the true and lawful attorney-in-fact of such Grantor, with full 

power and authority in the place and stead of such Grantor and in the name of such this Agreement and Grantor, Collateral Agent or othcrwise, subject to the tcrms of 


applicable Law, to enforce all rights, interests and remedics of such Grantor with respect 

to the Collateral, provided that Collateral Agent shall not cxercise any of the Default has occurred and is continuing. This aforemcntioned rights unless an Event of 


powcr of attorncy is a power coupled with an interest and shall bc irrcvocable until the 

this Agreement in accordance with the terms hercof; provided that nothing 

in this Agrécment shall prcvent such Grantor from, prior to the exercise by Collateral 

Agent of any of the aforcmentioned rights, utilizing the Collateral to transact Grantor 

ordinary course busincss operations. 

termination of 


Section 13.2 No Petition. Each ofCollatcral Agent, Note Guarantor and
 

Advance Facility Agent hercby covenants and ai:Tfees that it wil not at any time institute 

52 
against Debtor, or join in any institution against Debtor of, any bankruptcy, 

reorganization, arrangement, insolvency or liquidation proceeding, or other proceedings 

under any United States federal or state bankruptcy or similar law in connection with any 

obligation relating to any Purehase Money Note, the Purchase Money Note Guaranty, the 

Advance Facility Agreement or this Agreement. 

Section 13.3 Reim burscment of Expenses. Except as prohibited by Law,
 

if at any time Collateral Agent, Note Guarantor or Advance Facility Agent employs the counsel in connection with the creation, perfection, preservation, or release of 


security interest of Collateral Agent in the Collateral or the enforcement of any of 

Collateral Agent's, Note Guarantor's or Advance Facility Agent's rights or remedies 

Collateral Agent's, Note Guarantor's and Advance Facility Agent's 

attorneys' fees arising from such services and all other expenses, costs. or charges 

relating thereto shall become part of the Secured Obligations secured hereby and be paid 

by Debtor on demand. 

hereunder, all of 


Section 13.4 Termination of Security Interest. Upon the satisfaetion and 

discharge in full ofthc Secured Obligations, the security intercst and all other rights 

granted hereby shall tel1ninate and all rights to the Collateral shall revert to Dcbtor. 

the Secured Obligations, Collateral Agent Upon any such satisfaction, and discharge of 


(a) upon the written request of Debtor shall promptly execute and deliver all such 

documentation, Uniform Commercial Code termination statements and instruments as are 

neeessary to release the Liens creatcd pursuant to this Agreemcnt and to terminate this 

Agrcement, and (b) agrees, at the reasonable request of Debtor, to furnish, execute and 

delivcr such documents, instruments, ccrtificates, notices or further assurances as Debtor 

may reasonably request as ncccssary or desirable to effect such tern1ination and releasc, 

all at Debtor's sole cost and expense. 

Section 13.5 Indemnification. 

(a) Each Grantor shall indemnify and hold harmless Collateral Agent,
 

their Note Guarantor, Advance Facility Agent, each Advance Lender and each of 


respective Affliates, and their respective offcers, directors, employees, partners, 

principals, agents and contractors (the "Indemnified Parties") from and against any 

losses, damages. liabilities, costs and expenses (including reasonable attorneys' fees and 

litigation and similar costs, and othcr out-of-pocket expenses incurred in investigating, 

defending. asserting or preparing the defense or assertion of any of the foregoing), 

deficiencies. claims, interest, awards, judgments, penalties and fines (collcctively, its "Losses") arising out of or resulting from (i) any breach by any Grantor or any of 


Affiliates or any of their respective officers, directors, employees, partners, principals, 

agents or contractors (including the Servicer and any subservicer) (collectively, "Related 

their respcctive obligations under or covenants or agreements
 

contained in this Agreement, the Collateral Documents or the Servicing Agreement
 

(including any claim assertcd by Collateral Agent, Note Guarantor, Advance Facility
 

Agent or any Advance Lender against Debtor to enforce its rights pursuant to Article 5), 

Entities") of any of 


true, would or any third-party allegation or claim based upon facts alleged that, if 


constitute such a breach, or (ii) any gross negligence. bad faith or willful misconduct of 

53 
any of the Related Entities (including any act or omission constituting theft,

embezzlement, breach of 
 trust or violation of any Law). Such indemnity shall survive the

this Agreement. In order for an Indemnified Pary to be entitled to any 

indemnification provided for under this Agreement in respect of, arising out of or 

involving a Loss or a claim or demand made by any Person against the Indemnified Party 

termination of 


to Debtor (a "Third Partv Claim"), such Indemnified Party shall deliver notice thereof 


written notice of
 the Third Party promptly after receipt by such Indemnified Party of 


Claim, describing in reasonable detail the facts giving rise to any claim for known) and such other indemnification hereunder, the amount of such claim (if 


information with respect thereto as is availablc to the Indemnified Party and as Debtor 

may reasonably request. The failure or delay to provide such notice, however, shall not 

release any Grantor from any of its obligations under this Section 13.5 except to thc 

extent that it is materially prejudiced hy such failure or delay. 

(b) If for any reason the indemnification providcd for hercin is
 

unavailable or insuffcient to hold ham11css the Indemnified Parties, Debtor shall
 

contribute to the amount paid or payable by the Indemni ficd Partics as a rcsult of the 

Losses of 
 the Indemnificd Partics in such proportion as is appropriatc to reflect the

the Indemnified Parties, on the one hand, and Debtor or any Subsidiary 

Grantor (including the Scrviccr and any subservicer), on the other hand in connection 

relativc fault of 


with a breach of Debtor's or any Subsidiary Grantor's obligations under this A!,'Teement.
 

(c) If Debtor confirms in wiiting to the Indcmnified Party within
 

fifteen (15) days after receipt of a Third Party Claim Debtor's rcsponsibility to indemnify 

and hold harmless the Indemnified Party therefor, Debtor may eleet to assume control 

over the compromise or defense of such Third Party Claim at Debtor's own expense and 

by Debtor's own counseL, which counsel must be reasonably satisfactory to the 

Indemnified Party, provided that (i) the Indemnified Party may, if such Indemnified Party 

so desires, employ counsel at such Indemnified Party's own expcnse to assist in the 

handling (but not control the defense) of any Third Party Claim; (ii) Debtor shall keep the 

Indemnified Party advised of all material events with respcct to any Third Party Claim; 

(iii) Debtor shall obtain the prior written approval ofthc Indemnified Party before
 

ceasing to defend against any Third Party Claim or entcring into any settlement,
 

adjustment or compromise of such Third Pai1y Claim involving injunctive or similar its or his Affiliates; cquitable relief being imposed upon any Indcmnified Party or any of 


and (iv) no Grantor will, without the prior written consent of each Indemnified Party, 

settle or compromise or consent to the entry of any judgment in any pending or 

which indemnification may he sought hcreunder (whether 

or not any such Indemnified Party is a party to sueh action), unless such settlement, 

compromise or consent by its tenns obligates such Grantor to satisfy the full amount of 

the liability in connection with such Third Pai1y Claim and includes an unconditional 

release of the Indemni fied Party"from all liability arising out of such Third Party Claim. 

threatened aetion in respect of 


(d) Notwithstanding anything contained hcrcin to the contrary, Debtor
 

shall not be entitled to control (and if 
 the Indemnified Party so desires, it shall have sole

control over) the defense, settlement, adjustmcnt or compromise of (but Debtor shall 

nevertheless be required to pay all Losses incurred by the Indemnified Party in 

54 
connection with such defense, settlement or compromise): (i) any Third Party Claim that 

seeks an order, injunction or other equitable relief against the Indemnified Party or any of 

its Affiliates; (ii) any action in which both Debtor or any Subsidiary Grantor (or any 

Affliate) and the Indemnified Party are named as parties and either Debtor or such 

Subsidiary Grantor (or such Affliate) or the Indemnified Party determines with advice of 

counsel that there may be one or more legal defenses available to it that are different from interest between or additional to those available to the other party or that a conflict of 


such parties may exist in respect of such action; and (iii) any matter that raises or the FDIC under any implicates any issue relating to any power, right or obligation of 


Law. If 
 Debtor elects not to assume the compromise or defense against the asserted its election as herein liability, fails to timely and properly notify the Indemnified Party of 


provided, or, at any time after assuming such defense, fails to diligently defend against 

such Third Party Claim in good faith, the Indemnificd Party may pay, compromise or 

defend against such asserted liability (but Debtor shall nevertheless be required to pay all 

Losses incurred by the Indemnified Party in connection with such defense, settlement or 

compromise). In connection with any defense of a Third Party Claim (whether by 

Debtor, a Subsidiary Grantor or the Indemnified Party), all of the parties hereto shall, and 

shall cause their respective Affliates to, cooperate in the defense or prosecution thereof 

and to in good faith retain and furnish such records, information and testimony, and 

attend such conferences, discovery proceedings, hearings, trials and appeals, as may be 

reasonably rcquested by a party hereto in connection therewith. 

Section 13.6 Governing Law. THIS AGREEMENT SHALL BE 

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH FEDERAL LAW 

BUT IF FEDERAL LAW DOES NOT PROVIDE A RULE OF DECISION, IT SHALL 

BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF 

THE STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR 

PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION 

OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. Nothing in 

this Agreement shall requirc any unlawful action or inaction by any party hereto. 

Section 13.7 Jurisdiction, Venue and Service. 

(a)
 Each Grantor, for itself and its Affiiatcs, hereby irrevocably and

unconditionally:
 

(i) consents to the jurisdiction of the United States
 the United New York and to thc jurisdiction of 


District Court for the Southern District of 


States District Court for the District of Columbia for any suit, action or proceeding 

against it or any of its Affiliates commenced by the Collateral Agent, the Advance 

Facility Agcnt, the Note Guarantor or the Initial Member arising out of relating f:, or in 

connection with this Agrecment or any other Transaction Document, and waives~any 

right to: 

(A) removc or transfer such suit, action or 

proceeding to any court or dispute-resolution forum other than the court in which thc 

Collateral Agent, the Advance Facility Agent, the Note Guarantor or thc Initial Member, 

55 
as applicable, files the suit, action or proceeding without the consent of the Collateral 

Agent, the Advance Facility Agent, the Note Guarantor or the Initial Member, as 

applicable; 

(B) asser that venue is improper in the United
 

New York or the United States District States District Court for the Southern District of 


Court for the District of Columbia; or 

(C) assert that the United States District Court 

New York or the United States District Court for the District for the Southern District of 


of Columbia is an inconvenient forum.

(ii) consents to the jurisdiction of the Supreme Court of
 

the State ofNcw York for any suit, action or proceeding against it or any of its Affiliates 

commenced by the Collateral Agent, the Advance Facility Agent, the Note Guarantor or 

the Initial Member arising out of, relating to, or in connection with this Agreement or any 

other Transaction Doeumcnt (other than the LLC Operating Agreement), 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 the 

Collateral Agent, the Advance Facility Agent, the Note Guarantor or the Initial Member, 

as applicable;
 

(B) assert that venue is improper in the Supreme
 

Court ofthc State of 
 New York; or

(C) assert that the Supreme Court of the State of 

New York is an inconvenient forum. 

(iii) agrecs to bring any suit, action or proceeding by any
 

Grantor or its Affliates against the Collateral Agent, the Advance Facility Agent, the 

Note Guarantor or the Initial Member arising out of, relating to, or in connection with this 

Agreement or any Ancillary Document in only either the United States District Court for 

New York or the United States Distnct Court for the District of 

Columbia, and waives any nght to remove or transfer such suit, action or proceeding to 

any other court or dispute-resolution forum without the consent of the Collateral Agent, 

the Advancc Facility Agent, the Note Guarantor or the Initial Member, as applicable, and the suit, action or proceeding to cither the 

the Southern District of 


agrees to consent thereaftcr to transfer of 


New York or thc United States United States District Court for the Southern District of 


District Court for the District of Columbia at the option of the Collateral Agent, the 

Advance Facility Agent, the Note Guarantor or the Initial Member, as applicable; and 

(iv) agrces, jfthe United States District Court for the
 

Southcrn Distnct ofNcw York and the United States District Court for the Distnct of 

Columbia both laek junsdiction to hear a suit, action or proceeding falling within Section the State 13.7(a)(iii), to bring that suit, action or proceeding in only the Supreme Court of 


of New York, and waives any nght to rcmove or transfer such suit, action or proceeding 

56 
the Collateral to any other court or dispute-resolution forum without the consent of 


Agent, the Advance Facility Agent, the Note Guarantor or the Initial Member, as 

applicable. 

(b) Each Grantor, on behalf of itself and its Affiiates, hereby 

irrevocably and unconditionally agrees that any final judgment entered against it in any 

suit, action or proceeding falling within Section 13. 7(a) may be enforced in any court of 

competent jurisdiction; 

Section 13.7(d), each Grantor, (c) Subject to the provisions of 


on behalf of itself and its Affiiates, Collateral Agent, Note Guarantor, Advance Facility 

Agent and Initial Member hereby irrevocably and unconditionally agrees that service of 

all writs, process and summonscs in any suit, action or proceeding pursuant to Section by registered 1 3.7(a) or Section I3.7(b) may be effected by the mailing of copies thereof 


or certified mail, postage prepaid, to it at its address for notices pursuant to Section 13.9 

(with copies to such other Persons as specified therein); provided, however, that nothing 

contained in this Section 12.3(c) shall affect the right of any party to serve process in any 

other manncr permitted by Law; 

(d) Nothing in this Section 13.7 shall constitute consent to jurisdiction 

in any court by the FDIC, othcr than as expressly provided in Section 13.7(a)(iii) and 

Section I3.7(a)(iv), or in any way limit the FDIC's right to remove, transfer, seek to 

dismiss, or otherwisc respond to any suit, action, or proceeding against it in any forum. 

Section 13.8 Waiver of Jury. EACH GRANTOR (ON BEHALF OF 

ITSELF AND IT AFFILIATES), COLLATERAL AGENT, NOTE GUARANTOR, 

ADVANCE FACILITY AGENT AND INITIAL MEMBER HEREBY IRREVOCABLY 

AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL 

BY JURY OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS 

AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED 

BEFORE A JUDGE SITTING WITHOUT A JURY. 

Section 13.9 Notices. All notices, requcsts, demands, and other
 

communications requircd or permitted to be givcn or delivered under or by reason otthe 

this Agreement shall be in writing and shall be mailed or delivered to the 

the parties spccified below for such provisions of 


applicable addrcss or electronic mail address of 


Person or to such other address or electronic mail address as shall bc designated by such 

party in a notice to the othcr parties. All such notices and othcr communications shall be 

decmed to bc givcn or made upon thc carlicr to occur of (i) actual receipt (or refusal 

thcreof) by the relevant party hereto and (ii) (A) if delivcred by hand or by nationally of the relevant rccognized courier service, whcn signcd for (or refused) by or on behalf 


party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, 

postage prepaid; and (C) if delivered by electronic mail, when delivered. In no event 

message be effective as a notice, communication or confirmation 

hereunder. 

shall a voice mail 

57 
Address for notices or communications to Debtor and any Subsidiary 

Grantor: 

Corus Construction Venture, LLC 

591 West Putnam Avenue 

Greenwich, CT 06830 

Attention: John McCarthy 

with a copy to: 

Rinaldi, Finkelstein & Franklin, LLC 

591 West Putnam A venue
 

Greenwich, CT 06830 

Attention: Ellis Rinaldi 

Ri naldi cÐS tarwood. com 

Address for notices or communications to Collateral Agent, Advance 

Facility Agent and Initial Member: 

Timothy A. Kruse 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation
 

550 17th Street, N. W.
 

Room F-7026 

Washington, D.C. 20429 

Tkruse~fdic.gov 

with copies to: 

George C. Alcxander 

Manager, Capital Markcts & Resolutions 

Federal Deposit Insurance Corporation 

Room F-7008 

550 17th Street, N.W. 

Washington, D.C. 20429
 

Attcntion: Gcorge C. Alexandcr
 

Galexander~fdic.gov
 

Robert W. McComis
 

Senior Capital Markcts Specialist
 

Federal Deposit Insurance Corporation
 

550 i 7th Street, N.W.
 

Room F-7036
 

Washington, D.C. 20429
 

Rmccomis~fdic.gov
 

58
 
David Gearin
 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Dgearin(Ðfdic.gov 

with a copy by email to: 

Thomas Raburn 

Traburn(Ðfdic.gov 

Address for notices or communications to Note Guarantor: 

Bret D. Edwards
 

Director, Division of Finance
 

c/o Federal Deposit Insurance Corporation 

3501 Fairfax Drive (Room E-7056)
 

Attention: Bret D. Edwards
 

Arlington, VA 22226
 

Bedwards(ffdic.gov
 

with a copy to: 

David Gearin
 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, V A 22226 

Dgearin(Ðfdic.gov 

Section 13. I 0 Assignment. This Agrecment shall inure to the benefit of 

and be binding on and enforceable against successors and assigns of each Grantor, 

Collateral Agent, Note Guarantor, Advance Facility Agent and Initial Member; provided, 

that, no Grantor shall assign its rights hereunder in whole or in part without the prior 

written consent of Collateral Agent, Note Guarantor and Advance Facility Agent. 

Section 13.11 Entire Agreement. This Agreement contains the entire 

agreement among the Grantors, Collateral Agent, Note Guarantor, Advance Facility 

Agent and Initial Member with respect to the subject matter hereof and superscdes any 

and all other prior agreements, whether oral or written; provided, that the Confidentiality 

Agreement, dated August 27, 2009, by and between the FDIC and the Affliates of the 

Private Owner named therein (including by way of joinder) shall remain in full force and 

59
 
the effect to the extent provided therein, except that Debtor's rights under Article VI of 


Contribution Agreement shall not be deemed a repurchase option for purposes of Section 

£ of such Confidentiality Agreement. 

Section I 3. I 2 Amendments and Waivers. No provision of this 

Agreement may be amended or waived except in writing executed by all of the parties to 

this Agreement, except for Artiele II, any provision of which may be amended and 

waived in writing executed by Debtor and Note Guarantor. 

Section 13.13 Confidentiality. Each Grantor shall keep confidential and 

shall not divulge to any party, without the prior written consent of Collateral Agent, 

Advance Facility Agent, Note Guarantor and Initial Member, any infonnation pertaining 

to this Agreement, the Underlying Loans or any Underlying Borrower or the Undcrlying 

Collateral thereunder, except as rcquired pursuant to this Agreement and cxcept to the 

extent that it is necessary and appropriate for such Grantor to do so in working with legal 

counsel, auditors, taxing authorities, regulatory authorities or any other Governmental 

Authority; provided, that, to the cxtent that diselosure should be required by law, rule, 

regulation (including any securities listing requirements or the rcquirements of any selfregulatory organization), subpoena, or in connection with any legal or regulatory 

proceeding (including in connection with or pursuant to any action, suit, subpoena, 

arbitration or other dispute resolution process or other legal proceedings, whether civil or 

criminal, and including before any court or administrative or legislative body), such 

Grantor will use all reasonable efforts to maintain confidentiality and will (unless 

otherwisc prohibited by law) notify Collateral Agent, Advance Facility Agent, Note 

Guarantor and Initial Membcr within one (i) Business Day aftcr its knowlcdge of such 

legally rcquired disclosure so that Collateral Agent, Advance Facility Agent, Note 

Guarantor and/or Initial Member may seck an appropriatc protective order. Notice shall 

be by telephone, by email and in writing. In the absence of a protectivc order or waiver, 

sueh Grantor may make such rcquired disclosure if, in thc writtcn opinion of 
 its outside

counsel (which opinion shall be provided to Collateral Agent, Advance Facility Agent, 

Note Guarantor and Initial Mcmber prior to disclosure pursuant to this Section i 3. i 3), 

failure to make such disclosure would subject such Grantor to liability for eontempt, 

censure or other legal penalty or liability. 

Section 13.14 Reinstatemcnt. This Agreement shall continuc to be 

effective or be automatically rcinstated, as the case may be, if at any time payment 

pursuant to this Agreemcnt is rescinded or must otherwise be restored or returned upon 

thc insolvency, bankrptcy, reorganization, liquidation of any Grantor or upon the 

dissolution of, or appointment of any intervenor or conservator or, or trustee or similar 

offcial for, any Grantor or any substantial part of any Grantor's assets, or otherwise, all 

as though such payments had not been made, and Debtor shall pay Collateral Agent, Notc 

Guarantor or Advance Facility Agent on demand all reasonable costs and expenses 

(ineluding reasonable fees of counsel) incuITed by Collateral Agcnt, Note Guarantor or 

Advance Facility Agent in connection with such rescission or rcstoration. 

,., 

60
 
Section 13.15 Interpretation; No Presumption. Headings are intended 

solely for convenience of reference and shall not affect the meaning or interpretation of 

the provisions of 
 this Agreement. This Agreement shall be constred fairly as to each

pary hereto and if at any time any such term or condition is desired or required to be who actually interpreted or constred, no consideration shall be given to the issue of 


prepared, drafted or requested any term or condition of this Agreement or any agreement 

or instrument subject hereto. 

this Agreement which is Section 13.16 Severability. Any provision of 


prohibited or unenforceable in any jurisdiction shall be ineffective, but such 

ineffectiveness shall be limited as follows: (i) if such provision is prohibited or 

unenforceable in such jurisdiction only as to a paricular Person or Persons and/or under 

any particular circumstance or circumstances, such provision shall be ineffective, but 

only in such jurisdiction and only with respect to such particular Person or Persons and/or 

under such particular circumstance or circumstances, as the case may be; (ii) without 

limitation of clause (i), such provision shall in any event be ineffective only as to such 

jurisdiction and only to the extent of such prohibition or uncnforceability, and such 

prohibition or unenforceability in such jurisdiction shall not invalidate or render 

unenforceablc such provision in any other jurisdiction; and (iii) without limitation of the rcmaining clauses (i) or (ii), such incffectivcncss shall not invalidate any of 


the preceding sentence, it is the provisions of this Agreement. Without limitation of 


intent of the parties to this Agreement that in the evcnt that in any court proceeding, such 

court dctermines that any provision of 
 this Agreement is prohibited or unenforceable in

the duration or scope (gcographic or otherwise) of such 

provision, or for any other reason) such court shall have the power to, and shall, (x) 

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 shall be effcctive in such jurisdiction) for 

purposes of such proceeding to the minimum extent necessary so that such provision, as 

so modified, may then be enforced in such procecding and (y) enforce such provision, as 

so modified pursuant to clause (x), in such proceeding. Nothing in this Section 13.16 is 

intended to, or shall, limit (I) the ability of any party to this Agreement to appeal any 

court ruling or thc effect of any favorable ruling on appeal or (2) the intended effect of 

Section 13.6. 

any jurisdiction (because of 


Section 13.17 SurvivaL. All obligations made herein shall survive the 

execution and delivery of this Agreement. Except as otherwise providcd in this 

Agreement or implied by applicable law, the obligations of cach Grantor set forth in this 

Agreement shall tcnninate only upon the satisfaction and discharge in full of the Secured 

Obligations. 

Section i 3. i 8 No Third Party Beneficianes. This Agrcement is made for 

the solc benefit of Collateral Agent, Notc Guarantor, Advance Facility Agent, Securcd 

Parties and thc Grantors and their respective successors and pennitted assigns, and no 

other Person or Persons (including Undcrlying Borrowers or any co-lender or other 

61 
Person with any interest in or liability under any of 
 the Underlying Loans) shall have any

rights or remedies under or by reason of 
 this Agreement.

Section 13.19 Counterpars; Facsimile Signatures. This Agreement may 

be executed in two (2) or more counterpars, each of which shall be deemed an original 

but all of which together shall constitute but one and the same agreement. This 

Agreement and any amendments hereto, to the extent signed and delivered by faesimile 

or other electronic means, shall be treated in all manner and respects as an original 

agreement and shall be considered to have the same binding legal effect as ifit were the 

original signed version thereof delivered in person. No signatory to this Agreement shall 

raise the use.of a facsimile machine or other electronic means to deliver a signature or the 

fact that any signature or agreement was transmitted or communicated through the use of 

a facsimile machine or other electronic means as a defense to the formation or 

enforceability of a contract and each such Person forever waives any such defense. 

(Remainder of Page Intentionally Left Blank! 

62
 
IN WITNESS WHREOF, the paries hereto, by their offcers duly authorized, 

intending to legally bound, have caused this Agreement to be duly exected. 

CORUS CONSTRUCTION VENTURE, LLC 

By: CCV Managing Member, LLC. as Managing 

Member 

By: 

Name:


Title: 

(Signatue Page i of 4 to Reimburment, Securty and Guarty Agreeent) 
r
 

YJ~ 

'r 

By: Corus Constrction Venture, LLC, as thc Solc 

Member of the above-listed entities 

By: CCV Managing Member. LLC, as Managing 

Member ofCorus Construction Vcnture, LLC

N~e

B

Titl

(Signatu Pige: 2 of 4 to Reimburemnt, Sc:urty and Guarty Agreement) 
b+ 

... 

-J 

By: CONS Consction Ventur. LLC, $ .
 

By: CCV Managing Member, LLC, as Manging 

Member of CONS Constrcton Venture, LLC
 

2

Title:

(Sicntu Paie 3 of 410 Reimbunt, Scçurty ind Guanty Agrent) 
FEDERA DEPOSIT INSURACE
 

CORPORATION, as recever for Corn Ban, 

N.A., as Advance Faciity Agent

Title: enior Capital Marets Specialist
 

FEDERA DEPOSIT INSURACE 

CORPORA nON, as Note Guartor 

FEDERA DEPOSIT INSURCE 

CORPRATION, as recver for Corus Ban, 

N.A., as Collateral A ent 

FEDERA DEPOSIT INSURACE 

CORPORATION, as recever for Corus Ban, 

N.A., as Initial Member, solely for purses of 

Secons 4.1 (e), 4.1 (k), 5.1 (a)(vi) - (viii), 5. i (b), 

5.1 (c), 5.5, 1 l., 11.2 and 13.6 -13.19 

(Sign Page 4 of 4 to Reiurent, Seeunty an Guaty Agreeent)
 
EXHIBIT A 

FORM OF JOINDER AGREEMENT 

This JOINDER AGREEMENT, dated as of _,20_, is delivered
 

the Reimbursement, Security and Guaranty Agreement, dated as of 

October 16, 2009, by and among Corus Construction Venture, LLC, a Delaware limited liability 

pursuant to Section 8. I 2 of 


the other entities listed on the signature pages thereto or that becomes a party 

thereto pursuant to Section 8.12 thereof, Federal Deposit Insurance Corporation, acting in its 

corporate capacity, Federal Deposit Insurance Corporation, as Receiver for Corus Bank, N.A. (in 

such capacity, "Receiver"), as Administrative Agent under the Advance Facility Agreement and 

company, each of 


as Collateral Agent for the Secured Parties, and, solely for purposes of Sections 4.l(e), 1l,
 

5.1 (a)(vi) - (viii), il,~, 5.5, il, il and 13.6 - 13.19 thereof, Federal Deposit
 

Insurance Corporation, as Receiver, as Initial Mcmber under the LLC Operating Agreement (the 

"Reimbursement, Security and Guaranty Agreement"). Capitalized terms used herein without 

definition are used as defined in the Reimbursement, Security and Guaranty Agreement. 

By exccuting and delivering this Joinder Agreement, the undersigned, as provided 

in Section 8.12 of the Reimbursement, Security and Guaranty Agreement, hereby becomes a 

party to the Reimbursement, Security and Guaranty Agreement as a Grantor thereunder with the 

same force and effect as if originally named as a Grantor therein and, without limiting the 

the foregoing, as collateral security for the prompt and complete payment and the Secured generality of 


performance when due (whether at stated maturity, by acccleration or otherwise) of 


Obligations of 
 the undersigned, hereby mortgages, pledges and hypothecates to the Collateral

the Secured Parties, and grants to thc Collateral Agent for the benefit of 

the Secured Parties a lien on and security interest in, all of its right, title and interest in, to and 

under the Collateral of the undersigned and expressly assumes all obligations and liabilities of a 

Grantor thereunder. The undersigned hereby agrees to be bound as a Grantor for the purposes of 

Agent for the benefit of 


the Reimbursement, Security and Guaranty Agrecment. 

The undersigned hereby rcpresents and warrants that eaeh of the representations 

and warranties contained in Artiele VII of 
 the Reimbursement, Security and Guaranty

Agreement applicable to it is true and correct in all material respects with rcspect to it on and as 

the date hcreof as if made on and as of such date. 

l: "" r' 

IN WITNESS WHEREOF, thc undersigned has caused this Joinder Agreement to 

bc duly executed and delivered as of the date fÌrst above written. 

(ADDITIONAL GRANTOR) 

By: 

Name: 

Title: 
ACKNOWLEDGED AND AGREED 

as of the date first above written: 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

as Collateral Agent 

By: 

Name: 

Title: