EXECUTION VERSION 

CRE/ ADC Venture 2012-1 Structured Transaction 

AGREEMENT OF DEFINITIONS- CRE/ADC 2012-1 STRUCTURED TRANSACTION 


Dated as of December 11, 2012 


CRE/ ADC Venture 2012-1 Structured Transaction 

Agreement of Definitions 

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TABLE OF CONTENTS 


Page 

Article I Certain Definitions .........................................................................................................2 


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


Section 1.2. Rules of Construction ................................................................................78 


Article II Miscellaneous ..............................................................................................................78 


Section 2.1. Enforceability ofthis Agreement...............................................................78 


Section 2.2. Expenses ....................................................................................................78 


Section 2.3. Waivers and Amendments .........................................................................78 


Section 2.4. Counterparts; Facsimile Signatures ...........................................................78 


Section 2.5. Successors and Assigns ..............................................................................79 


Section 2.6. Compliance With Law; Severability ..........................................................79 


Section 2.7. Jurisdiction; Venue and Service .................................................................80 


Section 2.8. Waiver of Jury Tria1.. ................................................................................. 82 


Section 2.9. Governing Law ..........................................................................................82 


Section 2.1 0. Notices .......................................................................................................82 


Schedules 

Schedule I Notice Schedule 

Schedule II List of Various Failed Financial Institutions 

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AGREEMENT OF DEFINITIONS 


CRE/ADC VENTURE 2012-1 STRUCTURED TRANSACTION 


THIS AGREEMENT OF DEFINITIONS - CRE/ADC VENTURE 2012-1 STRUCTURED 

TRANSACTION (as the same may be amended or modified from time to time in accordance 

with the terms hereof, this "Agreement"), is made and entered into as of the Closing Date, by 

and among: (i) the Federal Deposit Insurance Corporation in its capacity as the Receiver, as the 

"Transferor" as defined herein (in such capacity, the "Transferor"); (ii) the Federal Deposit 

Insurance Corporation in its capacity as the Receiver, as the "Initial Member" as defined herein 

(in such capacity, the "Initial Member"); (ii) ColFin 2012 CRE ADC Funding, LLC, a 

Delaware limited liability company (the "Private Owner"); (iii) CRE/ADC Venture 2012-1, 

LLC, a Delaware limited liability company (the "Company"); (iv) the Federal Deposit Insurance 

Corporation in its capacity as the Receiver for various Failed Banks as defined herein, as the 

PMN Agent under the Reimbursement, Security and Guaranty Agreement (in such capacity, or 

any successor PMN Agent, the "PMN Agent"); and (v) Wells Fargo Bank, National 

Association, a national banking association (the "Bank"). All capitalized terms used herein (and 

that are defined herein) shall have the meanings and definitions set forth in this Agreement. 

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

contemporaneously herewith entering into, that certain Contribution Agreement; 

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

or are contemporaneously herewith entering into, that certain Private Owner Interest Sale 

Agreement; 

WHEREAS, the Company, the PMN Agent, the Initial Member, the Private Owner and 

the Bank have entered into, or are contemporaneously herewith entering into, that certain 

Custodial and Paying Agency Agreement; 

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

or are contemporaneously herewith entering into, that certain LLC Operating Agreement; 

WHEREAS, the Company, the PMN Agent and the Initial Member have entered into, or 

are contemporaneously herewith entering into, that certain Reimbursement, Security and 

Guaranty Agreement; and 

WHEREAS, each party to this Agreement is a party to, or contemporaneously herewith is 

becoming a party to, one or more of the Core Agreements, and the parties hereto wish to adopt 

the definitions in this Agreement as the definitions of capitalized terms in the Core Agreements. 

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

conditions contained herein, and for other good and valuable consideration the receipt and 

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

agrees as follows: 

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ARTICLE I 

Certain Definitions 

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

the following terms in the Core Agreements shall have the meanings and definitions hereinafter 

respectively set forth. 

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

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

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

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

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

other comparable rating by Standard and Poor's Ratings Service, a division of The McGraw-Hill 

Companies, Inc., (ii) a rating of Level 3 Servicer Rating (or better) or other comparable rating by 

Fitch, Inc., or (iii) a rating of "Approved" or "Average" (or better) or other comparable rating by 

Moody's Investors Service. 

"Account Control Agreement" means one or more Account Control Agreements (in 

substantially the form set forth in Exhibit N to the Custodial and Paying Agency Agreement) 

(other than, for the avoidance of doubt, the Private Owner Pledged Account Control Agreement), 

among the Company, the Bank and the PMN Agent. 

"Accountants" shall mean the independent certified public accountants of the Company. 

"Accounting Records" means the general ledger, supporting subsidiary ledgers and 

schedules, and loan servicing system records of the Receiver. 

"Accounts" means the Company Accounts and the Private Owner Pledged Account. 

"Acquired Property" means, collectively, Company Acquired Property and Receiver 

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

Acquired Property each include, to any express exclusions set forth in the Asset Schedule or the 

Ownership Entity and Receiver Acquired Property Schedule: (i) all related rights, powers or 

Liens of any Ownership Entity in, to or under the Collateral Documents and or Asset 

Documents; (ii) all rights of the Receiver, any Failed Bank, the Company or any Ownership 

Entity pursuant to any Contract for Deed or in or to the real property that is subject to any such 

Contract for Deed; (iii) all rights of the Receiver, any Failed Bank, the Company or any 

Ownership Entity pursuant to any lease or in or to the related leased property; (iv) all rights of 

the Receiver, any Failed Bank, the Company or any Ownership Entity under the Related 

Agreements (to the extent relating to such Company Acquired Property or Receiver Acquired 

Property and not otherwise relating to or included in a Loan); (v) all rights of the Receiver, any 

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

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

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

relating to or included in a Loan); (vi) all rights of the Receiver, any Failed Bank, the Company 

or any Ownership Entity to any Underlying Loan; (vii) all rights to causes of action, lawsuits, 

judgments, claims and demands of any nature available to or being pursued by or for the benefit 

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

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

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

by the Receiver pursuant to Section 2.7 of the Contribution Agreement; and (viii) all guaranties, 

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

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

purposes of any Transaction Document other than the Contribution Agreement, any such 

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

the Receiver or any Failed Bank, shall be included in (and considered part of) the Acquired 

Property only to the extent such Receiver Acquired Property, and rights, powers or Liens, are 

transferred to the Company pursuant to the Contribution Agreement (and not otherwise 

subsequently transferred back to the Receiver). 

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

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

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

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

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

"Acquired Property Files" means, with respect to each Acquired Property, to the extent 

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

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

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

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

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

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

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

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

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

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

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

Quitclaim Deed has been delivered to the proper recording office for recordation; (ii) as 

applicable, either (x) a copy of each Acquired Property Deed (which may be electronic) that is 

intervening between the lender that obtained title to such property assets as a result of 

foreclosure or deed in lieu of foreclosure of a mortgage or deed of trust and the Ownership 

Entity, with the same certification documentation required in clause (i)(A) above, or (y) the 

original or a copy of the assignment of foreclosure bid between the foreclosing lender and the 

Ownership Entity with respect to the related Acquired Property, and in the case of a copy, 

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

certifying that such assignment of foreclosure bid is a true, correct and complete copy of the 

original document, with the same certification documentation required in clause (i)(A) above; 

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(iii) the original or copy of the policy of title insurance prior to foreclosure of the related 

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

loan, with respect to the Acquired Property; (iv) with respect to each Receiver Acquired Property 

conveyed by the Transferor to an Ownership Entity pursuant to a Receiver's Deed, the policy of 

title insurance and survey for such Receiver Acquired Property as and to the extent required 

under Section 3.1 (d)(v) of the Contribution Agreement; (v) with respect to each Receiver 

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

Deed, the original or a copy of the applicable Omnibus Assignment; (vi) for any Acquired 

Property that is subject to a lease, (A) a copy of the lease together with a certificate of the related 

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

original document, and (B) if required by the PMN Agent, the original assignment of such lease 

from the lessor thereunder to the Ownership Entity or a copy thereof, together with a certificate 

of the related Servicer (or Subservicer) certifying that such assignment is a true, correct and 

complete copy of the original document; (vii) with respect to any personal property Acquired 

Property with respect to which a document of assignment, conveyance of transfer is required to 

be filed or recorded pursuant to any applicable Law to evidence the transfer thereof, either the 

original or (if such original copy is retained by the relevant Recording Office) a copy thereof 

(which may be electronic) file-stamped with evidence of recording or filing thereon, together (in 

the case of a copy) with a ce1iificate of the related Servicer (or Subservicer) or the foreclosure 

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

and complete copy of the original document; and (viii) with respect to any personal property 

Acquired Property with respect to which a certificate of title is issued under any applicable Law, 

the original of such certificate of title. 

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

included in the Acquired Property. 

"Act" means the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et seq., 

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

"Action" means any (i) action, suit or proceeding (including the administrative claims 

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

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

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

equity, or (ii) any arbitration proceeding. 

"Additional Security" means collateral (securing the Private Owner Obligations) 

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

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

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

initially meet the foregoing requirements solely through either ill o r ilil above (and not a 

combination thereof), and that such determination with respect to ill or ilil above shall be as 

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

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

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

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

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Section 3 .13( d) of the LLC Operating Agreement (including as contemplated by the definition of 

the term "LC Reissuance/Extension Failure"), provided that it is further understood that, to the 

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

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

Letter of Credit. 

"Additional Security Substitution Fee" means a fee in the amount of $10,000.00, 

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

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

or cure the occurrence of, an LC Reissuance/Extension Failure. 

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

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

giving effect to the following adjustments: 

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

obligated to restore or is deemed to be obligated to restore pursuant to Treasury 

Regulations Sections 1.704-2(g)(l) and 1.704-2(i)(5); and 

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

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

l(b)(2)(ii)(d)(6). The foregoing definition of Adjusted Capital Account Deficit is 

intended to comply with the provisions of Treasury Regulations Section 1.704­

1 (b )(2)(ii)( d) and shall be interpreted consistently therewith. 

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

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

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

"Adjusted Escrow Balance" means, with respect to any Loan, the Escrow Balance 

adjusted higher or lower, as appropriate, to ref1ect the actual balance of the Escrow Account as 

ref1ected on the Accounting Records as of the Cut-Off Date and to correct errors ref1ected in the 

Escrow Balance due to (i) miscalculations, misapplied payments, unapplied payments, 

unrecorded disbursements or other accounting errors with respect to the period ending on the 

Cut-Off Date, (ii) the effect of any final court decree, unappealable regulatory enforcement order 

or other similar action of a legal or regulatory nature effective on or before the Cut-Off Date, (iii) 

a foreclosure sale that occurred on or before the Cut-Off Date and for which the Redemption 

Period, if any, expired on or before the Cut-Off Date, or (iv) the portion of any Dishonored 

Check that was applied to (and ref1ected in) the Escrow Balance. 

"Adjusted Unpaid Principal Balance" means, with respect to any Asset, the Cut-Off 

Date Unpaid Principal Balance adjusted higher or lower, as appropriate, to ref1ect the actual 

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

correct errors ref1ected in the Cut-Off Date Unpaid Principal Balance due to (i) miscalculations, 

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

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

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

similar action of a legal or regulatory nature effective on or before the Cut-Off Date, (iii) a 

foreclosure sale that occurred on or before the Cut-Off Date and for which the Redemption 

Period, if any, expired on or before the Cut-Off Date or (iv) the portion of any Dishonored Check 

that was applied to (and reflected in) the Cut-Off Date Unpaid Principal Balance. 

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

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

Unpaid Principal Balance of such Asset. 

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

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

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

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

"Affected Asset" has the meaning set forth in Section 4.5(d)(i) of the Contribution 

Agreement. 

"Affidavit and Assignment of Claim" means an Affidavit and Assignment of Claim in 

the form of Attachment D to the Contribution Agreement. 

"Affiliate" means, 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 10.0% 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 officer, 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 Person who is 

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

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

described in clauses (i) through (iv); provided, however, that (x) none of the Initial Member, the 

Transferor, the PMN Agent, the FDIC or any Affiliate (for this purpose determined disregarding 

clauses (ii), (iii) and (iv) of this definition (including in the context of clause (v) of this 

definition) and disregarding the Company and any Person Controlled by the Company) of any of 

the foregoing shall be deemed to be an "Affiliate" of the Company or of any Person Controlled 

by the Company, and (y) for the purposes of (A) the definition of the term "Change of Control," 

(B) Section lO.l(s) of the LLC Operating Agreement and (C) any PO Owner Undertaking, 

clauses (ii), (iii), (iv) and (y)_ above shall be disregarded. 

"Agent Members" means the members of, or participants m, DTC and the Clearing 

Agencies. 

"Agreement of Definitions" means this Agreement. 

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

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"Applicable Agreements" has the meamng set forth m the Reporting and Access 

Schedule. 

"Appraisal" means, as of any date of determination with respect to any Acquired 

Property (including any applicable Collateral for a Loan prior to the same becoming such 

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

reasonable appraisal complying with USP AP (or other appraisal standards acceptable to the 

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

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

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

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

Servicer or the Private Owner); provided, that (i) in all events such form of determination of 

market value shall be selected and conducted in compliance with applicable Law, including as to 

the exercise of relevant remedies (resulting in acquisition of title to such Acquired Property) and 

preservation of rights to collect the Deficiency Balance, if any, and (ii) in the event the market 

value for such Acquired Property as so determined pursuant to the foregoing is an amount equal 

to or in excess of $5,000,000, then such determination shall be subject to completion of an 

appraisal review conducted in accordance with USP AP (or other appraisal standards acceptable 

to the Initial Member) by a state certified appraiser (or other qualified professional regularly 

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

the applicable Person having performed such valuation) and confirming that such valuation 

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

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

value estimate (and such valuation shall not be deemed a completed "Appraisal" hereunder until 

such review and confirmation is so obtained). 

"Appraised Value" means, as of any date of determination, the appraised value (as the 

relevant market value) of an Acquired REO Property or other Acquired Property based upon the 

most recent Appraisal obtained pursuant to Section 12.17(d) of the LLC Operating Agreement or 

any other applicable provision of the Transaction Documents permitting or requiring such 

Appraisal. 

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

Loans and Acquired Property collectively. 

"Asset Documents" means (i) all documents, agreements, certificates, instruments and 

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

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

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

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

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

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

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

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

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

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"Asset File" means all documents pertaining to any Asset, either copies or originals, that 

are in the possession of the Receiver or any of its employees or contractors responsible for the 

servicing of the Asset, other than (i) the original Notes, renewals of the Notes and other 

Collateral Documents and Custodial Documents and (ii) confidential or privileged 

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

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

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

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

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

product privilege. 

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

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

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

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

Loans (and exercise of applicable authority as described in Sections 12.16 and 12.17 ofthe LLC 

Operating Agreement with respect to all Loans), marketing and sale of Assets, and management 

(and all other Servicing) of Acquired Property; provided, however that Asset Management shall 

in all events exclude day-to-day servicing of Loans (other than Defaulted Loans), disbursements 

to Borrowers, collections of payments from Borrowers with respect to Loans (other than in 

connection with exercise of remedies following applicable acceleration of any such Loan, or 

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

Servicing of a Loan that, pursuant to applicable Law, would require the Person conducting the 

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

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

"Asset Proceeds" means all of the following: (i) any and all proceeds with respect to any 

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

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

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

are not used and disbursed to repair, replace or restore the related Collateral in accordance with 

the terms of the Asset Documents and the Transaction Documents, and, with respect to any 

Acquired Property, operating cash flow realized from such Acquired Property net of Servicing 

Expenses and Interim Servicing Expenses, whether paid directly to the Company or payable to or 

distributed by an Ownership Entity; (ii) any and all proceeds from sales or other dispositions or 

refinancings of any or all of the Assets (including Acquired Property) or any or all of the 

Ownership Entities, net of Servicing Expenses and Interim Servicing Expenses incurred in 

connection with such sale or other disposition or refinancing, including any Repurchase Price 

payments pursuant to the Contribution Agreement; (iii) any proceeds from making a draw under 

any letter of credit or certificate of deposit held with respect to any Asset, provided that such 

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

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

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

Collateral; and (vi) any interest or other earnings accrued and paid on any of the amounts 

described in the foregoing clauses (i) through (y} while held in the Collection Account or any 

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other account (other than the Defeasance Account, the Working Capital Reserve Account or the 

Private Owner Pledged Account); provided, however, that, with respect to proceeds of any Loan 

Participation (including as a result of any sale or other disposition of such Loan Participation or 

of Collateral relating thereto), the Asset Proceeds shall exclude any amounts payable to others 

under the applicable Loan Participation Agreement, and with respect to any Loan, the Asset 

Proceeds shall exclude all Escrow Payments and all other amounts required to be deposited in 

any Escrow Account pursuant to the applicable Asset Documents. 

"Asset Schedule" means the Asset Schedule attached as Attachment A to the 

Contribution Agreement (except as used in the Servicing Agreement, wherein such term is 

separately defined). 

"Asset Schedule and Exception List" means a list of the Assets, identifying, with 

respect to each Asset, each Custodial Document delivered to the Custodian and each Exception 

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

Company to the Custodian pursuant to Sections 6.l(c)(ii), (iii), (vi) or (viii) of the Custodial and 

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

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

that has been released by the Custodian, the following: (i) the Borrower name and any 

identification number assigned to the Asset, (ii) the location to which the Custodial Documents 

with respect to such Asset were delivered by the Custodian, (iii) the date on which such 

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

Custodial Documents were released. 

"Assignment and Acceptance of Limited Liability Company Interest" means an 

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

to the Contribution Agreement. 

"Assignment and Lost Instrument Affidavit" means an Assignment and Lost 

Instrument Affidavit in the form of Attachment F to the Contribution Agreement. 

"Assumed Closing Date Asset Litigation" means any Closing Date Asset Litigation 

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

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

Date Asset Litigation, any claim (including any assertion of a Liability) that may be asserted 

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

amendment of a complaint, counterclaim or otherwise). 

"Authorized Denomination" has the meaning set forth in Section 2.5(b) of the Custodial 

and Paying Agency Agreement. 

"Authorized Representative" means, with respect to any Person, each individual 

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

Agreement, by such Person to the Custodian to act as an authorized representative of such Person 

for purposes of the Custodial and Paying Agency Agreement. 

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"Bank" means Wells Fargo Bank, National Association, a national banking association. 

"Bankruptcy Rule" means any of the rules set forth under the Federal Rules of 

Bankruptcy Procedure, as the same may be amended, supplemented or modified from time to 

time. 

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

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

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

Agreement. 

"Bidder Qualification Application" means that certain Bidder Qualification Application 

having been submitted by or on behalf of the Winning Bidder to, and approved, by the FDIC in 

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

"Book Value" means, (i) with respect to property transferred pursuant to the 

Contribution Agreement, the Fair Market Value of such property at the time of such transfer, and 

(ii) with respect to any other Company asset, the adjusted basis of such asset for federal income 

tax purposes; provided, however, that the Book Values of all Company assets shall be adjusted to 

equal their respective Fair Market Values, in accordance with the rules set forth in Section 1.704­

1 (b )(2)(iv)(f) of the Treasury Regulations, except as otherwise provided herein, immediately 

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

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

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

distribution) to a Member in connection with the redemption of all or part of such Member's 

LLC Interest; or (c) the date of the actual liquidation of the Company within the meaning of 

Section 1.704-1 (b)(2)(ii)(g) of the Treasury Regulations; and provided further, that adjustments 

pursuant to clauses (a) and (hl_ above shall be made only if the Tax Matters Member reasonably 

determines, after consultation with the Initial Member, that such adjustments are necessary or 

appropriate to reflect the relative economic interests of the Members. The Book Value of any 

Company Property distributed to any Member shall be adjusted immediately prior to such 

distribution to equal its Fair Market Value as of such date. 

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

7.7 of the LLC Operating Agreement. 

"Borrower" means any borrower with respect to any Asset. 

"Bulk Sale" means the sale or other Disposition, in a single transaction or a series of 

related transactions (and directly or indirectly), to a single buyer (or two or more related buyers) 

of two or more assets, consisting of Assets (including any separate Acquired REO Property or 

other Acquired Property into which any Loan is converted); provided however, if multiple assets 

are marketed and offered at the same time, and each such asset is marketed individually and 

offers are solicited with respect thereto individually, the transaction will not be considered a 

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14132824.4 
Bulk Sale if multiple assets are sold to a single buyer (or two or more related buyers) provided 

that the single buyer's (or related buyers') overall price for such specific assets exceeds the 

aggregate value of the highest individual prices offered by other buyers for each individual asset 

included in that specific transaction (based on net cash proceeds to be received by the Company). 

For the avoidance of doubt, if two or more assets (i) are from a single borrower relationship or 

(ii) otherwise involve (or are secured by) items of Acquired REO Property (or real property 

Collateral) that are part of the same project and/or physically adjacent to one another, such assets 

shall be considered a single asset for purposes of this definition. 

"Business" means the acquisition of the Assets pursuant to the Contribution Agreement 

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

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

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

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

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

Paying Agent owes an obligation to the Company, any such Business Day pursuant to the 

foregoing clause (i) other than a day on which the Bank's offices are closed. 

"Business Plan" has the meaning set forth in Section 7. 7 of the LLC Operating 

Agreement. 

"Buy-Out Closing" has the meaning set forth in Section 3 .14(a) of the LLC Operating 

Agreement. 

"Buy-Out Closing Date" has the meaning set forth in Section 3 .14(b)(i) of the LLC 

Operating Agreement. 

"Buy-Out Notice" has the meaning set forth in Section 3.14(a) of the LLC Operating 

Agreement. 

"Buy-Out Valuation Date" has the meaning set forth in Section 3.14(a) of the LLC 

Operating Agreement. 

"Capital Account" means the capital account of a Member related to such Member's 

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

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

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

elsewhere in the LLC Operating Agreement. 

"Capital Contribution" means a contribution to the capital of the Company made, 

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

Contribution Agreement, or the LLC Operating Agreement. 

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

Custodial and Paying Agency Agreement. 

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Agreement of Definitions 

Version 3.1.1 

14132824.4 
"CERCLA" means The United States Comprehensive Environmental Response, 

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

time. 

"Certificate" has the meamng set forth m Section 2.1 (a) of the LLC Operating 

Agreement. 

"Certificated Note" has the meaning set forth in Section 2.4(b) of the Custodial and 

Paying Agency Agreement. 

"Change of Control" means: 

(a) with respect to the Private Owner: 

(i) the Private Owner's Specified Parents for any reason (x) failing or ceasing 

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

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

Ownership Interests in the Private Owner; 

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

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

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

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

Interests in the Private Owner; 

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

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

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

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

respect to the Private Owner's obligations and powers in its capacity as the Manager) or (B) 

without limiting the generality of clause (A), the asset management/special servicing of the 

Assets, or (y) the individual, or any of the individuals, as the case may be, constituting the Key 

Asset Managers at any time failing or ceasing to have the power (or, if multiple individuals 

constitute such Key Asset Managers, the collective power), directly or indirectly, to manage and 

control, or shall fail or cease to be actively and meaningfully involved (directly or indirectly) on 

a day-to-day basis in, all ordinary course decision-making regarding the asset 

management/special servicing ofthe Assets; 

(iv) [intentionally omitted]; or 

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

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

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

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

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

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

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Agreement of Definitions 

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14132824.4 
Specified Parent (determined as described above) upon consummation of the Closing (or, in the 

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

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

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

constitute a "group" for the purposes of Section 13 (d) of the Exchange Act (in the case of each 

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

Entity(ies) of such Specified Parent (and/or any Entities Controlled by such Ultimate Parent 

Entity(ies)), at any time shall Control such Specified Parent, including by Controlling such 

Ultimate Parent Entity(ies); and 

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

(i) such Person's Specified Parent for any reason (x) failing or ceasing to 

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

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

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

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

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

"Class" means each of the Class A Purchase Money Notes and each other Subsequent 

Class Purchase Money Notes. 

"Class A Note Maturity Date" means "Maturity Date" as defined m the Class A 

Purchase Money Notes. 

"Class A Purchase Money Notes" means any of the Purchase Money Notes with a 

maturity date of December 11, 2019, issued by the Company in accordance with the terms of the 

Custodial and Paying Agency Agreement and designated as a Class A Purchase Money Note, or 

any note or notes executed and delivered upon registration of transfer of, or in exchange for, or 

in lieu of, such Purchase Money Note. 

"Clean-up Call" has the meaning set forth m Section 12.20 of the LLC Operating 

Agreement. 

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

Section 17A of the Exchange Act. 

"Closing" means the consummation of the transactions contemplated m the Private 

Owner Interest Sale Agreement. 

"Closing Date" means December 11,2012. 

"Closing Date Asset Litigation" means (i) any Action relating to any of the Assets and 

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

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

in which the Receiver and/or any Failed Bank is involved (including as a plaintiff) as of the Cut­

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Agreement of Definitions 


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14132824.4 
Off Date and/or the Closing Date, with respect to this clause (ii) to the extent that any Liability 

of the Receiver and/or any Failed Bank is asserted therein (including by way of counterclaim). 

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

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

time. 

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

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

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

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

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

Paying Agency Agreement. 

"Collateral Document" means any deed of trust, deed, trust deed, deed to secure debt, 

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

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

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

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

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

the Assets or Notes evidencing the Assets, or (ii) evidencing ownership of any Acquired 

Property. 

"Collection Account" means the segregated trust or custodial account designated as the 

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

"Company" means CRE/ADC Venture 2012-1, LLC, a Delaware limited liability 

company. 

"Company Accounts" means the Collection Account, the Distribution Account, the 

Working Capital Reserve Account, the Defeasance Account and such other Company accounts 

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

Documents. 

"Company Acquired Property" means (i) Collateral to which title is acquired by or on 

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

by power of sale, pursuant to the Uniform Commercial Code or otherwise, (ii) the equity 

interests in any Ownership Entity holding any such Collateral and (iii) the assets held directly or 

indirectly by any such Ownership Entity. 

"Company Principal Prepayment Account" means any voluntary amounts deposited 

into the Defeasance Account by the Company with the consent ofthe Required PMN Consenting 

Parties for the purposes of prepaying in whole or in the part principal on ay Class of Purchase 

Money Notes. 

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Agreement of Definitions 

Version 3.1.1 

14132824.4 
"Company Property" means any property contributed to, acquired by or otherwise 

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

Company pursuant to the Contribution Agreement), whether real or personal, tangible or 

intangible property, including but not limited to any legal or equitable interest in such property, 

ownership interests in entities owning real or personal property, and money. 

"Confidentiality Agreement" means each Structured Transaction Confidentiality 

Agreement, dated as of the Closing Date or such earlier date as may have been applicable 

pursuant to the sealed bid process resulting in the submission of the Bid Form, by and between 

the FDIC and the Private Owner or any Affiliate(s) of the Private Owner (including by way of 

joinder). 

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

Operating Agreement. 

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

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

performance of any other obligations described therein, including any installment land sale 

contract. 

"Contribution Agreement" means the Asset Contribution and Sale Agreement dated as 

of the Closing Date by and between the Transferor and the Company. 

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

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

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

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

"Core Agreements" means, collectively, the Contribution Agreement, the Private Owner 

Interest Sale Agreement, the LLC Operating Agreement, the Reimbursement, Security and 

Guaranty Agreement and the Custodial and Paying Agency Agreement. 

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

Agreement. 

"Custodial and Paying Agency Agreement" means the Custodial and Paying Agency 

Agreement dated as of the Closing Date, by and among the Company, the Bank, the PMN Agent, 

the Initial Member and the Private Owner, and thereafter any replacement Custodial and Paying 

Agency Agreement that is acceptable to the Initial Member and (so long as any Secured 

Obligations remain outstanding) the PMN Agent entered into from time to time in accordance 

with the LLC Operating Agreement and the other Transaction Documents. 

"Custodial Delivery Failure" has the meaning set forth in Section 13 .1(c) of the 

Custodial and Paying Agency Agreement. 

"Custodial Documents" has the meaning set forth in Section 6.l(c) of the Custodial and 

Paying Agency Agreement. 

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14132824.4 
"Custodial Report" means a report prepared by the Custodian, which shall be in a form 

acceptable to the Company and the PMN Agent, detailing, with respect to any Asset that has 

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

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

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

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

released. 

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

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

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

unreasonably withheld, delayed or conditioned. 

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

and the Paying Agent. 

"Custodian and Paying Agent Report" has the meaning set forth in Section ll.l(a) of 

the Custodial and Paying Agency Agreement. 

"Customer Information" shall mean all non-public information regarding any Borrower 

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

"Cut-Off Date" means as of the close of business on November 2, 2012. 

"Cut-Off Date Unpaid Principal Balance" means, with respect to any Asset, the 

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

Asset Schedule. 

"Debt" of any Person means (i) all indebtedness of such Person for borrowed money, (ii) 

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

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

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

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

Required Consenting Parties) arising in the ordinary course of business), (iii) all obligations of 

such Person evidenced by notes, bonds, debentures or other similar instruments, (iv) all 

indebtedness created or arising under any conditional sale or other title retention agreement with 

respect to property acquired by such Person (even though the rights and remedies of the seller or 

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

property), (v) all obligations of such Person as lessee under leases that have been or should be, in 

accordance with GAAP, recorded as capital leases, (vi) all liabilities or obligations of any nature 

whatsoever secured by a consensual pledge, consensual security interest or other consensual Lien 

of, in or on any property or asset of such Person (other than (x) if such Person is the Private 

Owner, any such pledge, security interest or other Lien granted to the Initial Member under the 

LLC Operating Agreement, and (y) customary rights of set-off, revocation, refund or chargeback 

under deposit agreements or under the Uniform Commercial Code of banks or other similar 

financial institutions where such Person maintains deposits), (vii) all direct or contingent 

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Agreement of Definitions 

Version 3.1.1 

14132824.4 
obligations of such Person arising under, or otherwise in respect of, letters of credit (including 

standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar 

instruments (including any Qualifying Letter of Credit), or (viii) all indebtedness or obligations 

of others of the kinds referred to in clauses (i) through 1..Y.ill_above in respect of which such 

Person has entered into or issued any Guarantee. 

"Debt Agreements" means the Purchase Money Notes, the Reimbursement, Security and 

Guaranty Agreement, the Account Control Agreement and each Purchase Money Notes 

Guaranty. 

"Debtor" has the meaning set forth in the Preamble of the Reimbursement, Security and 

Guaranty Agreement. 

"Debtor Relief Laws" means Title 11 of the United States Code (11 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" (i) for purposes of the Reimbursement, Security and Guaranty Agreement, 

means any event or condition that constitutes an Event of Default (for the avoidance of doubt, as 

defined in the Reimbursement, Security and Guaranty Agreement) or that, with the giving of any 

notice, the passage of time, or both, would be an Event of Default (for the avoidance of doubt, as 

defined in the Reimbursement, Security and Guaranty Agreement), and (ii) for purposes of any 

other Transaction Document in which it is used, has the meaning set forth in such Transaction 

Document. 

"Defaulted Loan" means any Loan (i) that is delinquent sixty days or more in respect to 

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

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

Loan. 

"Defeasance Account" means the segregated trust or custodial account designated as the 

"Defeasance Account" pursuant to Section 3.3(a) of the Custodial and Paying Agency 

Agreement. 

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

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

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

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

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

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

any Receiver Acquired Property described in the preceding parenthetical, the applicable 

collateral for such Underlying Loan, including such Receiver Acquired Property). 

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Agreement of Definitions 

Version 3.l.l 

14132824.4 
"Deficiency Judgment Claim" means any claim, right or demand in or to any deficiency 

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

"Depository" or "DTC" means the Depository Trust Company, its nominees, and their 

respective successors. 

"Determination Date" means the last day of each Due Period. 

"Development" means any development or construction of any kind with respect to any 

Asset (including any Horizontal Development or Vertical Development). 

"Development Approval Request" has the meaning set forth in Section 12.13(b) of the 

LLC Operating Agreement. 

"Development Plan" means, with respect to any Asset, a specific development plan for 

Development of such Asset, including a detailed scope of proposed development, timeline and 

budget. 

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

ownership interest in such Person. 

"Discretionary Funding Advance" has the meaning set forth in Section 5.4 of the LLC 

Operating Agreement. 

"Dishonored Check" means any check or similar instrument that has been returned due 

to insufficient funds or a stop payment order. 

"Disposition" means, with respect to any particular property, equity interest or asset, (i) 

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

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

property, equity interest or asset (or of any interest therein), (ii) without limitation of clause (i), 

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

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

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

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

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

therewith or rights to receive the Interim Management Fee or the Management Fee), including 

any agreement to make any payment to a third party based upon any amount received in respect 

of such property or asset, or (iii) any other action or transaction similar to any of the foregoing, 

in the case of each of ill, .(ill_ and (iii), whether any of the foregoing is voluntary or involuntary, 

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

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

doubt, it is understood and agreed that a statutory conversion of a Person into another form of 

Person does not constitute a Disposition. The terms "Dispose" or "Disposed" mean to make or 

consummate a "Disposition." 

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Agreement of Detlnitions 

Version 3.1.! 

14132824.4 
"Dispute Resolution Procedure" means the following procedure solely for the purpose 

of determining a particular amount: 

Each Member shall submit to the other, within five Business Days of referral to this 

procedure, its proposed amount. If either Member fails to submit such a proposal within such 

time period, then the amount to be determined in accordance with this procedure shall be as set 

forth in the single proposal provided. If the higher of the two proposals is not greater than 110% 

of the lower proposal, then the amount to be determined in accordance with this procedure shall 

be the average of such two proposals. If the higher of such two proposals is greater than 110% 

of the lower amount, then the Members shall, within seven days of their submission of such 

proposals, jointly select a nationally recognized investment banking firm which shall, within 

fifteen days of its appointment, select the proposed amount previously submitted by the 

Members pursuant to this procedure that in its opinion more closely reflects the amount being 

determined as described in the LLC Operating Agreement, and the proposal thus selected shall 

be considered the amount for purposes of the LLC Operating Agreement. If the Members fail to 

agree on such investment banking firm within such seven-day period, then each Member shall 

nominate, within such seven-day period, a nationally recognized investment banking firm that is 

not an Affiliate thereof and the investment banking firm that is to make such determination shall 

be chosen by the two nominated firms promptly after the expiration of such seven-day period; 

provided, that if either Member shall fail to nominate such an investment banking firm within 

such seven-day period, such determination shall be made by the investment banking firm 

nominated by the other Member. The fees of the selected investment banking firm shall be paid 

in the manner provided in the LLC Operating Agreement. Any determination of any amount 

made by any investment-banking firm selected in accordance with this procedure shall be final 

and binding on the Members and, without limitation of the foregoing, may be enforced by any 

court having jurisdiction in the premises. 

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

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

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

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

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

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

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

such entity. For the avoidance of doubt, it is understood and agreed that a statutory conversion 

of a Person into another form of Person does not constitute a "Dissolution Event." 

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

Agreement. 

"Distribution Account" means the segregated trust or custodial account designated as 

the "Distribution Account" pursuant to Section 3.2(a) of the Custodial and Paying Agency 

Agreement. 

"Distribution Date" means the twenty-fifth day of each month or, if such day is not a 

Business Day, the next succeeding day that is a Business Day, commencing January 25, 2012. 

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Agreement of Definitions 


Version 3.l.l 


14132824.4 
"Dollar" or"~" means lawful currency ofthe United States of America. 

"DTC Eligible" means eligible for deposit at DTC and for trading through DTC's bookentry system. 

"Due Period" means (i) with respect to the first Distribution Date, the period from and 

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

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

respect to each Distribution Date thereafter, the calendar month prior to the month in which such 

Distribution Date occurs. 

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

Interest Sale Agreement. 

"Electronic Tracking Agreement" means an agreement substantially in the form of 

Exhibit B to the Servicing Agreement. 

"Eligible Account" means one or more segregated trust or custodial account or accounts 

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

benefit of the Company and the PMN Agent. 

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

Manager) and that is a federally insured depository institution that is well capitalized; provided, 

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

Institution if the Initial Member and the PMN Agent each provides a written consent (which may 

be withheld in each Person's sole and absolute discretion), which consent may be withdrawn 

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

of the Manager) shall no longer constitute an Eligible Institution as of the receipt of such notice. 

Any accounts maintained pursuant to any Transaction Document at any institution that ceases to 

be an Eligible Institution shall be moved to an Eligible Institution within three Business Days 

after the receipt of such notice. 

"Embargoed Person" means any Person (i) included on the Specially Designated 

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

(ii) owned or controlled by any Person on such Specially Designated Nationals list; or (iii) 

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

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

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

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

supplemented or modified from time to time), or any enabling legislation or regulations 

promulgated thereunder or any executive order relating thereto (including Executive Order 

13224 of September 21, 2001 Blocking Property and Prohibiting Transactions With Persons 

Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079 (2001)) or 31 

C.F.R. §594.1 01, et seq.) with the result that a purchase of assets or any other transaction entered 

into with respect to any assets (including, without limitation, any investment in any structured 

transaction), whether directly or indirectly, is prohibited by or in violation of Law. 

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CRE/ADC Venture 2012-1 Structured Transaction 

Agreement of Definitions 

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"Entity" means any Person other than a natural person. 

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

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

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

property, fixtures, leases and other property or rights pertaining thereto), of any "hazardous 

substance," as such term is defined in Section 101(14) of the Comprehensive Environmental 

Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601(14), or any petroleum 

(including crude oil or any fraction thereof that is liquid at standard conditions of temperature 

and pressure), at a level or in an amount that requires remediation or abatement pursuant to 

applicable Law. 

"Equity Asset Value" means, with respect to any Asset, the product of (i) the Private 

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

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

equal to 1.0). 

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

together with the regulations promulgated thereunder, as may be amended, supplemented or 

modified from time to time. 

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

ERISA and the "plan asset" regulations set forth in 29 C.F.R. Section 2510.3-101 as promulgated 

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

"Escrow Account" means (i) for purposes of the Contribution Agreement, an account 

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

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

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

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

applicable Subservicer) in trust for the benefit of the Company and the PMN Agent for deposit of 

Escrow Payments received in respect of one or more Assets, and in either case includes, but is 

not limited to, all so-called "lockbox" accounts maintained by any Failed Bank or the Company 

under the terms of any Asset Documents and any other accounts maintained by any Failed Bank 

or the Company under the Asset Documents for amounts deposited or required to be deposited 

therein by the applicable Borrower. 

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

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

using funds in an Escrow Account for an Asset. 

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

in the Escrow Account with respect to that Loan, as reflected on the Asset Schedule. 

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

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

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

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

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

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

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

deposit) with any Failed Bank, the Receiver or the Company or (in each case) its servicer or 

other agent with respect to any Asset. 

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

such Transaction Document, or, if not so defined therein, and except as the context may 

otherwise require, has the meaning set forth in the Reimbursement, Security and Guaranty 

Agreement; provided, however, that, as used in the Servicing Agreement or the Private Owner 

Pledged Account Control Agreement, except as otherwise expressly provided therein, the term 

"Event of Default" has the meaning set forth in Section 3.13(j) of the LLC Operating Agreement. 

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

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

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

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

Agreement or in the Review Criteria. 

"Excess Damage Liability" has the meamng set forth m Section 4.5(d) of the 

Contribution Agreement. 

"Excess Principal" has the meaning set forth m Section 2.4(c) of the Contribution 

Agreement. 

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

Operating Agreement. 

"Exchange Act" means the United States Securities Exchange Act of 1934, as may be 

amended, supplemented or modified from time to time. 

"Excluded Expenses" means any ofthe following: 

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

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

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

the Company, the Servicer or any Subservicer; provided, however, Excluded Expenses under this 

clause (ii) do not include out-of-pocket expenses or costs incurred by the Manager, the Servicer 

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

costs both (x) are paid (by the Manager, the Servicer or such Subservicer) to Persons that are not 

Affiliates of any of the Manager, the Company, the Servicer or any Subservicer and (y) would 

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

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

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

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

Plan or with any strategic determinations with respect to actual or potential Disposition of any or 

all Assets), except to the extent the same are incurred as brokerage fees or sales commissions 

incurred (x) to market or sell the Assets or any Acquired Property in a Bulk Sale, which Bulk 

Sale (A) is approved by each Required Consenting Party pursuant to Section 3.4 of the LLC 

Operating Agreement or (B) does not require approval of any Required Consenting Party 

pursuant to Section 3.4 of the LLC Operating Agreement; and (y) in connection with the 

marketing or sale of any Acquired Property or any portion thereof on an individual basis; 

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

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

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

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

Servicer's or any Subservicer's failure to service any Asset or Collateral properly in accordance 

with the applicable Asset Documents, the LLC Operating Agreement, the Servicing Agreement, 

any Subservicing Agreement, any other Transaction Document or otherwise, or failure to make a 

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

(v) any interest on any amounts paid by any Person with respect to any 

Servicing Expenses, Interim Servicing Expenses or Pre-Approved Charges; 

(vi) any overhead or administrative costs (whether or not attributable to 

Servicing) incurred by the Company, the Manager, the Servicer, any Subservicer or any other 

Person (including any (A) travel expenses, (B) costs for office space, office equipment, supplies 

and related expenses, employee salaries, bonuses and other compensation and related expenses 

and similar internal costs and expenses, together with any other expenses incurred by the 

Manager to comply with Section 3.3 of the LLC Operating Agreement (including any costs or 

expenses of engaging independent contractors to perform relevant services for the day-to-day 

operation of the Company in lieu of performance of the same by personnel required to be made 

available by the Manager pursuant to such Section 3.3), and (C) expenses incurred by any of the 

Manager, the Tax Matters Member, the Company, the Servicer or any Subservicer to comply 

with Section 4.3, Section 7.2, Section 7.3, Section 7.4, Section 7.5, Section 7.6(a) and 

Section 7.7 of the LLC Operating Agreement and the Reporting and Access Schedule), in each 

case other than applicable administrative (but not overhead) costs of the Company (payable to 

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

Subservicer) expressly qualifying as Reimbursable Company Administrative Expenses; 

(vii) any servicing, management (including property management) or similar 

fees paid to the Servicer, any Subservicer or any other Person, provided, that property 

management fees for on-site property managers (or other dedicated property managers to the 

extent such fees are directly attributable to such on-site property management) of specific 

Acquired REO Property, in each case that are not Affiliates of any of the Manager, the 

Company, the Servicer or any Subservicer, are not included in this clause (vii); 

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(viii) any expenses incurred by the Manager, the Servicer, any Subservicer or 

any other Person (x) to become a MERS member or to maintain the Manager or such other 

Person as a MERS member in good standing, in each case as contemplated by the Transaction 

Documents, or (y) to remove any Asset from the MERS® System in connection with any 

voluntary removal by or at the direction of the Manager (as permitted in Section 12.3(h) of the 

LLC Operating Agreement), it being understood that any such removal dictated by default, 

foreclosure or similar legal or MERS requirements shall not be considered a voluntary removal 

for purposes of this clause; 

(ix) any amounts subject to the indemnity obligations of the Private Owner 

under Section 4.6 of the LLC Operating Agreement, of the Servicer under Section 8.2 of the 

Servicing Agreement, or equivalent indemnity obligations of any Subservicer as required to be 

included in its Subservicing Agreement pursuant to Section 4.2 of the Servicing Agreement or 

Section 12.1(b) ofthe LLC Operating Agreement; or 

(x) any other amounts expressly designated as "Excluded Expenses" (or 

otherwise expressly required to be borne by the Manager, the Servicer or any Subservicer 

without reimbursement) pursuant to the terms of the Transaction Documents. 

"Excluded Liabilities" means: 

(a) solely with respect to clause (a) of the definition of the term "Obligations", all 

Liabilities of any Failed Bank and/or the Receiver under any Transferred Contract for damages 

or other remedies (at law or in equity), to the extent (and only to the extent) attributable to an act 

or omission or circumstance that occurred or existed prior to the Cut-Off Date and that 

constituted a breach by any Failed Bank and/or the Receiver under such Transferred Contract, or 

a tort, willful misconduct, fraud or a violation of Law by any Failed Bank and/or the Receiver; 

provided, however, that, this clause (a) does not exclude from clause (a) of the definition of the 

term "Obligations" any Liability of the Receiver under any Transferred Contract that is overdue 

(but solely excludes any Liability of any Failed Bank and/or the Receiver for damages or other 

remedies (at law or in equity) for any breach of any such Liability occurring prior to the Cut-Off 

Date); 

(b) all Liabilities under any Transferor Loan-Servicing Contract; and 

(c) all Liabilities of any Failed Bank or the Receiver as of the Closing Date other than 

the Obligations. 

"Excluded Liability Company Action" means any Action commenced against the 

Company at any time after the Closing Date in which an Excluded Liability is asserted against 

the Company, provided, for the avoidance of doubt, that no Action against the Company in 

respect of a Liability asserted against the Receiver and/or any Failed Bank in any Assumed 

Closing Date Asset Litigation shall constitute an Excluded Liability Company Action. 

"Excluded Liability Company Claim" means any Excluded Liability that is asserted 

against the Company in an Excluded Liability Company Action, provided, for the avoidance of 

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doubt, that no claim against the Company in respect of a Liability asserted against the Receiver 

and/or any Failed Bank in any Assumed Closing Date Asset Litigation shall constitute an 

Excluded Liability Company Claim. 

"Exempt Taxes" means, in each case, with respect to any real property (and related 

personal property) Receiver Acquired Property, (i) any penalty accrued for any period prior to 

the Closing Date on any Tax with respect to any such Receiver Acquired Property in which the 

Receiver holds a fee interest that was not secured by a valid Lien against the Receiver Acquired 

Property in effect before the Receiver acquired an interest in such Receiver Acquired Property, 

(ii) any Tax (including any special assessment) accrued for any period prior to the Closing Date 

that is not an ad valorem real property Tax, the amount of which was not fixed at the time the 

Receiver acquired a fee interest in such Receiver Acquired Property, regardless of the existence 

of any Lien purporting to secure the payment of any such Tax, and (iii) any Tax (including any 

special assessment) accrued for any period prior to the Closing Date that is not an ad valorem 

real property Tax and that was not secured by a valid Lien against such Receiver Acquired 

Property in effect before the Receiver acquired an interest in such Receiver Acquired Property. 

"Existing Servicer" means a Person (including the Receiver) acting as servicer for any 

Asset as of the Cut-Off Date. 

"Failed Banks" means each of the various failed financial institutions listed on Schedule 

II to this Agreement, and each reference to a "Failed Bank" means the applicable failed financial 

institution, as the context may require. 

"Fair Market Value" means, with respect to any asset on a given date, the gross fair 

market value of such asset, unreduced by any liability, on such date as determined in good faith 

by the Manager after consultation with the Initial Member; provided, however, that (i) the initial 

Fair Market Value for each Asset shall be Total Asset Value for such Asset, and (ii) the parties 

hereto acknowledge and agree that, as of the Closing Date, the Fair Market Value of the Capital 

Contribution made by the Initial Member shall be based on the Private Owner Interest Sale Price, 

as set forth in the Private Owner Interest Sale Agreement, and such Fair Market Value shall be 

utilized for determining the initial Capital Accounts of the Members as of the Closing Date. 

"Fannie Mae" means the Federal National Mortgage Association of the United States, or 

any successor thereto. 

"Fannie Mae Guidelines" means those guidelines governing reimbursement of costs and 

expenses by Fannie Mae with respect to loans owned or securitized by Fannie Mae, as in effect 

on the date on which an expense or cost is incurred, including as such guidelines may be set forth 

in the then effective Fannie Mae Delegated Underwriting and Servicing Guide (or replacement 

thereto), including all applicable lender memos issued by Fannie Mae in connection therewith. 

"FDIA" means the Federal Deposit Insurance Act, as may be amended, supplemented or 

modified from time to time. 

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"FDIC" means the Federal Deposit Insurance Corporation, m any capacity (for the 

avoidance of doubt, present or future). 

"FDIC Legal Powers" means the powers, immumtles, defenses, privileges and other 

rights granted to the Receiver pursuant to the provisions of the FDIA (including 12 U.S.C. 

§§ 1821(d), 1823(e) and 1825), the National Bank Act (including 12 U.S.C. §§ 91 and 191, et 

seq.), applicable state receivership laws (incorporated into the FDIA, for example, by 12 U.S.C. 

§1821(c)(3)(B)), and similar federal law and state law (including statutory and common law) 

doctrines which protect financial institution receivers and their assignees (for example, the 

D'Oench Doctrine, statutory bona tide purchaser status, involuntary assignee protection, etc.), 

regardless of whether any of the foregoing powers, immunities, defenses, privileges or other 

rights are (or are asserted, claimed or purported to be) available to an assignee of the Receiver 

(including a purchaser of assets from the Receiver). 

"FDIC-Owned" means, with respect to any Class of Purchase Money Notes, that the 

FDIC is the Holder or Note Owner of (or otherwise is the beneficial owner ot) 100% of the 

Purchase Money Notes of such Class. 

"FDIC Power of Attorney" means (i) the Limited Power of Attorney or (ii) any other 

power of attorney, or other authorization to act in the name of, or otherwise on behalf of, the 

Transferor or the FDIC, that the Transferor or the FDIC may provide to the Company or 

representatives of the Company (including the Manager or representatives of the Manager) 

under, or otherwise in connection with the transactions contemplated by, any Transaction 

Document (including in the discretion of the Transferor or the FDIC). 

"FDIC Purchase Money Notes Disposition" means any Disposition at any time by the 

FDIC of any Purchase Money Note or any interest therein (including any interest in a Purchase 

Money Note as a Note Owner), in whole or in part and directly or indirectly. 

"Federal Reserve District" means one of the twelve districts represented by a regional 

Federal Reserve Bank. 

"Final Distribution" means the distribution of all remammg Asset Proceeds in 

accordance with the applicable terms of the LLC Operating Agreement and the Custodial and 

Paying Agency Agreement after liquidation of all of the Assets and related Collateral (including 

Acquired REO Property) following the dissolution of the Company. 

"Final Distribution Date" means the date of the Final Distribution. 

"Final PMNG Calculation" has the meaning set forth in Section 3.3(e) of the Custodial 

and Paying Agency Agreement. 

"Final Purchase Money Notes Maturity Date" means the Purchase Money Notes 

Maturity Date of the latest maturing Class of Purchase Money Notes. 

"Fiscal Year" means the fiscal year of the Company and its Subsidiaries beginning on 

January 1 and ending on December 31 of each calendar year. 

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"Foreign Asset" means an Asset with respect to which the Borrower or any of the 

Collateral is located in any Foreign Jurisdiction. 

"Foreign Jurisdiction" means any jurisdiction other than the United States, and any 

subdivision of or in such other jurisdiction. 

"Funding Draw" means any principal advance made to a Borrower after the Closing 

Date under a Loan pursuant to the terms of the applicable Asset Documents. 

"GAAP" means United States generally accepted accounting principles as in effect from 

time to time. 

"Governmental Authority" means (i) any United States or non-United States national, 

federal, state, local, municipal, provincial or international government or any political 

subdivision of any thereof or (ii) any governmental, regulatory or administrative authority, 

agency or commission, or judicial or arbitral body of any of the foregoing described in clause (i). 

"Grantor" has the meaning set forth in the Preamble of the Reimbursement, Security and 

Guaranty Agreement. 

"Ground Lease" means a ground lease or other lease. 

"Group of Assets" means all Assets that, as of the Cut-Off Date, are serviced by the 

same Existing Servicer. 

"Guarantee" means, with respect to any particular indebtedness or other obligation, (i) 

any direct or indirect guarantee thereof by a Person other than the obligor with respect to such 

indebtedness or other obligation or any transaction or arrangement intended to have the effect of 

directly or indirectly guaranteeing such indebtedness or other obligation, including without 

limitation any agreement by a Person other than the obligor with respect to such indebtedness or 

other obligation (A) to pay or purchase such indebtedness or other obligation or to advance or 

supply funds for the payment or purchase of such indebtedness or other obligation, (B) to 

purchase, sell or lease (as lessee or lessor) property of, to purchase or sell services from or to, to 

supply funds to or in any other manner invest in, the obligor with respect to such indebtedness or 

other obligation (including any agreement to pay for property or services of the obligor 

irrespective of whether such property is received or such services are rendered), primarily for the 

purpose of enabling the obligor to make payment of such indebtedness or other obligation or to 

assure the holder or other obligee of such indebtedness or other obligation against loss, or 

(C) otherwise to assure the obligee of such indebtedness or other obligation against loss with 

respect thereto, or (ii) any grant (or agreement in favor of the obligee of such indebtedness or 

other obligation to grant such obligee, under any circumstances) by a Person other than the 

obligor with respect to such indebtedness or other obligation of a security interest in, or other 

Lien on, any property or other interest of such Person, whether or not such other Person has not 

assumed or become liable for the payment of such indebtedness or other obligation. 

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"Guaranteed Obligations" has the meaning set forth in each Purchase Money Notes 

Guaranty. 

"Guaranteed Purchase Money Note" means any Purchase Money Note in respect of 

which a Purchase Money Notes Guaranty has been issued pursuant to Section 2.8 of the 

Custodial and Paying Agency Agreement or Section 8.4(c) of the Contribution Agreement. 

"Guaranteed Purchase Money Notes Reissuance Fee" has the meaning set forth in 

Section 8.19 ofthe Reimbursement, Security and Guaranty Agreement. 

"Guaranteed Purchase Money Notes Satisfaction Date" means, in relation to any 

particular Purchase Money Notes Guaranty and the Purchase Money Notes Guarantor 

thereunder, the first date, after the execution and delivery of such Purchase Money Notes 

Guaranty, on which both of the following conditions are (on such date) satisfied: (i) the Class, or 

all Classes, of Purchase Money Notes that is or are the beneficiary of such Purchase Money 

Notes Guaranty shall have been indefeasibly paid, satisfied and discharged in full and (ii) all 

reimbursement amounts, together with any accrued interest thereon, owed to such Purchase 

Money Notes Guarantor pursuant to the Reimbursement, Security and Guaranty Agreement for 

previous payments made by it pursuant to such Purchase Money Notes Guaranty shall have been 

indefeasibly paid, satisfied and discharged in full. 

"Guaranty" has the meaning set forth in Section 8.19(a) of the Reimbursement, Security 

and Guaranty Agreement. 

"Guaranty Issuance Date" means the date on which the first Purchase Money Notes 

Guaranty is executed and delivered (if any are executed and delivered). 

"HAFA" has the meaning set forth in Section 1.1 of the Servicing Agreement. 

"HAMP" has the meaning set forth in Section 1.1 of the Servicing Agreement. 

"HFSH Act" means the Helping Families Save Their Home Act of 2009, as may be 

amended, supplemented or modified from time to time. 

"Holder" means, with respect to any Purchase Money Note, the Person whose name 

appears on the Purchase Money Notes Register as the registered holder of such Purchase Money 

Note. 

"Holder Percentage" means, with respect to each Holder and each Class of Purchase 

Money Notes at any time, a fraction (expressed as a percentage, carried out to the ninth decimal 

place), (i) the numerator of which is the outstanding principal amount of such Class of Purchase 

Money Notes for which such Holder is registered as the owner on the Purchase Money Notes 

Register at such time and (ii) the denominator of which is the aggregate outstanding principal 

amount of such Class of Purchase Money Notes at such time. 

"Horizontal Development" means, with respect to any Acquired REO Property, 

construction or design work in connection with (i) the remediation of an environmental condition 

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existing at such Acquired REO Property prior to the commencement of Vertical Development, 

(ii) the design and planning related to the construction of the infrastructure and the Vertical 

Development, including, but not limited to, work necessary to (a) change any zoning 

classification of any portion of such Acquired REO Property, (b) seek any variance under any 

existing zoning ordinance that could result in the use of such Acquired REO Property becoming 

a non-conforming use under any zoning ordinance or any other applicable land use law, rule or 

regulation, (c) allow any portion of such Acquired REO Property to be used in any manner that 

could result in the use of such Acquired REO Property becoming a non-conforming use under 

any zoning ordinance or any other applicable land use law, rule or regulation, or (d) obtain any 

entitlements or other permits necessary to perform construction on such Acquired REO Property, 

(iii) the construction of the infrastructure related to such Acquired REO Property, including, 

without limitation, cutting the roads, installing the utilities (including without limitation, 

pipelines for water, crude oil, slurry and sewer, power lines, cable television lines and other 

telecommunication lines, bridges and tunnels), waterways, port facilities, networks for irrigation 

sanitation and sewage, paving the roads, railway tracks, signaling system, stations, sidewalks and 

gutters, and (iv) the performance of any demolition or site-clearing work necessary to commence 

Vertical Development; provided, however, to the extent not specified herein, "Horizontal 

Development" may include such other work as may be expressly approved by the Initial Member 

in connection with the approval of an applicable Horizontal Development Plan; and provided, 

further, that in all events "Horizontal Development" shall exclude applicable uses of Servicing 

Expenses to the extent required in accordance with clause (B) of the proviso appearing as the last 

paragraph of the definition of "Servicing Expenses". 

"Horizontal Development Approval Request" has the meamng set forth m 

Section 12.13(c) of the LLC Operating Agreement. 

"Horizontal Development Plan" means, with respect to any Acquired REO Property, a 

specific development plan for Horizontal Development of such Acquired REO Property, 

including a detailed scope of proposed development, timeline and budget. 

"HUD" means the United States Department of Housing and Urban Development or any 

successor thereto. 

"Immediate Family Member" means, with respect to any individual, his or her spouse, 

parents, parents-in-law, grandparents, descendants, nephews, nieces, brothers, sisters, brothersin-law, sisters-in-law, children (whether natural or adopted), children-in-law, stepchildren, 

grandchildren and grandchildren-in-law. 

"Indemnified Parties" has, (i) for purposes of the LLC Operating Agreement, the 

meaning given therein, (ii) for purposes of the Contribution Agreement, the meaning given 

therein, and (iii) for purposes of the Reimbursement, Security and Guaranty Agreement, the 

meaning given therein. 

"Initial Member" means the Person(s) from time to time constituting the "Initial 

Member" under, and in accordance with, the LLC Operating Agreement (initially, the Receiver). 

For avoidance of doubt, references to the Initial Member shall, as the context may require (with 

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respect to any period (x) on or before the Closing Date or (y) during which the Receiver is the 

Initial Member), include the Receiver as a party to the Original LLC Operating Agreement 

and/or as the Transferor, as applicable. 

"Initial Member Capital Contribution" has the meaning set forth in Section 2.3(a)(i) of 

the LLC Operating Agreement. 

"Initial Member Interest" means (i) the limited liability company interest in the 

Company held by the Initial Member, including the rights to share in the income, gain, loss, 

deductions and credits of, and the right to receive distributions from, the Company, (ii) all other 

rights, benefits and privileges enjoyed by the Initial Member (under the Act, the LLC Operating 

Agreement or otherwise) in its capacity as a Member, including rights to vote, consent and 

approve, and (iii) all other rights, benefits, privileges and claims (whether known or unknown) of 

the Initial Member under, or arising under, the LLC Operating Agreement. For the avoidance of 

doubt, the "Initial Member Interest" does not include any right, title or interest of the Receiver in 

its capacity as the Transferor or as a Holder. 

"Initial Member Related Person" means the Initial Member and any other Related 

Person with respect to the Initial Member. 

"Initial Member WCR Account Deposit" has the meanmg set forth in the Private 

Owner Interest Sale Agreement. 

"Insolvency Event" means, with respect to any specified Person, the occurrence of any 

of the following events: 

(i) the specified Person makes an assignment for the benefit of creditors; 

Proceeding; 

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

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

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

(iv) the specified Person files a petition or answer seeking for the specified 

Person any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or 

similar relief under any Law; 

(v) the specified Person seeks, consents to, or acquiesces in the appointment 

of a receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer of the 

specified Person or of all or any substantial part of the specified Person's properties. or any 

receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed 

without the application or consent of such specified Person and the appointment continues 

undischarged and unstayed for forty-five calendar days; 

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

to contest the material allegations of a petition filed against the specified Person in any 

proceeding described in clauses (i) through (yl; 

(vii) the specified Person becomes unable to pay its obligations (other than, 

with respect to the Company (unless a Purchase Money Notes Trigger Event has occurred and is 

continuing and is not cured within ten Business Days), the Purchase Money Notes) as they 

become due, or the sum of such specified Person's debts is greater than all of such Person's 

property, at a fair valuation; or 

(viii) (A) at least sixty days have passed following the commencement of any 

proceeding against the specified Person seeking reorganization, arrangement, composition, 

readjustment, liquidation, dissolution or similar relief under any Law and such proceeding has 

not been dismissed, or (B) (1) at least sixty days have passed following the appointment of a 

trustee, receiver or liquidator for the specified Person or all or any substantial part of the 

specified Person's properties without the specified Person's agreement or acquiescence, and such 

appointment has not been vacated or stayed, or (2) if such appointment has been stayed, at least 

sixty days have passed following the expiration of the stay and such appointment has not been 

vacated. 

"Insolvency Proceeding" means any proceeding under Title 11 of the United States 

Code (11 U.S.C. §§101, et seq.) or any proceeding under any other Debtor Relief Law. 

"Insurance Deficiency Notice" has the meaning set forth in the Section 4(c) of the 

Insurance Schedule. 

"Insurance Modifications" has the meaning set forth in the Section 4(c) of the Insurance 

Schedule. 

"Insurance Schedule" means the Insurance Schedule attached as Annex III to the LLC 

Operating Agreement. 

"Intellectual Property" means all United States or foreign intellectual and similar 

property of every kind and nature, including, without limitation, inventions, designs, patents, 

copyrights, trademarks, trade secrets, confidential or proprietary and technical and business 

information, know-how, show-how or other data or information, software and databases and all 

embodiments or fixations thereof and related documentation, registrations and franchises, and 

any license of any of the foregoing, and all additions, improvements and accessions to, and 

books and records describing or used in connection with, any of the foregoing and all rights to 

sue at law or in equity for any infringement or other violation thereof, including the right to 

receive all proceeds and damages therefrom. 

"Interim Management Fee" means, with respect to each Due Period commencing 

during the Interim Servicing Period, a fee payable to the Manager (pursuant to, and for the 

purposes set forth in, Section 12.5 of the LLC Operating Agreement, and as payable in 

accordance with the Custodial and Paying Agency Agreement) for each Group of Assets for 

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which the Servicing Transfer Date has not yet occurred as of the first day of such Due Period, in 

an amount equal to (i) except as provided in clause (ii), the Interim Servicing Fee, or (ii) with 

respect to any Due Period commencing prior to the Closing Date, (x) if such Due Period ends 

prior to or on the Closing Date, zero, or (y) if such Due Period ends after the Closing Date, what 

the Interim Servicing Fee for such Due Period would have been if, for purposes of calculating 

the number of days in such Due Period, the portion of such Due Period prior to the Closing Date 

was disregarded. 

"Interim Servicing Expenses" means all out-of-pocket fees, costs, expenses and 

indemnified amounts incurred by or on behalf of the Transferor (including as the Initial Member) 

or any Existing Servicer in connection with the Servicing and, to the extent expressly set forth in 

item (iv) below, the management of the Company and the Ownership Entities, incurred during, 

or in connection with the applicable exercise of rights or performance of applicable obligations 

with respect to, any Interim Servicing Period (or, for purposes of item (vii) below, as may 

otherwise be payable pursuant to such item), including, in each case to the extent so incurred 

during or in connection with any such Interim Servicing Period (or as may otherwise be payable 

pursuant to item (vii) below), (i) any and all out-of-pocket fees, costs, expenses and indemnified 

amounts which a Borrower is obligated to pay to any Person or to reimburse to the lender, in 

either case, pursuant to the applicable Note or any other Asset Documents, including Escrow 

Advances, (ii) any and all out-of-pocket expenses deemed necessary by the Transferor or any 

Existing Servicer to protect or preserve the value of the Collateral or the priority of the Liens and 

security interests created by the Asset Documents relating thereto, including Taxes, insurance 

premiums (including forced place insurance premiums), payment of ground rent, the costs of 

prevention of waste, repairs and maintenance, foreclosure expenses and legal fees and expenses 

relating to foreclosure or other litigation with respect to the Assets, (iii) any and all direct 

expenses related to the preservation, operation, management (including for engagement of onsite property managers for any specific Acquired REO Property), appraisal (including for any 

required Appraisal), leasing (including tenant improvements), and sale of the Collateral and/or 

Acquired Property (including real estate brokerage fees), and fees to Governmental Authorities 

to preserve or retain entitlements granted to, and benefitting, such Collateral and/or Acquired 

Property, (iv) costs and expenses in connection with the formation of the Company and other 

Reimbursable Company Administrative Expenses (but only to the extent incurred from and after 

the Closing Date or otherwise in connection with the formation of the Company), (v) to the 

extent not covered by any of clauses (i) through (iv), and subject only to any express exclusions 

set forth in the Contribution Agreement, expenses (including judgments, settlements and 

reasonable attorneys' fees of outside counsel) incurred by the Transferor (including to reimburse 

any applicable Existing Servicer) in connection with any litigation (including any bankruptcy 

action) with respect to the Assets, but only to the extent incurred from and after the Cut-Off 

Date, (vi) the costs of preparing, negotiating and recording any additional documentation 

required pursuant to Section 8.11 of the Reimbursement, Security and Guaranty Agreement, in 

each case pursuant to Section 8.11 of the Reimbursement, Security and Guaranty Agreement, but 

only to the extent incurred from and after the Closing, (vii) amounts required for the Company to 

discharge (in accordance with the Transaction Documents) the Obligations as they become due, 

and to make applicable indemnification and/or reimbursement payments (other than for PreApproved Charges) owing by the Company to the Initial Member, the Transferor, the PMN 

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Agent or any other Indemnified Party under the Transaction Documents, and (viii) Required 

Funding Draws or other advances required or permitted to be made to any Borrower (and any 

advances to the Company for making the same). 

"Interim Servicing Fee" means, with respect to each Due Period during the Interim 

Servicing Period (or commencing during such Interim Servicing Period), a fee payable by the 

Company to the Transferor (including as the Initial Member) (for the provision of interim 

Servicing on behalf of the Company) for each Group of Assets for which the Servicing Transfer 

Date has not yet occurred as of the first day of such Due Period, which fee shall be calculated 

and earned as of the first day of such Due Period (and payable on the applicable Distribution 

Date for such Due Period in accordance with the Custodial and Paying Agency Agreement), and 

which fee shall be (i) with respect to Loans (other than, for the avoidance of doubt, Acquired 

Property), in the amount determined by multiplying (x) the Unpaid Principal Balance of the 

Loans (other than, for the avoidance of doubt, Acquired Property) in such Group of Assets 

calculated as of the first day of such Due Period by (y) 0.375%, and by (z) a fraction, the 

numerator of which is the number of days in the respective Due Period and the denominator of 

which is three hundred and sixty, and (ii) with respect to Acquired Property, in an amount 

determined by multiplying (x) the Net Fair Value of the Acquired Property in such Group of 

Assets calculated as of the first day of such Due Period by (y) 0.375%, and by (z) a fraction, the 

numerator of which is the number of days in the respective Due Period and the denominator of 

which is three hundred sixty. 

"Interim Servicing Period" means, with respect to each Group of Assets, the period 

beginning on the day after the Cut-Off Date and ending, with respect to such Group of Assets, on 

the Servicing Transfer Date for such Group of Assets. 

"Interpretive Statement" means any written or oral statement with respect to an Asset 

or Obligation, whether in, or in any filing made in connection with, any Action or otherwise, that 

involves interpreting the FDIA or any FDIC Legal Power. 

"Investment Company Act" means the Investment Company Act of 1940, as may be 

amended, supplemented or modified from time to time. 

"Issuing Bank" means, with respect to any Qualifying Letter of Credit, the applicable 

issuing bank. 

"Key Asset Managers" means the individuals designated as the "Key Asset Managers" 

in the Bidder Qualification Application, as such group of individuals may be modified from time 

to time pursuant to a written request for such modification submitted by the Private Owner and 

consented to in writing by the Initial Member (such consent not to be unreasonably withheld). 

"Key Decision Makers" means the individuals designated as the "Key Decision Makers" 

in the Bidder Qualification Application, as such group of individuals may be modified from time 

to time pursuant to a written request for such modification submitted by the Private Owner and 

consented to in writing by the Initial Member (such consent not to be unreasonably withheld). 

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"Law" means any applicable statute, law, ordinance, regulation, rule, code, injunction, 

judgment, decree or order (including any executive order) of any Governmental Authority. 

"LC Reissuance/Extension Failure" means, with respect to any Qualifying Letter of 

Credit, (i) any failure of Issuing Bank to be and remain a Qualified Issuer, or (ii) any failure of 

such Qualifying Letter of Credit to be automatically renewed (for an additional year) at least 

sixty days prior to the then-scheduled expiry of such Qualifying Letter of Credit, or the receipt 

by the Initial Member of any notice to the effect that such Qualifying Letter of Credit will not be 

automatically renewed (for such additional one year period), in each case unless, within ten days 

of the occurrence of such failure or the Initial Member's receipt of such notice, as the case may 

be, the Private Owner shall have either (x) fully replaced such Qualifying Letter of Credit with a 

new Qualifying Letter of Credit issued by a Qualified Issuer (in conformance with all of the 

requirements set forth in the LLC Operating Agreement with respect to Qualifying Letters of 

Credit) or (y) completed an exercise of its right to substitute such Qualifying Letter of Credit 

with Qualifying Cash Collateral pursuant to Section 3.13(d) of the LLC Operating Agreement 

(and provided Qualifying Cash Collateral in the full undrawn face amount of such Qualifying 

Letter of Credit and paid to the Initial Member the Additional Security Substitution Fee), which 

right to substitute pursuant to Section 3.13(d) shall be deemed to exist for substitution of such 

Qualifying Letter of Credit notwithstanding the occurrence, if any, of a prior substitution (of 

Qualifying Cash Collateral with such Qualifying Letter of Credit) pursuant to such Section. 

"Lead Bidder" means Colony Capital Acquisition, LLC, a limited liability company. 

"Liabilities" means, as to any Person, all liabilities, covenants and obligations of such 

Person of any nature whatsoever, whether direct or indirect, absolute or contingent, matured or 

unmatured, known or unknown, or material or immaterial, whether accrued, vested or otherwise, 

and whether or not actually reflected, or required by GAAP to be reflected, in such Person's 

balance sheets or other books and records, including any such liabilities, covenants or obligations 

based or founded upon negligence, gross negligence, recklessness, fault, strict liability, 

misrepresentation, fraud, quantum meruit, contract, tort (including toxic tort), breach of warranty 

(express or implied), theories of design defect or failure to warn, so-called "successor liability" 

doctrines, infringement or misappropriation of intellectual property rights, breach of fiduciary 

duty, violation of Law or any other legal or equitable theory. 

"LIBOR Business Day" means any day (i) that is a Business Day, and (ii) on which 

dealings in deposits in Dollars are conducted by and between banks in the London interbank 

Eurodollar market. 

"LIBOR Rate" means, with respect to each calendar month (and for purposes of 

calculating interest accrued on Discretionary Funding Advances and any other amounts (to 

which the LIB OR Rate is applicable in accordance with the Transaction Documents) outstanding 

during such calendar month), the rate per annum equal to the British Bankers Association 

LIBOR Rate, as published by Reuters (or other commercially available source providing such 

quotations as selected by (with respect to Discretionary Funding Advances) or the Purchase 

Money Notes Guarantor (with respect to amounts payable to the Purchase Money Notes 

Guarantor) or the PMN Agent (with respect to amounts payable to the Holders), as applicable, 

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141328244 
from time to time) as determined at approximately 11:00 a.m. New York time, two LIBOR 

Business Days prior to the first day of such calendar month, for Dollar deposits with a term of 

thirty days, adjusted for statutory reserve requirements for Eurocurrency liabilities. 

"Lien" means any mortgage, deed of trust, pledge, deed to secure debt, trust deed, 

security interest, charge, restriction on or condition to transfer, voting or exercise or enjoyment 

of any right or beneficial interest, option, right of first refusal, easement, covenant, restriction 

and any other lien, claim or encumbrance of any nature whatsoever. 

"limited liability company interest" has the meaning ascribed to such term in the Act. 

"Limited Power of Attorney" means the Limited Power of Attorney in the form of 

Attachment K to the Contribution Agreement. 

"Litigation Substitution Deadline Date" means, with respect to any particular Closing 

Date Asset Litigation, or any particular claim or claims asserted in any Closing Date Asset 

Litigation, the earlier of (i) the sixtieth day after the last Servicing Transfer Date and (ii) the 

thirtieth day after the date on which the Transferor notifies the Company in writing (after the 

Closing Date) that it irrevocably waives its right to designate such Closing Date Asset Litigation, 

or such particular claim or claims asserted in such Closing Date Asset Litigation, respectively, to 

be a Retained Closing Date Asset Litigation, or such other date as may be agreed to in writing by 

the Transferor and the Company (each acting in their discretion). 

"LLC Interest" means, with respect to any particular Member, (i) the entire limited 

liability company interest in the Company owned or held by such Member, including such 

Member's rights to share in the income, gain, loss, deductions and credits of, and the right to 

receive distributions from, the Company, (ii) all other rights, benefits and privileges enjoyed by 

such Member (under the Act, the LLC Operating Agreement or otherwise) in its capacity as a 

Member, including rights to vote, consent and approve, and (iii) all other rights, benefits, 

privileges and claims (whether known or unknown) of such Member under, or arising under, the 

LLC Operating Agreement (including, to the extent applicable, all rights, benefits, privileges and 

claims (whether known or unknown) of such Member (in its capacity as the Manager) under, or 

arising under, the LLC Operating Agreement (including rights to receive the Interim 

Management Fee or the Management Fee)). 

"LLC Operating Agreement" means the Amended and Restated Limited Liability 

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

the Private Owner and the Company. 

"Loan" means any loan or Loan Participation set forth on the Asset Schedule, and any 

loan into which any such loan or Loan Participation is refinanced or modified, and includes with 

respect to each such loan or Loan Participation: (i) any obligation evidenced by a Note; (ii) all 

rights, powers or Liens of the Receiver, the Failed Banks, the Company or any Ownership Entity 

in or under the Collateral and Collateral Documents; (iii) all rights of the Receiver, any Failed 

Bank or the Company under the Related Agreements and Asset Documents; (iv) all rights of the 

Receiver, any Failed Bank or the Company to any Deficiency Balance (in each case to the extent 

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14132824.4 
relating to such Loan and not otherwise included in any Acquired Property, and in all events 

subject to any exclusions/inclusions as may be expressly set forth in the Asset Schedule or 

Ownership Entity and Receiver Acquired Property Schedule); (v) all rights to causes of action, 

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

the benefit of the Receiver, any Failed Bank, or the Company with respect to any of the 

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

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

by the Receiver pursuant to Section 2.7 of the Contribution Agreement; and (vi) all guaranties, 

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

Company with respect to any of the foregoing; provided, that, for purposes of any Transaction 

Document other than the Contribution Agreement, the foregoing rights, powers or Liens of (or in 

favor of) the Receiver or any Failed Bank shall be included in (and considered part of) the Loans 

only the extent such rights, powers or Liens are transferred to the Company pursuant to the 

Contribution Agreement (and not otherwise subsequently transferred back to the Receiver). 

"Loan Participation" means any loan listed on the Asset Schedule subject to a shared 

credit, participation, co-lending or similar inter-creditor agreement under which any Failed Bank 

or the Receiver was, or the Company is, the lead or agent financial depository institution or 

otherwise managed or held the credit or sold participations, or under which any Failed Bank or 

the Receiver was, or the Company is, a participating financial depository institution or purchased 

participations in a credit managed by another Person. 

"Loan Participation Agreement" means an agreement under which any Failed Bank or 

the Receiver was, or the Company is, the lead or agent financial depository institution or 

otherwise managed or held a shared credit or sold participations, or under which any Failed Bank 

or the Receiver was, or the Company is, a participating financial depository institution or 

purchased participations in a credit managed by another Person. 

"Losses" means, collectively, losses, claims, damages, disbursements, suits, Liabilities, 

costs and expenses (including attorneys' fees and litigation and similar costs, and other out-ofpocket expenses, actually incurred in investigating, defending, asserting or preparing the defense 

or assertion of any of the foregoing), deficiencies, interest, awards, amounts paid in settlement, 

judgments, penalties and fines. 

"Lost Instrument Affidavit" means a Lost Instrument Affidavit, in the form of Exhibit 

1 to the Custodial and Paying Agency Agreement, executed by the Custodian. 

"Management Fee" means, with respect to each Due Period, a fee payable to the 

Manager (pursuant to, and for the purposes set forth in, Section 12.5 of the LLC Operating 

Agreement, and as payable in accordance with the Custodial and Paying Agency Agreement) for 

each Group of Assets for which the Servicing Transfer Date has occurred as of (or occurs on) the 

first day of such Due Period (and which the Company or an Ownership Entity continues to own 

as of such first day), which fee shall be calculated and earned as of the first day of such Due 

Period (and payable on the applicable Distribution Date for such Due Period or, in the event of 

insufficient funds for such payment on such Distribution Date, on the applicable subsequent 

Distribution Date(s)) in accordance with the Custodial and Paying Agency Agreement), and shall 

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14132824.4 
be (i) with respect to Loans (other than, for the avoidance of doubt, Acquired Property), in the 

amount determined by multiplying (x) the Unpaid Principal Balance of the Loans (other than, for 

the avoidance of doubt, Acquired Property) in such Group of Assets calculated as of the first day 

of such Due Period by (y) 0.75%, and by (z) a fraction, the numerator of which is the number of 

days in the respective Due Period and the denominator of which is three hundred and sixty, and 

(ii) with respect to Acquired Prope1iy, in the amount determined by multiplying (x) the Net Fair 

Value of Acquired Property in such Group of Assets calculated as of the first day of such Due 

Period by (y) 0.75%, and by (z) a fraction, the numerator of which is the number of days in the 

respective Due Period and the denominator of which is three hundred and sixty, payable with 

respect to any such Acquired Property for a maximum of three years after the title to such 

Acquired Property (or applicable Ownership Entity holding the same) is first transferred to the 

Company or such Ownership Entity (and if title to such Acquired Property or Ownership Entity 

was transferred to the Receiver prior to the Closing Date, such three-year period shall commence 

on the Closing Date), or such longer period as the Initial Member may expressly approve in its 

sole discretion on a case-by-case basis based on the applicable disposition plan, if any, for such 

Acquired Property prepared by the Manager. For purposes of clarification, in no event shall any 

Servicing Expenses (or Interim Servicing Expenses) be included in the determination of the 

Unpaid Principal Balance or Net Fair Value for purposes of calculation of the Management Fee 

(or the Interim Management Fee or the Interim Servicing Fee), notwithstanding any provisions of 

the Asset Documents that would permit or require any such Servicing Expenses (or Interim 

Servicing Expenses) to be treated as advances (or otherwise as part of the principal amount of 

any such Asset). 

"Manager" (i) has, for purposes of the LLC Operating Agreement, the meaning given 

therein, and (ii) for purposes of any other Transaction Document means the Person from time to 

time constituting the "Manager" under, and in accordance with, the LLC Operating Agreement. 

"Maturing Purchase Money Notes" has the meaning set forth in Section 2.8 of the 

Custodial and Paying Agency Agreement. 

"Maturity Date Report" mean a report that specifies the amount on deposit in the 

Defeasance Account to pay a class of Purchase Money Notes as of the Purchase Money Notes 

Maturity Date for such Class. 

"Member Schedule" has the meaning set forth in Section 4.1 of the LLC Operating 

Agreement. 

"Members" means (i) the Person from time to time constituting the "Initial Member" 

under and in accordance with the LLC Operating Agreement, and (ii) from and after the Closing 

Date, the Person from time to time constituting the "Private Owner" under and in accordance 

with the LLC Operating Agreement (regardless of whether such Person is also the Manager), in 

each case so long as such Person remains a member of the Company. For purposes of 

clarification, references in the LLC Operating Agreement to the term "member" (lowercase) 

means a "member" as such term is defined in the Act. 

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Version 3.1.1 

14132824.4 
"MERS" means Mortgage Electronic Registration Systems, Incorporated, or any 

successor thereto. 

"MERS Designated Loan" has the meaning set forth in the Electronic Tracking 

Agreement, and shall include, as of any date of determination, any Loan (for so long as the 

applicable Mortgage with respect thereto remains held by or on behalf of the Company) that is 

registered in the MERS System as of such date. 

"MERS Registered Mortgage" means any Asset that is registered in the MERS System 

as ofthe Closing Date. 

"MERS Registered Mortgages" has the meaning set forth in Section 3.1(c)(i) of the 

Contribution Agreement. 

"MERS Report" means the schedule listing the MERS Designated Loans and other 

information. 

"MERS® System" means the MERSCORP, Inc. mortgage electronic registry system, as 

more particularly described in the MERS Procedures Manual (a copy of which is attached as an 

exhibit to the Electronic Tracking Agreement). 

"Modification" means any extension, renewal, substitution, replacement, supplement, 

amendment or modification of any agreement, certificate, document, instrument or other writing, 

whether or not contemplated in the original agreement, document or instrument. 

"Monthly Report" means a report in electronic format in the form set forth in Exhibit B 

to the LLC Operating Agreement (as such form may be updated or otherwise modified from time 

to time pursuant to Section 3(b) of the Reporting and Access Schedule), to be prepared and 

distributed by the Manager in accordance with the Reporting and Access Schedule. 

"Mortgage" means the mortgage, deed of trust or other instrument, including any 

Modifications thereto, creating a first or junior Lien on or ownership interest in a Mortgaged 

Property. 

"Mortgage Assignment" means, with respect to any Mortgage, an assignment of the 

Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the 

applicable Law of the jurisdiction wherein the related Mortgaged Property is located to reflect 

the assignment and pledge of the Mortgage. 

"Mortgaged Property" means (i) the underlying real property or interest in real 

property, whether or not improved by buildings or facilities, and any personal property, fixtures, 

leases and other property or rights pertaining thereto, securing a mortgage loan, and (if 

applicable) any other Collateral securing such mortgage loan, or (ii) with respect to any other 

type of loan, the Collateral securing such loan. The Collateral for a Loan may include one or 

more of the collateral types described in clauses (i) or .(ill. 

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14132824.4 
"Net Fair Value" of Acquired Property means, as of any measurement date, (a) the fair 

value thereof based on the price that would be received to sell such Acquired Property 

(excluding any related Deficiency Balance or Deficiency Judgment Claim) in an orderly 

transaction between market participants at the measurement date (including as determined based 

on the Appraised Value), less (b) the expected incremental direct costs to transact such a sale, 

including broker commissions, legal and title transfer fees, and closing costs (except that, in 

determining the Net Fair Value of single family residences, this item (b) shall not be subtracted 

from item (a) above), in each case as the foregoing may be reasonably determined by the 

Manager from time to time (and in any event recalculated based on the foregoing not less than 

once per year in connection with the preparation of the annual audited financial statements of the 

Company) in accordance with the requirements herein (and in the other Transaction Documents), 

with such determination to be set forth (and updated, as applicable), on an Acquired Property-byAcquired Property basis, in each Consolidated Business Plan (and update thereto), and, for 

purposes of each Distribution Date, further updated in the Monthly Report covering the Due 

Period with respect to such Distribution Date; provided that: 

(i) with respect to any Acquired Property that is included among the Assets 

on the Closing Date, until such time as the Manager shall have delivered a Consolidated 

Business Plan setting forth the applicable Net Fair Value of such Acquired Property, the Net Fair 

Value of such Acquired Property shall initially be the book value set forth on the Asset Schedule 

(as the Unpaid Principal Balance of such Acquired Property as of the Cut-Off Date) as adjusted 

to its Adjusted Unpaid Principal Balance pursuant to the Contribution Agreement, as such 

amount may be further adjusted as set forth herein; 

(ii) with respect to any Acquired Property that is not included among the 

Assets on the Closing Date, such Net Fair Value shall initially be determined at the time the 

relevant Collateral becomes Acquired Property, based on the Appraised Value as determined 

pursuant to Section 12.17(d) of the LLC Operating Agreement (and, until such determination of 

the Appraised Value, shall be based on the Unpaid Principal Balance of the applicable Loan 

immediately prior to the same being converted to such Acquired Property (where such Acquired 

Property represented, immediately prior to such conversion, all or substantially all in value of the 

Collateral for such Loan), or otherwise on the applicable Release Price for such Collateral 

immediately prior to such conversion thereof to such Acquired Property); 

(iii) in the event of any partial sale or other partial disposition of any Acquired 

Property, the Net Fair Value of such Acquired Property (as so retained by the Company) shall be 

reduced by the Release Price of the portion so sold or otherwise disposed (or, if no Release Price 

shall exist for such portion, by the net proceeds of such partial sale or other disposition), in each 

case to the extent such sale or disposition occurred after the most recent determination of the Net 

Fair Value of such Acquired Property pursuant to an applicable Appraisal (or annual 

determination in connection with the audited annual financial statements of the Company); and 

(iv) the Net Fair Value with respect to any Acquired Property will be increased 

by the amount of, without duplication, (A) any advances or Interim Servicing Expenses by the 

Transferor (or the Initial Member) during the Interim Servicing Period under or as described in 

the Contribution Agreement (and applicable provisions of the LLC Operating Agreement) made 

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with respect thereto, and (B) any Permitted Development Expenses (or other expressly permitted 

expenditures for Development pursuant to Section 12.14 of the LLC Operating Agreement) or 

Servicing Expenses for any construction or development (pursuant to clause (B) of the proviso 

appearing as the last paragraph of the definition of "Servicing Expenses") paid with respect 

thereto, in each case (for ® and ill)_ above) only to the extent such advances or expenses both 

(x) are capitalized thereto in accordance with GAAP (and applicable Law), and (y) were made or 

incurred, as applicable, after the effective date of the most recent determination of the Net Fair 

Value of such Acquired Property pursuant to an applicable Appraisal (or determination in 

connection with the audited annual financial statements ofthe Company). 

"Net Gain on Investments" means, as of any date, the Net Gain/Loss on Investments 

calculated as of such date, if such Net/Gain Loss on Investments is a positive number. For the 

avoidance of doubt, if, as of any date, the Net Gain/Loss on Investments calculated as of such 

date is zero or a negative number, then the "Net Gain on Investments" as of such date is zero. 

"Net Gain/Loss on Investments" means, as of any date, (i) the aggregate net income, if 

any, or the aggregate net loss (expressed as a negative number), if any, resulting from all 

investments from time to time of the funds on deposit in the Defeasance Account pursuant to 

Section 4.1 of the Custodial and Paying Agency Agreement (and, to the extent applicable, the 

liquidation of the same in accordance with Section 4.1 of the Custodial and Paying Agency 

Agreement), as determined by the Paying Agent (whose determination shall be conclusive absent 

manifest error), plus (ii) any amount previously deposited into the Defeasance Account by any 

Purchase Money Notes Guarantor or the Transferor in respect of"Net Loss on Investments". 

"Net Income and Net Loss" means, for each Fiscal Year or other period, the taxable 

income or loss of the Company, or particular items thereof, determined in accordance with the 

accounting method used by the Company for federal income tax purposes with the following 

adjustments: (a) all items of income, gain, loss, deduction or expense specially allocated pursuant 

to the LLC Operating Agreement (including pursuant to Sections 6.2(b)(i) through (iv) of the 

LLC Operating Agreement) shall not be taken into account in computing such taxable income or 

loss; (b) any income of the Company that is exempt from federal income taxation and not 

otherwise taken into account in computing the taxable income of the Company shall be added to 

such taxable income or loss; (c) if the Book Value of any asset differs from its adjusted tax basis 

for federal income tax purposes, any gain or loss resulting from a disposition of such asset shall 

be calculated with reference to such Book Value; (d) upon an adjustment to the Book Value of 

any asset pursuant to the definition of Book Value, the amount of the adjustment shall be 

included as gain or loss in computing such Net Income or Net Loss; (e) if the Book Value of any 

asset differs from its adjusted tax basis for federal income tax purposes, the amount of 

depreciation, amortization or cost recovery deductions with respect to such asset for purposes of 

determining Net Income or Net Loss shall be an amount which bears the same ratio to such Book 

Value as the federal income tax depreciation, amortization or other cost recovery deductions 

bears to such adjusted tax basis (provided that if the federal income tax depreciation, 

amortization or other cost recovery deduction is zero, the Tax Matters Member may use any 

reasonable method for purposes of determining depreciation, amortization or other cost recovery 

deductions in calculating Net Income or Net Loss); and (f) except for items in (a) above, any 

expenditures of the Company not deductible in computing taxable income or loss, not properly 

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14132824.4 
capitalizable and not otherwise taken into account in computing Net Income or Net Loss 

pursuant to this definition, shall be treated as deductible items. 

"Net Loss on Investments" means, as of any date, the absolute value of the Net 

Gain/Loss on Investments calculated as of such date, if such Net/Gain Loss on Investments is a 

negative number. For the avoidance of doubt, if, as of any date, the Net Gain/Loss on 

Investments calculated as of such date is zero or a positive number, then the "Net Loss on 

Investments" as of such date is zero. 

"Non-Guaranteed Purchase Money Note" means any Purchase Money Note that is not 

a Guaranteed Purchase Money Note. 

"Non-Guaranteed Purchase Money Note Obligations" means the Secured Obligations 

consisting of all debts, Liabilities, obligations (including any obligation to pay principal, charges, 

expenses, fees, attorney costs, indemnities and other amounts), covenants and duties of any 

Grantor arising under any Non-Guaranteed Purchase Money Note, whether direct or indirect 

(including those acquired by assumption), absolute or contingent, due or to become due, now 

existing or hereafter arising and including fees that accrue after the commencement by or against 

the Debtor under any Debtor Relief Laws naming such Person as the debtor in such proceeding, 

regardless of whether such fees are allowed claims in such proceeding. 

"Non-Permitted Holder" has the meaning set forth in Section 2.12(b) of the Custodial 

and Paying Agency Agreement. 

"Note" means each note or promissory note, lost instrument affidavit, loan agreement, 

shared credit, or Loan Participation Agreement, intercreditor agreement, reimbursement 

agreement, any other evidence of indebtedness of any kind, or any other agreement, document or 

instrument, in each case evidencing the indebtedness of a borrower under a Loan, and all 

Modifications to the foregoing. 

"Note Owner" means the beneficial owner of an interest in a Rule 144A Global Note. 

"Notice of Event of Default" has, for purposes of the Account Control Agreement, the 

meaning set forth in the Account Control Agreement, and for purposes of the Private Owner 

Pledged Account Control Agreement, the meaning set forth in the Private Owner Pledged 

Account Control Agreement. 

"Notice Schedule" means the Notice Schedule attached as Schedule I to this Agreement. 

"NY UCC" means the Uniform Commercial Code as in effect on the Closing Date in the 

State of New York, as may be amended, supplemented or modified from time to time, and any 

successor statute. 

"Obligations" means all of the following (in each case, whether existing or accrued (or 

due, overdue or not due) as of, or incurred, imposed or arising on or after, the Cut-Off Date 

and/or the Closing Date): 

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(a) all Liabilities (including any Liability to make an extension of credit (or other 

advance)) of the Receiver under any Transferred Contract, in each case to the extent the same 

are, in accordance with the FDIC Legal Powers (interpreted as set forth in the last sentence of 

Section 2.2 of the Contribution Agreement), legally binding on and valid against the Receiver; 

(b) all Liabilities (including (i) Liabilities for Taxes, (ii) homeowners association 

dues and other assessments, (iii) the obligation to prevent waste or allow the property to become 

a nuisance, and (iv) the obligation to comply with deed, zoning or other use restrictions) of the 

Receiver with respect to any Receiver Acquired Property (including with respect to the 

existence, acquisition, ownership, possession, operation, conduct or condition thereof), whether 

imposed by Law, order of any Governmental Authority, recorded instrument or deed, or 

otherwise, in each case to the extent the same are, in accordance with the FDIC Legal Powers 

(interpreted as set forth in the last sentence of Section 2.2 of the Contribution Agreement), 

legally binding on and valid against the Receiver; 

(c) without limitation of clause (ii) of the first sentence of Section 2.2 of the 

Contribution Agreement, all Liabilities (including any Liabilities for or in respect of any costs 

and expenses (including attorneys' fees and litigation and similar costs, and other out-of-pocket 

expenses, actually incurred in investigating, defending, asserting or preparing the defense of any 

Assumed Closing Date Asset Litigation), judgments, awards, fines, settlement amounts or 

penalties) of the Receiver (after giving effect to the FDIC Legal Powers) for or in respect of, or 

otherwise arising out of, any Assumed Closing Date Asset Litigation, in each case (i) to the 

extent the same are, in accordance with the FDIC Legal Powers (interpreted as set forth in the 

last sentence of Section 2.2 of the Contribution Agreement), legally binding on and valid against 

the Receiver and (ii) in the case of any such costs or expenses, to the extent the same were or are 

incurred after the Cut-Off Date; and 

(d) all Liabilities of the Receiver arising out of or in connection with, resulting from 

or related in any way to, any Asset (including with respect to the existence, acquisition, 

ownership, possession, operation, conduct or condition thereof), to the extent attributable to acts, 

omissions, events or circumstances (including (i) acts or omissions of, or on behalf of, the 

Company, the Private Owner, the Servicer, any subsidiary of the Company or any Ownership 

Entity, and (ii) without limitation of clause (i), any acts or omissions of the Transferor and/or any 

Existing Servicer in connection with the services (including in any event all Servicing) provided 

(or caused to be provided) or contemplated to be provided (or to be caused to be provided) by the 

Transferor and/or any Existing Servicer pursuant to, or as described in, Section 3.3 of the 

Contribution Agreement) occurring or initially arising at any time after the Cut-Off Date 

(including at any time after the Closing Date); 

in each case (for U!)_ through @ inclusive) excluding, however, any Excluded Liability 

(disregarding for this purpose clause (c) of the definition of the term "Excluded Liabilities"). It 

is understood and agreed that any Liability of any Failed Bank or the Receiver that has been 

discharged or otherwise extinguished (whether by operation of Law, by settlement or payment 

(including payment by issuance of a receivership certificate), by contract or otherwise) prior to, 

on or as of a specified date does not constitute a Liability of the Receiver as of such specified 

date, provided, for the avoidance of doubt, that this sentence does not limit or qualifY, and is 

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subject to, clause (c) of the preceding sentence or the indemnity set forth in clause (ii) ofthe first 

sentence of Section 2.2 of the Contribution Agreement. 

"Obligor" means (i) any guarantor of all or any portion of any Loan or all or any of any 

Borrower's obligations set forth and described in the Asset Documents or (ii) any other Person 

(other than any Borrower, the lender(s) and any administrative or other agent) that is obligated 

pursuant to the Asset Documents with respect to an Asset, and shall include the guarantor under 

any completion guaranty or similar document. 

"Office" has the meaning set forth in Section 6.1 (a) of the Custodial and Paying Agency 

Agreement. 

"Omnibus Assignment" means, with respect to any Receiver Acquired Property (other 

than a Potentially Defectively Foreclosed Receiver Acquired Property), the title to which is held 

by the Receiver (rather than an Ownership Entity) as of the Closing Date, a general assignment 

and assumption, without representation, warranty or covenant of any kind, of any Related 

Agreements and tangible and intangible personal property related to such Receiver Acquired 

Property, in the form of Attachment J-2 to the Contribution Agreement. 

"Order" has the meaning set forth in Section 6.1 of the Contribution Agreement. 

"Organizational Documents" means: (i) with respect to any corporation, the certificate 

or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents 

with respect to any non-U.S. jurisdiction); (ii) with respect to any limited liability company, the 

certificate or articles of formation or organization and limited liability company or operating 

agreement; and (iii) with respect to any partnership, joint venture, trust or other form of business 

entity, the partnership, joint venture or other applicable agreement of formation or organization 

and any agreement, instrument, filing or notice with respect thereto filed in connection with its 

formation or organization with the applicable Governmental Authority in the jurisdiction of its 

formation or organization and, if applicable, any certificate or articles of formation or 

organization of such entity. 

"Original Face Amount" (i) with respect to any Rule 144A Global Note, has the 

meaning set forth therein, and (ii) with respect to a Certificated Note, means the stated original 

principal amount of such Certificated Note. 

"Original LLC Operating Agreement" means the initial "limited liability company 

agreement" (as such term is defined in the Act) of the Company dated as of a date prior to the 

Closing Date, pursuant to which the Initial Member held the entire limited liability company 

interest in the Company. 

"Ownership Entity" means a Special Purpose Entity that is a direct, wholly-owned 

subsidiary of the Company (or, for purposes of the Contribution Agreement, an entity that is 

identified as an Ownership Entity on the Ownership Entity and Receiver Acquired Property 

Schedule), whether contributed by the Transferor on the Closing Date or formed or acquired by 

the Company thereafter; provided, that, with respect to any entity transferred to the Company on 

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the Closing Date pursuant to the Contribution Agreement (or otherwise identified as an 

Ownership Entity in the Ownership Entity and Receiver Acquired Property Schedule) that is not 

a Special Purpose Entity as of the Closing Date, any such entity shall be deemed to be an 

Ownership Entity; provided, further, that, the Company and the Manager shall take all necessary 

and appropriate actions to cause such entity to become a Special Purpose Entity as promptly as 

possible after the Closing. 

"Ownership Entity and Receiver Acquired Property Schedule" means Attachment C 

to the Contribution Agreement. 

"Ownership Interest" means, with respect to any Person, (i) any limited liability 

company interest in, any shares of capital stock of, or any other ownership or profit, or voting, 

interest in, such Person, (ii) any rights or recourse against such Person under any stock 

appreciation, phantom stock, profit participation or similar rights or plan, (iii) any rights of any 

nature whatsoever (including conversion rights, exchange rights or rights under warrants) to have 

such Person issue (or otherwise cause to become outstanding), sell, execute or deliver, or any 

liability or obligation of such Person to issue (or otherwise cause to become outstanding), sell, 

execute or deliver, (x) any Ownership Interest with respect to such Person described in clause (i) 

or (ii), or (y) any contract including any right or recourse described in clause (i) or ® or above 

in this clause (iii), or (iv) any other "equity security" (as such term is defined in Rule 3a 11-1 

under the Exchange Act) of such Person. 

"Paying Agent" means the Bank, and any successor paying agent that is a Qualified 

Custodian and Paying Agent and is acceptable and approved by the Initial Member, such 

approval not to be unreasonably withheld, delayed or conditioned. 

"Percentage Interest" means, with respect to the limited liability company interest in the 

Company held by the Initial Member prior to the Closing Date, 100% and, with respect to the 

limited liability company interests in the Company held by the Initial Member and Private 

Owner, respectively, on and after the Closing Date, as set forth in Section 2.3(c) of the LLC 

Operating Agreement (pursuant to which Section 2.3(c) such Percentage Interest is 60% for the 

Initial Member and 40% for the Private Owner). 

"Perfection Requirements" has the meaning set forth m Section 7.1(e) of the 

Reimbursement, Security and Guaranty Agreement. 

"Permitted Development" means any applicable Substantially Complete Vertical 

Development, to the extent of the Permitted Vertical Completion Expenses with respect thereto, 

and any Permitted Horizontal Development has the meaning set forth in Section 12.13(a) of the 

LLC Operating Agreement. 

"Permitted Development Expenses" means any Permitted Vertical Completion 

Expenses or Permitted Horizontal Expenses, and the approved budgeted costs and expenses of 

the Company (other than Working Capital Expenses) set forth in the approved Development Plan 

in connection with the Permitted Development with respect to a particular Asset; provided, that, 

in no event shall any such costs and expenses include any Excluded Expenses. 

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"Permitted Dispositions" has the meaning set forth in Section 8.1 of the LLC Operating 

Agreement. 

"Permitted Horizontal Development" has the meaning set forth in Section 12.13(a) of 

the LLC Operating Agreement. 

"Permitted Horizontal Development Expenses" means the approved budgeted costs 

and expenses of the Company (other than Working Capital Expenses) set forth in the approved 

Horizontal Development Plan in connection with the Permitted Horizontal Development; 

provided, that, in no event shall any such costs and expenses include any Excluded Expenses. 

"Permitted Investments" means any one or more of the following obligations or 

securities having at the time of purchase, or at such other time as might be specified, the required 

ratings, if any, provided for in this definition: 

(i) direct obligations of, or guaranteed as to timely payment of principal and 

interest by, the United States of America or any agency or instrumentality of the United States of 

America, the obligations of which are backed by the full faith and credit of the United States of 

America; for the avoidance of doubt, this clause (i) shall include any debt guaranteed by the 

FDIC in its corporate capacity; 

(ii) demand and time deposits in or certificates of deposit of, or bankers' 

acceptances issued by, any bank or trust company, savings and loan association or savings bank 

in the United States, provided that, in the case of obligations that are not fully FDIC-insured 

deposits, the commercial paper and/or long-term unsecured debt obligations of such depository 

institution or trust company (or in the case of the principal depository institution in a holding 

company system, the commercial paper or long-term unsecured debt obligations of such holding 

company) have an Acceptable Investment Rating; 

(iii) general obligations of or obligations guaranteed by any state of the United 

States or the District of Columbia receiving ratings of not less than the highest rating of each 

Rating Agency rating such obligations; 

(iv) mutual funds in which investments are limited to the obligations referred 

to in clauses (i), (ii) or (iii) of this definition; and 

(v) with the prior written consent of the Required Consenting Parties (or (x) 

the Initial Member alone, in the case of the Private Owner Pledged Account, and (y) the PMN 

Agent alone, in the case of the Defeasance Account), any other demand, money market or time 

deposit or other obligation, instrument, security or investment. 

"Permitted Liens" means (i) Liens in favor ofthe Secured Parties pursuant to the 

Transaction Documents; (ii) Liens on Collateral (other than Acquired Property) caused or 

permitted by the Manager as permitted under the Asset Documents where the applicable 

Borrower is not in default thereunder (so long as any such Lien caused by, or permitted pursuant 

to a discretionary consent or waiver of, the Manager is subordinated and junior to the security 

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interest in favor of the Company in the applicable Collateral); (iii) any Lien arising by operation 

of Law with respect to any Mortgaged Property as a result of the applicable Borrower's failure to 

pay ground rents, Taxes, assessments, water rates, sewer rents, and other similar charges with 

respect to such Mortgaged Property, so long as the Manager shall have determined in accordance 

with the Servicing Standard (and shall have maintained applicable records of such determination 

pursuant to Section 1 of the Reporting and Access Schedule) that the amount of such Lien (or 

applicable aggregate amount required to be paid by the Company so as to discharge the same) 

exceeds the net recoverable amount to the Company with respect to such Mortgaged Property 

and provided that, so long as such Lien remains in effect, the Company does not acquire title to 

such Mortgaged Property or otherwise have any liability with respect to such Lien; (iv) inchoate 

Liens arising by operation of law for Taxes not yet due, payable or delinquent; (v) leasehold 

interests of lessees and purchase rights of purchasers under leases and sales contracts otherwise 

permitted under the Transaction Documents (with respect to the Collateral or Acquired Property 

being so leased or purchased); (vi) in the case of Acquired Property (and in addition to the 

foregoing), any Permitted Lien (and all title and survey exceptions based thereon as set forth in 

the applicable owner's title insurance) in existence at the time the Company or an applicable 

Ownership Entity acquired title to such Acquired Property (other than, in connection with any 

such title acquired by foreclosure or other applicable legal process, any such Lien as would be 

extinguishable in accordance with applicable Law in connection with such foreclosure or other 

legal process); and (vii) such other Liens as the Required Consenting Parties may unanimously 

approve in writing in their sole discretion. 

"Permitted Vertical Completion Expenses" means, as the context may require, (i) in 

connection with any Loan, Permitted Vertical Development Funding Draws, and/or (ii) in 

connection with any Acquired REO Property, the reasonable costs and expenses for Substantially 

Complete Vertical Development of such Acquired REO Property (including the payment of socalled "soft costs" payable during construction (such as real estate Taxes, ground rents and 

insurance premiums)) consistent with such costs as would typically have been paid out of 

funding of the applicable Loan relating to such Acquired REO Property (as reasonably 

determined by the Manager), in each case (x) only to the extent the Manager determines, in its 

reasonable judgment, that the payment of such costs and expenses is in the best interests (in 

terms of maximizing the value of the Acquired REO Property) of the Company and the Initial 

Member, and (y) in accordance with the Servicing Standard and, except to the extent specifically 

superseded by the Business Plan as it relates to such Asset, the Asset Documents that were 

applicable to the Acquired REO Property before it became an Acquired REO Property (not 

including payment of debt service under the applicable Asset Documents, and without reference 

to the unfunded commitment, if any, having been in effect with respect to such Acquired REO 

Property under the Asset Documents); provided, that in no event shall any such costs and 

expenses include any Excluded Expenses. 

"Permitted Vertical Development Funding Draw" means, with respect to any Loan, 

any Funding Draw, other than a Required Funding Draw, for the funding of Substantially 

Complete Vertical Development of the real property securing such Loan pursuant to the funding 

provisions of the applicable Asset Documents and in accordance with the Servicing Standard, in 

each case so long as (i) if required by applicable Law or if otherwise deemed necessary by the 

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Manager or required hereunder or under the Transaction Documents, an endorsement to each 

applicable title policy insuring the Asset, which endorsement shall be in form and content 

acceptable to the Manager, is obtained that (a) brings down the effective date of the title policy to 

the date on which the applicable Permitted Vertical Development Funding Draw it covers is 

made, (b) increases the liability limit of the title policy by an amount equal to the principal 

amount of such Permitted Vertical Development Funding Draw, and (c) contains no new 

exceptions to title; (ii) notwithstanding anything to the contrary contained in the LLC Operating 

Agreement, if the then outstanding unpaid principal balance of the Loan exceeds (or would, after 

taking into account the applicable Permitted Vertical Development Funding Draw, so exceed) 

the value of the Collateral for such Loan, the Manager shall make or permit any such Permitted 

Vertical Development Funding Draw only if the Manager determines, in its reasonable judgment, 

that the Borrower is reasonably likely to be able to repay the Loan, or that the making of the 

Permitted Vertical Development Funding Draw is in the best interests (in terms of maximizing 

the value of the Loan) of the Company and the Members; and (iii) such Permitted Vertical 

Development Funding Draw is made in accordance with the terms of the Loan and the Asset 

Documents; provided, however, that if such Permitted Vertical Development Funding Draw 

would result in the principal amount of such Loan being in excess of the related unfunded 

commitment set forth in the Asset Documents (less the aggregate principal amount of any 

Required Funding Draws or other Permitted Vertical Development Funding Draws previously 

made by the Company on or after the Closing Date in respect of such Loan) or if any term with 

respect to the Loan or the Asset Documents precludes such Permitted Vertical Development 

Funding Draw in the event of a Borrower default, the applicable unfunded commitment may be 

increased (and such Permitted Vertical Development Funding Draw may be made) and/or such 

term may be waived, in each case only if the Manager determines, in its reasonable judgment and 

in accordance with the Servicing Standard, that such increase to the unfunded commitment (and 

related Permitted Vertical Development Funding Draw) and/or waiver is in the best interests of 

the Company and the Initial Member in terms of maximizing the value of the Loan and, in the 

case of any such increase to the unfunded commitment (or other Permitted Vertical Development 

Funding Draw not contemplated in the existing Asset Documents), (x) such increased 

commitment and the related Permitted Vertical Development Funding Draw are evidenced by an 

applicable Note (or Notes) and amendments to the Asset Documents (including Collateral 

Documents) pursuant to which such increased commitment and Permitted Vertical Development 

Funding Draw shall be secured by all of the Collateral for such Loan and otherwise subject to the 

general provisions with respect to other outstanding amounts under such Loan, all on terms and 

conditions consistent with the Asset Documents as in effect prior to such amendment, and (y) the 

Manager complies with the requirements in item (i) above; provided, that in no event shall any 

such costs and expenses payable pursuant to any such Permitted Vertical Development Funding 

Draw include any Excluded Expenses. 

"Person" means any individual, corporation, partnership (general or limited), limited 

liability company, limited liability partnership, firm, joint venture, association, joint-stock 

company, trust, estate, unincorporated organization, Governmental Authority or other entity. 

"Pledged Interests" shall have the meaning set forth in Section 3.1 of the 

Reimbursement, Security and Guaranty Agreement. 

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"PMN Agent" means Person from time to time constituting the "PMN Agent" under the 

Reimbursement, Security and Guaranty Agreement (initially, the Receiver), in such capacity. 

"PMN Factor" means, in relation to any particular Purchase Money Note, the quotient of 

the then-outstanding unpaid principal amount of such Purchase Money Note divided by the 

aggregate then-outstanding unpaid principal amount of all of the Purchase Money Notes of the 

same Class of Purchase Money Notes. 

"PMN Satisfaction/Defeasance Date" means (i) prior to the Guaranty Issuance Date, the 

date on which all the Purchase Money Notes shall have been indefeasibly paid, satisfied and 

discharged in full, and (ii) on or after the Guaranty Issuance Date, the date on which both (x) the 

balance in the Defeasance Account (plus any Net Loss on Investments, and disregarding for 

purposes of such calculation any amounts deposited into the Defeasance Account pursuant to 

Section 2.8 of the Custodial and Paying Agency Agreement or pursuant to any Purchase Money 

Notes Guaranty (and any related disbursement from the Defeasance Account in respect of any 

such deposit)) equals (or exceeds) the aggregate outstanding principal amount of all the Purchase 

Money Notes and (y) all reimbursement amounts, together with any accrued interest thereon, 

owed to all Purchase Money Notes Guarantors pursuant to the Reimbursement, Security and 

Guaranty Agreement for previous payments made by them pursuant to any Purchase Money 

Notes Guaranty shall have been indefeasibly paid, satisfied and discharged in full. 

"PO Owner" means (i) any holder of an Ownership Interest in the Private Owner at any 

time prior to the Transaction Termination Date and (ii) if any such holder is a nominee for 

another Person or Persons, each such other Person or Persons. 

"PO Owner Undertaking" has the meaning set forth in Section 4(a) of the Private 

Owner Interest Sale Agreement. 

"PO/Manager Distribution Instruction" has the meaning set forth in Section 5.1 (a) of 

the Custodial and Paying Agency Agreement. 

"PO/Manager Distribution Reinstatement Notice" has the meaning set forth in Section 

5.1(a) ofthe Custodial and Paying Agency Agreement. 

"Potentially Defectively Foreclosed Receiver Acquired Property" means each real 

property (and related personal property) Receiver Acquired Property identified as "Potentially 

Defectively Foreclosed" or as a "Potentially Defectively Foreclosed Receiver Acquired 

Property" on the Ownership Entity and Receiver Acquired Property Schedule. 

"Pre-Approved Charges" means the costs and expenses (including legal fees and costs 

incurred by the Company, the Manager, the Servicer or any Subservicer for the benefit of the 

Company) expressly designated as "Pre-Approved Charges" in the Contribution Agreement 

(including Sections 2.8, lJ..{f}, 3.l(d)(i), lJill, 3.2(b), 4.3, 4.10 and 5.6 of the Contribution 

Agreement) or the Reimbursement, Security and Guaranty Agreement, and no other costs or 

expenses. 

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Version 3.1.1 

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"Previously Approved Matters" has the meaning set forth in Section 2.7 of the LLC 

Operating Agreement. 

"Principal Deficiency" has the meaning set forth in Section 2.4(c) of the Contribution 

Agreement. 

"Prior Servicers" means, as of any date of determination, the Receiver, the Company, 

the Existing Servicers, the FDIC, any Failed Bank and any predecessor-in-interest thereof, any 

Ownership Entities existing (or having been in existence) on or before such date, and all of their 

respective Related Persons (but excluding, in all cases, the Manager (in its individual capacity)). 

"Priority of Payments" has the meaning set forth in Section 5.1 of the Custodial and 

Paying Agency Agreement. 

"Private Owner" means the Person from time to time constituting the "Private Owner" 

under, and in accordance with, the LLC Operating Agreement (initially, ColFin 2012 CRE ADC 

Funding, LLC, a Delaware limited liability company). 

"Private Owner Interest" (a) for purposes of the Private Owner Interest Sale 

Agreement, has the meaning set forth in the Recitals of the Private Owner Interest Sale 

Agreement, and (b) for purposes of each Transaction Document other than the Private Owner 

Interest Sale Agreement, means (i) the limited liability company interest in the Company held by 

the Private Owner, including the rights to share in the income, gain, loss, deductions and credits 

of, and the right to receive distributions from, the Company, (ii) all other rights, benefits and 

privileges enjoyed by the Private Owner (under the Act, the LLC Operating Agreement or 

otherwise) in its capacity as a Member, including rights to vote, consent and approve, and (iii) all 

other rights, benefits, privileges and claims (whether known or unknown) of the Private Owner 

(in any capacity, including as the Manager) under, or arising under, the LLC Operating 

Agreement or the Custodial and Paying Agency Agreement, including in any event all rights of 

the Private Owner (in any capacity, including as the Manager) to receive the Interim 

Management Fee or the Management Fee, to receive any distributions or payments on account of 

any Excess Working Capital Advances or Discretionary Funding Advances made by or on behalf 

of the Private Owner (in any capacity, including as the Manager) and all rights with respect to 

any funds in the Private Owner Pledged Account. For the avoidance of doubt, the "Private 

Owner Interest" does not include any right, title or interest of the Manager (in its individual 

capacity) under the Servicing Agreement. 

"Private Owner Interest Asset Value" means, with respect to any Asset, the portion of 

the Private Owner Interest Sale Price allocated to such Asset, as set forth on the Private Owner 

Interest Asset Value Schedule. 

"Private Owner Interest Asset Value Schedule" means the "Private Owner Interest 

Asset Value Schedule" attached as Attachment B to the Contribution Agreement. 

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"Private Owner Interest Sale Agreement" means the Private Owner Interest Sale and 

Assignment Agreement between the Initial Member and the Private Owner dated as of the 

Closing Date. 

"Private Owner Interest Sale Price" means the purchase price set forth in the Private 

Owner Interest Sale Agreement (as the "Private Ovmer Interest Sale Price" defined therein) for 

the limited liability company interest sold to the Private Owner. 

"Private Owner Obligations" means all duties, liabilities and obligations of the Private 

Owner under or with respect to the LLC Operating Agreement and the Transaction Documents. 

"Private Owner Pledged Account" means the segregated trust or custodial account 

designated as the "Private Owner Pledged Account" pursuant to Section 3.9(a) of the Custodial 

and Paying Agency Agreement. 

"Private Owner Pledged Account Control Agreement" means the Private Owner 

Pledged Account Control Agreement (in substantially the form set forth in Exhibit Q to the 

Custodial and Paying Agency Agreement), among the Private Owner, the Paying Agent and the 

Initial Member, with respect to the Private Owner Pledged Account. 

"Private Owner Pledged Amount" means Two Million and No/100 Dollars 

($2,000,000.00). 

"Private Owner WCR Account Deposit" has the meanmg set forth in the Private 

Owner Interest Sale Agreement. 

"Proceedings" means any suit in equity, action at Law or other judicial or administrative 

proceeding. 

"Purchase Money Notes" means, (i) individually, a Class A Purchase Money Note and 

(ii) collectively, (a) Class A Purchase Money Notes and (b) any Subsequent Class Purchase 

Money Notes. 

"Purchase Money Notes Asset Value" means, with respect to any Asset, the product of 

(A) the aggregate original principal amount of the Purchase Money Notes and (B) a fraction, the 

numerator of which is the Private Owner Interest Asset Value of such Asset and the denominator 

of which is the Private Owner Interest Sale Price. By way of clarification, adjustments based on 

Excess Principal or a Principal Deficiency do not affect the Purchase Money Notes Asset Value. 

"Purchase Money Notes Disposition" means any Disposition of any Purchase Money 

Note. 

"Purchase Money Notes Guarantor" means the "Purchase Money Notes Guarantor" 

under any Purchase Money Notes Guaranty (and, in each case, any successor thereto). 

"Purchase Money Notes Guaranty" means any, and each, guaranty entered into 

pursuant to Section 8.4(b)(iv) of the Contribution Agreement or Section 2.8 of the Custodial and 

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Paying Agency Agreement. If more than one such agreement 1s entered into, all such 

agreements shall rank pari passu with each other in right of payment. 

"Purchase Money Notes Issuance Fee" has the meaning set forth in Section 2.1 O(a) of 

the Contribution Agreement. 

"Purchase Money Notes Maturity Date" means either the Class A Note Maturity Date 

or, with respect to any Subsequent Class Purchase Money Notes, the "Maturity Date" as defined 

in the Purchase Money Notes of such Class. 

"Purchase Money Notes Register" has the meaning set forth in Section 2.7(a) of the 

Custodial and Paying Agency Agreement. 

"Purchase Money Notes Registrar" has the meaning set forth in Section 2.7(a) of the 

Custodial and Paying Agency Agreement. 

"Purchase Money Notes Tri22er Event" shall be deemed to have occurred (and to 

exist) if, as of any time during the periods set forth below, (a) the sum of (i) the aggregate 

amount previously paid by the Company (including from the Distribution Account or the 

Defeasance Account, but excluding any payments made (including through the Defeasance 

Account) (x) pursuant to any Purchase Money Notes Guaranty or (y) from any amount deposited 

into the Defeasance Account pursuant to Section 2.8 of the Custodial and Paying Agency 

Agreement) to Holders to pay the principal of the Purchase Money Notes plus (ii) the aggregate 

amount previously paid by the Company to the Purchase Money Notes Guarantors to reimburse 

the Purchase Money Notes Guarantors (including from the Distribution Account or the 

Defeasance Account) for the principal of any payments made by the Purchase Money Notes 

Guarantors pursuant to any Purchase Money Notes Guaranty (other than for any amount paid by 

such Purchase Money Notes Guarantor pursuant to Section 16(b) of any Purchase Money Notes 

Guaranty), plus (iii) the total amount then on deposit in the Defeasance Account (plus the Net 

Loss on Investments, and disregarding for purposes of such calculation any amounts deposited 

into the Defeasance Account pursuant to Section 2.8 of the Custodial and Paying Agency 

Agreement or pursuant to any Purchase Money Notes Guaranty (and any related disbursement 

from the Defeasance Account in respect of any such deposit)), divided by (b) the original 

aggregate principal amount of the Purchase Money Notes as of the Closing Date, is less than: 

fourth (4th) anniversary of the Closing Date or any time 


thereafter before the fifth (5th) anniversary of the Closing Date: 25% 


fifth (5th) anniversary of the Closing Date or any time 


thereafter before the sixth (6th) anniversary of the Closing Date: 50% 


sixth (6th) anniversary of the Closing Date or any time 


thereafter before the seventh (ih) anniversary of the Closing Date: 75% 


seventh (ih) anniversary of the Closing Date or any time 


thereafter: 100% 


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"Purchase Price Payment" has the meaning set forth in Section 1 (a) of the Private 

Owner Interest Sale Agreement. 

"Purchaser Eligibility Certification" means, (i) with respect to the Private Owner, any 

Purchaser Eligibility Certification delivered by the Private Owner or any of its Affiliates to the 

Receiver in connection with the transactions contemplated in the LLC Operating Agreement and 

the other Transaction Documents, including the Purchaser Eligibility Certification delivered by 

the Private Owner to the Receiver on or about the Closing Date, and, (ii) with respect to any 

Permitted Disposition (and the applicable transferee in connection therewith), a Purchaser 

Eligibility Certification in substantially the form of the Purchaser Eligibility Certification 

referenced in item (i), with such changes as the Initial Member may require based on changes to 

such form of Purchaser Eligibility Certification as maintained by the FDIC. 

"Qualified Custodian and Paying Agent" means any Person that (i) is a bank, trust 

company or title insurance company subject to supervision and examination by any federal or 

state regulatory authority, (ii) is experienced in providing services of the type required to be 

performed by the Bank as the Custodian and Paying Agent under the Custodial and Paying 

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

Custodial Documents will be held to the extent required unless and to the extent the failure to be 

so qualified or licensed will not have a material adverse effect on the Custodian or its ability to 

perform its obligations under the Custodial and Paying Agency Agreement, (iv) is not prohibited 

from exercising custodial powers in any jurisdiction in which the 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 funds deposited in the Accounts, 

the Asset Documents and other Custodial Documents, and (vii) is not an Affiliate of the 

Company, the Initial Member, the Private Owner, the Servicer or any Subservicer. 

"Qualified Institutional Buyer" means a "qualified institutional buyer" as defined in 

Rule 144A under the Securities Act. 

"Qualified Issuer" means any FDIC-insured depository institution that is at all times 

"well capitalized" as defined in 12 U.S.C. § 1831o (b)(l)(A), is in the business of issuing letters 

of credit and either (i) maintains offl.ces in either or both of New York City, NY and 

Washington, D.C. where presentation and drawings on such letters of credit can be duly made, or 

(ii) maintains a letter of credit department at its offices in another city and confirms to the Initial 

Member that its standard institutional practice is to permit presentation and drawing on such 

letters of credit by facsimile transmission of documents to such office. 

"Qualified Purchaser" means a "qualified purchaser" within the meanmg of 

Section 3(c)(7) of the Investment Company Act. 

"Qualified Servicer" means any Person that (i) is properly licensed and qualified to 

conduct business in each jurisdiction in which such licenses and qualifications to conduct 

business are necessary for the Servicing to be conducted by or through such Person (taking into 

account any Servicing being conducted by any Subservicer engaged by such Person), (ii) has the 

management capacity and experience to service Assets of the type held by the Company and to 

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be serviced by such Person, especially performing and non-performing commercial real estate 

loans (including acquisition, development and construction loans) secured by commercial 

properties and residential real estate loans (including acquisition, development and construction 

loans) secured by residential properties, as applicable, including the number and types of Assets 

serviced, (iii) has the ability itself, or through an applicable Subservicer engaged by such Person, 

to track, process and post payments, to furnish Tax reports to borrowers, and to monitor 

construction and approve and disburse construction draws, (iv) in the event such Person is to 

perform any Servicing other than Asset Management, such Person either (x) has an Acceptable 

Rating, (y) has engaged a Rated Subservicer for all such Servicing other than Asset 

Management, or (z) is approved by and continues to be acceptable to the Initial Member in its 

sole discretion, and (v) in the event any of the serviced Loans are (or are required pursuant to the 

terms hereof to be) registered on the MERS® System, is a member ofMERS. 

"Qualified Transferee" has the meaning set forth in Section 10.1 of the LLC Operating 

Agreement. 

"Qualifying Cash Collateral" means cash and any interest earned thereon (and 

Permitted Investments with respect thereto) in the Private Owner Pledged Account. 

"Qualifying Letter of Credit" means an irrevocable standby letter of credit (i) delivered 

to (and naming as sole beneficiary thereunder) the Initial Member substantially in the form of 

Exhibit D to the LLC Operating Agreement (or in such other form as may be acceptable to, and 

approved in writing by, the Initial Member), duly issued by an Issuing Bank that is, as ofthe date 

of issuance thereof, a Qualified Issuer, (ii) drawable either (x) at such Issuing Bank's offices in 

New York City, NY or Washington, D.C. or (y) through a letter of credit department located at 

its offices in another city which permits presentation and drawing on such letters of credit by 

facsimile transmission of documents to such office; provided, however, with respect to this 

clause (y) above, such Qualified Issuer shall confirm to the Initial Member that such Qualified 

Issuer's standard institutional practice is to permit presentation and drawing on such letters of 

credit by facsimile transmission of documents to such office and (iii) having an initial term of 

one year with automatic renewals thereafter (without amendment except for extension of the then 

current expiry date by an additional year) until the Initial Member has delivered written notice to 

the Issuing Bank to the effect that such Qualifying Letter of Credit is being released in its 

entirety. 

"Rated Subservicer" means a Qualified Servicer (that, for purposes of clause (iv) of 

such definition, either (x) has an Acceptable Rating, or (y) is approved by and continues to be 

acceptable to the Initial Member in its sole discretion) engaged as a Subservicer by the Servicer 

in order for the Servicer to qualify as a Qualified Servicer (and without the engagement of which 

such Servicer would not, as to applicable Servicing being conducted by such Rated Subservicer, 

so qualify as a Qualified Servicer). 

"Rating Agencies" means each of Moody's Investors Service, Inc., Standard and Poor's 

Ratings Service, Fitch, Inc. and such other rating agencies as are nationally recognized. 

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"Receiver" means the FDIC, in its separate capacities as receiver with respect to each 

Failed Bank; provided that, from and after the acquisition of the assets of any such receivership 

by the FDIC in its corporate capacity, "Receiver" shall, in relation to such particular 

receivership, refer to the FDIC in its corporate capacity as successor to such receiver with respect 

to such receivership. 

"Receiver Acquired Property" means (i) the equity interests in any Ownership Entity 

(or other special purpose entity holding applicable real and/or personal property) set forth on the 

Ownership Entity and Receiver Acquired Property Schedule (and the assets held directly or 

indirectly by any such Ownership Entity), (ii) Collateral that is identified as "Owned Real 

Estate" on the Ownership Entity and Receiver Acquired Property Schedule, the title to which has 

been acquired by or on behalf of the Receiver or any Failed Bank by foreclosure, by deed in lieu 

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

(including where the foreclosure or other acquisition event occurs before the Cut-Off Date), but 

the title to which has not yet been transferred to an Ownership Entity by the Receiver (which 

shall include each Potentially Defectively Foreclosed Receiver Acquired Property, except where 

the context provides otherwise), and (ii) any other Collateral, the title to which has been acquired 

by or on behalf of the Receiver or any Failed Bank by foreclosure, by deed in lieu of foreclosure, 

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

other acquisition event occurs after the Cut-Off Date, or occurred on or before the Cut-Off Date 

but the Redemption Period had not expired on or before the Cut-Off Date, and the equity 

interests in any Ownership Entity (or other special purpose entity formed by or on behalf of the 

Receiver or any Failed Bank) holding any such Collateral. 

"Receiver's Deed" means, with respect to any real property (and related personal 

property) Receiver Acquired Property (other than a Potentially Defectively Foreclosed Receiver 

Acquired Property), the title to which is held by the Receiver (rather than an Ownership Entity) 

as of the Closing Date, a special warranty deed in recordable form, in the form of Attachment J-1 

to the Contribution Agreement. 

"Receiver's Quitclaim Deed" means, with respect to any Potentially Defectively 

Foreclosed Receiver Acquired Property, the title (if any) to which is held by the Receiver (rather 

than an Ownership Entity) as of the Closing Date, a quitclaim deed in recordable form, in the 

form attached as Attachment J-3 to the Contribution Agreement. 

"Record Date" means, with respect to any Distribution Date or Purchase Money Notes 

Maturity Date, the Business Day immediately preceding such Distribution Date or Purchase 

Money Notes Maturity Date, as applicable, for the purpose of determining the holders of the 

Purchase Money Note(s) entitled to receive a payment in respect of principal or other amounts 

on such Distribution Date or Purchase Money Notes Maturity Date, as applicable. 

"Recording Office" means (i) the appropriate recording office of the jurisdiction in 

which the Mortgaged Property is located with respect to any given Asset (if such Asset is not 

Acquired Property) or in which the Acquired Property is located, and (ii) in the case of personal 

property (and without limitation, to the extent applicable to such personal property, of clause (i)) 

the appropriate recording or filing office(s) for the recordation or filing of a notice of a Lien on, 

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or Mortgage with respect to, or a document of assignment, conveyance or transfer of title to, 

such personal property. 

"Redemption Period" means the statutory time period, if any, during which a foreclosed 

owner may buy back foreclosed real property from the foreclosure sale purchaser under the Law 

of the jurisdiction in which the property is located, which period (if the jurisdiction provides for 

the same) may vary among the jurisdictions that do provide for a Redemption Period. 

"Regulation AB" means the regulations at 17 C.F.R. §§229.1100, et seq., as the same 

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

"Regulation S" means "Regulation S" promulgated pursuant to the Securities Act. 

"Regulation S Certificated Note" has the meaning set forth in Section 2.4(d) of the 

Custodial and Paying Agency Agreement. 

"Reimbursable Company Administrative Expenses" means (i) reasonable fees of 

outside auditors in connection with annual audits of the Company (and the Ownership Entities); 

(ii) the fees paid to MERS for the Company to become a MERS member or to maintain the 

Company as a MERS member in good standing; (iii) licensing, filing and similar fees paid to 

applicable authorities in connection with obtaining and maintaining applicable Company (or 

Ownership Entity) licenses or registrations, and reasonable attorneys' fees incurred in connection 

therewith, or with the preservation (and eventual dissolution) of the Company's (or any 

Ownership Entity's) existence in accordance with the LLC Operating Agreement (including for 

purposes of compliance with Section 4.3 of the LLC Operating Agreement); (iv) reasonable fees 

of the Manager incurred in complying with the provisions of Section 704( c) of the Code with 

respect to contributed property and preparing reports setting forth information, on an Asset-byAsset basis, to enable the Company (and the Members) to properly track any gain or loss as 

required by Section 704(c) of the Code pursuant to Section 7.6(b) of the LLC Operating 

Agreement; (v) any and all fees, costs and expenses in connection with the registration of the 

Purchase Money Notes as described in Article 2 of the Custodial and Paying Agency Agreement, 

including the fees for the registration of the Purchase Money Notes with the DTC; and (vi) 

reasonable attorneys' fees of outside counsel incurred by the Company for the preparation and 

delivery of applicable legal opinions and review of relevant amendments requested by the FDIC 

(including as the Receiver) in connection with the performance by the Company of its 

obligations pursuant to Section 2.8 of the Custodial and Paying Agency Agreement or 

Section 8.4(b) or 8.4(c) of the Contribution Agreement, in all events excluding any such legal 

fees associated with changes, clarifications or amendments to documents requested by the 

Private Owner; provided, however, that in no event shall Reimbursable Company Administrative 

Expenses include (A) fees or costs in connection with audits, licenses or filings of or with respect 

to the Manager, the Servicer, any Subservicer or any other Person (other than the Company and 

the Ownership Entities), (B) any amounts qualifying as Excluded Expenses under clauses (i) 

through (v) or (vii) through (x) of the definition thereof, or (C) any overhead costs of the 

Company, the Manager, the Servicer or any Subservicer (including any (1) travel expenses, or 

(2) costs for office space, office equipment, supplies and related expenses, employee salaries, 

bonuses and other compensation and related expenses and similar internal costs and expenses, 

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together with any other expenses incurred by the Manager to comply with Section 3.3 of the 

LLC Operating Agreement (including any costs or expenses of engaging independent contractors 

to perform relevant services for the day-to-day operation of the Company in lieu of performance 

of the same by personnel required to be made available by Manager pursuant to such Section 

lJ_)). 

"Reimbursement, Security and Guaranty Agreement" means the Reimbursement, 

Security and Guaranty Agreement dated as of the Closing Date among the FDIC, in its capacity 

as Receiver as the PMN Agent, the Initial Member, the Company, and the grantors party thereto. 

"Reissued Purchase Money Notes" has the meaning set forth in Section 2.8 of the 

Custodial and Paying Agency Agreement. 

"Related Agreement" means (i) any agreement, document or instrument (other than the 

Notes and Collateral Documents) relating to or evidencing any obligation to pay or securing any 

Asset (including any equipment lease, letter of credit, bankers' acceptance, draft, system 

confirmation of transaction, loan history, affidavit, general collection information, and 

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

property or rights in or to any real property (including leases, tenancies, concessions, licenses or 

other rights of occupancy or use and security deposits related thereto) related to any Asset, (iii) 

any collection, contingency fee, and Tax and other service agreements (including those referred 

to in Section 4.2 of the Contribution Agreement) that are specific to the Assets (or any of them) 

and that are assignable, (iv) any letter of assurance, letter of credit or similar instrument 

evidencing an obligation of any Failed Bank, the Receiver, the Company or any Ownership 

Entity that was issued for the benefit of any Person and relates in any way to an Asset or the 

acquisition, development or construction of any project with respect to which the proceeds of 

such Asset were used or were intended to be used, and (v) any interest rate swap arrangement 

between the Borrower and any Failed Bank, the Receiver or the Company (in each case as the 

applicable lender, agent or other creditor under an Asset) that relates to any Asset; provided, 

however, for the avoidance of doubt, that no contract or instrument that was disaffirmed or 

repudiated by the Receiver prior to the Cut-Off Date, and no Transferor Loan-Servicing 

Contract, shall constitute a Related Agreement. 

"Related Entities" has the meaning set forth in Section 13.5(a) of the Reimbursement, 

Security and Guaranty Agreement. 

"Related Party" means with respect to any Person, any party related to such Person in 

the manner delineated in 26 U.S.C.A. § 267(b) and the regulations promulgated thereunder, as 

such Law and regulations may be amended, supplemented or modified from time to time. 

"Related Party Agreement" means any current or future contract, agreement, 

commitment, arrangement or transaction (including any agreement to sell Company Property, 

incur any Debt or become bound by any Guarantee of any obligations) with or for the benefit of 

(including to pay any fee to) the Private Owner or any Affiliate of the Company or the Private 

Owner. 

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"Related Persons" means, with respect to any specified Person, any Affiliate of such 

specified Person, and any officer, director, stockholder, member, manager, partner, principal, 

employee, contractor, attorney, representative, agent, successor or assign of such specified 

Person or of any such Affiliate, provided, that, the Servicer and any Subservicer shall be deemed 

to constitute a "Related Person" of (i) the Company and (ii) during any period during which the 

Private Owner serves, or served, as the Manager, the Private Owner. 

"Release Price" means, with respect to any parcel (or other severable portion that, 

pursuant to any Business Plan, could potentially be separately sold by the Company or an 

applicable Borrower) of Acquired Property or Mortgaged Property securing a Loan, the 

applicable release price as designated by the Manager, which release price: 

(i) with respect to any such parcel (or other severable portion) comprising 

Acquired Property, shall be determined (and updated) by the Manager together with each 

determination (and update) of the Net Fair Value of such Acquired Property (with the applicable 

release prices to be set forth for such Acquired Property in each applicable Business Plan or 

other report including the Net Fair Value of such Acquired Property); provided that, the Manager 

shall at all times cause the aggregate amount of the release prices for each such parcel (or other 

severable portion) comprising such Acquired Property to be in an amount not less than the Net 

Fair Value of such Acquired Property (including with applicable reasonable allocations by the 

Manager of any increases or reductions in such Net Fair Value); and 

(ii) with respect to any such parcel (or other severable portion) comprising 

Mortgaged Property securing a Loan, shall be as set forth in the applicable Asset Documents 

with respect to such Loan as in effect as of the Closing Date, or, to the extent not so set forth 

therein, as reasonably determined (and updated) by the Manager (with all such release prices to 

be set forth in each Consolidated Business Plan and in each Borrower-Business-Relationship 

Business Plan, if any, for such Loan); provided, that, to the extent any such determination is 

made by the Manager (as a result of no such release price being set forth in the applicable Asset 

Documents), the Manager shall cause the aggregated amount of the release prices for each parcel 

(and other severable portions) comprising all Mortgaged Property securing a Loan, as so set forth 

in each applicable Business Plan, to be in an amount not less than the Unpaid Principal Balance 

of such Loan (including with reasonable allocations by the Manager with respect to any increase 

in the Unpaid Principal Balance of such Loan). 

"Released Parties" has the meaning set forth m Section 4.17(b) of the Contribution 

Agreement. 

"REO Collateral Documents" means, with respect to each Acquired REO Property, to 

the extent applicable, the following: a deed in lieu of foreclosure, opinions of counsel, owner's 

policies of title insurance, amendments to the Transaction Documents deemed necessary or 

advisable by the PMN Agent to reflect the particular nature and characteristics of the Acquired 

REO Property in question and the requirements of local Law, and such additional items as an 

institutional lender would customarily require (other than an REO Mortgage, it being understood 

that no REO Mortgages shall be required in connection with REO Property) in a construction or 

permanent, as applicable, loan transaction involving a property similar to such Acquired REO 

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Property, in each case so as to cause legal title in such Acquired REO Property to vest, and 

thereafter remain, in the applicable Ownership Entity free and clear of all Liens other than 

Permitted Liens (with such Ownership Entity having applicable title and other insurance), such 

that such Ownership Entity (and the Secured Obligations as a result of the rights of the Secured 

Parties as against the Company, such Ownership Entity and such Acquired REO Property) shall 

receive the full benefit of the value of such Acquired REO Property (all of the foregoing to be in 

form and substance satisfactory to the PMN Agent). 

"REO Mortgage" means, with respect to each Acquired REO Property, a mortgage, 

deed of trust, trust deed, deed to secure debt, or other recordable document granting a security 

interest in such Acquired REO Property as security for the Secured Obligations. 

"Reporting and Access Schedule" means the Reporting and Access Schedule attached 

as Annex II to the LLC Operating Agreement. 

"Repurchase Price" means, with respect to any Asset, an amount equal to the sum of (i) 

the Total Asset Value of such Asset, plus (ii) unreimbursed (by the applicable Borrower or other 

Obligor, or otherwise from applicable Asset Proceeds not applied in reduction of the Unpaid 

Principal Balance of such Asset) Servicing Expenses that have been advanced by the Company 

with respect to such Asset as of the date of the repurchase, and minus (iii) the result when the 

Unpaid Principal Balance of the Asset as of the date of repurchase is subtracted from the 

Adjusted Unpaid Principal Balance of the Asset (which result might be a negative number). 

"Required Consenting Parties" means, at any date, (i) the Initial Member and (ii) until 

the occurrence of the PMN Satisfaction/Defeasance Date, the PMN Agent. 

"Required Funding Draw" means a Funding Draw that the Company has an existing, 

affirmed obligation to fund (without regard to any waiver or amendment entered into after the 

Closing Date) subject to applicable limitations in the relevant Asset Documents. 

"Required PMN Consenting Parties" means, unless and until modified as set forth in 

the following sentence of this definition (and subject to the last sentence of this definition), the 

Holders in the aggregate of a majority in principal amount of all of the Purchase Money Notes. 

Subject to the last sentence of this definition but otherwise any term of any Transaction 

Document to the contrary notwithstanding, the meaning of the term "Required PMN Consenting 

Parties" can be modified from time to time by (A) specification to such effect in any Purchase 

Money Notes Guaranty by, or (B) notice to such effect to the PMN Agent and the Company (in 

the manner set forth in the Reimbursement, Security and Guaranty Agreement) from, the Person 

or Persons then constituting the "Required PMN Consenting Parties" (subject to any restrictions 

on such modification as may be set forth in the definition of such term as then in effect 

(immediately prior to such modification)). For the avoidance of doubt, the term "Required PMN 

Consenting Parties" may consist of a Person or Persons other than a Holder (such as, without 

limitation, a Purchase Money Note Guarantor), and need not include any Holders, may consist of 

different Persons or sets of Persons in different contexts and may include restrictions on the 

further modification thereof (in addition to those set forth in the last sentence of this definition). 

Notwithstanding the foregoing, (i) any amendment, waiver or other modification of the terms of 

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Version 3.1.1 

14132824.4 
any Class of Purchase Money Notes that would adversely affect the interests of the Holders of 

such Class of Purchase Money Notes in any material respect (after taking into account the 

existence of, and the terms of, any Purchase Money Notes Guaranty with respect to such Class) 

shall require, in addition to the consent of the "Required PMN Consenting Parties" as specified 

above in this definition, the consent of the Holders in the aggregate of a majority in principal 

amount of all of the Purchase Money Notes of such Class, and (ii) in any case where the consent 

of the "Required PMN Consenting Parties" is required for any amendment, waiver or other 

modification, of any Purchase Money Note or any other Transaction Document, that would (A) 

extend the due date for, or reduce the amount of any scheduled payment of principal of, any 

Purchase Money Note, (B) adversely affect the interests or rights of any Holder individually in 

comparison to any other Holder of the same Class of Purchase Money Notes, (C) impose any 

obligation on any Holder, (D) change any place of payment where, or the coin or currency in 

which, any Purchase Money Note is payable, or (E) amend, waive or otherwise modify this 

sentence, such consent requirement shall be satisfied only if, in addition to the consent of the 

"Required PMN Consenting Parties" as specified above in this definition, each such adversely 

affected Holder consents to such amendment, waiver or other modification. 

"RESPA" means the Real Estate Settlement Procedures Act of 197 4, as may be 

amended, supplemented or modified from time to time. 

"Responsible Officer" means, in relation to any specified Person, the chief executive 

officer, president, chief operating officer, chief financial oftlcer or treasurer of such specified 

Person (or, if applicable, of the Person having general management authority with respect to the 

business and affairs of such specified Person). 

"Restricted Servicer Change of Control" means any Change of Control with respect to 

the Servicer or any Rated Subservicer, which Change of Control has not been approved in 

writing by the Manager and each Required Consenting Party (which approval shall not be 

unreasonably withheld). 

"Retained Closing Date Asset Litigation" means (i) any Closing Date Asset Litigation, 

or any particular claim or claims asserted in any Closing Date Asset Litigation, expressly 

designated in writing by the Receiver in its absolute discretion as constituting "Retained Closing 

Date Asset Litigation" either (x) in the applicable written litigation reports, if any, provided by 

the Receiver to the Winning Bidder (and other applicable qualified bidders having successfully 

submitted a Bidder Qualification Application) prior to its Bid submission, (y) in the list of 

litigation prepared by the Initial Member and attached as Schedule I to the Transferee 

Acknowledgment and Certification delivered pursuant to Section l(b)(vii) of the Private Owner 

Interest Sale Agreement, or (z) in a separate written notice by the Receiver delivered to the 

Company no later than thirty days after the last Servicing Transfer Date; and (ii) in any event, 

any Closing Date Asset Litigation, to the extent (and only to the extent) (A) asserting a claim for 

damages arising out of or resulting from a repudiation (effected pursuant to and in accordance 

with the FDIA and the internal policies and procedures of the FDIC) by the Receiver of a 

Liability, or challenging any prior decision with respect thereto, or (B) asserting a claim against 

or Liability of the Receiver that, under and in accordance with applicable Law, was asserted 

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through the receivership administrative claims processes administered by the Receiver pursuant 

to 12 U.S.C. § 182l(d)(3) through (13). 

"Review Criteria" means the matters specified in Exhibit F to the Custodial and Paying 

Agency Agreement. 

"Rule 144A Certificated Note" has the meanmg set forth m Section 2.4(c) of the 

Custodial and Paying Agency Agreement. 

"Rule 144A Global Note" has the meaning set forth in Section 2.4(b) of the Custodial 

and Paying Agency Agreement. 

"Rule 144A Information" has the meaning set forth in Section 2.7(k) of the Custodial 

and Paying Agency Agreement. 

"Rules of Construction" means, in relation to any agreement (for this purpose, the 

"specified agreement") that specifies that the "Rules of Construction" apply to such specified 

agreement, the following: 

(a) Captions. Paragraph titles or captions contained in such specified agreement are 

inserted only as a matter of convenience and for reference and in no way define, limit, extend or 

describe the scope of such specified agreement or the intent of any provisions of such specified 

agreement. All Section and paragraph references contained in such specified agreement shall 

refer to such specified agreement unless otherwise specified. 

(b) References to Persons Exclusive. References in such specified agreement to 

"Affiliates" or "Subsidiaries" of a specified Person refer to, and include, only other Persons 

which from time to time constitute "Affiliates" or "Subsidiaries," as the case may be, of such 

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

but at such time have ceased to be, "Affiliates," or "Subsidiaries," as the case may be, of such 

specified Person, except to the extent that any such reference specifically provides otherwise. A 

reference in such specified Agreement to a Member or other Person, in and of itself, does not, 

and shall not be deemed to, refer to or include any other Person having an interest in a Member 

or other Person (such as, without limitation, any stockholder or member of or partner in a 

Member, or other Person). 

(c) Use of "Or". Any use of the term "or" m such specified agreement IS not 

exclusive. 

(d) References to Laws. Any reference in such specified agreement to a Law 

includes any amendment of, modification to, or replacement of, such Law. 

(e) Use of Accounting Terms. Accounting terms used herein shall have the meanings 

assigned to them by GAAP applied on a consistent basis by the accounting entity to which they 

refer. 

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(f) References to Documents. References in such specified agreement to any other 

document, instrument or agreement shall, in each case, except as may be set forth otherwise in 

such specified agreement, be deemed (i) to include all appendices, exhibits, schedules and other 

attachments to such other document, instrument or agreement (as originally executed), (ii) to 

include all documents, instruments or agreements issued or executed (if such other document, 

instrument or agreement is a Transaction Document, in accordance with the terms of such 

Transaction Document) in replacement of such other document, instrument or agreement, and 

(iii) to mean such other document, instrument or agreement, or replacement thereof as specified 

in clause (ii), as amended, modified and supplemented from time to time in accordance with the 

terms of such other document, instrument or agreement; provided, that (x) any reference in such 

specified agreement to terms defined in the Agreement of Definitions shall mean such terms as 

amended, modified, supplemented or replaced in accordance with the Agreement of Definitions, 

and (y) with respect to any terms in such other document, instrument or agreement that are 

expressly incorporated by reference into such specified agreement, any such amendment, 

modification, supplement or replacement pursuant to the foregoing, shall, for purposes of such 

incorporation by reference, be deemed effective only to the extent such amendment, 

modification, supplement or replacement also complies with the terms of such specified 

agreement for the amendment of such specified agreement. 

(g) Use of "Herein." Unless otherwise specified in such specified agreement, the 

words "hereof," "herein" and "hereunder" and words of similar import, as used in such specified 

agreement, shall refer to such specified agreement as a whole and not to any particular provision 

of such specified agreement. 

(h) Use of "Including." The words "include" and "including" and words of similar 

import, as used in such specified agreement, are not limiting, and shall be construed to be 

followed by the words "without limitation," whether or not they are in fact followed by such 

words. 

(i) Use of "During." The word "during", as used in such specified agreement, when 

used with respect to a period of time shall be construed to mean commencing at the beginning of 

such period and continuing until the end of such period. 

U) Singular/Plural Usage. Unless the context otherwise requires, singular nouns and 

pronouns when used in such specified agreement shall be deemed to include the plural and vice 

versa and impersonal pronouns shall be deemed to include the personal pronoun of the 

appropriate gender. 

(k) The Servicer. Unless the context otherwise requires, during any period during 

which there is more than one Servicer, references (other than in any Servicing Agreement or 

Subservicing Agreement) to "the Servicer" or "the Servicing Agreement" shall refer to "the 

Servicers or any of them" and to "the Servicing Agreements or any of them", respectively. 

(1) References to Indirect Ownership. With respect to any determination of any 

specified Person's (or Persons') indirect ownership in any other Person, unless otherwise 

specified as to any particular use, such indirect ownership shall be determined attributing to such 

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specified Person (or Persons) its (or their) actual ultimate indirect ownership in such other Person 

(for example, after taking into account the dilutive effect of intervening Persons that directly or 

indirectly own any Ownership Interest in such other Person but that are not wholly-owned 

subsidiaries of such specified Person (or Persons)). 

"Sale" has the meaning set forth in Section 5.3(a) of the Reimbursement, Security and 

Guaranty Agreement. 

"Secured Assets" shall mean all right, title and interest of the Private Owner in and to (i) 

the Private Owner Pledged Account (and all funds therein and related rights thereto as more 

specifically described in the Private Owner Pledged Account Control Agreement), (ii) the Private 

Owner Interest, (iii) the Servicing Agreement, each Subservicing Agreement, each other 

Transaction Document, and each other agreement or document from time to time entered into by 

(or otherwise including rights in favor of) the Private Owner in its capacity as the Manager, and 

(iv) all proceeds of any of the foregoing at any time (including distributions thereon or other 

income in respect thereof). 

"Secured Obligations" means, collectively, (i) (x) the due and punctual payment of the 

principal of each Purchase Money Note, when such principal shall become due and payable in 

accordance with the terms of such Purchase Money Note (whether at stated maturity, by 

acceleration or otherwise), and (y) all other debts, Liabilities, obligations (including any 

obligation to pay principal, interest, charges, expenses, fees, attorney costs, indemnities and other 

amounts), covenants and duties of the Company or any Subsidiary Grantor to any Secured Party 

under, or arising under, any Purchase Money Note, the Reimbursement, Security and Guaranty 

Agreement (including Section 2.1 of the Reimbursement, Security and Guaranty Agreement) or 

any other Secured Parties Collateral Document, and (ii) any fees, expenses or indemnity 

payments payable to the Custodian/Paying Agent, in its capacity as such (i.e., for the 

Custodian/Paying Agent's own account and not for the account of other Persons) pursuant to the 

Custodial and Paying Agency Agreement (other than any fees or expenses in connection with the 

Private Owner Pledged Account) (provided that, upon the indefeasible satisfaction and discharge 

of the Secured Obligations described in clause (i) other than pursuant to the exercise of remedies 

pursuant to Article V of the Reimbursement, Security and Guaranty Agreement, the obligations 

described in this clause (ii) automatically shall cease to constitute "Secured Obligations" (other 

than, for the avoidance of doubt and solely with respect to any amount then remaining to be 

applied in accordance with Section 5.2 of the Reimbursement, Security and Guaranty 

Agreement, for purposes of said Section 5.2)), in the each case of each of (i) and (ii), whether 

direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, 

and including in the case of ill and .(ill_ interest that accrues after the commencement by or 

against the Company or any Affiliate thereof of any proceeding under any Debtor Relief Laws 

naming such Person as the debtor in such proceeding, regardless of whether such interest is an 

allowed claim in such proceeding. 

"Secured Parties" means, collectively, the PMN Agent, each co-agent or sub-agent 

appointed by the PMN Agent from time to time pursuant to the Reimbursement, Security and 

Guaranty Agreement, each Purchase Money Notes Guarantor, each Holder, the 

Custodian/Paying Agent (solely in relation to the amounts described in clause (ii) of the 

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definition of the term "Secured Obligations") and (in their capacities as such) the Indemnified 

Parties (as such term is ddined in the Reimbursement, Security and Guaranty Agreement). 

"Secured Parties Collateral" has the meaning set forth in Section 3.1 of the 

Reimbursement, Security and Guaranty Agreement. 

"Secured Parties Collateral Documents" means, collectively, the Reimbursement, 

Security and Guaranty Agreement, the Account Control Agreements, the REO Collateral 

Documents, the Custodial and Paying Agency Agreement and each of the other agreements, 

instruments or documents that creates or purports to create a Lien or guaranty in favor of the 

PMN Agent for the benefit of the Secured Parties. 

"Securities Act" means the Securities Act of 1933, as may be amended, supplemented or 

modified from time to time. 

"Seller Financed Loan Note" has the meaning set forth in Section 12.22 of the LLC 

Operating Agreement. 

"Seller Financed Loans" has the meanmg set forth m Section 12.22 of the LLC 

Operating Agreement. 

"Servicer" means the Person retained by the Manager (in its individual capacity) to 

service, manage or administer any of the Assets or the Collateral in accordance with the LLC 

Operating Agreement. As of the Closing Date, the initial Servicer is Colony AMC 2012 CRE 

ADC, LLC, a Delaware limited liability company. 

"Servicer Advances" means advances made by or on behalf of the Servicer to fund 

Servicing Expenses. 

"Servicing" means servicing, administering, managing and disposing of the Assets and 

the Collateral. 

"Servicing Agreement" means, initially, the Servicing Agreement dated as of the 

Closing Date, by and between the Manager (in its individual capacity) and the Servicer, and 

thereafter any replacement agreement entered into between the Manager (in its individual 

capacity) and the Person designated as the Servicer therein, which servicing agreement shall 

satisfy the requirements of Section 12.1(b) of the LLC Operating Agreement and shall be 

acceptable to each Required Consenting Party in all respects. 

"Servicing Expenses" means any of the following (in each case subject to the proviso set 

forth in the last full paragraph of this definition): 

(i) for an Asset which is a Loan, any and all customary, reasonable and necessary "outof-pocket" costs and expenses incurred on or after the Closing Date (or, for purposes of item 

(vii) below, as may otherwise be payable pursuant to such item) by or on behalf of the Manager, 

the Servicer, or any Subservicer in connection with Servicing of such Asset (A) incurred to 

protect, restore or preserve the value of the Collateral or the priority of the Liens and security 

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interests created by the Asset Documents relating thereto (such as Taxes, home owners' 

association fees, insurance premiums (including "forced placed" insurance premiums), ground 

rent, fees to Governmental Authorities to preserve or retain entitlements granted to and 

benefitting the Asset, costs to prevent waste, routine repairs and maintenance, foreclosure 

expenses and reasonable, independent, outside counsel legal fees and expenses relating to 

foreclosure or other litigation with respect to the Asset), or (B) routinely incurred in connection 

with a permitted sale of such Loan or applicable Collateral with respect thereto (such as 

brokerage fees, appraisals, marketing and advertisement costs and closing costs); 

(ii) for an Asset which is Acquired Property, any and all customary, reasonable and 

necessary "out-of-pocket" costs and expenses incurred on and after the Closing Date (or, for 

purposes of item (vii) below, as may otherwise be payable pursuant to such item) by or on behalf 

of the Manager, the Servicer, or any Subservicer in connection with Servicing of such Asset (A) 

incurred in connection with the direct, property level financial operation of such property (such 

as, for any specific Acquired Property, collection, deposit and remittance of rent and other 

property level receipts, implementation of financial controls on operating income and expenses, 

documentation of and record keeping for operating income and expenses, preparation of monthly 

operating statements, preparation of operating budgets, and verification that expenses do not 

exceed the approved line item limits of the annual operating budget with respect to such specific 

Acquired Property), in each case limited to such activities as performed by (or otherwise of such 

nature as would so be performed by) an on-site property manager for such Acquired Property 

(and in all events excluding any expenses incurred for oversight of any such financial operation, 

or for preparation of Business Plans, Development Plans, Monthly Reports or other reports 

required to be provided by the Manager, the Servicer or any Subservicer pursuant to the 

Transaction Documents); (B) routinely incurred in connection with the physical aspects of such 

property (such as insurance, security, utilities, fees to Governmental Authorities to preserve, 

restore, protect or retain entitlements granted to, and benefitting, such property, property level 

administration and services, home owners' association fees, enforcement of leases and property 

rules and regulations, daily upkeep and maintenance, emergency responses and limited capital 

improvements such as replacing kitchen cabinets, upgrading bathrooms, refinishing wooden 

floors, painting, HV AC repairs and minor tenant improvements) for maintenance, protection, 

preservation or restoration thereof; (C) routinely incurred in connection with the sale of such 

Acquired Property (such as brokerage fees, appraisals, marketing and advertisement costs and 

closing costs); (D) if the Asset is Acquired Property held for lease, routinely incurred in 

connection with leasing activity (such as brokerage fees and marketing and advertisement costs); 

(E) in accordance with the Servicing Standard, incurred to obtain any insurance proceeds or any 

liquidation proceeds; (F) incurred to obtain an appraisal (including any Appraisal as required 

pursuant to the Transaction Documents and the definition of Net Fair Value); or (G) incurred to 

perform (in accordance with the Servicing Standard) obligations that run with (or are otherwise 

imposed by operation of Law on the owner of) such Acquired Property or contractual obligations 

(in favor of Persons other than the Company, the Failed Bank or any other predecessor in interest 

to the Company) arising under agreements (to which the applicable Borrower or Obligor was a 

party) relating to or affecting such Acquired Property as in effect prior to the foreclosure or other 

event pursuant to which the applicable Ownership Entity acquired title to such Acquired 

Property, in each case (under this clause (G)) to the extent such obligations rightfully (and with 

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the Company having exercised applicable remedies in accordance with the Servicing Standard) 

remain binding on such Acquired Property or Ownership Entity; 

(iii) Reimbursable Company Administrative Expenses; 

(iv) subject to Section 4.6 of the LLC Operating Agreement (and excluding any amounts 

or claims the Private Owner is required to bear or indemnify pursuant to such Section 4.6 of the 

LLC Operating Agreement), to the extent not covered by any of clauses (i) through (iii), legal 

fees and expenses of (including judgments, settlements and reasonable attorneys' fees of 

independent outside counsel) incurred by the Company (including to directly or, through the 

Manager, the Servicer or any Subservicer, indirectly reimburse the Manager, the Servicer or any 

Subservicer) in its (or the Manager's, the Servicer's or any Subservicer's) defense of claims 

asserted against the Company or any Ownership Entity (or the Manager, the Servicer or any 

Subservicer) that relate to one or more Assets or the conduct of the Business, and allege, as the 

basis for such claims, any act or omission of the Company or any Ownership Entity (or the 

Manager, the Servicer or any Subservicer) or of any Failed Bank, the Receiver, any Existing 

Servicer or any other Person acting as servicer for any of the Assets at any time prior to the CutOff Date, but only if (1) such claims are not attributable to any act or omission of the Company, 

the Manager, the Servicer or any Subservicer in a manner inconsistent with, or in violation of, 

the Servicing Standard or any of the provisions of the LLC Operating Agreement or any 

Transaction Document, and (2) (A) such claims are decided and there are final non appealable 

orders or judgments (unless the Initial Member has agreed in writing that no appeal needs to be 

taken) in favor of the Company or an Ownership Entity, as applicable (and the Manager, the 

Servicer and any Subservicer, to the extent any such claim has been asserted against the same), 

or if decided against the Company (or the Manager or the Servicer or any Subservicer) without 

any finding of bad faith, gross negligence or willful misconduct on the part of any of the 

foregoing or (B) there is entered into a final settlement of any such claim with the prior written 

consent of the Initial Member; 

(v) subject to Section 4.6 of the LLC Operating Agreement (and excluding any amounts 

or claims the Private Owner is required to bear or indemnify pursuant to such Section 4.6 of the 

LLC Operating Agreement), (A) expenses specified in Sections 4.5 or 4.6 of the Contribution 

Agreement to constitute Servicing Expenses and (B) expenses incurred in connection with any 

litigation (including any bankruptcy action) included in the Obligations and assumed pursuant to 

Section 4.5(a), Section 4.5(b) or Section 4.6 ofthe Contribution Agreement; 

(vi) the costs of preparing, negotiating and recording any additional documentation 

required pursuant to Section 8.11 of the Reimbursement, Security and Guaranty Agreement, in 

each case pursuant to Section 8.11 of the Reimbursement, Security and Guaranty Agreement; 

and 

(vii) amounts required for the Company to discharge (in accordance with the Transaction 

Documents) the Obligations as they become due, and to make applicable indemnification and/or 

reimbursement payments (other than for Pre-Approved Charges) owing by the Company to the 

Initial Member, the Transferor, the PMN Agent or any other Indemnified Party under the 

Transaction Documents; 

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provided, however, that Servicing Expenses shall not include any (A) Excluded Expenses; (B) 

Development expenses (other than applicable expenses under the foregoing clause (ii)(B) or 

(ii)(G) that the Manager reasonably determines should rightfully be classified as Servicing 

Expenses notwithstanding that the same include Development; and, with respect to any such 

amounts so reasonably determined by the Manager to be Servicing Expenses, the applicable 

specific uses thereof shall be deemed excluded from the definition of Development for all 

purposes with respect to the applicable Asset); (C) any Funding Draws or other principal 

advances to a Borrower (provided this clause (C) shall not be deemed to exclude, with respect to 

any Loan, amounts otherwise constituting Servicing Expenses paid by the Company (and not 

advanced to or at the request of the Borrower), but that qualify as Funding Draws as a result of 

the right of the Company under the applicable Asset Documents to add the same to the principal 

amount of the Loan); or (D) any costs or expenses that are excluded pursuant to any of the 

foregoing clauses (i) through (vii) (including any such costs or expenses of a type or nature 

generally described in any such clause that are so excluded as a result of a failure to satisfy any 

express condition, limitation or requirement set forth in such clause), except to the extent the 

same qualify as Servicing Expenses under another of such clauses (i) through (vii). 

"Servicing Obligations" has the meaning set forth in the LLC Operating Agreement 

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

"Servicing Standard" has the meaning set forth in the LLC Operating Agreement 

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

"Servicing Transfer Date" means, with respect to any Group of Assets, the date on 

which the transfer of the loan servicing records for such Group of Assets to the Servicer' s system 

of records is completed and the Servicer (including through any applicable Subservicer) begins 

to service such Group of Assets, as determined in accordance with Section 3.3 of the 

Contribution Agreement, it being understood and agreed that (i) the loan servicing records for 

each Group of Assets will be transferred to the Servicer's system of records at the same time, but 

not necessarily at the same time as the loan servicing records for any other Group of Assets are 

transferred to the Servicer's system of records, and (ii) the Transferor (and the Initial Member) 

and the Company will proceed (and the Manager is to cause the Servicer and any applicable 

Subservicer to proceed) with all commercially reasonable diligence to effect such transfer of loan 

servicing records as soon as is practicable after the Closing. 

"SFL Borrower" has the meaning set forth in Section 12.22 of the LLC Operating 

Agreement. 

"SFL Collateral" has the meamng set forth in Section 12.22 of the LLC Operating 

Agreement. 

"SFL Obligor" has the meaning set forth m Section 12.22 of the LLC Operating 

Agreement. 

"SFL Proposal" has the meamng set forth m Section 12.22 of the LLC Operating 

Agreement. 

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"SFR Assets" means (i) the Assets (including any Loans or Receiver Acquired Property) 

listed under the heading "SFR Assets" in the Asset Schedule, and (ii) any additional Assets 

included in the Asset Schedule (whether or not so identified as "SFR Assets" on the Asset 

Schedule) to the extent consisting of (x) one to four family residential properties or (y) Loans 

secured by one to four family residential properties (and no other real property) or otherwise 

subject to, or intended to be covered by, any of the HFSH Act, HAF A, HAMP or RESPA, and in 

each case for ill and ill)_ above shall include, as to any such Loan, any Acquired REO Property 

resulting from any exercise of remedies against the applicable Collateral, but only to the extent 

such Acquired REO Property consists of one to four family residential properties. 

"SFR Loan" means any Loan included in the SFR Assets. 

"Similar Law" means any non-U.S., or any U.S. federal, state or local, Law that 1s 

substantially similar to Section 406 of ERISA or Section 4975 of the Code. 

"Site Assessment" either (i) a Transaction Screen Process consistent with ASTM 

Standard E 1528-06, conducted by an environmental professional, or (ii) a Phase I environmental 

site assessment consistent with ASTM Standard E 1527-05, and which is consistent with 

customary industry standards for such Phase I environmental site assessments, conducted by an 

environmental professional, as would customarily be undertaken or obtained by a prudent lender 

in order to ascertain whether there are any actual or threatened Environmental Hazards. 

"Special Purpose Entity" means 

(i) with respect to an Ownership Entity, a corporation or limited liability 

company (a) that is organized under the Laws of any state of the United States or the District of 

Columbia, (b) the equity of which is uncertificated (and, in the case of a limited liability 

company, does not by its terms expressly provide that such equity shall be governed by Article 8 

of the UCC), (c) has no material assets other than Acquired Property, (d) that is not engaged in 

any business operations except in connection with the Acquired Prope1iy and conducted pursuant 

to terms of the LLC Operating Agreement and the Transaction Documents, (e) that does or 

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

rights (charter and statutory) and franchises, (f) that at all times holds itself out to the public as a 

legal entity separate from any other Person (including any Affiliate), (g) that except as expressly 

contemplated by the LLC Operating Agreement, or the Transaction Documents, does not 

commingle its assets with assets of any other Person, (h) that conducts its business in its own 

name and strictly complies with all organizational formalities to maintain its separate existence, 

(i) that maintains an arm's length relationship with any Affiliate upon terms that are 

commercially reasonable and on terms no less favorable to it than could be obtained in a 

comparable arm's length transaction with an unrelated Person, G) that has no Debt other than as 

expressly permitted by the Transaction Documents, (k) in the case of a limited liability company, 

the management of which is vested either in the Company (as the sole member thereof) and/or in 

one or more managers each of which can be removed or replaced at any time, with or without 

cause, by the Company (as the sole member thereof), and (1) except as otherwise consented to in 

writing by the Initial Member, is a pass-through or disregarded entity for Tax purposes; 

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(ii) with respect to the Company, a limited liability company (a) that is 

organized under the Laws of Delaware, (b) the equity of which is uncertificated, (c) that has no 

material assets other than the Assets, including Collateral and Ownership Entities, and its rights, 

title and interest in, to, and under the LLC Operating Agreement and the Transaction Documents, 

(d) that is not engaged in any significant business operations except in connection with the 

Assets, including the Collateral and Ownership Entities and conducted in accordance with the 

terms of the LLC Operating Agreement and the Transaction Documents, (e) that does or causes 

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

(charter and statutory) and franchises, (f) that at all times holds itself out to the public as a legal 

entity separate from any other Person (including any Affiliate), (g) that except as expressly 

contemplated by the LLC Operating Agreement or by any other Transaction Documents, does 

not commingle its assets with assets of any other Person, (h) that conducts its business in its own 

name and strictly complies with all organizational formalities to maintain its separate existence, 

(i) that maintains an arm's length relationship with any Affiliate upon terms that are 

commercially reasonable and on terms no less favorable to it than could be obtained in a 

comparable arm's length transaction with an unrelated Person other than as expressly provided 

by the LLC Operating Agreement and the Transaction Documents, (j) that has no Debt other than 

as provided in the LLC Operating Agreement and the Transaction Documents, (k) in the case of 

a limited liability company, the management of which is vested either in the Company (as the 

sole member thereof) and/or in one or more managers each of which can be removed or replaced 

at any time, with or without cause, by the Company (as the sole member thereof), and (1) except 

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

purposes; and 

(iii) with respect to the Private Owner (or any Qualified Transferee thereof), a 

corporation or limited liability company (a) that is organized under the Laws of any state of the 

United States or the District of Columbia, (b) the equity of which is uncertificated (and, in the 

case of a limited liability company, does not by its terms expressly provide that such equity shall 

be governed by Article 8 of the UCC), (c) that has no material assets other than cash and cash 

equivalents and its rights, title and interest in, to, and under the LLC Operating Agreement and 

the Transaction Documents, (d) that is not engaged in any significant business operations except 

in connection with the performance of its obligations under the LLC Operating Agreement and 

the Transaction Documents, (e) that does or causes to be done all things necessary to preserve 

and keep in full force and effect its existence, rights (charter and statutory) and franchises, (f) 

that at all times holds itself out to the public as a legal entity separate from any other Person 

(including any Affiliate), (g) that except as expressly contemplated by the LLC Operating 

Agreement or the Transaction Documents, does not commingle its assets with assets of any other 

Person, (h) that conducts its business in its own name and strictly complies with all 

organizational formalities to maintain its separate existence, (i) that maintains an arm's length 

relationship with any Affiliate upon terms that are commercially reasonable and on terms no less 

favorable to it than could be obtained in a comparable arm's length transaction with an unrelated 

Person other than as otherwise expressly provided by the LLC Operating Agreement and the 

Transaction Documents, (j) that has no Debt and, except as expressly permitted or required 

pursuant to the Transaction Documents, does not make any loans or advances to any other 

Person, (k) that except as otherwise consented to in writing by the Initial Member, is a pass­

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through or disregarded entity for Tax purposes, (1) that maintains its own separate books and 

records and its own accounts, in each case which are separate and apart from the books and 

records and accounts of any other Person, (m) that maintains separate financial statements, (n) 

that allocates fairly and reasonably any shared expenses, including any overhead for shared 

office space, ( o) that uses separate stationary, invoices and checks in its own name, (p) that 

maintains adequate capital in light of its contemplated business operations, and (q) that includes 

in its Organizational Documents applicable provisions and limitations requiring compliance with 

all the foregoing requirements in this clause (iii), including an express requirement for the 

written consent of the Company (which consent of the Company in turn shall require the written 

consent of Required Consenting Parties) to any amendment or modification that would result in 

such Organizational Documents failing or ceasing to be in compliance with all such requirements 

in this clause (iii). 

"Specified Date" shall mean the 1oth day of each month, or such other day as is agreed 

to by the Servicer and the Manager; provided, however, that, in any case, if such day is not a 

Business Day, the Specified Date shall be the immediately preceding Business Day. 

"Specified Parent" means (i) with respect to the Private Owner, (x) subject to clause 

(.ili_y), ColFin 2012 CRE ADC Holdco, LLC and/or (y) any additional or substitute Person or 

Persons owning, directly or indirectly, more than 25% in value of all of the Ownership Interests 

in the Private Owner as the Required Consenting Parties may approve (in their sole discretion) in 

writing from time to time after the Closing Date as being designated a "Specified Parent" of the 

Private Owner for purposes of the LLC Operating Agreement; and (ii) with respect to the 

Servicer, (x) subject to clause (ii)(y), Colony Financial AMC, LLC, a Delaware limited liability 

company and CDCF II 2012 CRE ADC Holdco, LLC, a Delaware limited liability company 

and/or (y) any additional or substitute Person or Persons that the Manager and the Required 

Consenting Parties may agree from time to time after the Closing Date shall be designated as a 

"Specified Parent" with respect to the Servicer. For avoidance of doubt, in each case, any such 

Specified Parent shall include any successor by operation of law. 

"Specified Proceeding" means (i) any Insolvency Proceeding with respect to the 

Company or the Private Owner or any of their respective Subsidiaries or (ii) any proceeding for 

the appointment of a receiver, liquidator, conservator, custodian, trustee, sequestrator, 

rehabilitator or similar official for, or for any part of the property of, the Company or the Private 

Owner or any of their respective Subsidiaries, or for the ordering of the dissolution, winding-up 

or liquidation of the affairs of the Company or the Private Owner or any of their respective 

Subsidiaries. 

"Subsequent Class Purchase Money Notes" means (i) (x) from and after any issuance 

of any particular class of Reissued Purchase Money Notes pursuant to Section 2.8 of the 

Custodial and Paying Agency Agreement, any of such Reissued Purchase Money Notes, or 

(y) from and after any issuance of any particular class of replacement or reissued notes issued 

pursuant to Section 8.4(b) or 8.4(c) of the Contribution Agreement, any of such replacement or 

reissued notes, or (ii) with respect to any class of notes described in clause (i)(x) or (.ili_y), any 

note or notes executed and delivered upon registration of transfer of, or in exchange for, or in 

lieu of, any note of such class. 

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"Subservicer" means (a) any Person retained by the Servicer (in its individual capacity) 

to perform any of the Servicer's obligations (with respect to Servicing) under the Servicing 

Agreement, and (b) in the event the Servicer is not a Rated Servicer, any other Person retained 

by such Person so retained by the Servicer pursuant to the foregoing clause (a) to perform any of 

such obligations (with respect to Servicing), in each case (for clause (a) and clause (b)), which 

retention shall be subject to applicable provisions in the LLC Operating Agreement and the 

Servicing Agreement (and any applicable Subservicing Agreement). 

"Subservicing Agreement" means any agreement whereby the Servicer or an applicable 

Subservicer (having been retained by a Servicer that is not a Rated Servicer) retains a 

Subservicer, which Subservicing Agreement shall be subject to applicable provisions in the LLC 

Operating Agreement and the Servicing Agreement and, if for engagement of a Rated 

Subservicer, shall further be acceptable to each Required Consenting Party in all respects. 

"Subsidiary" means, with respect to any specified Person, each of (i) any other Person 

not less than a majority of the overall economic equity in which is owned, directly or indirectly 

through one of more intermediaries, by such specified Person, and (ii) without limitation of 

clause (i), any other Person who or which, directly or indirectly through one or more 

intermediaries, is Controlled by such specified Person (it being understood with respect to clause 

ill that a pledge for collateral security purposes of an equity interest in a Person shall not be 

deemed to affect the ownership of such equity interest by the pledgor so long as such pledgor 

continues to be entitled, in all material respects, to all the income with respect to such equity 

interest). 

"Subsidiary Grantor" and "Subsidiary Grantors" has the meamng set forth in the 

Reimbursement, Security and Guaranty Agreement. 

"Substantially Complete" means, with respect to Vertical Development proposed by the 

Manager to be completed with respect to any Asset (whether by the Borrower under an existing 

Loan or by the Company with respect to Acquired REO Property), that as of the applicable date 

of such proposal by the Manager (i) for any real property securing a Loan, the work related to 

75% of the aggregate budgeted expenses set forth in the construction budget for such real 

property pursuant to the applicable Asset Documents (as in effect as of the Closing Date) has, as 

of such date of such proposal, been completed and paid for in accordance with the construction 

requirements in the applicable Asset Documents, or (ii) for any Acquired REO Property, the 

work related to 75% of the aggregate budgeted expenses set forth in the construction budget for 

such real property as in effect prior to the applicable foreclosure or acceptance of a deed in lieu 

(or, if such foreclosure or acceptance occurs after the Closing Date, as was in effect with respect 

to such Acquired REO Property as real property securing the applicable Loan pursuant to clause 

ill above) has, as of such date of such proposal, been completed and paid in accordance with the 

construction requirements in the applicable Asset Documents or other loan documents in effect 

prior to such foreclosure or deed in lieu. 

"Substantially Complete Vertical Development" means the completion, in accordance 

with the Transaction Documents, of Vertical Development of any real property securing a Loan 

or any Acquired REO Property in each case where such Vertical Development is already 

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Substantially Complete as of the date the Manager proposes to complete such Vertical 

Development. 

"Successor" means, (i) with respect to a Member, any future Member which is a direct or 

indirect transferee (whether by Permitted Disposition, merger, consolidation or otherwise) of the 

LLC Interest of such Member; (ii) with respect to any former Member, the current Member 

which is the direct or indirect transferee (whether by Permitted Disposition, merger, 

consolidation or otherwise) of the LLC Interest of such former Member and (iii) with respect to 

the Initial Member, any Person that is a direct or indirect transferee (whether by Disposition, 

merger, consolidation or otherwise) of any of the Initial Member's rights or interests under the 

LLC Operating Agreement or any other Transaction Document. 

"Successor Servicer" has the meaning set forth in the Reimbursement, Security and 

Guaranty Agreement. 

"Supplemental Delivery Certificate" has the meaning set forth in Section 6.1(d) of the 

Custodial and Paying Agency Agreement. 

"Tax" means any federal, state, county, local, or foreign tax, charge, fee, levy, duty, or 

other assessment, including any income, gross receipts, transfer, recording, capital, withholding, 

property, ad valorem, or other tax or governmental fee of any kind whatsoever, imposed or 

required to be withheld by any Governmental Authority having jurisdiction over the assessment, 

determination, collection, or other imposition of any of the foregoing, including any interest, 

penalties and additions imposed thereon or with respect thereto. 

"Tax Matters Member" has the meaning set forth in Section 7.5 of the LLC Operating 

Agreement. 

"Termination" has the meaning set forth in Section 8.1 of the Custodial and Paying 

Agency Agreement. 

"Termination Notice" shall mean any written notice of termination required pursuant to 

Article VII of the Servicing Agreement. 

"Third Party Claim" has (i) for purposes of the Reimbursement, Security and Guaranty 

Agreement, the meaning given therein, (ii) for purposes of the LLC Operating Agreement, the 

meaning given therein, (iii) for purposes of the Contribution Agreement, the meaning given 

therein, and (iv) for purposes of the Servicing Agreement, the meaning given therein. 

"Total Asset Value" means, with respect to any Asset, an amount equal to the sum of (a) 

the Equity Asset Value (or, in the event of any Excess Principal or Principal Deficiency, the 

Adjusted Equity Asset Value) plus (b) the Purchase Money Notes Asset Value. 

"Transaction Documents" means the Agreement of Definitions, LLC Operating 

Agreement, the Contribution Agreement, the Servicing Agreement, the Electronic Tracking 

Agreement, the Custodial and Paying Agency Agreement, the Private Owner Pledged Account 

Control Agreement, any Qualifying Letter of Credit, one or more Account Control Agreements, 

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the Purchase Money Notes, the Reimbursement, Security and Guaranty Agreement and the 

Private Owner Interest Sale Agreement, in each case once executed and delivered, and any and 

all other agreements and instruments executed and delivered by, or executed and delivered to, the 

FDIC in connection with the Closing or the transactions contemplated thereby as contemplated 

by any Core Agreement. 

"Transaction Termination Date" means the later of (i) the indefeasible payment, 

satisfaction and discharge in full of all of the Secured Obligations and (ii) the Final Distribution. 

"Transfer Documents" means the endorsements and allonges to Notes, Assignment and 

Lost Instrument Affidavits (if applicable), Mortgage Assignments, Receiver's Deeds, Omnibus 

Assignments, Receiver's Quitclaim Deeds, assignment of leases, assignments of Ownership 

Entity interests, UCC financing statements (and assignments) and other documents of 

assignment, conveyance or transfer required pursuant to any applicable Law to evidence the 

transfer to the Company (or, as applicable, to an Ownership Entity) of the Assets, the Collateral 

and the Collateral Documents and the Transferor's rights with respect to the Assets and the 

Collateral. The form Allonge to be used in preparation of the Transfer Documents is attached to 

the Contribution Agreement as Attachment E, the form of Assignment and Lost Instrument 

Affidavit to be used in preparation of the Transfer Documents is attached to the Contribution 

Agreement as Attachment F, the forms of Assignment of Real Estate Mortgage and Assignment 

of Real Estate Deed of Trust to be used in the preparation of the Transfer Documents are 

attached to the Contribution Agreement as Attachments G-1 and G-2, respectively, the form of 

the Assignment of Assignment of Leases and Rents and Other Loan Documents to be used in the 

preparation of the Transfer Documents is attached to the Contribution Agreement as Attachment 

H, the form of the Assignment and Acceptance of Limited Liability Company Interest to be used 

in the preparation of the Transfer Documents is attached to the Contribution Agreement as 

Attachment I, the form of the Receiver's Deed to be used in the preparation of the Transfer 

Documents is attached to the Contribution Agreement as Attachment J-1, the form of the 

Omnibus Assignment to be used in the preparation of the Transfer Documents is attached to the 

Contribution Agreement as Attachment J-2, and the form of the Receiver's Quitclaim Deed is 

attached to the Contribution Agreement as Attachment J-3. 

"Transfer Documents Preparation/Submission Deadline" means six months after the 

Closing Date, provided that such six-month period shall be extended with respect to any 

particular Transfer Document if the delay in meeting such six-month deadline is due to a matter 

(other than the absence of, or the failure properly to record, a Transfer Document) noted as an 

Exception on the initial Collateral Certificate, but only for so long as the Private Owner is 

working diligently to locate the missing information or otherwise take such steps as may be 

necessary or appropriate to complete the preparation, and submission for recordation or filing, of 

the Transfer Documents. 

"Transfer Taxes" means any Taxes, assessments, levies, imposts, duties, deductions, 

fees, withholdings or other charges of whatever nature (other than any taxes imposed on or 

measured by net income or any franchise Taxes), including interest and penalties thereon, 

required to be paid to any taxing authority with respect to the transfer of the Assets, the 

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Collateral and the Collateral Documents or the rights in the Collateral or the assignment and 

assumption of the Obligations thereunder. 

"Transferee Certificate" has the meaning set forth in Section 2.7(j) of the Custodial and 

Paying Agency Agreement. 

"Transferor" means the Receiver as the "Transferor" under the Contribution Agreement. 

"Transferor Loan-Servicing Contract" means any contract between the Receiver and 

any third-party (including any Existing Servicer other than the Receiver) for the provision of 

loan-servicing services with respect to the Loans (or any portion thereof). 

"Transferred Contract" means (i) any Note, any Asset Document, any Collateral 

Document, any Related Agreement or any other contract or instrument defined as included 

within any Loan or Acquired Property, or (ii) any operating or similar agreement with respect to 

any Entity formed by the Receiver or any predecessor in interest and transferred to the Company 

on the Closing Date pursuant to the Contribution Agreement; provided, however, that no contract 

or instrument that was disaffirmed or repudiated by the Receiver prior to the Cut-Off Date, and 

no Transferor Loan-Servicing Contract, shall constitute a Transferred Contract. 

"Treasury Regulations" shall mean the regulations promulgated by the United States 

Department of the Treasury pursuant to and in respect of provisions of the Code, and all 

references to sections of the Treasury Regulations shall include any corresponding provision or 

provisions of succeeding, substitute, proposed or final Treasury Regulations, as may be 

amended, supplemented or modified from time to time. 

"Ultimate Parent Entity" means (i) (x) in relation to ColFin 2012 CRE ADC Holdco, LLC, a 

Delaware limited liability company, Colony Financial, Inc., a Maryland corporation, Colony 

Distressed Credit Fund II, L.P., a Delaware limited partnership and ColHM Strategic Partners, 

L.P., a Delaware limited partnership and (y) in relation to Colony AMC 2012 CRE ADC, LLC, a 

Delaware limited Liability Company, CDCF II 2012 CRE ADC Holdco, LLC, a Delaware 

limited liability company and Colony Financial AMC, LLC, a Delaware limited liability 

company, and (ii) in relation to any Person becoming a "Specified Parent" pursuant to clause 

ill.(y} of the definition of such term, the ultimate parent entity(ies) of such Person as agreed by 

the Private Owner and the Required Consenting Parties in connection with the consent to such 

Person becoming a "Specified Parent". 

"Underlying Loan" means, with respect to any Receiver Acquired Property (and except 

as otherwise provided on the Asset Schedule or the Ownership Entity and Receiver Acquired 

Property Schedule), any and all remaining right, title and interest of the Receiver, any Failed 

Bank or an Ownership Entity in and to the applicable Loan or Loan Participation (or other 

applicable loan, note and related documents) having been secured by such Receiver Acquired 

Property and with respect to which title to such Receiver Acquired Property has transferred to 

the Receiver, any Failed Bank or an Ownership Entity pursuant to a foreclosure sale, deed in lieu 

of foreclosure or any other exercise ofremedies (in addition to any related Deficiency Balance). 

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"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code as in 

effect in any applicable jurisdiction, as may be amended, supplemented or modified from time to 

time. 

"United States" and "U.S." mean the United States of America. 

"United States Person" means a "United States person" as defined in Section 7701 (a) of 

the Code. 

"Unpaid Principal Balance" means, as of any date of determination, (a) when used in 

connection with multiple Assets (or multiple Loans and/or Acquired Property), an amount equal 

to the sum of the aggregate then outstanding principal balance of each such Asset (or Loan 

and/or Acquired Property), (b) when used with respect to a single Asset (or Loan and/or 

Acquired Property), an amount equal to the then outstanding principal balance of such Asset (or 

Loan and/or Acquired Property), and (c) when used with respect to one or more Assets including 

Loan and Acquired Property components, an amount equal to the sum of the Unpaid Principal 

Balance of such Loan and the Unpaid Principal Balance of such Acquired Property; provided, 

however, that: 

(i) with respect to any Loan Participation (and any related Acquired 

Property), the Unpaid Principal Balance of such Loan Participation shall include only the 

Company's (or, with respect to any period prior to the effectiveness of the transfer of such Loan 

Participation to the Company on the Closing Date, the Receiver's, or any Failed Bank's, as 

applicable) allocable share thereof in accordance with the applicable Loan Participation 

Agreement; 

(ii) for purposes of all determinations in connection with or relating to either a 

repurchase of an Asset pursuant to Article VI of the Contribution Agreement or any adjustment 

pursuant to Section 2.4 of the Contribution Agreement: 

(A) with respect to any Acquired Property that is included among the 

Assets on the Closing Date, the Unpaid Principal Balance of such Acquired Property 

shall initially be the book value set forth on the Asset Schedule, as adjusted to its 

Adjusted Unpaid Principal Balance pursuant to the Contribution Agreement, and 

thereafter as further adjusted pursuant to item (ii)(C) below; 

(B) in the case of an Asset (that was a Loan as of the Cut-Off Date) for 

which some or all the Collateral has been converted to Acquired Property, the unpaid 

principal balance of such Asset (including the resulting Loan and Acquired Property, 

which shall be considered as a single Asset for purposes of determination of the Unpaid 

Principal Balance under this item (ii)) shall, until such time as the Acquired Property is 

liquidated, be deemed to equal the amount of the unpaid principal balance of such Loan 

at the time at which such Asset was so converted (in whole or in part) to Acquired 

Property, as such unpaid principal balance with respect to such Loan may be adjusted in 

accordance with the applicable Asset Documents (but disregarding any credit on account 

of the applicable conversion of such Collateral to Acquired Property and any value (or 

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Net Fair Value) of such Acquired Property, other than further adjustments pursuant to 

item (ii)(C) below) and, as to Acquired Property included in such Asset, as further 

adjusted pursuant to item (ii)(C) below; 

(C) in the case of item (ii)(A) above (after the adjustment to the 

Adjusted Unpaid Principal Balance) and ili.1.ill} above (following any applicable 

conversion), the unpaid principal balance of any such Acquired Property or Asset 

including such Acquired Property shall be reduced by the net proceeds of any sales of 

any portions of such Acquired Property, and increased, without duplication, by the 

amount of (1) any advances or Interim Servicing Expenses by the Transferor (or the 

Initial Member) during the Interim Servicing Period under or as described in the 

Contribution Agreement (and applicable provisions of the LLC Operating Agreement) 

made with respect thereto and capitalized thereto in accordance with GAAP (and 

applicable Law), and (2) any Permitted Development Expenses (or other expressly 

permitted expenditures for Development pursuant to Section 12.14 of the LLC Operating 

Agreement, or Servicing Expenses for any construction or development (pursuant to 

clause (B) of the proviso appearing as the last paragraph of the definition of "Servicing 

Expenses"), in each case paid with respect thereto and capitalized thereto in accordance 

with GAAP (and applicable Law); 

(iii) for all purposes other than determinations in connection with or relating to 

either a repurchase of an Asset pursuant to Article VI of the Contribution Agreement or any 

adjustments pursuant to Section 2.4 of the Contribution Agreement: 

(A) the Unpaid Principal Balance of Acquired Property shall be the Net 

Fair Value of such Acquired Property; and 

(B) the Unpaid Principal Balance of any Loan (including any such 

Loan as to which the Collateral has been converted in part to Acquired Property, it being 

understood that the Unpaid Principal Balance of any Loan converted in whole to 

Acquired Property shall be zero) shall be the unpaid principal balance of such Loan, as 

adjusted from time to time in accordance with the applicable Asset Documents (including 

as initially adjusted to the Adjusted Unpaid Principal Balance), subject to the following 

limitations and other applicable provisions of the Transaction Documents: 

(1) in connection with any partial release or sale of the 

Mortgaged Property securing such Loan, the Unpaid Principal Balance of such Loan shall 

be permanently reduced by the Release Price for such Mortgaged Property 

(notwithstanding that the net proceeds received and applied to such Loan in respect of 

such release or sale may be in a different amount); 

(2) in connection with any partial conversion of such Loan to 

Acquired Property, the Unpaid Principal Balance of such Loan shall be permanently 

reduced by the applicable Release Price for such Mortgaged Property (notwithstanding 

that the applicable amount credited to or otherwise deducted from the Loan balance 

owing by the applicable Borrower in respect of such partial conversion may be in a 

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different amount); provided that, in all instances, the sum of the Unpaid Principal 

Balance of such Loan and the Net Fair Value of such Acquired Property, as determined 

immediately after such conversion, shall be in an amount not in excess of the Unpaid 

Principal Balance of such Loan immediately prior to giving effect to such conversion 

(and the Unpaid Principal Balance of the Loan shall be deemed permanently reduced by 

the amount of any such excess); 

(3) the Unpaid Principal Balance (or applicable outstanding 

principal amount for purposes of determination of such Unpaid Principal Balance) of any 

Loan or of any portion of such Loan constituting a charge-off (including as to amounts 

having been charged off by the Failed Bank or the Receiver prior to the Cut-Off Date), a 

Deficiency Balance or a Deficiency Judgment Claim, or of any Loan following (I) the 

conversion or disposition of all or substantially all in value of the Mortgaged Property (or 

other applicable Collateral) securing the same, or (II) a determination by the Manager, 

the Servicer or any Subservicer (including any such determination for purposes of 

financial statements of the Company, or in connection with any audit thereof) that no 

further payments or recoveries (other than purely de minimis payments or recoveries) will 

be ultimately recoverable by the Company with respect to such Loan, shall in each case 

be deemed to be zero; and 

(4) in no event shall the Unpaid Principal Balance of such 

Loan (as calculated subject to the foregoing provisions) exceed the actual outstanding 

principal amount owing by the Borrower under the Loan in accordance with the 

applicable Asset Documents (and the Unpaid Principal Balance of such Loan shall be 

deemed permanently reduced by the amount of any such excess). 

"Unreimbursable Expenses" has the meaning set forth in Section 4.6(e) of the LLC 

Operating Agreement. 

"USPAP" means the Uniform Standards of Professional Appraisal Practices promulgated 

by the Appraisal Standards Board of the Appraisal Foundation. 

"U.S. Person" has the meaning ascribed to the term "U.S. person" in RegulationS. 

"Verification Contractor" means any Person retained by the Initial Member to provide 

the administrative and verification functions described in the LLC Operating Agreement. 

"Verification Contractor Amounts" means, collectively, the fees and expenses of the 

Verification Contractor payable to it pursuant to the agreement(s) under which such Verification 

Contractor was retained by the Initial Member. 

"Vertical Development" means all of the construction, design, planning and other work 

performed on or with respect to the Acquired REO Property or real estate securing a Loan (other 

than Horizontal Development), which shall include without limitation, the construction of (i) 

foundations, columns, girders, beams, supports, exterior and main walls, interior walls, structural 

columns, concrete floor slabs and structural floors, exterior ceilings, roofs, stairs, stairways, glass 

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facades, fire stairs, stairs and entrances and exits; (ii) within the building, central, and to the 

extent applicable, individual unit and appurtenant installations for services and utilities such as 

power, light, hot and cold water, heating, refrigeration, air-conditioning, ventilating and pipes, 

wires, conduits, ducts, vents and other services and utility lines which are used in connection 

therewith; and (iii) elevators, fire-safety and other emergency systems, tanks, pumps, motors, 

fans, compressors and ducts and similar apparatus and installations; provided, that in all events 

"Vertical Development" shall exclude applicable uses of Servicing Expenses to the extent 

required in accordance with clause (B) of the proviso appearing as the last paragraph of the 

definition of "Servicing Expenses". 

"WCR Account Deposit" has the meaning set forth in the Private Owner Interest Sale 

Agreement. 

"Winning Bidder" has the meaning set forth in the Recitals of the Private Owner Interest 

Sale Agreement. 

"Working Capital Expenses" means any Servicing Expenses, Interim Servicing 

Expenses, Pre-Approved Charges, Required Funding Draws, Interim Servicing Fees, 

Verification Contractor Amounts, or fees of the Custodian and Paying Agent. 

"Working Capital Reserve" means a working capital reserve to be (i) funded initially on 

the Closing Date (in an aggregate amount equal to the WCR Account Deposit) pursuant to the 

LLC Operating Agreement and the payments contemplated in the Private Owner Interest Sale 

Agreement, and (ii) thereafter held (in the Working Capital Reserve Account), used and 

replenished from time to time pursuant to the applicable provisions in the LLC Operating 

Agreement and the Custodial and Paying Agency Agreement. 

"Working Capital Reserve Account" means the segregated trust or custodial account 

designated as the "Working Capital Reserve Account" pursuant to Section 3.6(a) of the Custodial 

and Paying Agency Agreement. 

"Working Capital Reserve Floor" means $2,000,000.00, or, in the event of an 

applicable written approval from the Required Consenting Parties pursuant to Section 12.ll(b) 

of the LLC Operating Agreement, such other amount as may be applicable pursuant to such 

written approval. 

"Working Capital Reserve Replenishment Cap" means $5,000,000.00, or, in the event 

of an applicable written approval from the Required Consenting Parties pursuant to Section 

12.11(b) of the LLC Operating Agreement, such other amount as may be applicable pursuant to 

such written approval. 

"Working Capital Reserve Target" means the targeted amount of Working Capital 

Reserve as determined by the Manager with respect to each Distribution Date, to be not less than 

the Working Capital Reserve Floor and not more than the Working Capital Reserve 

Replenishment Cap, or, in the event of an applicable written approval from the Required 

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Consenting Parties pursuant to Section 12.11(b) of the LLC Operating Agreement, such other 

amount as may be applicable pursuant to such written approval. 

Section 1.2. Rules of Construction. The Rules of Construction apply to this Agreement 

(other than the definitions set forth in Section 1.1 hereof), and clauses (b), .(0, @, w, ffi, .(h)_, 

ill_, ill, .(k} and ill of the Rules of Construction apply to the definitions set forth in Section 1.1 

hereof. 

ARTICLE II 

Miscellaneous 

Section 2.1. Enforceability of this Agreement. Notwithstanding that this Agreement 

has not been executed by all parties described in this Agreement, this Agreement is enforceable 

against each party that has executed this Agreement. The parties that execute this Agreement 

acknowledge that the Transaction Documents are being (or were) executed by certain Persons, 

including, but not limited to, the parties hereto, simultaneously or otherwise in connection with 

the execution of this Agreement, and that notwithstanding any failure by any party hereto to 

execute this Agreement, such agreements shall be effective and binding on the parties thereto in 

accordance with the terms thereof. 

Section 2.2. Expenses. Except as might be expressly provided otherwise herein or in 

any Transaction Document, each party shall pay its own expenses (including legal, accounting 

investment banker, broker or finder's fees) incident to the negotiation and execution of this 

Agreement and the Transaction Documents, and the performance of its obligations hereunder. 

Section 2.3. Waivers and Amendments. This Agreement may be amended or 

modified, and the terms hereof may be waived, only by a written instrument signed by (i) all 

parties signatories to this Agreement, and (ii) from and after the Guaranty Issuance Date, each 

Purchase Money Notes Guarantor (for so long as it is a third party beneficiary hereof). In no 

event shall any such amendment or waiver limit or affect (including through any amendment or 

elimination of this sentence) the rights of the Receiver or the FDIC (in each case, as a third party 

beneficiary of any applicable provisions herein) without the express written consent of the 

Receiver or the FDIC, respectively. Notwithstanding anything to the contrary contained 

elsewhere in this Agreement, (x) nothing in this Agreement governs, or modifies in any respect, 

the requirements for amending any Core Agreement (or other Transaction Document that 

includes definitions by reference to this Agreement), including with respect to any of the 

definitions included therein by reference to this Agreement, (y) with respect to any Transaction 

Document, any terms defined herein may be amended (for purposes of usage thereof in such 

Transaction Document) pursuant to an applicable amendment to such Transaction Document 

(complying with the requirements therein for amendments), and (z) this Agreement is subject to 

amendment and modification pursuant to Section 8.4 of the Contribution Agreement. 

Section 2.4. Counterparts; Facsimile Signatures. 

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(a) This Agreement may be executed in any number of counterpm1s, each of 

which shall be an original and all of which together shall constitute one and the same instrument. 

It shall not be necessary for any counterpart to bear the signature of all parties hereto. 

(b) This Agreement and any amendments hereto, to the extent signed and 

delivered by facsimile or other electronic means, shall be treated in all manner and respects as an 

original unified agreement and shall be considered to have the same binding legal effect as if it 

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. 

Section 2.5. Successors and Assigns. This Agreement shall be binding upon and inure 

to the benefit of the parties hereto which have executed this Agreement and their respective 

successors and assigns. Without limiting the generality of the preceding sentence, this 

Agreement shall be binding on and inure to the benefit of (i) any successor "PMN Agent" under, 

and in accordance with, the Reimbursement, Security and Guaranty Agreement, (ii) any 

successor "Initial Member" under, and in accordance with, the LLC Operating Agreement and 

(iii) any successor "Private Owner" under, and in accordance with, the LLC Operating 

Agreement. Furthermore, in each case subject to, and without modifying rights or obligations 

under, Sections 2.1 and 2.3, (i) each Purchase Money Notes Guarantor (and its successors and 

assigns) is hereby constituted (until the Guaranteed Purchase Money Notes Satisfaction Date 

with respect to such Purchase Money Notes Guarantor) an express third party beneficiary of this 

Agreement in its entirety, and, as such, each Purchase Money Notes Guarantor (and its 

successors or assigns) is entitled to enforce the provisions of this Agreement to the same extent 

as if such Person were a party hereto, and (ii) to the extent that this Agreement (including as a 

result of terms defined herein being used in applicable Transaction Documents) confers directly 

any rights, remedies or other benefits upon the FDIC, any Holder or any other Person (not a 

party to this Agreement, but otherwise a party to, or express third party beneficiary of, any 

Transaction Document) (other than any Purchase Money Notes Guarantor), this Agreement 

(subject to Sections 2.7, 2.8 and 2.9 hereof as if such other Person was a party hereto) also shall 

inure to the benefit of, and may be enforced by, such Person. 

Section 2.6. Compliance With Law; Severability. 

(a) Compliance With Law. Except as otherwise specifically provided herein, 

each party to this Agreement shall obey and comply with all applicable Laws, as they may 

pertain to such party's performance of its obligations hereunder. 

(b) Severability. Any provision of this Agreement that is 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 

particular 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 

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case might 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 

unenforceability, and such prohibition or unenforceability in such jurisdiction shall not invalidate 

or render unenforceable such provision in any other jurisdiction; and (iii) without limitation of 

clauses (i) or .(ill, such ineffectiveness shall not invalidate any of the remaining provisions of this 

Agreement. Without limitation of the preceding sentence, it is the intent of the parties to this 

Agreement that in the event that in any court proceeding, such court determines that any 

provision of this Agreement is prohibited or unenforceable in any jurisdiction (because of the 

duration or scope (geographic or otherwise) of such provision, or for any other reason) such 

court shall have the power to, and shall, (I) modify such provision (including without limitation, 

to the extent applicable, by limiting the duration or scope of such provision and/or the Persons 

against whom, and/or the circumstances under which, such provision shall be effective 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 proceeding and (II) enforce such 

provision, as so modified pursuant to clause (I), in such proceeding. 

Section 2.7. Jurisdiction; Venue and Service. 

(a) Each of (x) the Company, the Private Owner and the Bank, in each case on 

behalf of itself and its Affiliates, and (y) the Initial Member, hereby irrevocably and 

unconditionally: 

(i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any such Affiliate 

commenced by the Initial Member, the PMN Agent, any Purchase Money Notes Guarantor or the 

Transferor arising out of, relating to, or in connection with this Agreement or any Transaction 

Document, and waives any right to: 

(1) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the Initial Member , the PMN 

Agent, any Purchase Money Notes Guarantor or the Transferor, as applicable, files the suit, 

action or proceeding without the consent of the Initial Member , the PMN Agent, such Purchase 

Money Notes Guarantor or the Transferor, as applicable; 

(2) assert that venue is improper in either the United States 

District Court for the Southern District of New York or the United States District Court for the 

District of Columbia; or 

(3) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

New York for any suit, action or proceeding against it or any such Affiliate commenced by the 

Initial Member, the PMN Agent, any Purchase Money Notes Guarantor or the Transferor arising 

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out of, relating to, or in connection with this Agreement or any Transaction Document (other 

than the LLC Operating Agreement), and waives any right to: 

(1) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the Initial Member, the PMN 

Agent, such Purchase Money Notes Guarantor or the Transferor; 

(2) assert that venue is improper in the Supreme Court of the 

State ofNew York, County ofNew York; or 

(3) assert that the Supreme Court of the State of New York, 

County ofNew York, is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding by it or any such 

Affiliate against the Initial Member, the PMN Agent, any Purchase Money Notes Guarantor or 

the Transferor in only either the United States District Court for the Southern District of New 

York or the United States District Court for the District of Columbia, and waives any right to 

remove or transfer such suit, action or proceeding to any other court or dispute-resolution forum 

without the consent of the Initial Member, the PMN Agent, such Purchase Money Notes 

Guarantor or the Transferor, as applicable, and agrees to consent thereafter to transfer of the suit, 

action or proceeding to either the United States District Court for the Southern District of New 

York or the United States District Court for the District of Columbia at the option of the Initial 

Member, the PMN Agent, such Purchase Money Notes Guarantor or the Transferor, as 

applicable; 

(iv) agrees, if the United States District Court for the Southern District 

of New York and the United States District Court for the District of Columbia both lack 

jurisdiction to hear a suit, action or proceeding falling within Section 2. 7(a)(iii), to bring that 

suit, action or proceeding in only the Supreme Court of the State of New York, County of 

New York, and waives any right to remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the Initial Member, the PMN 

Agent, the relevant Purchase Money Notes Guarantor or the Transferor, as applicable; and 

(v) agrees, in any suit, action or proceeding that is brought in the 

Supreme Court of the State of New York for New York County in accordance with the above 

provisions of this Section 2.7(a), to request that such suit, action or proceeding be referred to the 

Commercial Division of such Court. 

(b) Each of the Company, the Private Owner and the Bank, in each case on 

behalf of itself and its Affiliates, hereby irrevocably and unconditionally agrees that any final 

judgment entered against it in any suit, action or proceeding falling within Section 2.7(a) may be 

enforced in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 2.7(d), each of the Company, the 

Private Owner and the Bank, in each case on behalf of itself and its Affiliates, hereby irrevocably 

and unconditionally agrees that service of all writs, process and summonses in any suit, action or 

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Agreement of Definitions 

Version 3.1.1 

14132824.4 
proceeding pursuant to Section 2.7(a) or Section 2.7(b) may be etlected by the mailing of copies 

thereof by registered or certified mail, postage prepaid, to it at its address for notices pursuant to 

Section 2.10 (and the Notice Schedule) (with copies to such other Persons as specified therein); 

provided, however, that the foregoing shall not affect the right of any party to serve process in 

any other manner permitted by Law. Each of the Company, the Private Owner and the Bank, in 

each case on behalf of itself and its Affiliates, fmiher agrees that any such service of writs, 

process or summonses in any suit, action or proceeding pursuant to Section 2.7(a) or Section 

2.7(b) on FDIC (in any capacity) shall be in accordance with requirements of applicable Law 

(including 12 CFR section 309.7(a)), with additional delivery of a copy of such writ, process or 

summons to the FDIC (in its applicable capacity(ies)) pursuant to the notice provisions in 

Section 2.10 (and the Notice Schedule). 

(d) Nothing in this Section 2. 7 shall constitute (i) consent to jurisdiction in 

any court by the FDIC (in any capacity), other than as expressly provided in Section 2.7(a)(iii) 

and Section 2.7(a)(iv), or (ii) a waiver or limitation of any provision in the Federal Deposit 

Insurance Act or other applicable law relating to commencement, jurisdiction, venue, limitations, 

administrative exhaustion, judicial review, removal, remand, continuation or enforcement 

(including as to limitations on attachment or execution upon assets in the possession of the 

FDIC) of actions by or against the FDIC (in any capacity), or in which the FDIC (in any 

capacity) is a party, including 12 U.S.C. § 1819(b), 1821(c), 1821(d), and 1821(j). 

Section 2.8. Waiver of Jury Trial. EACH OF THE COMPANY, THE PRIVATE 

OWNER AND THE BANK, FOR ITSELF AND ITS AFFILIATES, AND EACH OF THE 

INITIAL MEMBER, THE PMN AGENT AND THE TRANSFEROR, 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 2.9. Governing Law. EACH PARTY TO THIS AGREEMENT AGREES 

AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL 

OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS TO 

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE 

STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE 

THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS 

AGREEMENT TO THE LAWS OF ANOTHER JURISDICTION, AND EACH PARTY TO 

THIS AGREEMENT UNCONDITIONALLY AND IRREVOCABLY WAlVES ANY CLAIM 

TO ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL 

ACTION OR INACTION BY ANY PARTY TO THIS AGREEMENT. 

Section 2.1 0. Notices. All notices, requests, demands and other communications 

required or permitted to be given or delivered under or by reason of the provisions of this 

Agreement shall be delivered in accordance with (and subject to) the provisions of the Notice 

Schedule (which Notice Schedule is hereby incorporated by reference); provided, that, service of 

any writ, process or summons in any suit, action or proceeding arising out of, relating to, or in 

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CRE/ADC Venture 2012-1 Structured Transaction 


Agreement of Definitions 


Version 3.1.1 


14132824.4 
connection with this Agreement or any Transaction Document shall be subject to the applicable 

provisions in Section 2.7(c). 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

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Agreement of Definitions 

Version 3.1.1 

14132824.4 
IN WITNESS WHEREOF , the parties have caused this Agreement to be executed by 

their respective offi cers or age nts thereun to duly au thorized on the date tirst above written. 

Transferor 

FEDERAL DEPOSIT INSURANCE 

CORPORATION IN ITS CAPA CITY AS 

RECEIV ER (AS DEFI NED HEREIN), as 

T ran sfero r 

By: 

Nam e: 

Title: Attorney-i n-Fact 

Initial Member 

FEDERAL DEPOSlT INSURANCE 

CORPORATION IN ITS CAP A CITY AS 

RECEIVER (AS DEFINED HERE IN), as Initi al 

Member 

By : 


Name: Parichart Thepvongs 


Title: Atto rney-in -Fact 


Co mpany 

CRE/ADC VENTURE 2012-1, LLC 

By: Federal Depos it Insurance Co rpo ration in its 


ca pacity as Receiver (as de fined herein), as Sole 


Member and Manager 


By: 

e: 


T itle: Attorn ey-in-Fact 


[Signature Page to Agreement of Definitions - Page I of 2) 

C REI A DC Vemure 2012-1 Str ucrured Transaction 

Agree ment ofDefinitions 

Version 3. 1.1 

14132 824A 
Priyate Owner 

COLFIN 2012 CRE ADC Funding, LLC, a 

Delaware limited 

Paying Agent and Custodian 

WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as Paying Agent and Custodian 

By: --------------------------­ Name: Amy Mofsenson 


T itle: Vice President 


PMNAgent 

FEDERAL DEPOSIT INSURANCE 

CORPORATION IN ITS CAPACITY AS 

RECEIVER (AS DEFINED HEREIN), as PMN 

Agent 

By: 


Name: Parichart 


Title: Attorney-in-Fact 


[Signature Page to Agreement of Definitions- Page 2 of2) 

CREIADC Vcntwc20 12·1 Structured Ttansac;tion 

Aa~eement of Dcflnilions 

Vcnion 3.1.1 1'132124.4 
Private O wner 

COLFIN 2012 CR E ADC F u n ding, LLC, a 

Delaware lim ited liability company 

By: 

Name: Mark H. Hedstrom 

T itle: Vice President 

Paying Agent and C ustodian 

WELL S F ARGO BANK, NAT I ONA L 

A · t and Custodian 

Name: Am y Mofs enson 


Title: Vice President 


PMN Agent 

FEDE RAL DEPOSIT INSURANCE 

CORPO RATION IN ITS CAPACITY AS 

RECEIVER (AS DEFINED HE R E IN), as M~ 

Agent 

By: 

Name : Paric hart Thepvongs 


T itle: Attorney-in-Fact 


[Signature Page to Agreement of Definitions- Page 2 of2] 

CRE/ADC Venture 2012-1 Structured Transaction 

Agreement of Dcfimtions 

Version 3 1 I 

14132824 4 
Schedule I 

CRE/ADC Venture 2012-1 Structured Transaction 

Notice Schedule 

For purposes of each Transaction Document and any reference to (or incorporation of) all or any 

portion of this Notice Schedule therein, references in this Notice Schedule to this "Agreement" 

shall mean and refer to such Transaction Document. 

Notices. 

(a) Subject to Sections (d) (as to reports to be uploaded) and W (as to service of writs, 

process and summonses) below, all notices, requests, demands and other communications 

required or permitted to be given or delivered to any Person listed (or otherwise referenced) in 

Section (b) below under or by reason of the provisions of this Agreement (and each other 

applicable Transaction Document, except as otherwise provided therein) shall be in writing and 

shall be delivered (i) by certified or registered mail, postage prepaid, (ii) by nationally 

recognized courier service, or (iii) by electronic mail (followed up by a hard copy delivered 

through an alternate manner permitted under this Notice Schedule, or by U.S. mail, postage 

prepaid), in each case directed to the applicable address or electronic mail address specified in 

(or updated pursuant to) this Notice Schedule. All such notices, requests, demands and other 

communications to any such Person pursuant to the foregoing shall be deemed delivered upon 

the earlier to occur of (A) actual receipt (or refusal thereof) by such Person, and (B) (1) if 

delivered by certified mail or by nationally recognized courier service, when signed for (or 

refused) by or on behalf of such Person, and (2) if delivered by electronic mail (which form of 

delivery is subject to the provisions of this paragraph), when delivered; provided, however, that 

any notice, request, demand or other communication that is delivered to any such address or 

electronic mail address other than during regular business hours of the recipient shall be deemed 

to have been delivered at the opening of business on the next Business Day. In no event shall a 

voice mail message or any electronic communication (other than as expressly provided pursuant 

to the foregoing or pursuant to Section (d) below) be effective as a notice, confirmation or other 

communication hereunder. 

(b) For purposes of the foregoing, such notices, requests, demands and other communications 

should, as to each Person listed below, be sent to its respective address as follows: 

Schedule 1-1 

CRE/ADC Venture 2012-1 Structured Transaction 

Agreement of Definitions 

Version 3.1.1 

14132824.4 
If to the Company (including ns the " Issuer" of any Purchase Money Note and ~1s 

the " Debtor" under the Reimbursement, Security and Guaranty Agreement) after 

the Closing or to any Subsidiary Grantor, to: 

c/o 201 2 CRE ADC-1 , LLC 


2450 Broadway 


6th Floor 


Santa Monica, CA 90404 


Attention: Paul Fuhrman 


E-mail Add ress: 


with a copy to: 

Colony Capital LLC 


660 Madison Avenue 


New York, New York 10065 


Attention: Ronald M . Sanders 


E-mail Address: 


If to the Private Owner (including in its role as Mnnager and/or as Tax Matter 

Member), to: 

ColFin 20 12 CRE ADC Funding, LLC 

2450 Broadway 


6th Floor 


Santa Moni ca, CA 90404 


Attention: Paul Fuhrman 


E-mai l Address: 


with a copy to: 

Colony Capital LLC 


660 Madison A venue 


New York, New York 10065 


Attention: Ronald M. Sanders 


E-mail Address: 


Schedul e l-2 

CR£JADC Venture 2012-1 Structured Transaction 

Agreement of Definitions 

Version 3. 1. 1 

14132824 4 
, 


Ifto th e Co mp a ny (including as the " I ssuer " of a ny Purchase Mo ney Note) 

b efore Clos ing, th e Tra nsfer or , th e PMN Agen t, the Initial H old er or the 

Initia l Membe r , to: 

Federal Deposit l nsurancc Corporat ion 

Reference: CRE/ ADC Venture 20 12-1 Structured Transaction 

550 17th Street, NW (Room F-8014) 

Washington, D.C. 20429-0002 

Attention: Associate Director, Asset Management 

Division ofResolutions and Receiverships 

E-mail Address: 

E-Mail Reference: CR.E/1\ DC Venture 2012- 1 tructured Transaction 

with a copy to: 

FDIC Legal Division 

Litigation and Reso lutions Branch, Receivership Section, Special Issues Unit 

Reference: CRE/ ADC Venture 2012-I Structured Transaction 

350 1 Fairfax Dri ve (Room E-7098) 

Arlington, VA 22226-3599 

Attention: Kath 

E-mail Address: 

E-mail Reference: CRE/ADC Venture 2012 -I Structured Transaction 

Ifto the Ba nk (including as Custodian an d/or as P ay in g Agent): 

For purposes of des igna tin g the C ustodi an as the r eturn addressee on 

Transfer Docum ents: 

Wells Fargo Bank. National Associatio n 

9062 Old Annapol is Road 

Columbia, Maryland 21045 

Attention: Client Services Manager 

R eference: CRE/ ADC Venture 20 12-l Structured Transaction 

E-mail Addresses: 

Schedule 1-3 

CREIADC Venture 2012-l Structured Transaction 

Agreement of Definitions 

Version 3.l.l 141 32824.4 
, 


For purposes of cancellation and presentment of Purchase Money Notes: 

Wells Fargo Bank, National Association 

6th Street & Marquette A venue 

Minneapolis, Minnesota 55479 

Attention: Corporate Trust Services Bondholder Communications 

Reference: CRE/ ADC Venture 20 12-1 Structured Transaction 

E-mail Ad dresses: 

For purposes of transfer and/or exchange of Purchase Money Notes : 

Wells Fargo Bank, Nationa l Associati on 

6th Street & Marquette A venue 

Minneapolis, Minnesota 55479 

Attention: Corporate Trust Services Bondholder Communications 

Reference: CRE/ ADC Venture 2012-1 Structured Transaction 

E-mail Add resses: 

For all other purposes: 

Wells Fargo Bank, National Association 

9062 Ol d Annapolis Road 

Columbia, Maryl and 21045 

Attention: Client Services Manager 

Reference: CRE/ADC Venture 20 12-1 Structured Trans action 

E-mail Addresses: 

If to the Servicer: 

To the address set forth for the Servicer in the Servicing Agreement. 

Ifto a ny PO Owner: 

To the address se t forth for such PO Owner in its PO Owner Undertaking. 

Ifto any Purchase Mon ey Notes Guarantor: 

To the address set forth in the relevant Purchase Money Notes Guaranty. 

If to any other party to this Agr ee ment (for purposes of any Transaction Document 

not othenvise specified above): 

To the address set forth for such party in this Agreement. 

Schedule 1-4 

CRE/ ADC Venture 20 12- 1 Structured Transaction 

Agreement of Definitions 

Version 3. 1.1 14132824.4 
(c) From time to time any Person listed (or referenced) above may revise its address for 

delivery hereunder by providing notice to such effect to the other applicable parties in the 

manner set forth in this Notice Schedule. Each party to this Agreement agrees that, as to all 

Transaction Documents to which it is a party (and except as may be expressly set forth otherwise 

therein), (i) any Person listed above may revise its applicable notice address (or, as to any 

applicable report to be delivered to the FDIC (in any capacity), the recipient may provide 

applicable instructions pursuant to Section (d) below) as to any or all Transaction Documents (or 

applicable reports) by means of a single notice delivered (in accordance with the foregoing) to 

any or all other applicable parties to such Transaction Documents (and such address or changes 

to report delivery instructions, as applicable, as revised shall be effective as to each such party to 

whom such notice is so delivered in accordance herewith), and (ii) subject to the foregoing, as to 

any Person listed above, the address or other means of delivery herein for such Person (as the 

same may be updated pursuant to the foregoing) shall apply with respect to all Transaction 

Documents to which such Person is a party (or express third party beneficiary). 

(d) Anything in the foregoing to the contrary notwithstanding (and in each case unless 

otherwise directed by the applicable recipient by written notice delivered pursuant to the 

foregoing provisions of this Notice Schedule), each of (i) each Monthly Report and other 

periodic report required to be delivered by the Manager pursuant to the Reporting and Access 

Schedule, (ii) such other reports required to be uploaded pursuant to the applicable instructions 

made available by the FDIC through the website indicated below, and (iii) such other reports to 

the FDIC (in any capacity) as the recipient may from time to time request (by written notice 

delivered pursuant to the foregoing provisions of this Notice Schedule) to receive via such 

uploading, in each case shall be delivered exclusively by uploading the same to the applicable 

electronic portal (presently known as "FDIConnect") maintained by the FDIC (through its Asset 

Management Division), as described in greater detail in the structured transaction reporting 

requirements available on the FDIC's website at: 

http:/ /www.fdic.gov/bank/individual/failed/lossshare/structured transaction DataSpecs.html (or 

such successor online address as may be designated from time to time by the FDIC for such 

reporting requirements). 

Any such report to be uploaded pursuant to the foregoing shall be deemed delivered when so 

uploaded (in accordance with the applicable instructions available through the above-referenced 

website), with applicable online confirmation of successful completion of such upload. 

(e) Anything in the foregoing to the contrary notwithstanding, service of writs, process and 

summonses in any suit, action or proceeding arising out of, relating to, or in connection with this 

Agreement or any other Transaction Document shall be subject to any express provisions set 

forth in this Agreement or such other Transaction Document. 

Schedule I-5 

CRE/ADC Venture 2012-1 Structured Transaction 

Agreement of Definitions 

Version 3.1.1 

14132824.4 
Schedule II 


CRE/ADC Venture 2012-1 Structured Transaction 


List of Various Failed Financial Institutions 


Bank Name City State FundiD 

Closing 

Date 

Montgomery Bank & Trust Ailey GA 10448 7/6/2012 

Carolina Federal Savings Bank Charleston sc 10441 6/8/2012 

Bank of the Eastern Shore Cambridge MD 10434 4/27/2012 

Fort Lee Federal Savings Fort Lee NJ 10433 4/20/2012 

Premier Bank Wilmette IL 10431 3/23/2012 

New City Bank Chicago IL 10429 3/9/2012 

Global Commerce Bank Doraville GA 10428 3/2/2012 

Home Savings of America Little Falls NM 10427 2/24/2012 

Shelby County Bank Shelbyville IN 10425 2/10/2012 

Community Bank of Rockmart Rockmart GA 10412 11/10/2011 

Country Bank Aledo IL 10402 10/14/2011 

Bank of Whitman Colfax WA 10387 8/05/2011 

Integra Bank, NA Evansville IN 10384 7/29/2011 

Bank of Choice Greeley co 10380 7/22/2011 

One Georgia Bank Atlanta GA 10378 7/15/2011 

First Chicago Bank & Trust Chicago IL 10374 7/8/2011 

First Georgia Banking Company Franklin GA 10366 5/20/2011 

The Park A venue Bank Valdosta GA 10363 4/29/2011 

American Trust Bank Roswell GA 10336 2/4/2011 

FirsTier Bank Louisville co 10334 1128/2011 

First Community Bank Taos NM 10333 1/28/2011 

United Western Bank Denver co 10331 1/21/2011 

The Bank of Asheville Asheville NC 10330 1/2112011 

First National Bank Savannah GA 10251 6/25/2010 

CF Bancorp Davenport IA 10226 4/30/2010 

Appalachian Community Bank Ellijay GA 10199 3!18/2010 

Community Bank & Trust Cornelia GA 10180 1/29/2010 

Platinum Community Bank Rolling Meadows IL 10115 9/4/2009 

First State Bank of Altus Altus OK 10093 7/3112009 

ANB Financial, N.A. Bentonville AR 10005 5/9/2008 

Schedule Il-l 

CRE/ ADC Venture 2012-1 Structured Transaction 

Agreement of Definitions 

Version 3.1.1 

14132824.4