Corus Transaction 

EXECUTION VERSION 

ADVANCE FACILITY AGREEMENT 

Dated as of October 16, 2009 


among 


CORUS CONSTRUCTION VENTURE, LLC, 


as Borrower, 


THE LENDERS FROM TIME TO TIME PARTY HERETO, 


and 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


AS RECEIVER FOR CORUS BANK, N.A., 


as Administrative Agent 


Doc#: USl :5758203v15 
TABLE OF CONTENTS 

ARTICLE I DEFINITIONS AND. ACCOUNTING TERMS ......................................................... 2 


SECTION 1.01. Defined Terms ............................................................................................. 2 


SECTION 1.02. Other Interpretive Provisions ..................................................................... 21 


SECTION 1.03. Accounting Terms ...................................................................................... 22 


SECTION 1.04. Times of Day.............................................................................................. 22 


SECTION 1.05. Timing of Payment of Performance ........................................................... 22 


ARTICLE II THE COMMITMENTS AND LOANS ................................................................... 23 


SECTION 2.01. 
 The Loans ................................................................................................... 23 


................................................................................... 24 


................................................................... 25 


.............................................. 26 


.................................................................................................. 26 


....................................................................................................... 26 


.............................................................. 27 


........................................................................... 27 


................................................................................... 27 


................................................................................... 28 


................................................................................. 28 


SECTION 2.02. 
 Borrowing of Loans 

SECTION 2.03. 
 Prepayments and Repayments 

SECTION 2.04. 
 Termination or Reduction of Commitments 

SECTION 2.05. 
 [Reserved] 

SECTION 2.06. 
 Interest. 

SECTION 2.07. 
 Computation of Interest and Fees 

SECTION 2.08. 
 Evidence of Indebtedness 

SECTION 2.09. 
 Payments Generally 

SECTION 2.10. 
 Protective Advances 

SECTION 2.11. 
 Authorized Advances 

ARTICLE III TAXES, INCREASED COSTS PROTECTION AND ILLEGALITy .................. 30 


SECTION 3.01. 
 Taxes .......................................................................................................... 30 


............ , ........................................................................................ 32 


...................................................................... 32 


SECTION 3.02. 
 Illegality 

SECTION 3.03. 
 Inability to Determine Rates 

SECTION 3.05. 

SECTION 3.06. 
 Survival ...................................................................................................... 33 


Increased Cost and Reduced Return; Capital 


Adequacy; Reserves on LIBOR Rate Loans .............................................. 32 


Matters Applicable to All Requests for 


SECTION 3.04. 


Compensation ............................................................................................ 33 


ARTICLE IV CONDITIONS TO LOANS ................................................................................... 34 


SECTION 4.01. 
 Conditions to Initial Loan .......................................................................... 34 


SECTION 4.02. 


SECTION 4.03. 
 Conditions to Working Capital Loans ....................................................... 35 


SECTION 4.04. 
 Conditions to AIJ Loans ............................................................................. 36


Conditions to Advance Loans and Authorized 


Overage Loans ........................................................................................... 35 


ARTICLE V REPRESENTATIONS AND WARRANTIES ........................................................ 36 


SECTION 5.Q1. 

SECTION 5.02. 
 Authorization; No Contravention ............................................................... 37 


........................................... 37 


............................................................................................ 37 


.................................................................................... 37 


.................................................................................................... 38 


SECTION 5.03. 
 Governmental Authorization; Other Consents 

SECTION 5.04. 
 Binding Effect 

SECTION 5.05. 
 Financial Reporting 

SECTION 5.06. 
 Litigation 

Doc#: USJ .5758203vJ 5 

Existence, Qualification and Power; Compliance 

with Laws ................................................................................................... 36 

SECTION 5.07. 
 No Default. ................................................................................................. 38 


.......................................................................................................... 38 


..................................................................... 38 


... ...................................... 38 


.................................................................................................. 39 


................................................................................... 39 


SECTION 5.08. 
 Taxes 

SECTION 5.09. 
 Subsidiaries; Equity Interests 

SECTION 5.10. 
 Margin Regulations; Investment Company Act

SECTION 5.11. 
 Disclosure 

SECTION 5.12. 
 Anti-Terrorism Law 

ARTICLE VI AFFIRMATIVE COVENANTS ............................................................................ 40 


SECTION 6.01. 
 Certificates; Other Information .................................................................. 40 


....................................................................................................... 40 


.............................................................................. 41 


........................................................................... 41 


......................................................................... 41 


....................................................................................... 41 


..................................................... .41 


.................................................................................................. 41 


..................................................................................... 41 


.......................................................................................... 41 


..................................................... 42 


... .................................................................. 43 


SECTION 6.02. 
 Notices 

SECTION 6.03. 
 Payment of Obligations 

SECTION 6.04. 
 Preservation of Existence 

SECTION 6.05. 
 Maintenance of Properties 

SECTION 6.06. 
 Inspection Rights 

SECTION 6.07. 
 Compliance with Environmental Laws 

SECTION 6.08. 
 [Reserved] 

SECTION 6.09. 
 Further Assurances 

SECTION 6.10. 
 Use of Proceeds 

SECTION 6.11. 
 Proposals for Approved Business Plans 

SECTION 6.12. 
 Outstanding Letters of Credit

ARTICLE VII NEGATIVE COVENANTS .................................................................................. 43 


SECTION 7.01. 
 Indebtedness............................................................................................... 43 


.......................................................................... 43 


................................................................................................ 44 


.............................................................................. 44 


...................................................................................... 45 


................................................................................... 45 


SECTION 7.02. 
 Liens and Related Matters 

SECTION 7.03. 
 Investments 

SECTION 7.04. 
 Contingent Obligations 

SECTION 7.05. 
 Asset Dispositions 

SECTION 7.06. 
 Restricted Payments 

SECTION 7.08. 
 Capital Expenditures .................................................................................. 45 


............................................................................. 45 


.................................................................................. 45 


SECTION 7.09. 
 Creation of Subsidiaries 

SECTION 7.10. 
 Conduct of Business 

SECTION 7.11. 


SECTION 7.12. 
 Fiscal Year ................................................................................................. 46 


SECTION 7.13. 
 Use of Proceeds .......................................................................................... 46


Restriction on Fundamental Changes; Dispositions 


and Recapitalizations ................................................................................. 45 


Amendments or Waivers of Certain Agreements; 


SECTION 7.07. 


Other Actions ........................................................................................... 46 


ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES ...................................................... 46 


SECTION 8.01. Events of Default ....................................................................................... 46 


SECTION 8.02. Remedies Upon Event of Default .............................................................. 47 


ARTICLE IX ADMINISTRATIVE AGENT AND OTHER AGENTS ....................................... 48 


SECTION 9.01. 
 Appointment and Authorization of Agents ................................................ 48 


.................................................................................. 48 


..................................................................................... 49 


.................................................................................... 49 


... ..................................................................................... 49 


SECTION 9.02. 
 Delegation of Duties 

SECTION 9.03. 
 Liability of Agents 

SECTION 9.04. 
 Reliance by Agents 

SECTION 9.05. 
 Notice ofDefault

11 


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SECTION 9.06. Credit Decision; Disclosure ofInformation by 


Agents ........................................................................................................ 50 


SECTION 9.07. Indemnification of Agents ......................................................................... 50 


SECTION 9.08. Agents in their Individual Capacities ......................................................... 51 


SECTION 9.09. Successor Agents ....................................................................................... 51 


SECTION 9.10. Administrative Agent May File Proofs of Claim ....................................... 51 


ARTICLE X MISCELLANEOUS ................................................................................................ 52 


SECTION 10.01. Amendments, Etc ....................................................................................... 52 


SECTION 10.02. Notices and Other Communications .......................................................... 53 


SECTION 10.03. No Waiver; Cumulative Remedies ............................................................ 53 


SECTION 10.04. Attorney Costs, Expenses and Taxes ......................................................... 54 


SECTION 10.05. Indemnification by the Borrower ............................................................... 54 


SECTION 10.06. Payments Set Aside .................................................................................... 56 


SECTION 10.07. Successors and Assigns .............................................................................. 56 


SECTION 10.08. Confidentiality ........................................................................................... 57 


SECTION 10.09. Setoff .......................................................................................................... 58 


SECTION 10.10. Interest Rate Limitation ............................................................................. 58 


SECTION 10.11. Counterparts ............................................................................................... 58 


SECTION 10.12. Integration .................................................................................................. 59 


SECTION 10.13. Survival of Representations and Warranties .............................................. 59 


SECTION 10.14. Severability ................................................................................................ 59 


SECTION 10.15. GOVERNING LAW .................................................................................. 60 


SECTION 10.16. Waiver of Right to Trial by Jury ................................................................ 61 


SECTION 10.17. Binding Effect ............................................................................................ 61 


SECTION 10.18. Lender Action ............................................................................................ 62 


SECTION 10.19. USA PATRIOT Act... ................................................................................ 62 


SECTION 10.20. Replacement of Lenders under Certain 


Circumstances ............................................................................................ 62 


111 


Doc#: US) :575820)v)5 
SCHEDULES 

1.01 

2.01 

2.11 

10.02 

Underlying Loans, Projects and Closing Date REO 

Commitments. 

Additional Conditions to Drawing 

Addresses for Notices 

EXHIBITS 

Form of 

A 

B 

C-l 

C-2 

D 

E 

Advance and/or Authorized Overage Loan Borrowing Notice 

Working Capital Loan Borrowing Notice 

TennNote 

Working Capital Note 

U.S. Tax Compliance Certificate 

Assignment and Assumption , , 

IV 

Do<#. USI:5758203vl5 
ADVANCE FACILITY AGREEMENT 

This ADV ANCE FACILITY AGREEMENT (this "Agreement") is entered into 

as of October 16,2009, among CORUS CONSTRUCTION VENTURES, LLC, a Delaware 

limited liability company (the "Borrower"), each Lender from time to time party hereto 

(collectively, the "Lenders"), and FEDERAL DEPOSIT INSURANCE CORPORATION (the 

"FDIC"), as Receiver for Corus Bank, N.A., as Administrative Agent (in such capacity, together 

with its successors and permitted assigns, the "Administrative Agen!"). 

PRELIMINARY STATEMENTS 

WHEREAS, on September 11, 2009, the FDIC was appointed receiver for Corus 

Bank, N.A. (the "Failed Bank"); 

WHEREAS, the Failed Bank previously owned the Underlying Loans (as defined 

below), including, through one or more subsidiaries, the Closing Date REO (as defined below); 

WHEREAS, the FDIC as receiver for the Failed Bank (in such capacity, thc 

"Receiver") and the Borrower have entered into a Loan Contribution and Sale Agreement dated 

as of the date hereof (the "Contribution Agreement"), pursuant to which (i) the Rcceiver sold in 

part and contributed in part, to the Borrower, and the Borrower purchased and assumed from the 

Receiver, all of the Receiver's right, title, and interest in and to the Underlying Loans, including 

the outstanding equity interests in the subsidiaries that hold the Closing Date REO and any REO 

owned directly by the Receiver, (ii) the Borrower executed and delivered to the Receiver the 

Purchase Money Note (as defined below) and (iii) the FDIC guaranteed payment of the principal 

on, and other obligations in respect of, the Purchase Money Note pursuant to the terms pursuant 

to the Purchase Money Note Guaranty (as defined below); 

WHEREAS, in connection with the transactions contemplated by the 

Contribution Agreement, the Receiver was admitted as the "Initial Member" of the Borrower (in 

such capacity, together with its successors and assigns, the "Initial Member") and received one 

hundred percent (100%) of the equity interests of the Borrower; 

WHEREAS, pursuant to that certain Limited Liability Company Interest Sale and 

Contribution Agreement dated as of the date hereof (the "Contribution Agreement"), the Initial 

Member is selling to CCV Managing Member, LLC, a Delaware limited liability company, an 

interest representing forty percent (40%) of the equity interests in the Borrower; 

WHEREAS, in connection therewith, the Initial Member and CCV Managing 

Member, LLC, as managing member (in such capacity, together with its permitted successors and 

assigns, the "Managing Member"), and the Borrower have entered into the Amended and 

Restated Limited Liability Company Operating Agreement of the Borrower dated as ofthe date 

hereof (the "LLC Operating Agreement"); 

WHEREAS, in connection therewith, the Receiver as Lender hereunder has 

agreed to make advances to the Borrower to (i) permit the Borrower to issue advances to 

borrowers under the unfunded commitments associated with such Underlying Loans, (ii) fund 

certain costs and expenses incurred by the Borrower in connection with the administration and 

enforcement of the Underlying Loans (and fund certain costs and expenses associated with the 

ownership and operation of the Closing Date REO and other REO Property (as defined below) 

CorU5- Advance Facility Agreement 
and (iii) pay certain Working Capital Expenses (as defined below), in each case, subject to the 

terms and conditions set forth herein. 

In consideration of the mutual covenants and agreements herein contained, the 

parties hereto covenant and agree as follows: 

ARTICLE I 

DEFINITIONS AND ACCOUNTING TERMS 

SECTION 1.01. Defined Terms. As used in this Agreement, the following 

terms shall have the meanings set forth below: 

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

Agreements among the Borrower, the Custodian/Paying Agent and the Collateral Agent entered 

into in accordance with the Custodial and Paying Agency Agreement. 

"Accountants" shall mcan the independent certified public accountants of the 

Borrower. 

"Act" has the meaning specified in Section 10.19. 

"Acquired Collateral" has the meaning specified in the Custodial and Paying 

Agency Agreement. 

"Administrative Agent" means the Receiver, in its capacity as administrative 

agent under any of the Loan Documents, or any successor administrative agent. 

"Advance Loan" has the meaning specified in Section 2.01(a). 

"Advance Loan Borrowing" means a borrowing consisting of Advance Loans 

made on the same day. 

"Advance and/or Authorized Overage Loan Borrowing Notice" means a 

notice of an Advance Loan Borrowing or Authorized Overage Loan Borrowing substantially in 

the form of Exhibit A. 

"Advance Loan Commitment" means, as to each Lender, its obligation to make 

Advance Loans to the Borrower pursuant to Section 2.01(a) in an aggregate amount not to exceed 

the lesser of (i) the amount set forth opposite such Lender's name on Schedule 2.01 under the 

caption "Advance Loan Commitment" or in the Assignment and Assumption pursuant to which 

such Lender becomes a party hereto (but such amount may not be less than the Advance Loan 

Commitment of the transferring Lender), as applicable, as such amount may be adjusted from 

time to time in accordance with this Agreement, and (ii) such Lender's Pro Rata Percentage of the 

lesser of (A) (x)$l,OOO,OOO,OOO, minus (y) the amount of the Authorized Overage Loan 

Commitment then in effect, and. (B) the sum of (1) aggregate Asset Advance Loan Sublimits in 

effect from time to time and (2) for any Assets for which there is not yet an Approved Business 

Plan, the lesser of (x) $350,000,000 multiplied by the Pro Rata Share for such Assets and (y) the 

aggregate Unfunded Commitments with respect to such Assets. 

2 Do<#: USl :5758203vl 5 
"Advance Loan Exposure" means, as to each Lender at any time of 

determination, the sum of the outstanding principal amount of such Lender's Advance Loans 

(excluding any interest that is capitalized in accordance with Section 2.06(b» at such time. 

"Affiliate" means., with rcspect to any specified Person, (i) any other Person 

directly or indirectly Controlling or Controlled by or under common Control with such specified 

Person, (ii) any Person owning or Controlling ten percent (10%) or more of the outstanding 

voting sccurities, 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 iIi that capacity, or 

(v) any Person who is an officer, director, general partner, managing member, trustee or holder of 

tcn percent (10%) 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 for 

the purposes of this Agreement none of the Initial Member, the Receiver as Lender, any Agent or 

the Purchase Money Note Guarantor shall be deemed an Affiliate of the Borrower. 

"Agent-Related Persons" means the Agents, together with their respective 

Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and 

Affiliates. 

"Agents" means, collectively, the Administrative Agent, the Collateral Agent, 

each co-agent or sub-agent appointed by the Collateral Agent (if any) from time to time pursuant 

to the Reimbursement, Security and Guaranty Agreement, the Verification Contractor and the 

CustodianlPaying Agent. 

"Agreement" means this Advance Facility Agreement. 

"Alternate Base Rate" means for any day a fluctuating rate per annum equal to 

the Federal Funds Rate in effect on such day plus Y2 of 1%. Any change in the Alternate Base 

Rate due to a change in the Federal Funds Rate or the Prime Rate shall take effect at the opening 

of business on the day specified in the public announcement of such change in the Federal Funds 

Rate. 

"Anti-Terrorism Laws" has the meaning specified in Section 5.12. 

"Applicable Margin" means (i) for LIBOR Rate Loans, 3.00% per annum, and 

(ii) for Base Rate Loans, 5.00% per annum. 

"Approved Budget" means, with respect to each Asset, a budget approved by 

the Administrative Agent in accordance with Section 6.11 setting forth in detail and on a line-byline basis: (i) in the case of an Underlying Loan, (A) the aggregate amount of the Authorized 

Advances, if any, proposed to be made by the Borrower to the Underlying Borrower with respect 

to such Underlying Loan and the costs and expenses to which the proceeds of such Authorized 

Advances are to be applied and (B) the estimated costs and expenses to be incurred by the 

Borrower in connection with such Underlying Loan and the related Underlying Collateral, and 

(ii) in the case of an REO Property or a property which, under the Approved Business Plan, is 

contemplated to become REO Property, the estimated amount of the Servicing Expenses and PreApproved Charges to be incurred by the Borrower or a Subsidiary in connection with the 

ownership, operation, maintenance, Icasing and salc of such REO Property and, to the extent 

3 Ooc#: us I :575R203v 15 
applicable, the estimated costs and expenses associated with the continued construction of such 

REO Property (which Approved Budget will show, in the cases of this clauses (i)(B) and (ii), the 

portion of such costs and expenses to be funded out of Working Capital Loans); provided, that, 

subject in all cases to the amount of Commitments available hcreunder from time to time, the 

estimated construction costs and e{{penses described in clauses (i)(B) and (ii) may include line 

item variances to account for contingencies but such variances shall in no event exceed ten 

percent (10%) of such line item before taking into account any such variance}. The term 

"Approved Budget" shall include all modifications to an Approved Budget made with the prior 

written approval of the Administrative Agent. 

"Approved Budget Delivery Date" means, with respect to any Project, the date 

on which the Approved Budget is delivered to the Administrative Agent pursuant to Section 6.11. 

"Approved Business Plan" means, with respect to each Asset, a business plan 

for such Asset approved by the Administrative Agent in accordance with Section 6.11, which 

shall include an Approved Budget and, in the case ofConstruction Loans, an Approved 

Construction Schedule, and shall set forth the Borrower's plan for (i) the funding, modification, 

enforcement and/or disposition of the Underlying Loan in question and, to the extent applicable, 

the continued construction, leasing, operation and disposition (after enforcement of the 

Borrower's remedies with respect to such Underlying Loan) of the property which is the subject 

of such Underlying Loan or (ii) in the case of an REO Property, the ownership and, to the extent 

applicable, the continued construction, leasing, operation and disposition of such REO Property. 

The term "Approved Business Plan" shall include all modifications to an Approved Business 

Plan made with the prior written approval of the Administrative Agent in accordance with Section 

6.11. 

"Approved Construction Schedule" means, with respect to each Construction 

Loan, the schedule, broken down by trade, that shows the estimated dates of commencement and 

completion of the applicable construction project as well as appropriate interim milestones and 

that has been approved by the Administrative Agent in accordance with Section 6.11. The term 

"Approved Construction Schedule" shall include all modifications to an Approved 

Construction Schedule made with the prior written approval of the Administrative Agent in 

accordance with Section 6.11. 

"Assets" means, collectively, the Underlying Loans and the REO Properties. 

"Asset Advance Loan Sublimit" means, with respect to any Asset, (i) on or 

prior to the Approved Budget Delivery Date for such Asset, the lesser of (A) the Pro Rata Share 

of such Asset of $350,000,000 (provided that if the Approved Budget Delivery Date for such 

Asset does not occur before the date that is three (3) months after the Closing Date, such amount 

shall be reduced to $0) and (B) in the case of a Construction Loan or an REO Property whieh 

remains under construction, the Unfunded Commitment in respect of such Asset and (ii) after the 

Approved Budget Delivery Date for such Asset, the amount set forth as the "Asset Advance 

Loan Sublimit" in the Approved Budget for such Asset, as such amount may be adjusted from 

time to time with the written consent of the Administrative Agent. 

"Asset Authorized Overage Loan Sublimit" means, with respect to any Asset, 

(i) on or prior to the Approved Budget Delivery Date for sueh Underlying Loan, SO and (ii) after 

the Approved Budget Delivery Date for such Asset, the amount set forth as the "Asset 

Authorized Overage Loan Sublimit" in the Approved Budget for such Asset, as such amount 

may be adjusted from time to time with the prior written consent of the Administrative Agent. 

4 Doc#: USI :5758203v15 
"Asset Management Fee" has the meaning specified for the term "Management 

Fee" in the Custodial and Paying Agency Agreement. 

"Assets" means, collectively, the Underlying Loans and the REO Properties. 

"Assignment and Assumption" means an assignment and assumption 

substantially in the fonn of Exhibit E, or such other form as may be approved by the 

Administrative Agent. 

"Assignment of Mortgage" means, with respect to each Underlying Loan, a 

collateral assignment of the mortgage, deed of trust, trust deed or deed to secure debt securing 

such Underlying Loan ("Underlying Mortgage") or an assignment of blank of such Underlying 

Mortgage in form suitable for recording in the appropriate public records and otherwise in form 

reasonably satisfactory to the Administrative Agent. 

"Attorney Costs" means and includes all reasonable fees, expenses and 

disbursements of any law firm or other extemallegal counsel. 

"Authorized Advance" means any advance made by the Borrower to any 

Underlying Borrower after the Closing Date in respect of a Construction Loan in accordance with 

the provisions of Section 2.11 of this Agreement (the aggregate principal amount of which 

advances shall not exceed, as to any Construction Loan, the aggregate principal amount of 

Advance Loans and Authorized Overage Loans permitted hereunder in respect of such 

Construction Loan) and the applicable Approved Business Plan. 

"Authorized Overage Loan" has the meaning specified in Section 2.01(b). 

"Authorized Overage Loan Borrowing" means a borrowing consisting ·)f 

Authorized Overage Loans made on the same day. 

"Authorized Overage Loan Commitment" means, as to each Lender, its 

obligation to make Authorized Overage Loans to the Borrower pursuant to Section 2.01(b) in an 

aggregate amount not to exceed the lesser of(i) the amount set forth opposite such Lender's name 

on Schedule 2.01 under the caption "Authorized Overage Loan Commitment" or in the 

Assignment and Assumption pursuant to which such Lender becomes a party hereto (but such 

amount may not be less than the Authorized Overage Loan Commitment of the transfcrring 

Lender), as applicable, as such amount may be adjusted from time to time in accordance with this 

Agreement and (ii) such Lender's Pro Rata Percentage of the lesser of (A) $250,000,000 and 

(B) the aggregate Asset Authorized Overage Loan Sublimits in effect from time to time. 

"Authorized Overage Loan Exposure" means, as to each Lender at any time of 

determination, the sum of the outstanding principal amount of such Lender's Authorized Overage 

Loans (excluding any interest that is capitalized in accordance with Section 2.06(b» at such time. 

"Base Rate Loan" means a Loan that bears interest based on the Alternate Base 

Rate. 

"BBA LIBOR" has the meaning specified in the definition of "LIBOR Rate." 

"Borrower" has the meaning specified in the introductory paragraph to this 

Agreement. 

5 Doc#: USI :5758203v15 
"Borrower Account" means any "Company Account" as defined in, and 

established and maintained under, the Custodial and Paying Agency Agreement. 

"Borrowing" means an Advance Loan Borrowing, an Authorized Overage Loan 

Borrowing or a Working Capital Loan Borrowing, as the context may require. 

"Borrowing Notice" means an Advance and/or Authorized Overage Loan 

Borrowing Notice or a Working Capital Loan Borrowing Notice, as the context may require. 

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

which commercial banks in Washington, D.C. or United States federal government offices are 

required or authorized by Law to close and (ii) if such day relates to any interest rate settings as to 

a LmORRate Loan, any fundings, disbursements, settlements and payments in respect of any 

such LIBOR Rate Loan, or any other dealings to be carried out pursuant to this Agreement in 

respect of any such LIBOR Rate Loan, means any such day on which dealings in deposits in 

Dollars are conducted by and between banks in the London interbank Eurodollar market. 

"Capital Expenditures" means, for any period, the aggregate of all expenditures 

(whether paid in cash or other consideration or accrued as a liability and including that portion of 

Capitalized Leases which is capitalized during such period on the consolidated balance sheet of 

the Borrower and the Subsidiaries) by the Borrower and the Subsidiaries during that period that, 

in conformity with GAAP, should be set forth as capital expenditures or comparable items 

reflected in the consol idated statement of cash flows of the Borrower and the Subsidiaries. 

"Capitalized Leases" means all leases that have been or should be, in 

accordance with GAAP, recorded as capitalized leases; provided, that for all purposes hereunder 

the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for 

as a liability in accordance with GAAP. 

"Casualty Event" means any event that gives rise to the receipt by the Borrower 

or any Subsidiary of any insurance proceeds or condemnation awards in respect of any Asset, 

either in accordance with the terms of the Underlying Loan Documents or in respect of REO 

Property. 

"CERCLA" means the Comprehensive Environmental Response, Compensation 

and Liability Act of 1980, as subsequently amended. 

"CERCUS" means the Comprehensive Environmental Response, Compensation 

and Liability Information System maintained by the U.S. Environmental Protection Agency. 

"Closing Date" means the date on which all the conditions precedent in 

Section 4.01 are satisfied or waived in accordance with Section 4.01 and the initial Loans are 

made. 

"Closing Date REO" means the REO Property contributed (or owned by one or 

more Subsidiaries the Equity Interests in which are contributed) to the Borrower on the Closing 

Date pursuant to the Contribution Agreement. 

"Code" means the U.S. Internal Revenue Code of 1986 and rules and regulations 

related thereto. 

6 DocU: llSI:5758203vi 5 
"Collateral" means any and all real or personal property, whether tangible or 

intangible, securing or pledged to secure the Obligations, including any account, equipment, 

guarantee or contract right, or other interest that is the subject of any ColIateral Document and all 

"Collateral" as defined in any Collateral Document, including the Underlying Loans. 

"Collateral Agent" means the Receiver, in its capacity as collateral agent under 

the Reimbursement, Security and Guaranty Agreement, or any successor collateral agent. 

"Collateral Documents" means, collectively, the Reimbursement, Security and 

Guaranty Agreement, the Custodial and Paying Agency Agreement, the Account Control 

Agreements, the Assignments of Mortgage, the Allonges (as defined the Reimbursement, 

Security and Guaranty Agreement), the Guaranties, the REO Mortgages and each of the other 

agreements, instruments or documents that creates or purports to create a Lien or guarantee in 

favor of the Collateral Agent for the benefit of the Secured Parties. 

"Commitment" means an Advance Loan Commitment, an Authorized Overage 

Loan Commitment or a Working Capital Loan Commitment, as the context may require. 

"Commodity Agreements" means commodity agreements, commodity hedging 

agreements and other similar agreements or arrangements designed to protect against price 

fluctuations of commodities used in the business of the Borrower and the Subsidiaries. 

"Construction Loan" means any Underlying Loan the proceeds of which are to 

be used to fund construction of a Project. 

"Contingent Obligation" means, as applied to any Person, any direct or indirect 

liability, contingent or otherwise, of that Person (i) with respect to any Guarantee, (ii) with 

respect to any letter of credit issued for the account of that Person or as to which that Person is 

otherwise liable for reimbursement of drawings, or (iii) under Hedge Agreements or Commodity 

Agreements. Notwithstanding the foregoing, Contingent Obligations shall not include standard 

contractual indemnities entered into in the ordinary course of business. 

"Contractual Obligation" means, as to any Person, any provision of any 

security issued by such Person or of any agreement, instrument or other undertaking to which 

such Person is a party or by which it or any of its property is bound. 

"Contribution Agreement" has the meaning specified in the recitals hereto. 

"Control", including the phrases "Controlled by" and "under common Control 

with," means, when used with respect to any specified Person, 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. 

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

Agency Agreement dated as of the date hereof among the Borrower, the CustodianlPaying Agent 

and the Collateral Agent, and shall include any substantially similar agreement entered into by the 

Borrower and any new or successor Custodian/Paying Agent in accordance with the LLC 

Operating Agreement. 

7 Ooc#: US1:5758203v15 
"Custodian Amounts" means, collectively, the fees and expenses of the 

CustodianlPaying Agent payable pursuant to Section 8.1 of the Custodial and Paying Agency 

Agreement. 

"Custodian/Paying Agent" means Wells Fargo Bank, National Association and 

any successor serving as the "Bank" under and as defined in the Custodial and Paying Agency 

Agreement. 

"Debtor Relief Laws" means the Bankruptcy Code ofthe United States, and all 

other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, 

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

Laws ofthe United States or other applicable jurisdictions from time to time in effect and 

affecting the rights of creditors generally. 

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

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

"Default Rate" means, at any date ofdetermination and to the fullest extent 

permitted by applicable Law, an interest rate equal to (i) the interest rate otherwise applicable to 

the Loans on such date, plus (ii) 2.0% per annum, to the fullest extent permitted by applicable 

Laws. 

"Defaulting Lender" means any Lender with respect to which a Lender Default 

is in effect. 

"Disposition" or "Dispose" means the sale, transfer, license, lease or other 

disposition (including any sale and leaseback transaction and any sale of Equity Interests) of any 

property by any Person, including any sale, assignment, transfer or other disposal, with or without 

recourse, of any notes or accounts receivable or any rights and claims associated therewith. 

"Distribution Date" has the meaning specified in the Custodial and Paying 

Agency Agreement. 

"Dollar", "Dollars" and "$" mean lawful money of the United States. 

"Environmental Hazard Property" means any property held by a Subsidiary 

pursuant to Section 3.2(b) of the Reimbursement, Security and Guaranty Agreement. 

"Environmental Laws" means any and all Federal, state, local, and foreign 

Laws, regulations, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, 

agreements or governmental restrictions relating to pollution, the protection of the environment, 

natural resources, or, to the extent relating to exposure to Hazardous Materials, human health or 

to the release of any materials into the environment, including those related to Hazardous 

Materials, air emissions and discharges to waste or public systems. 

"Environmental Liability" means any liability, contingent or otherwise 

(including any liability for damages, costs of environmental remediation, fines, penalties or 

indemnities), of the Borrower or any of its Subsidiaries directly or indirectly resulting from or 

based upon (a) violation of any Environmental Law, (b) the generation, use, handling, 

transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any 

Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the 

8 Doc~: U51:5758203v\ 5 
environment or (e) any contract, agreement or other consensual arrangement pursuant to which 

liability is assumed or imposed with respect to any of the foregoing. 

"Environmental Permit" means any permit, approval, concession, grant, 

identification number, license or o~her authorization required under any Environmental Law. 

"Equity Interests" means, with respect to any Person, all of the shares, interests, 

rights, participations or other equivalents (however designated) of capital stock of (or other 

ownership or profit interests or units in) such Person and all ofthe warrants, options or other 

rights for the purchase, acquisition or exchange from such Person of any of the foregoing 

(including through convertible securities). 

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

1974, as amended from time to time, and any successor statute of similar import, in each case, as 

in effect from time to time. References to sections of ERISA also refer to any successor sections. 

"Event of Default" has the meaning specified in Section 8.01. 

"Excess Working Capital Advances" has the meaning specified in the 

Custodial and Paying Agency Agreement. 

"Executive Order" has the meaning specified in Section 5.12. 

"Failed Bank" has the meaning specified in the recitals hereto. 

"FDIC" has the meaning specified in the introductory paragraph hereto. 

"Federal.Funds Rate" means, for any day, the rate per annum equal to the 

weighted average of the rates on overnight Federal funds transactions with members of the 

Federal Reserve System arranged by Federal funds brokers on such day, as published by the 

Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such 

day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such 

transactions on the next preceding Business Day as so published on the next succeeding Business 

Day, and (b) ifno such rate is so published on such next succeeding Business Day, the Federal 

Funds Rate for such day shall be the average (rounded upward, if necessary, to a whole multiple 

of 1/100 of 1%) of the quotations for the day of such transaction received by the Administrative 

Agent from three federal funds brokers of recognized standing reasonably selected by it. 

"Fiscal Year" means the Fiscal Year of the Borrower and the Subsidiaries 

ending on December 31 of each calendar year. 

"FRB" means the Board of Govcrnors of the Federal Reserve System of the 

United States. 

"GAAP" means generally accepted accounting principles in the United States of 

America, as in effect from time to time. 

"Governmental Authority" means any United States or non-United States 

national, federal, state, local, municipal or provincial or international government or any political 

subdivision of any governmental, regulatory or administrative authority, agency or commission, 

or judicial or arbitral body. 

9 

DocN: lISI :5758203v15 
"Guarantee" shall mean, with respect to any particular indebtedness or other 

obligation, (i) any direct or indirect guarantee thereofby 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 payor 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 othcr obligee of such indebtedness or other obligation against 

loss, or (C) otherwise to assure the obligcc 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. 

"Guarantor" means "Subsidiary Grantor" as defined in the Reimbursement, 

Security and Guaranty Agreement. 

"Guaranty" means "Guarantee" as defined in the Reimbursement, Security and 

Guaranty Agreement. 

"Hazardous Materials" means all explosive or radioactive substanccs or wastes 

and all hazardous or toxic substances, wastes or pollutants, including petrol cum or petroleum 

distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, 

radiation, infectious or medical wastes and all other substances or wastes of any nature regulated 

pursuant to any Environmental Law. 

"Immediate Family Member" shall mean, with respect to any individual, his or 

her spouse, parents, parents-in-law, grandparents, descendants, nephews, nieces, brothers, sisters, 

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

stepchildren, grandchildren and grandchildren-in-law . 

."Indebtedness" means, as applied to any Person, without duplication, (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 tradc payables 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 agrecment 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 havc been or should be, in accordance with GAAP, recorded as capitalized leases, or (vi) all 

indebtedness or obligations of others ofthe kinds referred to in clauses (i) through (v) above in 

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

"Indemnified Liabilities" has the meaning set forth in Section 9.07. 

10 Doc#: USl :5758203v15 
"Indemnified Parties" has the meaning set forth in Section 10.05. 

"Initial Member" has the meaning specified in the recitals hereto. 

"Insolvency Event" means, with respect to any specified Person, the occurrence 

of any of the following events: 

(i) the specified Person makes an assi!,'l1ment for the benefit of 

creditors; 

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

Insolvency Proceeding; 

(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 trustee, receiver or liquidator of the specified Person or of all or any substantial 

part of the specified Person's properties; 

(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 (v) above; 

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

than, with respcct to the Borrower, the Purchase Money Notes unless a Purchase Money Note 

Trigger Event (as defined in the Reimbursement, Security and Guaranty Agreement) has occurred 

and is continuing and has not been cured within ten (10) Business Days) as they become due; or 

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

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

part ofthe specified Person's properties without the specified Person's agreement or 

acquiescence, and such appointment has not been vacated or stayed, or if such appointment has 

been stayed, at least sixty (60) days have passed following the expiration of the stay if such 

appointment has not been vacated. 

"Insolvency Proceeding" means any proceeding under Debtor Relief Laws. 

"Interest Period" means, as to each Loan, the period commencing on the first 

day of each calendar month and ending on the last day of such calendar month. 

"Interim Period" has the meaning specified in Section 2.02(a). 

"Interim Term Loan Borrowing" has the meaning specified in Section 2.02(a). 

11 Doc#: USI :5758203vl S 
"Interim Term Loan Borrowing Delivery Date" has the meaning specified in 

Section 2.02(a). 

"Interim Term Loan Borrowing Limit" means $100,000,000 (for the period 

commencing on the date hereofan.d ending on April 16, 2010), $75,000,000 (for the period 

commencing on April 17, 2010 and ending on October 16, 2010) and $50,000,000 (for the period 

commencing October 17, 2010 and ending on April 16, 2011). 

"Investment" means any acquisition of all or substantially all assets of a Person, 

any acquisition ofrecord or beneficial ownership of the Equity Interests of a Person, any advance 

or capital contribution to or other investment in a Person, or any loan or other advance to a 

Person. 

"Law" means any applicable statute, law, ordinance, regulation, rule, code, 

injunction, judgment, decree or order (including any executive order) of any Governmental 

Authority. 

"Lender" means each party hereto from time to time which holds a Commitment 

or a Loan. 

"Lender Default" means (i) the failure (which has not been cured) of a Lender to 

make available its portion of any Borrowing that it is required to make available hereunder, (ii) a 

Lender having notified the Administrative Agent and/or the Borrower that it does not intend to 

comply with the obligations under Section 2.1(a), 2.1(b) or 2.1(c), as the case may be, or (iii) an 

Insolvency Evcnt occurs with respect to such Lender. 

"Lender's Account" means, as to any Lender, the account of such Lender 

specified in writing by such Lender to the Borrower from time to time. 

"LIBOR Rate" means, with respect to each day during each Intercst Period 

pertaining to a LIBOR Rate Loan, the rate per annum equal to the British Bankers Association 

LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially available source 

providing quotations ofBBA LIBOR as selected by the Administrative Agent from time to time) 

as determined at approximately 11 :00 a.m. New York time two (2) Business Days prior to the 

first day of such Interest Period, for U.S. Dollar deposits with a term of one month, adjusted for 

statutory reserve requirements for Eurocurrency liabilities. 

"LIBOR Rate Loan" means a Loan that bears interest based on the LIBOR 

Rate. 

"Lien" means any mortgage, deed of trust, deed to secure debt, trust deed, 

pledge, 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, restrictive 

covenant and any other lien, claim or encumbrance of any nature whatsoever. 

"LLC Interest Sale Agreement" means the Limited Liability Company Interest 

Sale and Assignment Agreement dated as of the date hereof among CCY Managing Member, 

LLC, the Receiver and the Borrower. 

"LLC Operating Agreement" has the meaning specified in the recitals hereto. 

12 Doc#' USI :5758203v15 
"Loan" means an extension of credit by a Lender to the Borrower under 

Article II in the fonn of an Advance Loan, an Authorized Overage Loan or a Working Capital 

Loan. 

"Loan Documents" means, collectively, (i) this Agreement, (ii) the Notes (if 

any), (iii) the Reimbursement, Security and Guaranty Agreement, (iv) the Custodial and Paying 

Agency Agreement, (v) the Account Control Agreements, (vi) the REO Mortgages, (vii) the 

Guaranties, (viii) the Assignments of Mortgage, (ix) the Allonges and (x) each certificate, 

agreement or document executed by a Loan Party and delivered to a Lender or any Agent in 

connection with any of the foregoing. 

"Loan Participation" has the meaning specified in the Reimbursement, Security 

and Guaranty Agreement. . 

"Loan Participation Agreement" has the meaning specified in the 

Reimbursement, Security and Guaranty Agreement. 

"Loan Parties" means, collectively, the Borrower and eaeh Guarantor. 

"Loan Repayment" means, with respect to any Underlying Loan, any 

prepayment or repayment of, or other payment in respect of, the principal amount of, or interest 

or other amounts in respect of, the related loans received by the Borrower. 

"Losses" has the meaning set forth in Section 10.05. 

"Managing Member" has the meaning specified in the recitals hereto. 

"Material Adverse Effect" means any event, circumstance, development, 

change or effect that, individually or in the aggregate with all other events, circumstances, 

developments, changes and effects, is or would be materially adverse to (i) the business, 

operations, assets, condition (financial or otherwise) or prospects of the Borrower and its 

Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to perfonn their obligations 

under the Loan Documents or (iii) the rights and remedies of the Agents or any Lender under the 

Loan Documents. 

"Maturity Date" means the earlier of (i) the date that is ten (10) years after the 

Closing Date and (ii) the date upon which all of the Underlying Loans or REO Properties have 

been fully repaid, liquidated or otherwise disposed of. 

"Maximum Rate" has the meaning specified in Section 10.10. 

"Modification" means any extension, renewal, substitution, replacement, 

supplement, amendmcnt or modification of any agreement, certificate, document, instrument or 

other writing, whether or not contemplated in the original agreement, document or instrument. 

"Non-Consenting Lender" has the meaning specified in Section I O.20(b). 

"Non-Defaulting Lender" means and includes each Lender other than a 

Defaulting Lender. 

"Non-U.S. Lender" has the meaning specified in Section 3.01(d). 

13 DocN: US1:575820)v15 
"Note" means a Term Note or a Working Capital Loan Note, as the context may 

require. 

"NPL" means the National Priorities List under CERCLA. 

"Obligations" means all advances to, and debts, liabilities, obligations, 

covenants and duties of, any Loan Party and its Subsidiaries arising under any Loan Document or 

otherwise with respect to any Loan, whether direct or indirect (including those acquired by 

assumption), absolute or contingent, due or to become due, now existing or hereafter arising and 

including interest and fees that accrue after the commencement by or against any Loan Party or 

Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in 

such proceeding, regardless of whether such interest and fees are allowed claims in such 

proceeding. Without limiting the generality'ofthe foregoing, the Obligations of the Loan Parties 

under the Loan Documents (and of their Subsidiaries to the extent they have obligations under the 

Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal, 

interest, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any 

Loan Party or its Subsidiaries under any Loan Document and (b) the obligation of any Loan Party 

or any of its Subsidiaries to reimburse any amount in respect of any of the foregoing that any 

Lender, in its sole discretion, may elect to payor advance on behalf of such Loan Party or such 

Subsidiary. 

"OFAC" has the meaning specified in Section 5 .12. 

"Organization Documents" means, (a) with respect to any corporation, the 

certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive 

documcnts with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability 

company, the certificatc or articles of formation or organization and operating agreement; and 

(c) with respect to any partncrship, 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 .[ormation 

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. 

"Other Taxes" has the meaning specified in Section 3.01(b). 

"Outstanding Letters of Credit" means thosc Icttcrs of credit outstanding on 

the date hereof that were issued with respect to Underlying Loans by the Failed Bank to third 

parties on behalf of Underlying Borrowers. 

"Ownership Entity" has the meaning specified in the Reimbursement, Security 

and Guaranty Agreement. 

"Participant" has the meaning specified in Section 10.07(d). 

"Permitted Encumbrances" means the following types of Liens (excluding any 

such Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Code or by ERISA, any such 

Lien relating to or imposed in connection with any Environmental Liability, and any such Lien 

cxpressly prohibited by any applicable terms of any of the ColIateral Documents): 

14 Doc#. USI:S758203v1S 
(a) Liens for taxes, assessments or governmental charges not overdue or 

which are being contested in good faith and by appropriate proceedings, so long as (i) such 

reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been 

made for any such contested amounts, and (ii) in the case of a Lien with respect to any portion of 

the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the 

Collateral on account of such Lien; 

(b) Liens incurred or deposits made in the ordinary course of business to 

secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, 

government contracts, trade contracts, performance and return-of-money bonds and other similar 

obligations (exclusive of obligations in respect of Indebtedness), so long as no foreclosure, sale or 

similar proceedings have been commenced with respect to any portion of the Collateral on 

account thereof; 

(c) leases or subleases granted to third parties, and contracts for the sale of 

condominiums and cooperative units entered into with third parties, each in accordance with the 

applicable Approved Business Plan or otherwise permitted under the Transaction Documents; 

(d) easements, rights-of-way, restrictions, encroachments, and minor defects 

or irregularities in title, in each case which do not and will not interfere in any material respect 

with the ordinary conduct of the business of the Borrower or any of the Subsidiaries or the use or 

proposed used of any Collateral or REO Property or result in a material diminution in the value of 

any Collateral or REO Property or which are otherwise determined to be acceptable by the 

Collateral Agent; 

(e) any zoning or similar law or right reserved to or vested in any 

governmental office or agency to control or regulate the use of any real property; and 

(0 subject to Section 7.02(a), Liens existing on the Closing Date. 

"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 or regulatory body or other 

entity. 

"Pre-Approved Charges" has the meaning specified in the Contribution 

Agreement. 

"Proceeds" means "Loan Proceeds" as defined in the Custodial and Paying 

Agency Agreement. 

"Project" mcans cach construction project associated with an Underlying Loan 

as set forth on Schedule 1.01. 

"Pro Rata Percentage" means, with respect to each Lender at any time, a 

fraction (expressed as a percentage, carried out to the ninth decimal place), (i) the numerator of 

which is the sum of the aggregate amount ofthe Commitments of such Lender at such time and 

the aggregate outstanding principal amount of such Lender's Term Loans at such time, and (ii) 

the denominator of which is sum of the aggregate amount of the Commitmcnts of all Lenders at 

such time and the aggregate outstanding principal amount of all Term Loans at such time. 

15 Ooc#: USI :5758203v15 
"Pro Rata Share" means, with respect to any Asset, a fraction, the numerator of 

which is the Unpaid Principal Balance of such Asset as of the Closing Date, and the denominator 

of which is the aggregate Unpaid Principal Balances of all Assets as of the Closing Date. 

"Protective Constructive Advance" means a Term Loan advance hereunder, the 

proceeds of which are used (either by the Borrower or an Underlying Borrower) to protect or 

preserve the value of a Project, or prevent the interruption of construction of a Project, when 

construction is underway or nearly complete. 

"Purchase Money Notes" means, collectively, the three (3) Purchase Money 

Notes dated the date hereof made by the Borrower to the Receiver and includes any promissory 

note reissued in respect of a Purchase Money Note as contemplated by Section 2.8 of the 

Custodial and Paying Agency Agreement. 

"Purchase Money Note Guaranty" means the Guaranty date the date hereof 

made by thc FDIC, in its corporate capacity, in favor of the holders of the Purchase Money Notes. 

"Receiver" has the meaning specified in the recitals hereto. 

"Register" has the meaning specified in Section 1O.07(c). 

"Reimbursement, Security and Guaranty Agreement" means the 

Reimbursement, Security and Guaranty Agreement dated as of the date hereof among the 

Borrower, the Collateral Agent, the Administrative Agent and the FDIC. 

"Reimbursement Obligations" means the reimbursement obligations ofthe 

Borrower under Section 2.1 of the Reimbursement, Security and Guaranty Agreement. 

"Related Parties" has the meaning specified in Section 10.05. 

"REO Mortgage" means, with respect to each REO Property, a mortgage, deed 

of trust, trust deed or deed to securc debt securing the Obligations in form suitable for recording 

in the appropriate public records and otherwise in form and substance satisfactory to the 

Collateral Agent (which REO Mortgage may, if the Underlying Mortgage on the applicable REO 

Property has not been discharged and if the ColIateral Agent agrees, consist of such Underlying 

Mortgage, as assigned to the Collateral Agent and including such modifications thereto as the 

ColIateral Agent may require). 

"REO Property" means each property which is "REO Property" as such term is 

defined in the Reimbursement, Security and Guaranty Agreement. 

"Required Documentation" means, with respect to any Borrowing the proceeds 

of which are to be used to make Authorized Advances, all documents required to be delivered 

pursuant to Section 2.11 as a condition precedent to the making of such Authorized Advance. 

"Required Lenders" means, as of any date of determination, Non-Defaulting 

Lenders having more than 50% of the sum of (a) the aggregate unused Term Commitments on 

such date (excluding Term Commitments of Defaulting Lenders), (b) the aggregate principal 

amount ofTerm Loans outstanding as of such date (excluding Term Loans made by Defaulting 

Lenders), (c) the aggregate Working Capital Commitments on such date (excluding Working 

Capital Commitments of Defaulting Lenders) and (d) the aggregate principal amount of Working 

16 Doc#: US1:575820)v15 
Capital Loans outstanding as ofsuch date (excluding Working Capital Loans made by Defaulting 

Lenders). 

"Responsible Officer" means the Chairman, Chief Executive Officer, Interim 

Co-President, Interim Chief Financial Officer, Secretary or Deputy Secretary of the Managing 

Member, as the context may require. Any document delivered hereunder that is signed by a 

Responsible Officer shall be conclusively presumed to have been authorized by all necessary 

corporate, limited liability company and/or other action on the part of the Managing Member and 

a Responsible Officer of Managing Member shall be conclusively presumed to have acted on 

behalf of Managing Member and/or the Borrower. 

"Restricted Payment" means (i) any dividend or other distribution, direct or 

indirect, on account of any shares of any class of stock or other equity Securities of the Borrower 

or any Subsidiary now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or 

similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any 

class of stock or other equity Securities of the Borrower or any Subsidiary now or hereafter 

outstanding, (iii) any payment made to retire, or to obtain the surrender of, any outstanding 

warrants, options or other rights to acquire shares of any class of stock or other equity Securities 

of the Borrower or any Subsidiary now or hereafter outstanding and (iv) any payment or 

prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, 

defeasance or similar payment with respect to, the Purchase Money Note. 

"Secured Obligations" has the meaning specified in the Reimbursement, 

Security and Guaranty Agreement. 

"Secured Parties" means, collectively, the Agents, the Lenders, the Purchase 

Money Note Guarantor and each co-agent or sub-agent appointed by the Collateral Agent from 

time to time pursuant to Reimbursement, Security and Guaranty Agreement. 

"Securities" means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, 

options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or 

unsecured, convertible, subordinated or otherwise, or in general any instruments commonly 

known as "securities" or any certificates of interest, shares or participations in temporary or 

interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or 

acquire, any of the foregoing. 

"Servicer" means (i) any Person retained by the Managing Member to service, 

manage or administer any Underlying Loans or Underlying Collateral and (ii) any Person retained 

by any Person referred to in clause (i) to service, manage or administer any of the Underlying 

Loans or Underlying Collateral. 

"Servicing Agreement" has the meaning specified in the Custodial and Paying 

Agency Agreement. 

"Servicing Expenses" has the meaning specified in the LLC Operating 

Agreement. 

"Single Purpose Entity" has the meaning specified in the Reimbursement, 

Security and Guaranty Agreement. 

17 Doo#: US]:57S8203vl 5 
"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 su~h specified Person (it being understood that with respect to 

each of clauses (i) and (ii) 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 or the 

Control of such Person so long as such pledgor continues to be entitled, in all material respects, to 

all the voting power and all the income with respect to such equity interest). 

"Taxes" has the meaning specified in Section 3.01(a). 

"Term Availability Period;' means the period commencing on the Closing Date 

and ending on the earliest to occur of (i) the date mutually agreed in writing by the Borrower and 

the Administrative Agent in connection with the approval of the Approved Business Plans in 

accordance with Section 6.11, (ii) the third anniversary of the Closing Date and (iii) the date on 

which the Commitments are terminated pursuant to Section 8.02. 

"Term Loans" means, collectively, the Advance Loans and the Authorized 

Overage Loans. 

"Term Note" means a promissory note of the Borrower payable to any Lender or 

its registered assigns in substantially the form of Exhibit C-l hereto, evidencing the Term Loans 

made by sueh Lender. 

"Transaction Documents" means the Loan Documents, the Purchase Money 

Note, the Purchase Money Note Guaranty, the Contribution Agreement, the LLC Interest Sale 

Agreement, the LLC Operating Agreement and the Servicing Agreement. 

"Transactions" means, collectively, the transactions consummated pursuant to 

the terms of the Transaction Documents. 

"Underlying Borrower" means, with respect to any Underlying Loan, 

collectively, the borrowers in respect of such Underlying Loan. 

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

tangible or intangible, securing or pledged to secure an Underlying Loan, including any account, 

equipment, guarantee or contract right, equity, partnership or other interest that is the subject of 

any collateral agreement included in the Underlying Loan Documents and, as the context requires 

(including Acquired Collateral), any REO Property, whether or not expressly so specified. 

"Underlying Collateral Documents" means any pledge agreement, security 

agreement, personal, corporate or other guaranty, deed of trust, deed, trust deed, mortgage, 

contract for the sale ofreal property, assignment, collateral al:,rreement 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 Underlying Borrower 

of its obligations or the obligations of any other Underlying Borrower under any of the 

Underlying Loans or (ii) evidencing ownership of any Acquired Collateral. 

"Underlying Guarantor" means any guarantor of all or any portion of any 

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

18 Doc#: USI :5758203v15 
in the Underlying Loan Documents and shall include the guarantor under any completion 

guaranty or similar document. 

"Underlying Loan" means any loan, Loan Participation (as defined in the 

Contribution Agreement), stock or. other ownership interests in an Ownership Entity (including 

any cash and cash equivalents held directly or indirectly by such Ownership Entities (excluding 

security deposits, deposits made by prospective purchasers of condominium or cooperative units 

or other portions of the interests in the Acquired Collateral and other cash and cash equivalents to 

the extent that such Ownership Entity has a corresponding liability to a third party» and Acquired 

Collateral1isted on Schedule 1.01, and any loan into which any listed loan or Loan Participation 

is refinanced or modified, and includes with respect to each such loan, Loan Participation, 

Ownership Entity, Acquired Collateral or other related asset or any Underlying Related 

Agreement: (i) any obligation evidenced by an Underlying Note; (ii) all rights, powers or Liens of 

the Borrower or any Ownership Entity in or under the Underlying Collateral and Underlying 

Collateral Documents and in and to Acquired Collateral (including all Ownership Entities and 

REO Property held by an Ownership Entity); (iii) all of the rights ofthe Borrower or any 

Ownership Entity under any lease and the related leased property; (iv) all rights to causes of 

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

for the benefit of the Borrower or any Ownership Entity with respect to the Underlying Loans, the 

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

whether arising by way of counterclaim or otherwise; (v) all guaranties, warranties, indemnities 

and similar rights in favor of the Borrower or any Ownership Entity with respect to any of the 

Underlying Loans and (vi) all rights of the Borrower or any Ownership Entity under the 

Underlying Related Agreements. 

"Underlying Loan Documents" means all documents, agreements, certificates, 

instruments and other writings (including all Underlying Collateral Documents) now or hereafter 

executed by or delivered or caused to be delivered by any Underlying Borrower, Underlying 

Guarantor or any other obligor evidencing, creating, guaranteeing or securing, or otherwise 

executed or delivered in respect of, all or any part of an Underlying Loan or any Acquired 

Collateral or evidencing any transaction contcmplated thereby (including, for this purpose, title 

insurance policies and endorsements thereto), and all Modifications thereto. 

"Underlying Mortgage" has the meaning specified in the definition of 

"Assignment of Mortgage." 

"Underlying Related Agreement" means (i) any agreement, document or 

instrument (other than the Underlying Collateral Documents) relating to or evidencing any 

obligation to payor securing any Underlying Loan (including any equipment lease, letter of 

credit, bankers' acceptance, draft, system confirmation of transaction, loan history, affidavit, 

general collection information, and correspondence and comments relating to any obligation), 

(ii) any agreement relating to the construction, ownership, operation, management, sale or leasing 

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

management agreements, brokerage agreements, service contracts, and concession agreements, 

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

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

contingency fee, and tax and other service agreements (including those referred to in Section 4.2 

of the Contribution Agreement) that are specific only to the Underlying Loans (or any of them) 

and that are assignable. 

19 Doc#: USI :5758203v15 
"Unfunded Commitment" means (i) with respect to an Underlying Loan, the 

unfunded commitment in respect ofsuch Underlying Loan as of the Closing Date, less the 

aggregate principal amount of Authorized Advances made by the Borrower to the Underlying 

Borrower on or after the Closing Date in respect of such unfunded commitment and (ii) with 

respect to any REO Property, the unfunded commitment in respect ofthe applicable Underlying 

Loan at the time such REO Property was acquired by the Borrower or any Subsidiary of the 

Borrower (excluding any portion thereof attributable to interest reserves), less the aggregate 

principal amount of Advance Loans made by the Lenders to the Borrower in respect of such REO 

Property (in the case of clauses (i) and (ii), to the extent that the proceeds ofsuch Advance Loans 

are used for the purposes for which proceeds of such Underlying Loan could have been used). 

"Uniform Commercial Code" means the Uniform Commercial Code as the 

same may from time to time bc in cffect in the State of New York or the Uniform Commercial 

Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply 

to any item or items ofCollateral. 

"United States" and "U.S." mean the United States of America. 

"Unpaid Principal Balance" means, at any time, (a) when used in connection 

with multiple Underlying Loans, an amount equal to the aggregate then outstanding principal 

balance of such Underlying Loans, and (b) when used with respect to a single Underlying Loan, 

an amount equal to .the then outstanding principal balance of such Underlying Loan; provided, 

however, that: 

(i) with respect to any Loan Participation (and any related Acquired 

Collateral), the Unpaid Principal Balance of such Loan Participation shall include only the Initial 

Member's allocable share thereof in accordance with the applicable Loan Participation 

Agreement; 

(ii) with respect to any Acquired Collateral that is included among the 

Underlying Loans on the Closing Date, the Unpaid Principal Balance of such Acquired Collateral 

shall initially be the amount set forth on the Cut-Off Date Loan Schedule (as defined in the LLC 

Interest Sale Agreement), adjusted as of the Closing Date to its Adjusted Unpaid Principal 

Balance (as defined in the Contribution Agreement), and thereafter determined in the same 

manner as all other Acquired Collateral; 

(iii) in the case of an Underlying Loan for which some or all of the related 

Underlying Collateral has been converted to Acquired Collateral (including REO Property). until 

such time as the Acquired Collateral (or any portion thereof) is liquidated, the unpaid principal 

balance of such Underlying Loan shall be deemed to equal the unpaid principal balance of such 

Underlying Loan (adjusted pro rata for debt forgiveness or retained indebtedness) at the time at 

which such Underlying Loan was converted to Acquired Collateral. less the net proceeds of any 

sales of any portion of the Acquired Collateral effective after such conversion; and 

(iv) the Unpaid Principal Balance with respect to any Acquired Collateral 

will be increased by the amount of (A) any Tcrm Loan applied with respect thereto in accordance 

with the terms hereof, (B) any Servicing Expenses capitalized thereto in accordance with 

applicable Law to the extent that capitalizing such Servicing Expenses would have been 

permitted under the applicable Underlying Loan Documents prior to the conversion of the 

Underlying Loan to Acquired Collateral and (C) Excess Working Capital Advances used for the 

purposes for which the proceeds ofTerm Loans may be used hereunder. 

20 Doc#. USI :5758203v15 
"Verification Contractor" means (i) any Person retained by the Administrative 

Agent to provide the administrative and verification functions described in this Agreement and 

(ii) any Person retained by the Person referred to in clause (i) to provide the administrative and 

verification functions described in this Agreement. 

"Verification Contractor Amounts" means, collectively, the fees and expenses 

of the Verification Contractor payable to it pursuant to the agreement pursuant to which such 

Verification Contractor was retained by the Administrative Agent. 

"wholly owned" means, with respect to a Subsidiary of a Person, a Subsidiary of 

such Person all of the outstanding Equity Interests of which are owned by such Person. 

"Working Capital Availability Period" means the period commencing on the 

Closing Date and ending on the earliest to occur of (i) the fifth anniversary of the Closing Date 

and (iii) the date on which the Commitments are terminated pursuant to Section 8.02. 

"Working Capital Expenses" means, collectively, the amount of any accrued 

and unpaid Asset Management Fee, Custodian Amounts, Verification Contractor Amounts, 

Servicing Expenses and Pre-Approved Charges as of any Distribution Date after application of 

any Proceeds available therefor pursuant to Section 5.1 of the Custodial and Paying Agency 

Agreement. 

"Working Capital Loan" has the meaning specified in Section 2.01(c). 

"Working Capital Loan Borrowing" means a borrowing consisting of 

simultaneous Working Capital Loans made on the same day. 

"Working Capital Loan Borrowing Notice" means a notice of a Working 

Capital Loan Borrowing substantially in the form of Exhibit B. 

"Working Capital Loan Commitment" means, as to each Lender, its obligation 

to make Working Capital Loans to the Borrower pursuant to Scction 2.01(c) in an aggregate 

amount not to exceed the lesser of (i) the amount set forth opposite such Lender's name on 

Schedule 2.01 under the caption "Working Capital Loan Commitment" or in the Assignment and 

Assumption pursuant to which such Lender becomes a party hereto (but such amount may not be 

less than the Working Capital Loan Commitment of the transferring Lender), as applicable, as 

such amount may be adjusted from time to time, in accordance with this Agreement, and (ii) such 

Lender's Pro Rata Percentage of $150,000,000, as such amount may be adjusted from time to 

time with the prior written consent of the Administrative Agcnt. 

"Working Capital Loan Exposure" means, as to each Lender at any time, the 

sum of the outstanding principal amount of such Lender's Working Capital Loans (excluding any 

interest that is capitalized in accordance with Section 2.06(b)) at such time. 

"Working Capital Note" means a promissory note of the Borrower payable to 

any Lender or its registered assigns in substantially the form of Exhibit C-2 hereto, evidencing the 

Working Capital Loans made by such Lender. 

SECTION 1.02. Other Interpretive Provisions. With reference to this 

Agrecmcnt and each other Loan Document, unless otherwise specified herein or in such other 

Loan Document: 

21 Doc#: lJSJ:57SgZ03vI5 
(a) References to "Affiliates" include, with respect to any specified 

Person, only such other Persons which from time to time constitute "Affiliates" 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" of such specified Person, except to the extent that any such 

reference specifically provides otherwise. 

(b) The term "or" is not exclusive. 

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

replacement to such Law. 

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

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

attachments thereto and all documents, instruments or agreements issued or executed in 

replacement thereof, and (b) shall mean such document, instrument or agreement, or replacement 

thereto, as amended, modified and supplemented from time to time in accordance with its terms 

and as the same is in effect at any given time. 

(e) Unless otherwise specified, the words "hereof," "herein" and 

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

particular provision of this Agreement. 

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

import 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. 

(g) The word "during" 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. 

(h) Unless the context otherwise requires, singular nouns and 

pronouns when used herein shall be deemed to include the plural and vice versa and impeIsonal 

pronouns shall be deemed to include the personal pronoun of the appropriate gender. 

SECTION 1.03. Accounting Terms. All accounting terms not specifically or 

completely defined herein shall be construed in conformity with, and all financial data required to 

be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as 

otherwise specifically prescribed herein. 

SECTION 1.04. Times of Day. Unless otherwise specified, all references 

herein to times of day shall be references to Eastern time (daylight or standard, as applicable). 

SECTION 1.05. Timing of Payment of Performance. When the payment of 

any obligation or the performance of any covenant, duty or obligation is stated to be due or 

performance required on a day which is not a Business Day, the date of such payment or 

performance shall extend to the immediately succeeding Business Day. 

22 Doc~: US1:5758203vl S 
ARTICLE II 

THE COMMITMENTS AND LOANS 

SECTION 2.01. The Loans. 

(a) The Advance Loan Borrowings. Subject to the terms and 

conditions set forth herein, each Lender severally agrees to make term loans to the Borrower as 

elected by the Borrower pursuant to Section 2.02 (each such loan, an "Advance Loan") from 

time to time, on any Business Day during the Term Availability Period in an aggregate principal 

amount (excluding any interest that is capitalized in accordance with Section 2.06(b)) not to 

exceed such Lender's Advance Loan Commitment; provided that after giving effect to any 

Advance Loan Borrowing, the aggregate Advance Loan Exposure of the Lenders with respect to 

any Asset shall not exceed the Asset Advance Loan Sublimit with respect to such Asset. 

Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowcd. 

(b) The Authorized Overage Loan Borrowings. Subject to the terms 

and conditions set forth herein, each Lender severally agrees to make term loans to the Borrower 

as elected by the Borrower pursuant to Section 2.02 (each such loan, an "Authorized Overage 

Loan") from time to time, on any Business Day during the Term Availability Period, in an 

aggregate principal amount (excluding any interest that is capitalized in accordance with Section 

2.06(b» not to exceed such Lender's Authorized Overage Loan Commitment; provided that 

Authorized Overage Loans in respect of any Asset shall be available only after the Advance 

Loans in respect of such Asset have been fully drawn or if such Asset has not been allocated an 

Asset Advance Loan Sub limit; and, provided,further, that after giving effect to any Authorized 

Overage Loan Borrowing, the aggregate Authorized Overage Loan Exposure of the Lenders with 

respect to any Asset shall not exceed the Asset Authorized Overage Loan Sublimit with respect to 

such Asset. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be 

reborrowed. 

(c) The Working Capital Loan Borrowings. Subject to the terms and 

conditions sct forth herein, each Lender severally agrees to make revolving loans to the Borrower 

as elected by the Borrower pursuant to Section 2.02 (each such loan, a "Working Capital 

Loan") from time to time, on any Business Day during the Working Capital Availability Period, 

in an aggregate principal amount (excluding any interest that is capitalized in accordance with 

Section 2.06(b» not to exceed at any time outstanding such Lender's Working Capital Loan 

Commitment. Within the limits of each Lender's Working Capital Loan Commitment in effect 

from time to time, and subject to the other terms and conditions hereof, the Borrower may borrow 

under this Section 2.01(c), repay or prepay under Section 2.03, and reborrow Working Capital 

Loans under this Section 2.01(c). 

(d) Use ofProceeds. The proceeds of Advance Loans and 

Authorized Overage Loans issued in respect of an Asset shall be used by the Borrower only (i) to 

make Authorized Advances in respect of the Unfunded Commitments in respect ofsuch Asset in 

accordance with the Approved Business Plan for such Asset, if any, (ii) from and after the 

approval of the Approved Business Plan for an Asset, to make Authorized Advances to the 

Underlying Borrower in excess of the Unfunded Commitments and (iii) in the case of an REO 

Property, to pay, in accordance with the Approved Business Plan for such REO Property, costs 

and expenses associatcd with the continued construction of such REO Property (including the 

payment of so-called "soft costs" payable during construction (such as real estate taxes, ground 

rents and insurance premiums) as are included in the Approved Business Plan for the applicable 

23 Ooc#: US) :5758203vI5 
REO Property (and are designated therein as payable out ofthe proceeds of the Term Loans) and 

as would typically be paid out of construction loan proceeds (as detcnnined by the Administrative 

Agent). The proceeds of Working Capital Loans shall be used by the Borrower only (1) to pay 

Working Capital Expenses in accordance with the applicable Approved Business Plan or (2) if 

required by an Underlying Borrower, to replace an Outstanding Letter of Credit in accordance 

with Section 6.12. 

SECTION 2.02. Borrowing of Loans. 

(a) Each Advance Loan Borrowing, Authorized Overage Loan 

Borrowing and Working Capital Loan Borrowing shall be made upon the Borrower's delivery of 

an applicable Borrowing Notice, appropriately completed and signed by a Rcsponsible Officer of 

the Managing Member, on behalf ofthe Borrower, to the Administrative Agent; provided that 

Borrowings may only be made on four (4) days in any calendar month and multiple Borrowings 

may be made on any such day. Each such notice must be received by the Administrative Agent 

not later than 12:00 p.m. ten (10) Business Days prior to the requested datc of any Borrowing of 

Loans; provided that until April 16, 2011 and with respect to an aggregate principal amount equal 

to the Interim Tenn Loan Borrowing Limit from time to time, one or more Advance and/or 

Authorized Overage Loan Borrowing Notices may be received by the Administrative Agent not 

later than 12:00 pm two (2) Business Days prior to the requested date of any Borrowing of such 

TennLoan (an "Interim Term Loan Borrowing"). Each Borrowing Notice shall (i) specify 

(A) whether the Borrower is requesting an Advance Loan Borrowing, an Authorized Overage 

Loan Borrowing or a Working Capital Loan Borrowing, (B) the requested date of the Borrowing 

(which shall be a Business Day), (C) the principal amount of Loans to bc borrowed and (D) the 

Assets to which such Borrowing is to be allocated and the principal amount of such Borrowing to 

be allocated to each such Asset and the purposes for which the proceeds ofsuch Loans are to be 

used, (ii) set forth the costs and expenses to be paid out of such proceeds as well as the 

corresponding costs and expenses detailed in the applicable Approved Business Plan, if the same 

shall have been approved, which shall demonstrate that the incurrence of such costs and expenses 

is consistent with such Approved Business Plan and (iii) be accompanied by all other items the 

delivery of which is a condition to the making of such Loan pursuant to Section 2.11; provided 

that with respect to any Advance and/or Authorized Overage Loan Borrowing Notice delivered 

with respect to an Interim Tenn Loan Borrowing, such Advance and/or Authorized Overage Loan 

Borrowing Notice shall specify those matters sct forth in clause (i) of this Section 2.02(a) and the 

aggregate amount of all previous Interim Tenn Loan Borrowings which remain outstanding 

(which, when combined with the amount of the requested Interim Tenn Loan Borrowing, shall in 

no event exceed the Interim Tenn Loan Borrowing Limit; provided that an Event of Default shall 

not be deemed to have occurred and the conditions to making any Loan not be deemed not to be 

satisfied if the aggregate amount of outstanding Interim Tenn Loan Borrowings exceeds the 

Interim Tenn Loan Borrowing Limit as a result of the decrease of the Interim Tenn Loan 

Borrowing Limit pursuant to the definition thereof) and need not be accompanied by the items 

required by Section 2.11,providedfurtherthat within ten (10) Business Days (the "Interim 

Term Loan Borrowing Delivery Date") following the requested date of Borrowing for such 

Interim Tenn Loan Borrowing, the Administrativc Agent shall have received a duly executed 

certificate of a Responsible Officer of the Managing Member, on behalfof the Borrower, 

specifying the matters set forth in clause (ii) of this Section 2.02(a) and accompanied by the items 

required by Section 2.11 at which point, and upon confirmation by the Verification Contractor 

that such items have been delivered, the outstanding principal amount of such Tenn Loan shall 

not be included when calculating the aggregate amount of outstanding Interim Tenn Loan 

Borrowings (and the availability ofInterim Term Loan BorrOWings shall be increased, but not 

beyond the Interim Tenn Loan Borrowing Limit, by an amount equal to the outstanding principal 

24 Doc#: USI :5758203v15 
amount of such Interim Term Loan Borrowing). In the event the Administrative Agent shall have 

not received such duly executed certificate and the items required by Section 2.11, and the 

Verification Contractor shall not have confirmed delivery of such items, by the Interim Term 

Loan Borrowing Delivery Date, (A) the principal amount of such Interim Term Loan Borrowing 

shall bear interest at the Default Rate during the period (the "Interim Period") from the Interim 

Term Loan Borrowing Delivery Date and ending on the date upon which the Administrative 

Agent has received such duly executed certificate and the items required by Section 2.11 and the 

delivery of such items have been confirmed by the Verification Contractor and (B) during the 

Interim Period, no additional Term Loans shall be available with respect to the Asset to which 

such Interim Term Loan Borrowing related. The Administrative Agent shall use commercially 

reasonable efforts to cause the Verification Contractor to actively assist the Borrower in 

reviewing, and determining the adequacy of, the items submitted by the Borrower pursuant to 

Section 2.11 and promptly (within two (2) Business Days, if practicable) to respond to any 

request from the Borrower with respect to such adequacy; provided that in the event the 

Verification Contractor fails to so promptly respond, the Interim Term Loan Borrowing Delivery 

Date shall be extended until such date that the Verification Contractor responds to the Borrower 

and, during the period of such extension, the Interim Loan Borrowing Limit shall be increased by 

the amount of the Interim Term Loan Borrowing with respect to which the Verification 

Contractor shall have failed to respond (provided that such increase shall be deemed revoked, if 

the Verification Contractor subsequently determines that the items required by Section 2.11 have 

not been delivered). In the event the Borrower and the Administrative Agent disagree whether 

the Borrower has submitted the items required by Section 2.11, the Administrative Agent will 

endeavor to render a final decision with respect thereto within ten (10) Business Days of written 

notice from the Horrower as to why such conditions have not been satisfied. 

(b) Following receipt of a Borrowing Notice in accordance with 

Section 2.02(a), the Administrative Agent shall promptly notify each Lender of the amount of its 

Pro Rata Percentage of the applicable Loans, and upon satisfaction of the applicable conditions 

set forth in Section 4.04 and (i) if such Borrowing is the initial Borrowing, Section 4.01, (ii) if 

such Borrowing is an Advance Loan Borrowing or an Authorized Overage Loan Borrowing, 

Section 4.02, and (iii) ifsuch Borrowing is a Working Capital Loan Borrowing, Section 4.03, 

each Lender shall make the amount of its applicable Loans available to the Borrower in 

immediately available funds by wire transfer to the Borrower Account on the date requested in 

the applicable Borrowing Notice. 

(c) The Administrative Agent shall promptly notify the Borrower 

and the Lenders of the interest rate applicable to any Interest Period for the Loans upon 

determination of such interest rate. The determination of the applicable interest rate by the 

Administrative Agent shall be conclusive in the absence of manifest error. 

SECTION 2.03. Prepayments and Repayments. 

(a) Optional. The Borrower may, upon not less than one (I) 

Business Day's prior written notice to each Lender, at any time or from time to time voluntarily 

prepay the Loans in whole or in part without premium or penalty, such prepayment to be applied 

in accordance with Section 5.1(b) of the Custodial and Paying Agency Agreement as ifsuch 

amounts were Principal Proceeds (as defined in the Custodial and Paying Agency Agreement). At 

the Borrower's election, in connection with any prepayment pursuant to this Section 2.03(a), such 

prepayment shall not be applied to any Loan of a Defaulting Lender. 

25 Doc": US1:5758203v15 
(b) Mandatory. If(w) the Borrower or any Subsidiary consummatcs 

the sale of any Asset, (x) any Casualty Event occurs, (y) the Borrower receives any Loan 

Repayment or (z) any other Proceeds are received, in each case, which rcsults on any Distribution 

Date in the availability of Proceeds pursuant to Section 5. 1 (b)(ii) or (iii) of the Custodial and 

Paying Agency Agreement, the Borrower shall cause such Proceeds shall be applied in 

accordance with Section 5 .1 (b) of the Custodial and Paying Agency Agreement as if such 

amounts were Principal Proceeds (as defined in the Custodial and Paying Agency Agreement). In 

connection with any prepayment pursuant to this Section 2.03(b), such prepayment shall not be 

applied to any Loan of a Defaulting Lender. 

(c) Maturity Date. The Borrower shall repay all outstanding Loans 

in full on the Maturity Date. 

SECTION 2.04. Tennination or Reduction of Commitments. 

The Advance Loan Commitments and the Authorized Overage Loan 

Commitments shall be automatically and pennanently reduced on a pro rata basis by an amount 

equal to any undrawn Asset Advance Loan Sublimit or Asset Authorized Overage Loan Sublimit, 

respectively, in respect of any Asset (which sublimits shall be reduced to the aggregate principal 

amount of the applicable Loans then outstanding thereunder), upon (A) the repayment in whole or 

in part of the applicable Underlying Loan (but only if further advances are not required to be 

made to the Underlying Borrower thereunder) or (B) the consummation of a sale with respect to 

the applicable Asset, including in connection with the exercise ofthe Borrower's repurchase 

rights under Section 6.1 of the Contribution Agreement and excluding any foreclosure or other 

similar sale or transfer of such Asset to the Borrower or any Subsidiary. 

SECTION 2.05. [Reserved]. 

SECTION 2.06. Interest. 

(a) Subject to the provisions of Sections 2.06(b), 3.02 and 3.03, each 

Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to 

the LIB OR Rate in effect from time to time, plus the Applicablc Margin. 

(b) Interest on each Loan shall be due and payable in arrears on each 

Distribution Date and at such other times as may be specified herein; provided, that to the extent 

that any interest that is accrued as of any Distribution Date remains unpaid after the application of 

Proceeds in accordance with Section 5. 1 (a)(iv) of the Custodial and Paying Agent Agreement, 

such due and unpaid interest shall be added to the outstanding principal amount of the applicable 

Loan on such Distribution Date (and any such interest so added to the principal of a Loan shall 

bear interest from and after such Distribution Date as provided hereunder as if it had bccn part of 

the original principal of such Loan). Any accrued and unpaid interest on the Loans shall be 

payable in full in cash on the Maturity Date. Interest hereunder shall be due and payable in 

accordance with the tenns hereof before and after judgment, and before and after the 

commencement of any proceeding under any Debtor Relief Law. 

(c) Upon the occurrence and during the continuance of an Event of 

Default, (i) automatically ifin respect of an Event of Default under Section 8.01(e) or (ii) 

otherwise, if the Required Lenders so elect, then the aggregate unpaid principal amount of the 

Loans, and (to the extent permitted by applicable Laws), any overdue interest, fees and other 

26 Doc#' USI :5758203v15 
amounts due under the Loan Documents shall bear interest at a rate per annum equal to the 

Default Rate until paid in full, which interest shall be due and payable upon demand. 

SECTION 2.07. Computation of Interest and Fees. All computations of fees 

and interest shall be made on the basis of a 360 day year and actual days elapsed. Interest shall 

accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or 

any portion thereof, for the day on which the Loan or such portion is paid. Each dctcrmination by 

the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for 

all purposes, absent manifest error. 

SECTION 2.08. Evidence of Indebtedness. 

(a) The Loans made by each Lender shall be evidenced by one or 

more accounts or records maintained by such Lender and evidenced by one or more entries in the 

Register maintained by the Administrative Agent, acting solely for purposes ofTreasury 

Regulation Section 5f.l 03-1 (c), as agent for the Borrower in the ordinary course of business. The 

accounts or records maintained by the Administrative Agent and each Lender shall be prima facie 

evidence absent manifest error of the amount of the Loans made to the Borrower and the interest 

and payments thereon. Any failure to so record or any error in doing so shall not, however, limit 

or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with 

respect to the Obligations. Upon the request of any Lender, the Borrower shall execute and 

deliver to such requesting Lender the applicable Notes payable to such Lender which shall 

evidence such Lender's Loans in addition to such accounts or records. Each Lender may attach 

schedules to its Notes and endorse thereon the date, amount and maturity of its Loans and 

payments made with respect thereto. 

(b) Entries made in good faith by the Administrative Agent in the 

Register and by each Lender in its account or accounts pursuant to Section 2.08(a) shall be prima 

facie evidence ofthe amount of principal and interest due and payable or to become due and 

payable from the Borrower to, in the case of the Register, each Lender and, in the case of such 

account or accounts, such Lender, under this Agreement and the other Loan Documents, absent 

manifest error; provided that the failure of the Administrative Agent or such Lender to make an 

entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall 

not limit or otherwise affect the obligations ofthe Borrower under this Agreement and the other 

Loan Documents. 

SECTION 2.09. Payments Generally. 

(a) All paymcnts to be made by the Borrower shall be made without 

condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise 

expressly provided herein or in Section 5.1 of the Custodial and Paying Agency Agreement, all 

payments by or on behalf of the Borrower hereunder shall be made to a Lender at its Lender's 

Account, in Dollars and in immediately available funds not later than 2:00 p.m. on the date 

specified herein. All payments received by a Lcnder after 2:00 p.m. shall in each case be deemed 

received on the next succeeding Business Day and any applicable interest or fee shall continue to 

accrue. 

(b) If any payment to be made by the Borrower shall come due on a 

day other than a Business Day, payment shall be made on the next following Business Day, and 

such extension of time shall be reflected in computing interest or fees, as the case may be. 

27 Doc#: USI.S7S8203vIS 
(c) The obligations of the Lenders hereunder to make Loans are 

several and not joint. The failure of any Lender to make any Loan on any date rcquired 

hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, 

and no Lender shall be responsible for the failure of any other Lender to so make its Loan. 

SECTION 2.10. Protective Advances. 

If Borrower or any Subsidiary fails to perform its obligations 

under any Loan Document or in order to preserve, protect or maintain the Collateral, each of 

the Lenders shall have the right, but not the obligation, to perform such obligation or take 

such action in the name and on behalf ofthe Borrower or such Subsidiary in accordance with 

the Loan Documents. All sums advanced and expenses incurred at any time by any Agent or 

any Lender under this Section 2.10 shall be included in the Obligations and shall be secured 

by the Collateral. 

SECTION 2.11. Authorized Advances. 

(a) The Borrower shall not make an advance to an Underlying 

Borrower in respect of a Construction Loan unless each of the following conditions is satisfied: 

(i) If such advance is required by the terms ofthe applicable 

Underlying Loan Documents, 

(A) all the conditions to such advance set forth in 

such Underlying Loan Documents shall have been satisfied (except to the extent satisfaction of 

such conditions was disclosed to be waived pursuant to the terms of the applicable Approved 

Business Plan); 

(B) all documentation submitted by the applicable 

Underlying Borrower in connection with its request for such advance shall have been submitted 

to the Administrative Agent and the Verification Contractor; and 

(C) the Verification Contractor shall have verified, 

to its reasonable satisfaction, that all conditions to funding under the applicable Underlying Loan 

Documents and this Agreement have been satisfied or were waived pursuant to the terms of the 

applicable Approved Business Plan, if such a plan has been approved. 

(ii) In all other cases, the Borrower may make such advance 

if: 

(A) the conditions to funding set forth on Schedu~ 

2.11 (in addition to the conditions to such advance set forth in the applicable Underlying Loan 

Documents, to the extent not waived in accordance with the terms ofthe applicable Approved 

Business Plan) shall have been satisfied; 

(8) the Borrower shall have delivered to the 

Administrative Agent a certificate duly executed by a Responsible Officer stating that the 

Borrower reasonably determined that such advance is in the best interests of the Borrower and the 

Lenders in terms of maximizing the value of the Underlying Loan; 

28 Doc#: USl:575820Jv15 
(C) such advance is consistent with the applicable 

Approved Business Plan, if such a plan has been approved; 

(D) the conditions to the corresponding Advance 

Loan or Authorized Overage Loan. hereunder have been satisfied or waived by the Required 

Lenders; 

(E) the Borrower shall have used commercially 

reasonable efforts to cause any completion guarantor or the Underlying Borrower to fund any 

amounts which it is required to fund under the Underlying Loan Documents, except as otherwise 

provided in the applicable Approved Business Plan; 

(F) the Borrower and the Underlying Borrower shall 

have entered into such modifications of the Underlying Loan Documents as are reasonably 

necessary or appropriate in connection with such advance; and 

(G) all documentation submitted by the applicable 

Underlying Borrower in connection with its request for such advance and the documentation set 

forth on Schedule 2.11 shall have been submitted to the Administrative Agent and the 

Verification Contractor as required hereunder, and the Verification Contractor shall have verified, 

to its reasonable satisfaction, that the foregoing conditions have been satisfied. 

(b) Supplementing the requirements set forth in Section 4.02 hereof, 

the Lenders shall make Term Loans to the Borrower in respect of any REO Property only if the 

following conditions are met or waived by the Required Lenders: 

(i) the conditions to funding set forth on Schedule 2.11 (in 

addition to the conditions to such advance set forth in the applicable Underlying Loan Documents 

(considered as if the Lenders were the lender thereunder, and the Borrower were the borrower 

thereunder), except to the extent the same no longer apply because the Borrower or the applicable 

Ownership Entity, and not the Underlying Borrower, is the owner of such REO Property, and 

except to the extent inconsistent with the applicable Approved Business Plan) shall have been 

satisfied; 

(ii) the Borrower shall have delivered to the Administrative 

Agent a certificate duly executed by a Responsible Officer stating that (x) the Borrower 

reasonably determined that such advance is in the best interests of the Lenders in terms of 

maximizing the value of the REO Property and (y) the Borrower shall contribute the proceeds of 

the Term Loans to the applicable Ownership Entity with respect to such REO Property; 

(iii) such advance is consistent with the applicable Approved 

Business Plan; and 

(iv) all documentation submitted by the Borrower in 

connection with its request for such advance as required by this Section 2.ll(b) shall have been 

submitted to the Verification Contractor as required hereunder, and the Verification Contractor 

shall have verified, to its reasonable satisfaction, that the foregoing conditions have been 

satisfied. 

The failure on the part of the Lenders to require strict compliance by the 

Borrower with this Section 2.11(b) or of an Underlying Borrower with the terms and conditions 

29 Doc#. USI:S7S8203vlS 
of the applicable Underlying Loan Documents shall not constitute a waiver of the Lenders' right 

to demand such strict compliance. 

(c) Notwithstanding anything to the contrary contained in this 

Agreement, the Administrative Agent will agree to waive or defer technical compliance with one 

or more ofthe conditions set forth in Schedule 2.11 or Section 2.1 I (a)(ii)(E) and (F) (a 

"Protective Advance Waiver'') in connection with the making of Protective Construction 

Advances but only if, in each casco 

I. The Borrower shall have delivered to the Administrative Agent the 

certificate referred to in Section 2.1 I(a)(ii)(B) or 2.11 (b)(ii), as applicable, with respect to the 

Protective Construction Advance in question, which certificate shall (A) identify with reasonable 

specificity the conditions as to which it is seeking a Protective Advance Waiver, (B) certify that 

the conditions set forth in this Section 2.11(c) have been satisfied with respect to such Protective 

Advance Waiver and (C) describe in reasonable detail why such waiver is permitted under this 

Section 2.ll(c); 

2. Such Protective Advance Waiver or and the actions, omissions or events 

which are the subject thereof, will not jeopardize the validity or first priority lien of the 

Underlying Loan Documents or the Loan Documents or otherwise advcrsely affect the Borrower 

or the Lenders, taking into account all ofthe relevant facts and circumstances, and will not impair 

the Underlying Borrower's or Borrower's ability to complete the applicable Project in accordance 

with all applicable Laws the applicable Approved Business Plan (if the same has been delivered) 

and the Transaction Documents or the Underlying Loan Documents, as applicable; and 

3. Such Protective Advance Waiver is commercially reasonable and is 

consistent with standards customarily applied by institutional lenders making advances under 

construction loans. 

ARTICLE III 

TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY 

SECTION 3.01. Taxes. 

(a) Except as provided in this Section 3.01, any and all payments by 

the Borrower to or for the account of any Lender or any Agent under any Loan Document shall be 

made free and clear of and without deduction for any and all present or future taxes, duties, 

levies, imposts, deductions, assessments, fees, withholdings or similar charges, and all liabilities 

(including additions to tax, penalties and interest) with respect thereto, excluding, in the case of 

each Agent and each Lender, (A) taxes imposed on or measured by its net income or overall gross 

income (including branch profits), and franchise (and similar) taxes imposed on it in lieu of net 

income taxes, by the jurisdiction (or any political subdivision thereof) under the Laws of which 

such Agent or such Lender, as the case may be, is organized or maintains a lending office, and all 

liabilities (including additions to tax, penalties and interest) with respect thereto; (B) any taxes 

that are solely attributable to such Lender's failure to comply with the requirements of 

Section 3.01(d); and (C) any withholding taxes imposed on amounts payable to a Lender at the 

time such Lender becomes a party to this Agreement, except to the extent that such Lender's 

assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the 

Borrower with respect to such non-excluded taxes pursuant to this Section 3.01(a). All nonexcluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar 

30 Ooc#: USI.5758203v 15 
charges, and liabilities described in the immediately preceding sentence are hereinafter referred to 

as "Taxes." If the Borrower shall be required by any Laws to deduct any Taxes or Other Taxes 

(as defined below) from or in respect of any sum payable under any Loan Document to any Agent 

or any Lender, (i) the sum payable shall be increased as necessary so that after making all 

required deductions (including deductions applicable to additional sums payable under this 

Section 3.0 I), each of such Agent and such Lender receives an amount equal to the sum it would 

have received had no such deductions been made, (ii) the Borrower shall make such deductions, 

(iii) the Borrower shall pay the full amount deducted to thc relevant taxation authority or other 

authority in accordance with applicable Laws, and (iv) within thirty (30) days after the date of 

such payment (or, ifr~ceipts or evidence are not available within thirty (30) days, as soon as 

possible thereafter), the Borrower shall furnish to such Agent or such Lender (as the case may be) 

the original or a certified copy of a receipt evidencing payment thereof to the extent such a receipt 

is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the 

Agent or such Lender (as the case may be). If the Borrower fails to pay any Taxes or Other 

Taxes when due to the appropriate taxing authority or fails to remit to any Agent or any Lender 

the required receipts or other required documentary evidence, the Borrower shall indemnify such 

Agent and such Lender for any incremental taxes, interest or penalties that may become payable 

by such Agent or such Lender arising out of such failure to the extent that such amounts were 

previously not paid to such Agent or such Lender. 

(b) In addition, the Borrower agrees to pay any and all present or 

future stamp, court or documentary taxes and any other excise, property, intangible or mortgage 

recording taxes or charges or similar levies which arise from any payment made under any Loan 

Document or from the execution, delivery, performance, enforcement or registration of, or 

otherwise with respect to, any Loan Document (hereinafter referred to as "Other Taxes"). 

(c) The Borrower agrees to indemnify each Agent and each Lender 

for (i) the full amount ofTaxes and Other Taxes (including any Taxes or Other Taxes imposed or 

asserted by any jurisdiction on amounts payable under this Section 3.01) paid by such Agent and 

such Lender and (ii) any liability (including additions to tax, penalties, interest and expenses) 

arising therefrom or with respect thereto, in each case whether or not such Taxes or Other Taxes 

were correctly or legally imposed or asserted by the relevant Governmental Authority; provided 

that such Agent or such Lender, as the case may be, provides the Borrower with a written 

statement thereof setting forth in reasonable detail the basis and calculation of such amounts. 

Payment under this Section 3.01(c) shall be made within thirty (30) days after the date such 

Lender or such Agent makes a demand therefor. 

(d) If a Lender (or any transferee of a Lender) is not a citizen or 

resident of the United States, a corporation, partnership or other entity created or organized in or 

under the laws of the United States (or any jurisdiction thereof), or any estate or trust that is 

subject to federal income taxation regardless of the source of its income (a "Non-U.S. Lender") 

shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the 

Lender from which the related participation shall have been purchased) two copies of either U.S. 

Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case ofa Non-U.S. Lender 

claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the 

Internal Revenue Code of 1986, as amended, with respect to payments of "portfolio interest" a 

statement substantially in the form of Exhibit D and a Form W -8BEN or, in either case, any 

subsequent versions thereof or successors thereto, properly completed and duly executed hy such 

Non-U.S. Lender. Such forms shall be delivered by such Non-U.S. Lender on or before the date 

it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such 

Participant purchases the related participation). In addition, a Non-U.S. Lender shall deliver such 

31 Ooc#: USI :5758203vI5 
fonns promptly upon the obsolescence, expiration, or invalidity of any fonn previously delivered 

by such Non-U.S. Lender. A Non-U.S. Lender shall promptly notify the Borrower at any time it 

detennines that it is no longer in a position to provide any previously delivered certificate to the 

Borrower (or any other fonn of certification adopted by the United States taxing authorities for 

such purpose). Notwithstanding any other provision of this Section 3.01(d), a Non-U.S. Lender 

shall not be required to deliver any fonn pursuant to this Section 3.01(d) that such Non-U.S. 

Lender is not legally able to deliver. 

SECTION 3.02. Illegality. If any Lender detennines that any Law has made 

it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender 

or its applicable lending office to make, maintain or fund Loans bearing interest based on the 

LIBOR Rate, or to detennine or charge interest rates based upon the LIB OR Rate, then, on notice 

thereof by such Lender to the Borrower and the Administrative Agent, any obligation of such 

Lender to make Loans bearing interest based on the LIBOR Rate shall be suspended until such 

Lender notifies the Borrower and the Administrative Agent that the circumstances giving rise to 

such detennination no longer exist. Upon receipt of such notice, all Loans of such shall 

automatically be converted to Base Rate Loans. 

SECTION 3.03. Inability to Detennine Rates. If the Required Lenders 

detennine that for any reason adequate and reasonabl~ means do not exist for detennining the 

LIBOR Rate, or that the LlBOR Rate does not adequately and fairly reflect the cost to such 

Lcnders of funding or maintaining Loans, or that Dollar deposits are not being offered to banks in 

the London interbank Eurodollar market, the Administrative Agent will promptly so notify the 

Borrower. Thereafter, the obligation of a Lender to make or maintain Loans bearing interest 

based on the LIBOR Rate shall be suspended until the Administrative Agent (upon the direction 

of Required Lenders) revokes such notice. Upon receipt of such notice, all Loans shall 

automatically be converted to Base Rate Loans. 

SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy; 

Reserves on LIBOR Rate Loans. 

(a) If any Lender detennines that as a result of the introduction of or 

any change in or in the interpretation of any Law, in each case after thc date hereof, or such 

Lender's compliance therewith, there shall be any increase in the cost to such Lender of agreeing 

to make or making, funding or maintaining LIBOR Rate Loans, or a reduction in the amount 

received or receivable by such Lender in connection with any of the foregoing (excluding for 

purposes of this Section 3.04(a) any such increased costs or reduction in amount reSUlting from 

(i) Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii) changes in the basis of 

taxation of overall net income or overall gross income (including branch profits), and franchise 

(and similar) taxes imposed in lieu of net income taxes, by the United States or any foreign 

jurisdiction or any political subdivision of either thereof under the Laws of which such Lender is 

organized or maintains a lending office and (iii) reserve requirements contemplated by 

Section 3.04(c), then from time to time within thirty (30) days after demand by such Lender 

setting forth in reasonable detail such increased costs, the Borrower shall pay to such Lender such 

additional amounts as will compensate such Lender for such increased cost or reduction. 

(b) If any Lender detennines that the introduction of any Law 

regarding capital adequacy or any change therein or in the interpretation thereof, in each case 

after the date hereof, or compliance by such Lender (or its lending office) therewith, has the effect 

of reducing the rate ofreturn on the capital of such Lender or any corporation controlling such 

Lender as a consequence of such Lender's obligations hereunder (taking into consideration its 

32 Ooc#: US1:57SS203vl 5 
policies with respect to capital adequacy and such Lender's desired return on capital), then from 

time to time upon demand of such Lender setting forth in reasonable detail the charge and the 

calculation of such reduced rate of return, the Borrower shall pay to such Lender such additional 

amounts as will compensate such Lender for such reduction within thirty (30) days after receipt 

of such demand. 

(c) The Borrower shall pay to each Lender, (i) as long as such 

Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or 

including Eurocurrency funds or deposits, additional interest on the unpaid principal amount of 

each LIBOR Rate Loan equal to the actual costs of such reserves allocated to such Loan by such 

Lender (as determined by such Lender in good faith, which determination shall be conclusive in 

the absence of manifest error), and (ii) as 10l)g as such Lender shall be required to comply with 

any reserve ratio requirement or analogous requirement of any other central banking or financial 

regulatory authority imposed in respect of the maintenance of the Commitments or the funding of 

the LIBOR Rate Loans, such additional costs (expressed as a percentage per annum and rounded 

upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to 

such Commitment or Loan by such Lender (as determined by such Lender in good faith, which 

determination shall be conclusive absent manifest error) which in each case shall be due and 

payable on each date on which interest is payable on such Loan. 

(d) Failure or delay on the part of any Lender to demand 

compensation pursuant to this Section 3.04 shall not constitute a waiver of such Lender's right to 

demand such compensation; provided that the Borrower shall not be required to compensate such 

Lendcrpursuant to Section 3.04(a), Section 3.04(b) or Section 3.04(c) for any such increased cost 

or reduction incurred more than one hundred eighty (180) days prior to the date that such Lender 

demands, or notifies the Borrower of its intention to demand, compensation therefor, and 

provided further that, if the circumstance giving rise to such increased cost or reduction is 

retroactive, then such I80-day period referred to above shall be extended to include the period of 

retroactive effect thereof. 

SECTION 3.05. Matters Applicable to All Requests for Compensation. 

(a) Any Agent or any Lender claiming compensation under this 

Article III shall deliver a certificate to the Borrower setting forth the additional amount or 

amounts to be paid to it hereunder which shall be conclusive in the absence of manifest error. In 

determining such amount, such Agent or such Lender may use any reasonable averaging and 

attribution methods. 

(b) With respect to any Lender's claim for compensation under 

Section 3.01,3.02,3.03 or 3.04, the Borrower shall not be required to compensate such Lender 

for any amount incurred more than one hundred eighty (180) days prior to the date that such 

Lender notifies the Borrower of the event that gives rise to such claim; provided that, if the 

circumstance giving rise to such claim is retroactive, then such I80-day period referred to above 

shall be extended to include the period of retroactive effect thereof. 

SECTION 3.06. Survival. All of the Borrower's obligations under this 

Article III shall survive termination of the Commitments and repayment of all other 

Obligations hereunder. 

33 Ooc#: USI ·5758203vl 5 
ARTICLE IV 

CONDITIONS TO LOANS 

SECTION 4.01. . Conditions to Initial Loan. The obligation of each Lender to 

make its initial Loans hereunder is subject to satisfaction of the following conditions precedent: 

(a) The Administrative Agent's receipt of the following, each of 

which shall be originals or facsimile or PDF copies (followed promptly by originals) unless 

otherwise specified, each properly executed by a Responsible Officer of the Managing Member 

on behalf of the Borrower, each in form and substance reasonably satisfactory to the 

Administrative Agent and its legal counsel: 

(i) executed counterparts of this Agreement, the 

Reimbursement, Security and Guaranty Agreement duly executed by the Note Guarantor, each 

Note requested by a Lender, the Custodial and Paying Agency Agreement duly executed by the 

Custodian/Paying Agent and the Note Guarantor, and the Account Control Agreements duly 

executed by the CustodianlPaying Agent and the Collateral Agent, together with evidence 

satisfactory to the Administrative Agent that, upon the filing and recording of instruments 

delivered on the Closing Date (including Uniform Commercial Code financing statements), the 

Collateral Agent (for the benefit of the Secured Parties) shall have a valid and perfected security 

interest in the Collateral; 

(ii) such certificates ofresolutions or other action of the 

Managing Member, the Borrower and the Servicer, and incumbency certificates and/or other 

certificates of Responsible Officers the Managing Member (on its own behalf and/or on behalf of 

the Borrower) and the Servicer as the Administrative Agent may reasonably require evidencing 

the identity, authority and capacity of each Respom;ible Officer thereof authorized to act as a 

Responsible Officer in connection with this Aj,,'Teement and the other Transaction Documents; 

(iii) copies of the Organization Documents of the Managing 

Member and the Servicer, in each case certified by the Secretary or an Assistant Secretary of such 

Person as of the Closing Date that such documents are in full force and effect as of such date; 

(iv) such documents and certifications as the Administrative 

Agent may reasonably require to evidence that thc Managing Member and the Servicer is duly 

organized or formed, is validly existing, in good standing and qualified to engage in business in 

each jurisdiction where its ownership, lease or operation of properties or the conduct of its 

business requires such qualification; 

(v) legal opinions from (x) counsel to the Managing 

Member and counsel to the Servicer in form and substance reasonably satisfactory to thc 

Administrative Agent, and (y) such other firms as may be reasonably requested by the 

Administrative Agent, each addressed to the Lenders, the Administrative Agent and the Collateral 

Agent and in form and substance reasonably satisfactory to the Administrative Agent; 

(vi) a certificate signed by a Responsible Officer certifying 

as to the matters described in Sections 4.04(a) and 4.04(b), and attaching true and correct copies 

of the Servicing Agreement, the Contribution Agreement, the LLC Interest Sale Agreement, the 

Purchase Money Note and the Purchase Money Note Guaranty; 

34 Ooc#: USI:S758203vIS 
(vii) evidence that all insurance required to be maintained by 

Borrower pursuant to the T,oan Documents has been obtained and is in effect and that the 

Collateral Agent has been named as loss payee or additional insured under each insurance policy 

with respect to such insurance; and 

(viii) copies of Uniform Commercial Code, tax and judgment 

lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of 

a recent date in each jurisdiction relevant to the Managing Member, the Servicer and the 

Borrower as reasonably requested by the Administrative Agent. 

(b) All fees and expenses required to be paid hereunder and invoiced 

before the Closing Date shall have been paid in full in cash. 

(c) There shall be no actions, suits, proceedings, claims or disputes 

pending or, to the knowledge of the Borrower or Managing Member, threatened in writing, at 

law, in equity, in arbitration or before any Governmental Authority with respect to the transaction 

contemplated by the Transactions or the definitive documentation in respect of the Transactions. 

There shall not exist any judgment, order, injunction or other restraint prohibiting the 

consummation of the Transactions. 

SECTION 4.02. Conditions to Advance Loans and Authorized Overagc 

Loans. Notwithstanding anything to the contrary set forth in this Article IV, the obligation of 

each Lender to honor any Advance and/or Authorized Overage Loan Borrowing Notice is subject 

to the following additional conditions precedent: 

(a) The Closing Date shall have occurred; 

(b) The Administrative Agent and the Verification Contractor shall 

have received an Advance Loan and/or Authorized Overage Borrowing Notice; 

(c) With respect to each Authorized Advance to be funded out of the 

proceeds of the applicable Borrowing (if any) (each, an "Applicable Authorized Advance"), the 

Administrative Agent and the Verification Contractor shall have received the Required 

Documentation relating to such Advance Loan; provided that with respect to any Interim Term 

Loan Borrowing, the Administrative Agent and the Verification Contractor shall have received 

the Required Documentation relating to such Advance Loan within ten (10) Business Days of the 

requested date of such Borrowing; and 

(d) With respect to any Loans in respect of Underlying Loans, all 

conditions to the funding of the Applicable Authorized Advance set forth in Section 2.11 shall 

have been satisfied, and (i) the Borrower shall have delivcrcd to the Administrative Agent a 

certificate to such effect and (ii) the Verification Contractor shall have satisfied itself that such 

conditions have been met; provided that with respect to any Interim Term Loan Borrowing, such 

conditions relating to such Advance Loan shall be satisfied within ten (10) Business Days of the 

requested date of such Borrowing. 

SECTION 4.03. Conditions to Working Capital Loans. Notwithstanding 

anything to the contrary set forth in this Article IV, the obligation of each Lender to honor any 

Working Capital Loan Borrowing Notice is subject to the following additional conditions 

precedent: 

35 Do<#: L:SJ :5758203vJ5 
(a) The Closing Date shaH have occurred; 

(b) The Administrative Agent shall have received a Working Capital 

Loan Borrowing Notice duly executed by a Responsible Officer of the Borrower; 

(c) rn the event a Working Capital Loan Borrowing Notice is 

prepared with respect to a Working Capital Expense which is not specified in an Approved 

Business Plan, the Borrower shaH attach to such Working Capital Loan Borrowing Notice a 

certificate duly executed by a Responsible Officer of the Borrower specifying the use of funds for 

such Working Capital Loan; and 

(d) The Borrower shall have delivered to the Administrative Agent a 

certificate duly executed by a Responsible Officer stating that the Borrower reasonably 

detennined that such advance is in the best interests of the Borrower and the Lenders in tenns of 

maximizing the value of the Underlying Loan. 

SECTION 4.04. Conditions to All Loans. Notwithstanding anything to the 

contrary set forth in this Article IV, the obligation of each Lender to honor any Borrowing Notice 

(including all Working Capital Loans) is subject to the following conditions precedent: 

(a) no Default or Event of Default shall exist, or would result from 

such proposed Loan or from the application ofthe proceeds thercfrom; and 

(b) the representations and warranties of the Borrower contained in 

Article V or any other Loan Document shall be true and correct in all material respects on and as 

of the date of such Loan; provided that, to the extent that such representations and warranties 

specifically refer to an earlier date, they shall be true and correct in all material respects as of 

such earlier date; provided,further that, any representation and warranty that is qualified as to 

"materiality," "Material Adverse Change" or similar language shaH be true and correct in all 

respects on such respective dates subject to any such qualification. 

Each Borrowing Notice submitted by the Borrower shall be deemed to be 

a representation and warranty that the conditions specified in this Section 4.04(a) have been 

satisfied on and as of the date of the applicable Loan. 

ARTICLE V 

REPRESENTATIONS AND WARRANTIES 

The Borrower represents and warrants to each Lender that: 

SECfION 5.01. Existence, Qualification and Power; Compliance with Laws. 

The Managing Member, the Borrower and each of its Subsidiaries (a) is a Person validly existing 

and in good standing under the Laws of the jurisdiction ofits incorporation or organization, 

(b) has all requisite power and authority to own or lease its assets and carry on its business, ( c) is 

duly qualified and in good standing under the Laws of each jurisdiction where its ownership, 

lease or operation of properties or the conduct ofits business requires such qualification, (d) is in 

compliance with all Laws, orders, writs, injunctions and orders and (e) has all requisite 

govemmentallicenses, authorizations, consents and approvals to operate its business as currently 

conducted; except (x) in the case of clauses (a) and (e) as to the Borrower and each Subsidiary 

existing on the Closing Date during the sixty (60) day period following the Closing Date and (y) 

36 Doc": LJSJ:5758203v15 
in the case of clause (b), (c) or (d), to the extent that failure to do so, individually or in the 

aggregate, would not reasonably be expected to result in a Material Adverse Effect. 

SECTION 5.02. Authorization; No Contravention. The Managing Member, 

the Borrower and each other Loan.Party has all requisite power and authority to execute, deliver 

and perform its obligations under the Transaction Documents to which it is a party. The 

execution, delivery and performance by the Managing Member, the Borrower and each other 

Loan Party of each Transaction Document to which such Person is a party, and the consummation 

of the Transactions, are within such Person's corporate or other powers, have been duly 

authorized by all necessary corporate or other organizational action, and do not and will not 

(a) contravene the terms of any of such Person's Organization Documents, (b) violate any 

material Law, (c) conflict with or result in any breach or contravention of, or the creation of any 

Lien under (other than as permitted by Section 7.02), or require any payment to be made under, 

any Contractual Obligation entered into after the Closing Date to which such Person is a party or 

affecting such Person or the properties of such Person or any of its Subsidiaries or (d) violate any 

material order, injunction, writ or decree of any Governmental Authority or any arbitral award to 

which such Person or its property is subject of which the Borrower or the Managing Member is 

aware. 

SECfION 5.03. Governmental Authorization; Other Consents. To the 

knowledge of the Managing Member and the Borrower, no material approval, consent, 

exemption, authorization, or other action by, or notice to, or filing or recordation with, any 

Governmental Authority or any other Person is necessary or required in connection with (a) the 

execution, delivery or performance by, or enforcement against, thc Managing Member, the 

Borrower or any of the other Loan Parties of this Agreement or any other Transaction Document, 

or for the consummation of the Transactions, (b) the grant by any Loan Party of the Liens granted 

by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created 

under the Collateral Documents (including the priority thereof) or (d) thc exercise by any Agent 

or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral 

pursuant to the Collateral Documents, except for (i) filings and recordations necessary to perfect 

the Liens on the Collateral granted by the Loan Parties in favor of Collateral Agent for the benefit 

of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices 

and filings which have been duly obtained, taken, given or made and arc in full force and effect 

and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, 

the failure of which to obtain or make could not reasonably be expected to result in a Material 

Adverse Effect. 

SECTION 5.04. Binding Effect. This Agreement and each other Transaction 

Document has been duly executed and delivered by the Managing Member, the Borrower and 

each other Loan Party that is party thereto. This Agreement and each other Transaction 

Document constitutes, the legal, valid and binding obligation of such Person, enforceable against 

each such Person that is party thereto in accordance with its terms, except as such enforceability 

may be limited by Debtor Relief Laws and by general principles of equity. 

SECTION 5.05. Financial Reporting. 

(a) The audited financial statements delivered pursuant to Section 

8.14(c)(i) of the Reimbursement, Security and Guaranty Agreement fairly present the 

consolidated financial condition of the Borrower and its Subsidiaries and their results of 

operations for the period covered thereby in accordance with GAAP consistently applied 

throughout such period, except as otherwise noted therein. 

37 Doc.: VSI :S7S~203vl S 
(b) The unaudited financial statements delivered pursuant to Section 

8.l4(c)(ii) of the Reimbursement, Security and Guaranty Agreement present the consolidated 

financial condition of the Borrower and its Subsidiaries and their results of operations for the 

period covered thereby in accordance with GAAP consistently applied throughout such period, 

except as otherwise noted therein (subject to normal year-end audit adjustments and the absence 

of footnotes. 

SECTION 5.06. Litigation. To the knowledge of the Managing Member and 

the Borrower, there are no actions, suits, proceedings, claims or disputes pending or threatened in 

writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the 

Managing Member, the Borrower or any of its Subsidiaries or against any of their properties or 

revenues that (a) purport to affect or pertain to this Agreement, any Loan Document or any other 

Transaction Document, (b) are reasonably likely to enjoin or result in a material judgment in 

respect of any of the Transactions or (b) either individually or in the aggregate, could reasonably 

be expected to result in a Material Adverse Effect. 

SECTION 5.07. No Default. 

(a) From and after the date that is sixty (60) days after the Closing 

Date, to the knowledge of the Managing Member and the Borrower with respect to Contractual 

Obligations entered into prior to the Closing Date, neither the Borrower nor any Subsidiary is in 

default under or with respect to, or a party to, any Contractual Obligation that could, either 

individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. 

(b) With respect to Contractual Obligations entered into on or after 

the Closing Date, neither the Borrower nor any Subsidiary is in default under or with respect to, 

or a party to, any Contractual Obligation that could, either individually or in the aggregate, 

reasonably be expected to result in a Material Adverse Effect. 

SECTION 5.08. Taxes. The Borrower and its Subsidiaries have filed all 

Federal and state and other tax returns and reports required to be filed (and, with respect to 

Federal and state and other tax returns and reports required to be filed on or before the Closing 

Date, such returns and reports shall be filed within thirty (30) days of the Closing Date), and have 

paid all Federal and state and other material taxes, assessments, fees and other governmental 

charges levied or imposed after the Closing Date upon them or their properties, income or assets 

otherwise due and payable, except those which are being contested in good faith by appropriate 

proceedings diligently conducted and for which adequate reserves have been provided in 

accordance with GAAP. 

SECTION 5.09. Subsidiaries; Equity Interests. All of the outstanding Equity 

Interests in Subsidiaries created or acquired after the Closing Date have been validly issued, are 

fully paid and nonassessable and all Equity Interests in such Subsidiaries are owned by the 

Borrower tree and clear of all Liens except for Liens in favor of the Collateral Agent created 

under the Collateral Documents. Each Subsidiary created or acquired after the Closing Date is a 

wholly owned direct Subsidiary of the Borrower and a Single Purpose Entity. 

SECTION 5.10. Margin Regulations; Investment Company Act. 

(a) The Borrower is not engaged nor will it engage, principally or as 

one of its important activities, in the business of purchasing or carrying margin stock (within the 

meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or 

38 Doc#: USl:5758203v 15 
carrying margin stock, and no proceeds of any Loan will be used for any purpose that violates 

Regulation U. 

(b) None of the Borrower, any Person Controlling the Borrower, or 

any Subsidiary is or is required to be registered as an "investment company" under the 

Investment Company Act of 1940. 

SECTION 5.11. Disclosure. No report, financial statement, certificate or 

other written information furnished (i) by or on behalf of the Managing Member or (ii) after the 

Closing Date by or on behalf of the Borrower or any Subsidiary to any Agent or any Lender, in 

each case, in connection with the transactions contemplated hereby and the negotiation ofthis 

Agreement or delivered hereunder or any otber Loan Document when taken as a whole contains 

any material misstatement of fact or omits to state any material fact necessary to make the 

statements therein, in the light of the circumstances under which they were made, not materially 

misleading; provided that, with respect to projected financial information, the Borrower 

represents only that such information was prepared in good faith based upon assumptions 

believed to be reasonable at the time of preparation; it being understood that such projections may 

vary from actual results. 

SECTION 5.12. Anti-Terrorism Law. No Loan Party and, to the knowledge 

of the Loan Parties, none of their Affiliates is in violation of any applicable law relating to 

terrorism or money laundering ("Anti-Terrorism Laws"), including Executive Order No. 13224 

on Terrorist Financing, effective September 24, 2001 (the "Executive Order"), and the Uniting 

and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct 

Terrorism Act of2001, Public Law 107-56. 

No Loan Party and to the lrnowledge of the Loan Parties, no Affiliate or broker or 

other agent of any Loan Party acting in any capacity in connection with, or receiving funds as a 

result of, the Loans is any of the following: 

(i) a Person that is listed in the annex to, or is otherwise 

subject to the provisions of, the Executive Order; 

(ii) a Person owned or controlled by, or acting for or on 

behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the 

Executive Order; 

. (iii) a Person with which any Lender is prohibited from 

dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; 

(iv) a Person that commits, threatens or conspires to commit 

or supports "terrorism" as defined in the Executive Order; or 

(v) a Person that is named as a "specially designated 

national and blocked person" on the most current list published by the U.S. Treasury Department 

Office of Foreign Assets Control ("OFAC") at its official website or any replacement website or 

other replacement official publication of such list. 

No Loan Party and, to the knowledge of the Loan Parties, no 

broker or other agent of any Loan Party acting in any capacity in connection with the Loans 

(i) conducts any business or engages in making or receiving any contribution of funds, goods or 

39 Doc#: USI :5758203v15 
services to or for the benefit of any Person described in the immediately preceding paragraph, 

(ii) deals in, or otherwise engages in any transaction relating to, any property or interests in 

property blocked pursuant to the Executive Order, or (iii) engages in or conspires to engage in 

any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to 

violate, any of the prohibitions set forth in any Anti-Terrorism Law. 

ARTICLE VI 

AFFIRMATIVE COVENANTS 

So long as any Lender shall have any Commitment hereunder, or any Loan or 

other Obligation shall remain unpaid or unsatisfied, the Borrower shall, and shall cause each 

Subsidiary to: . 

SECTION 6.01. Certificates; Other Information. Deliver to: 

(a) the Administrative Agent promptly upon any Person becoming a 

Subsidiary of the Borrower, a written notice setting forth with respect to such Person (i) the date 

on which such Pcrson became a Subsidiary of the Borrower and (ii) the assets owned by such 

Subsidiary; 

(b) thc Administrative Agent, promptly upon its request, a certificate 

duly executed by a Responsible Officer stating that the proceeds of all Loans were used by the 

Borrower and its Subsidiaries, as applicable, in accordance with the applicable Approved 

Business Plan and in accordance with the terms hereof; and 

(c) any Agent or any Lender promptly such additional information 

regarding the Underlying Loans, the Collateral, the REO Property, the Managing Member and the 

Servicer as such Agent or such Lender may from time to time reasonably request. 

SECTION 6.02. Notices. Promptly after obtaining knowledge thereof, notify 

the Administrative Agent for further distribution to each Lender: 

(a) of the occurrence of any Default or Event of Default; 

(b) of any matter that has resulted or could reasonably be expected 

to result in a Material Adverse Effect, including arising out of or resulting from (i) breach or nonperformance of, or any default or event of default under, a Contractual Obligation of the 

Borrower or any Subsidiary, (ii) any dispute, litigation, investigation, proceeding or suspension 

between the Borrower or any Subsidiary and any Governmental Authority or (iii) the 

commencement of, or any material development in, any litigation or proceeding affecting the 

Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws or the 

assertion or occurrence of any noncompliance by the Borrower or as any of its Subsidiaries with, 

or liability under, any Environmental Law or Environmental Permit; 

(c) of any matter in respect of which the Borrower has received 

notice under Section 5.5 or 5.6 of the Servicing Agreement; and 

(d) of any information or matter notice of which is delivered to the 

Initial Member pursuant to Section 7.4(a) ofthe LLC Operating Agreement. 

40 Doc#: US) :5758203v15 
Each notice pursuant to this Section 6.02 shall be accompanied by a written 

statement ofa Responsible Officer ofthe Managing Member on behalf of the Borrower (x) that 

such notice is being delivered pursuant to Section 6.02(a), 6.02(b), 6.02(c) or 6.02(d) (as 

applicable) and (y) setting forth details of the occurrence referred to therein and stating what 

action the Borrower has taken and proposes to take with respect thereto. 

SECTION 6.03. Payment of Obligations. Pay, discharge or otherwise satisfy 

as the same shall become due and payable, all their obligations and liabilities, including (a) all 

taxes levied upon it or its properties or assets, unless the same are being contested in good faith 

by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP 

are being maintained by the Borrower or any of its Subsidiaries; and (b) all lawful claims which, 

if unpaid, would by law become a Lien upon its property. 

SECTION 6.04. Preservation of Existence. Preserve, renew and maintain in 

full force and cffect its legal existence under the Laws of the jurisdiction of its organization. 

SECTION 6.05. Maintenance of Properties. (a) Maintain, preserve and 

protect all of its material propcrties and equipment necessary in the operation of its business in 

good working order, repair and condition, ordinary wear and tear excepted and casualty or 

condemnation excepted, and (b) make all necessary renewals, replacements, modifications, 

improvements, upgrades, extensions and additions thereof or thereto in accordance with 

customary prudent industry practice. 

SECTION 6.06. Inspection Rights. Permit representatives and independent 

contractors of each Agent and each Lender to visit and inspect any of its properties and to discuss 

its affairs, finances and accounts and Approved Business Plans with its directors, officers, and 

independent public accountants, the Managing Member and the Servicer at such reasonable times 

during normal business hours and as often as may be reasonably desired, upon reasonable 

advance notice to the Borrower. 

SECTION 6.07. Compliance with Environmental Laws. Comply, and take 

all reasonable actions to cause all lessees and other Persons operating or occupying its properties 

to comply, in all material respects with all applicable Environmental Laws and Environmental 

Permits; obtain and renew all Environmental Permits necessary for its operations and properties; 

and, in each case to the extent required by Environmental Laws, conduct any investigation, study, 

sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to 

remove and clean up all Hazardous Materials from any of its properties, in accordance with the 

requirements of all Environmental Laws. 

SECTION 6.08. [Reserved). 

SECTION 6.09. Further Assurances. Promptly upon reasonable request by 

any Agent (a) correct any defect or error that may be discovered in the execution, 

acknowledgment, filing or recordation of any Collateral Document or other document or 

instrument relating to any Collateral, and (b) do, execute, acknowledge, deliver, record, re-record, 

file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances 

and other instruments as any Agent may reasonably request from time to time in order to carry 

out more effectively the purposes of the Collateral Documents. 

SECTION 6.10. Use of Proceeds. The Borrower will use the proceeds of the 

Loans in accordance with Section 2.01(d). 

41 Doc#- USI.5758203vl5 
SECTION 6.11. Proposals for Approved Business Plans. 

(a) The Borrower shall deliver to the Administrative Agent and the 

Verification Contractor written proposals for Approved Business Plans for each Underlying Loan 

and REO Property on a staggered basis within the 60 day period following the Closing Date; 

provided, that proposals for Approved Business Plans for no more than fifteen (15) of the Assets 

may be delivered within the last five (5) Business Days of such period. 

(b) (i) If the Administrative Agent has received twenty-five (25) or 

fewer proposals for an Approval Business Plan within any successive two (2) week period 

commencing on the Closing Date, then within ten (10) Business Days after its receipt ofa 

proposal for any such Approved Business Plan, the Administrative Agent shall either (x) approve 

the submitted proposal or (y) provide the Borrower with a description of the modifications to the 

submitted proposal that are required to obtain such approval. In the case of clause (y) above, the 

Borrower shall provide the Administrative Agent with a revised proposal for the applicable 

Approved Business Plan within five (5) Business Days after receipt of the Administrative Agent's 

proposed modifications that addresses all changes required by the Administrative Agent, and 

within five (5) Business Days thereafter the Administrative Agent and the Borrower shall agree 

on the applicable Approved Business Plan; and 

(ii) Ifthe Administrative Agent has received twenty-six (26) 

or more proposals for an Approved Business Plan within any successive two (2) week period 

commencing on the Closing Date, then within fifteen (15) Business Days after its receipt ofa 

proposal for any such Approved Business Plan, the Administrative Agent shall either (x) approve 

the submitted proposal or (y) provide the Borrower with a description of the modifications to the 

submitted proposal that are required to obtain such approval. In the case of clause (y) above, the 

Borrower shall provide the Administrative Agent with a revised proposal for the applicable 

Approved Business Plan within ten (10) Business Days after receipt of the Administrative 

Agent's proposed modifications that addresses all changes required by the Administrative Agent, 

and within ten (l0) Business Days thereafter the Administrative Agent and the Borrower shall 

agree on the applicable Approved Business Plan. 

(c) The Borrower shall not make any supplements, amendments, 

modifications, variances, or waivers to any Approved Business Plans without the prior written 

consent of the Administrative Agent, provided, that, if a Responsible Officer delivers a duly 

signed certificate to the Administrative Agent stating that the sales prices identified in an 

Approved Business Plan with respect to condominium or cooperative units in a Project are 

required to be amended to account for a decline in market prices (that was not anticipated in the 

Approved Business Plan) where such Project is located, and the revised sales prices reflected in 

. the proposed amendment are not in the aggregate more than 10% less than the aggregate expected 

sales price for the condominium or cooperative units in such Project in the then current Approved 

Business Plan, then the Administrative Agent's prior written consent with respect thereto shall 

not be required, provided,further, that in no event will the Borrower be entitled to supplement, 

amend, modify, vary or waive the same Approved Business Plan more than once in reliance upon 

the immediately preceding proviso in this Section 6.11(c). In the event the Borrower proposes a 

supplement, amendment, modification, variance or waiver to an Approved Business Plan and the 

Borrower is not entitled to rely upon the first proviso in this Section 6.11(c), within fifteen (15) 

Business Days after its receipt of such proposal, the Administrative Agent shall either (i) approve 

the submitted proposal or (ii) provide the Borrower with a description of the modifications to the 

submitted proposal that are required to obtain such approval. In the case of clause (ii) above, the 

Borrower shall provide the Administrative Agent with a revised proposal for the applicable 

42 Ooc#: USI :S758203vlS 
Approved Business Plan within ten (10) Business Days after receipt ofthe Administrative 

Agent's proposed modifications that addresses all changes required by the Administrative Agent, 

and within ten (10) Business Days the Administrative Agent and the Borrower shaII agree on the 

applicable supplement, amendment, modification, variance or waiver to the Approved Business 

Plan. 

SECTION 6.12. Outstanding Letters ofCredit. Within ninety (90) days of the 

Closing Date (or such later date as consented to in writing by the Administrative Agent), the 

Borrower shall cause the Outstanding Letters ofCredit to be terminated (including the 

termination of all liabilities of the Failed Bank with respect thereto) and, if required by the 

applicable Underlying Borrowers, replaced with new letters of credit or other similar 

arrangements in form and substance accepta.ble to the Administrative Agent. 

ARTICLE VII 

NEGATIVE COVENANTS 

So long as any Lender has any Commitment hereunder or any Loan or other 

Obligation shall remain unpaid or unsatisfied, the Borrower shall not, nor shall it permit any of 

the Subsidiaries to, directly or indirectly: 

SECTION 7.01. Indebtedness. Create, incur, assume or guaranty, or 

othenyise become or remain directly or indirectly liable with respect to, any Indebtedness, except: 

(a) the Borrower may become and remain liable with respect to the 

Obligations, including with respect to the capitalization of inter cst on the Loans; 

, 

(b) the Borrower may become and remain liable with respect to the 

Purchase Money Notes and the Reimbursement, Security and Guaranty Agreement; 

(c) the Borrower may become and remain liable with respect to 

Excess Working Capital Advances in accordance with Section 5.1 of the LLC Operating 

Agreement; 

(d) any Subsidiary may become and remain liable with respect to 

Indebtedness to the Borrower; and 

(e) the Borrower may become and remain liable with respect to 

Indebtedness incurred as a result of the replacement of Outstanding Letters of Credit in 

accordance with Section 6.12. 

SECTION 7.02. Liens and Related Matters. 

(a) Prohibition on Liens. Create, incur, assume or permit to exist 

any Lien on or with respect to any property or asset of any kind of the Borrower and the 

Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or 

file or permit the filing of, or permit to remain in effect, any financing statement or other similar 

notice of any Lien with respect to any such property, asset, income or profits under the Uniform 

Commercial Code of any State or under any similar recording or notice statute, except for 

(i) Permitted Encumbrances (provided, that, with respect to clause (f) of the definition of 

"Permitted Encumbrances," the Borrower shall, and shall cause its Subsidiaries to, extend 

43 Doc#: USJ:5758203vl5 
commercially reasonable efforts to have such Liens released as soon as practicable after the 

Closing Date); and (ii) Liens on assets of the Loan Parties created pursuant to the Collateral 

Documents in favor of Collateral Agent for the benefit of Secured Parties securing the 

Obligations and the Reimbursement Obligations. 

(b) No Further Negative Pledges. Except with respect to property to 

be sold pursuant to an executed agreement with respect to a permitted Disposition of REO 

Property, neither the Borrower nor any Subsidiary shall enter into any agreement prohibiting the 

creation or assumption of any Lien upon any of its properties or assets, whether now owned or 

hereafter acquired. 

SECTION 7.03. Investments. Make or own any Investment in any Person, 

except: 

(a) the Borrower may (i) hold the Underlying Loans and (ii) make 

Authorized Advances to Underlying Borrowers; 

(b) the Borrower may make Investments in Permitted Investments 

(as defined in the Custodial and Paying Agency Agreement) in accordance with the Custodial and 

Paying Agency Agreement; 

(c) the Borrower may make Investments in Subsidiaries in the form 

of contributions to the equity of such Subsidiaries of any Environmental Hazard Property and any 

REO Property and use the proceeds of Loans to make Investments in such Subsidiaries to be used 

by such Subsidiaries in accordance with the Approved Business Plan for the applicable Asset; 

(d) the Subsidiaries may make Capital Expenditures permitted by 

Section 7.08; 

(e) the Borrower and the Subsidiaries may acquire and own 

Investments (including debt obligations) received in connection with the bankruptcy or 

reorganization of Underlying Borrowers and in settlement of delinquent obligations of, and othcr 

disputes with, suppliers and other trade creditors arising in the ordinary course of business; and 

(f) the Subsidiaries may make and own Investments consisting of 

deposits made in the ordinary course of business to secure the performance of obligations in 

respect of REO Property. 

SECTION 7.04. Contingent Obligations. Create or become liable with 

respect to any Contingent Obligation, except: 

(a) the Borrower may become and remain liable with respect to 

Contingent Obligations in respect of the Reimbursement, Security and Guaranty Agreement; 

(b) the Subsidiaries may bccome and remain liable with respect to 

Contingent Obligations in respect of the Guaranty; 

(c) the Borrower and the Subsidiaries may become and rcmain liable 

with respect to Contingent Obligations in respect of (i) customary purchase price adjustment 

obligations incurred in connection with Dispositions or other sales of assets permitted under this 

Agreement, (ii) endorsements of instruments for deposit or collection in the ordinary course of 

44 Doc#: USI :5758203v15 
business and (iii) reasonable and customary contractual indemnities entered into in the ordinary 

course of business but only to the extent otherwise pennitted under the tenns of the LLC 

Operating Agreement; and 

(d) the Borrower may become and remain liable with respect to 

Contingent Obligations incurred as a result of the replacement ofOutstanding Letters of Credit in 

accordance with Section 6.12. 

SECTION 7.05. Asset Dispositions. Dispose of any of its assets, whether 

now owned or hereafter acquired, except: 

(a) Disposition~ of assets in accordance with any Approved 

Business Plan and in a manner consistent with the standards set forth in the Servicing Agreement; 

(b) Disposition of Pennitted Investments in accordance with the 

Custodial and Paying Agcncy Agreement; and 

(c) Contribution of Environmental Hazard Property and REO 

Property by the Borrower to a Subsidiary. 

SECTION 7.06. Restricted Payments. Declare, order, pay, make or set apart 

any sum for any Restricted Payment; provided that: 

(a) any Subsidiary of the Borrower may pay dividends or make 

other distributions to the Borrower; 

(b) the Borrower may make distributions to its members to the 

extent provided under Section 5.1 (b )(viii) ofthe Custodial and Paying Agent Agreement; and 

(e) the Borrower may make payments in respect of the Purchase 

Money Notc to the extent provided under Section 3.3 of the Custodial and Paying Agent 

Agreement. 

SECTION 7.07. Restriction on Fundamental Changes; Dispositions and 

Recapitalizations. Issue any capital stock or othcr Equity Interests or enter into any transaction of 

merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or 

dissolution), except any Subsidiary of thc Borrower may issue capital stock or other Equity 

Interests to the Borrower. 

SECTION 7.08. Capital Expenditures. Make or incur Capital Expenditures, 

except that a Subsidiary may make Capital Expenditures with respect to an REO Propcrty to the 

extent contemplated by and in compliance with the Approved Business Plan for the applicable 

REO Property. 

SECTION 7.09. Creation of Subsidiaries. Create any Subsidiaries, except the 

Borrower may create and own one or more wholly owned Domestic Subsidiaries that are 

Ownership Entities as contemplated by Sections 3.3(b) and (c) of the Reimbursement, Security 

and Guaranty Agreement. 

SECTION 7.10. Conduct of Business. Engage in any business other than 

(i) in the case of the Borrower, the Business (as defined in the LLC Operating Agreement) and 

45 Doc#: USI :575820)vI5 
(ii) in the case of each Subsidiary, the ownership, construction, development and Disposition of 

the applicable REO Property or Environmental Hazard Property. 

SECTION 7.11. Amendments or Waivers ofCertain Agreements; Other 

Actions. Amend, modify or change, or waive any provision of, the Purchase Money Note, the 

LLC Interest Sale Agreement, the LLC Operating Agreement, the Contribution Agreement or the 

Servicing Agreement without the prior written consent of the Required Lenders.' 

SECTION 7.12. Fiscal Year. Make any change in its Fiscal Year. 

SECTION 7.13. Use of Proceeds. Use the proceeds of any Loan, whether 

directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that 

violates Regulation U issued by the FRB. 

ARTICLE VIII 

EVENTS OF DEFAULT AND REMEDIES 

SECTION 8.01. Events of Default. Each of the following shall constitute an 

"Event of Default": 

(a) Failure to Make Payments When Due. Failure by Borrower to 

pay any principal of any Loan when due, whether at stated maturity, by acceleration, by notice of 

voluntary prepayment, by mandatory prepayment or otherwise; or failure by Borrower to pay any 

interest on any Loan or any fee or any other amount due under this Agreement within three 

(3) days after the date due; or 

(b) Breach ofCertain Covenants. Failure of any Loan Party to 

perform or comply with any term or condition contained in (i) Section 2.03(b), 6.01(b), 6.02(a), 

6.07, 6.10, 6.11 or Article VII of this Agreement, or (ii) Articles II and VII of the 

Reimbursement, Security and Guaranty Agreement; or 

(c) Breach of Warranty. Any representation, warranty, certification 

or other statement made by the Managing Member or any Loan Party in any Loan Document or 

in any statement or certificate at any time given by the Managing Member or any Loan Party in 

writing pursuant hereto or thereto or in connection herewith or therewith shall be false or 

incorrect in any material respect on the date as of which made; or 

(d) Other Defaults Under Loan Documents. Any Loan Party shall 

default in the performance of or compliance with any term contained in this Agreement or any of 

the other Loan Documents, other than any such term referred to in any other paragraph of this 

Section 8.01, and such default shall not have been remedied or waived within 30 days after the 

earlier of (i) a Responsible Officer of the Managing Member becoming aware of such default or 

(ii) receipt by the Borrower and/or such Loan Party of notice from the Administrative Agent or 

any Lender of such default; or 

(e) Insolvency Event. The occurrence of any Insolvency Event 

(without any cure period other than as may be provided for in the definition of "Insolvency 

Event") with respect to (i) any Loan Party, (ii) the Managing Member or (iii) the Servicer; or 

46 Doc#.IJSI:5758203vI5 
(f) Judgments and Attachments. Any money judgment, writ or 

warrant of attachment or similar process involving (i) in any individual case an amount in excess 

of$IOO,OOO or (ii) in the aggregate at any time an amount in excess of $1,000,000 (in eithcr case 

not adequately covered by insurance as to which a solvent and unaffiliated insurance company 

has acknowledged coverage without any material reservations of right) shall be entered or filed 

against the Borrower or any ofthe Subsidiaries or any oftheir respective assets and shall remain 

undischarged, unvacated, unbonded or unstayed for a period of 60 days (or in any event later than 

five days prior to the date of any proposed sale thereunder); or 

(g) Dissolution. Any order, judgment or decree shall be entered 

against the Borrower or any other Loan Party (other than with respect to any order, judgment or 

decree with respect to a Loan Party (other than the Borrower) that shall have existed on the 

Closing Date) decreeing the dissolution or split up of the Borrower or such Loan Party and such 

order shall remain undischarged or un stayed for a period in excess of 30 days); or 

(h) Failure afSecurity; Repudiation ofObligations. At any time 

after the execution and delivery thereof, (i) any Collateral Document shall cease to be in full force 

and effect (other than by reason of a release of Collateral thereunder in accordance with the terms 

hereof or thereof, the satisfaction in full of the Obligations (other than inchoate indemnification 

obligations with respect to claims, losses or liabilities which have not yet arisen and are not yet 

due and payable) or any other termination of such Collateral Document in accordance with the 

terms hereof or thereof) or shall be declared null and void, or the Collateral Agent shall not have 

or shall cease to have a valid and perfected first priority Lien in any Collateral purported to be 

covered thereby in which the security interest granted to the Collateral Agent is at that time 

required to be perfected by the Collateral Documents, or (ii) any Loan Party shall contest the 

validity or enforceability of any Loan Document in writing or deny in writing that it has any 

further liability, including with respect to future advances by the Lenders, under any Loan 

Document to which it is a party; or 

(i) Event ofDefault under Reimbursement, Security and Guaranty 

Agreement. Any of the events described in Section 4.1 ofthe Reimbursement, Security and 

Guaranty Agreement shall occur; or 

(j) Event ofDefault under Purchase Money Note. Any "Event of 

Default" under and as dcfined in the Purchase Money Note shall occur; or 

(k) Material Adverse Effect. Any event or development that has a 

Material Adverse Effect shall occur. 

SECTION 8.02. Remedies Upon Event of Default. Ifany Event of Default 

occurs and is continuing, the Administrative Agent may and, at the request of the Required 

Lenders, shall take any or all of the following actions: 

(a) declare the Commitment to be terminated, whereupon such 

Commitments shall be terminated; 

(b) declare the unpaid principal amount of all outstanding Loans, all 

interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under 

any other Loan Document to be immediately due and payable, without presentment, demand, 

protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; 

47 Doc#: USI:57SR203v15 
(c) exercise, or cause the Collateral Agent to exercise, on behalf of 

itsel f and the Lenders, all rights and remedies available to it and the Lenders under the Loan 

Documents or applicable Law; 

provided that upon the occurrence.of an event with respect to the Borrower described in Section 

8.0 I (e), the Commitments shall automatically tenninate, the unpaid principal amount of all 

outstanding Loans and all interest and other amounts as aforesaid shall automatically become due 

and payable, without presentment, demand, protest or other notice of any kind, all of which are 

hereby expressly waived by the Borrower, in each case without further act of the Administrative 

Agent, any Lender or any other Person. 

ARTICLE IX 

ADMINISTRATIVE AGENT AND OTHER AGENTS 

SECTION 9.01. Appointment and Authorization of Agents. 

(a) Each Lender hereby irrevocably appoints, designates and 

authorizes the Administrative Agent to take such action on its behalf under the provisions of this 

Agreement and each other Loan Document and to exercise such powers and perfonn such duties 

as are expressly delegated to it by the tenns of this Agreement or any other Loan Document, 

together with such powers as are reasonably incidental thereto. Notwithstanding any provision to 

the contrary contained elsewhere herein or in any other Loan Document, the Administrative 

Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the 

Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or 

participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities 

shall be read into this Agreement or any other Loan Document or otherwise exist against the 

Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the 

tenn "agent" herein and in the other Loan Documents with reference to any Agent is not intended 

to connote any fiduciary or other implied (or express) obligations arising under agency doctrine 

of any applicable Law. Instead, such tenn is used merely as a matter of market custom, and is 

intended to create or reflect only an administrative relationship between independent contracting 

parties. 

(b) The Administrative Agent shall also act as the "collateral agent" 

under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes 

the Administrative Agent to act as the agent of (and to hold any security interest created by the 

Collateral Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, 

holding and enforcing any and all Liens on CoIlateral granted by any of the Loan Parties to secure 

any of the Secured Obligations, together with such powers and discretion as are reasonably 

incidental thereto. In this connection, the Administrative Agent, as "coIlateral agent" (and any 

co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to 

Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion 

thereof) l:,7J'anted under the Collateral Documents, or for exercising any rights and remedies 

thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all 

provisions of this Article IX (including, Section 9.07, as though such co-agents, sub-agents and 

attorneys-in-fact were the "collateral agent" under the Loan Documents) as if set forth in full 

herein with respect thereto. 

SECTION 9.02. Delegation of Duties. The Administrative Agent may 

execute any of its duties under this Agreement or any other Loan Document (including for 

48 Doc~: USI :575820Jv15 
purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under 

the Collateral Documents or of exercising any rights and remedies thereunder) by or through 

agents, employees or attorneys-in-fact including for the purpose of any Borrowings or payments 

in Alternative Currencies, such sub-agents as shall be deemed necessary by the Administrative 

Agent and shall be entitled to advice of counsel and other consultants or experts concerning all 

matters pertaining to such duties. The Administrative Agent shall not be responsible for the 

negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the 

absence of gross negligence or willful misconduct (as determined in the final judgment of a court 

of competent jurisdiction). 

SECTION 9.03. Liability ofAgents. No Agent-Related Person shall (a) be 

liable for any action taken or omitted to be t~ken by any of them under or in connection with this 

Agreement or any other Loan Document or the transactions contemplated hereby (except for its 

own gross negligence or willful misconduct, as determined by the final judgment of a court of 

competent jurisdiction, in connection with its duties expressly set forth herein), or (b) be 

responsible in any manner to any Lender or particjpant for any recital, statement, representation 

or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan 

Document, or in any certificate, report, statement or other document referred to or provided for 

in, or received by the Administrative Agent under or in connection with, this Agreement or any 

other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of 

this Agreement or any other Loan Document, or the perfection or priority of any Lien or security 

interest created or purported to be created under the Collateral Documents, or for any failure of 

any Loan Party or any other party to any Loan Document to perform its obligations hereunder or 

thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant 

to ascertain or to inquire as to the observance or performance of any of the agreements contained 

in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, 

books or records of any Loan Party or any Affiliate thereof. 

SECTION 9.04. Reliance by Agents. Each Agent shall be entitled to rely, 

and shall be fully protected in relying, upon any writing, communication, signature, resotution, 

representation, notice, consent, certificate, affidavit, letter, tele!,'Tam, facsimile, telex or telephone 

message, electronic mail message, statement or other document or conversation believed by it to 

be genuine and correct and to have been signed, sent or made by the proper Person or Persons, 

and upon advice and statements oflegal counsel (including counsel to any Loan Party), 

independent accountants and other experts selected by such Agent. Each Agent shall be fully 

justified in failing or refusing to take any action under any Loan Document unless it shall first 

receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so 

requests, it shall first be indemnified to its satisfaction by the Lenders against any and all liability 

and expense which may be incurred by it by reason of taking or continuing to take any such 

action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, 

under this Agreement or any other Loan Document in accordance with a request or consent ofthe 

Required Lenders (or such greater number of Lenders as may be expressly required hereby in any 

instance) and such request and any action taken or failure to act pursuant thereto shall be binding 

upon all the Lenders. 

SECTION 9.05. Notice of Default. The Administrative Agent shall not be 

deemed to have knowledge or notice of the occurrence of any Default, unless the Administrative 

Agent shall have received written notice from a Lender or any Loan Party referring to this 

Agreement, describing such Default and stating that such notice is a "notice of default." The 

Administrative Agent will notify the Lenders of its receipt of any such notice. The 

Administrative Agent shall take such action with respect to any Event ofDefault as may be 

49 Doc#: USI:5758203v15 
directed by the Required Lenders in accordance with Article VIII; provided that unless and until 

the Administrative Agent has received any such direction, the Administrative Agent may (but 

shall not be obligated to) take such action, or refrain from taking such action, with respect to such 

Event of Default as it shall deem advisable or in the best interest of the Lenders. 

SECTION 9.06. Credit Decision; Disclosure of Information by Agents. Each 

Lender acknowledges that no Agent-Related Person has made any representation or warranty to 

it, and that no aet by any Agent hereafter taken, including any consent to and acceptance of any 

assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to 

constitute any representation or warranty by any Agent-Related Person to any Lender as to any 

matter, including whether Agent-Related Persons have disclosed material information in their 

possession. Each Lender represents to each Agent that it has, independently and without reliance 

upon any Agent-Related Person and based on such documents and information as it has deemed 

appropriate, made its own appraisal of and investigation into the business, prospects, operations, 

property, financial and other condition and creditworthiness of the Loan Parties and their 

respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the 

transactions contemplated hereby, and made its own decision to enter into this Agreement and to 

extend credit to the Borrower and the other Loan Parties hereunder. Each Lender also represents 

that it will, independently and without reliance upon any Agent-Related Person and based on such 

documents and information as it shall deem appropriate at the time, continue to make its own 

credit analysis, appraisals and decisions in taking or not taking action under this Agreement and 

the other Loan Documents, and to make such investigations as it deems necessary to inform itself 

as to the business, prospects, operations, property, financial and other condition and 

creditworthiness of the Borrower and the other Loan Parties. Except for notices, reports and 

other documents expressly required to be furnished to the Lenders by any Agent herein, such 

Agent shall not have any duty or responsibility to provide any Lender with any credit or other 

information concerning the business, prospects, operations, property, financial and other 

condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates 

which may come into the possession of any Agent-Related Person. 

SECTION 9.07. Indemnification of Agents. Whether or not the transactions 

contemplated hereby are consummated, thc Lenders shall indemnify upon demand each AgentRelated Person (to the extent not reimbursed by or on behalf of any Loan Party and without 

limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each AgentRelated Person from and against any and all losses, damages, liabilities, costs and expenses 

(including reasonable attorneys' fees and litigation and similar costs, and other out-of-pocket 

expenses incurred in investigating, defending, asserting or preparing the defense or assertion of 

any of the foregoing), deficiencies, claims, interest, awards,judgments, penalties and fines 

(collectively, "Indemnified Liabilities") incurred by it; provided that no Lcnder shall be liable 

for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities 

resulting from such Agent-Related Person's own gross negligence or willful misconduct, as 

determined by the final judgment of a court of competent jurisdiction; and provided further that 

no action taken in accordance with the directions of the Required Lenders (or such other number 

or percentage ofthe Lenders as shall be required by the Loan Documents) shall be deemed to 

constitute gross negligence or willful misconduct for purposes of this Section 9.07. In the case of 

any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this 

Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any 

Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse the 

Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses 

(including Attorney Costs) incurred by the Administrative Agent in connection with the 

preparation, execution, delivery, administration, modification, amendment or enforcement 

50 Doc#. USI :5758203v15 
(whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of 

rights or responsibilities under, this Agreement, any other Loan Document, or any document 

contemplated by or referred to herein, to the extent that the Administrative Agent is not 

reimbursed for such expenses by or on behalf of the Borrower. The undertaking in this 

Section 9.07 shall survive termination of the Commitments, the payment of all other Obligations 

and the resignation of the Administrative Agent. 

SECTION 9.08. Agents in their Individual Capacities. With respect to its 

Loans, the Agents shall have the same rights and powers under this Agreement as any other 

Lender and may exercise such rights and powers as though it were not the an Agent, and the 

terms "Lender" and "Lenders" include the Receiver in its individual capacity. 

SECTION 9.09. Successor Agents. The Administrative Agent may resign as 

the Administrative Agent upon thirty (30) days' notice to the Lenders and the Borrower,provided 

that the prior written consent of the Lenders and the Borrower will be required prior to the 

effectiveness of any such resignation. Ifthe Administrative Agent resigns under this Agreement, 

the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders. If 

no successor agent is appointed during such thirty (30) day period, the Administrative Agent may 

appoint, but only with prior written consent of the Lenders and the Borrower, a successor agent. 

The Administrative Agent shall not be relieved of its obligation hereunder until a successor 

Administrative Agent has been appointed with the prior written consent of the Lenders and the 

Borrower. Upon the acceptance of its appointment as successor agent hereunder, the Person 

acting as such successor agent shall succeed to all the rights, powers and duties of the retiring 

Administrative Agent and the term "Administrative Agent," shall mean such successor 

administrative agent and/or supplemental administrative agent, as the case may be, and the 

retiring Administrative Agent's appointment, powers and duties as the Administrative Agent shaH 

be terminated. After the retiring Administrative Agent's resignation hereunder as the 

Administrative Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall inure 

to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative 

Agent under this Agreement. Upon the acceptance of any appointment as the Administrative 

Agent hereunder by a successor and upon the execution and filing or recording of such financing 

statements, or amendments thereto, and such amendments or supplements to the Mortgages, and 

such other instruments or notices, as may be necessary or desirable, or as the Required Lenders 

may request, in order to continue the perfection of the Liens granted or purported to be granted by 

the Collateral Documents, the Administrative Agent shaH thereupon succeed to and become 

vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative 

Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations 

under the Loan Documents. After the retiring Administrative Agent's resignation hereunder as 

the Administrative Agent, the provisions of this Article IX shall continue in effect for its benefit 

in respect of any actions taken or omitted to be taken by it while it was acting as the 

Administrative Agent. 

SECTION 9.10. Administrative Agent May File Proofs of Claim. In case of 

the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, 

arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the 

Administrative Agent (irrespective of whether the principal of any Loan shall then be due and 

payable as herein expressed or by declaration or otherwise and irrespective of whether the 

Administrative Agent shall have made any demand on the Borrower) shall be entitled and 

empowered, by intervention in such proceeding or otherwise: 

51 Doc#: USl.57S8203vl5 
(a) to file and prove a claim for the whole amount of the principal 

and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and 

unpaid and to file such other documents as may be necessary or advisable in order to have the 

claims of the Lenders and the Administrative Agent (including any claim for the reasonable 

compensation, expenses, disbursements and advances of the Lenders and the Administrative 

Agent and their respective agents and counsel and all other amounts due the Lenders and the 

Administrative Agent under Section 10.04) allowed in such judicial proceeding; and 

(b) to collect and receive any monies or other property payable or 

deliverable on any such claims and to distribute the same; 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in 

any such judicial proceeding is hereby authorized by each Lender to make such payments to the 

Administrative Agent and, in the event that the Administrative Agent shall consent to the making 

of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for 

the reasonable compensation, expenses, disbursements and advances of the Agents and their 

respective agents and counsel, and any other amounts due the Administrative Agent under 

Section 10.04. 

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or 

consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, 

adjustment or composition affecting the Obligations or the rights of any Lender or to authorize 

the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. 

ARTICLE X 

MISCELLANEOUS 

SECTION 10.01. Amendments, Etc. Except as otherwise set forth in this 

Agreement, no amendment or waiver of any provision of this Agreement or any other Loan 

Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, 

shall be effective unless in writing signed by the Required Lenders and the Borrower or the 

applicable Loan Party, as the case may be, and each such waiver or consent shall be effective 

only in the specific instance and for the specific purpose for which given; provided that, nc such 

amendment, waiver or consent shall: 

(a) extend or increase the Commitment of any Lender without the 

written consent of each Lender directly affected thereby (it being understood that a waiver of any 

condition precedent set forth in Article IV or the waiver of any Default, mandatory prepayment or 

mandatory reduction of the Commitments shall not constitute an extension or increase of any 

Commitment of any Lender); 

(b) postpone any date scheduled for, or reduce or forgive the amount 

of, any payment of principal or interest under Section 2.03 or 2.06 without the written consent of 

each Lender directly affected thereby, it being understood that the waiver of(or amendment to the 

terms of) any mandatory prepayment of the Loans shall not constitute a postponement of any date 

scheduled for the payment of principal or interest; 

(c) reduce or forgive the principal of, or the rate of interest specified 

herein on, any Loan, without the written consent of each Lender directly affected thereby; 

provided that, only the consent of the Required Lenders shall be necessary to amend the 

52 Ooc#· US] :5758203v] 5 
definition of "Default Rate" or to waive any obligation of the Borrower to pay interest at the 

Default Rate; or 

(d) change any provision of this Section 10.01, the definition of 

"Required Lenders" or "Pro Rata Percentage" or Section 2.09(a) without the written consent of 

each Lender affected thereby, 

and provided further that no amendment, waiver or consent shall, unless in writing and signed by 

the Administrative Agent in addition to the Lenders required above, affect the rights or duties of, 

or any fees or other amounts payable to, the Administrative Agent under this Agreement or any 

other Loan Document. Notwithstanding anything to the contrary herein, no Defaulting Lender 

shall have any right to approve or disapprove any amendment, modification, supplement, waiver 

or consent hereunder, except that the Commitment of such Lender may not be increased or 

extended without the consent of such Lender (it being understood that any Commitments or 

Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders 

hereunder requiring any consent ofthe Lenders). 

SECTION 10.02. Notices and Other Communications. 

(a) General. Unless otherwise expressly provided herein, all 

notices, requests, demands, and other communications required or permitted to be given or 

delivered under or by reason of the provisions ofthis Agreement shall be in writing and shall be 

given by certified or registered mail, postage prepaid, or delivered by hand or by nationally 

recognized air courier service, or delivered by electronic mail, directed to the applicable address 

or electronic mail address of the Borrower, the Administrative Agent and the Receiver as Lender 

specified for such Person on Schedule 10.02 or to such other address as shall be designated by 

such party in a notice to the other parties, or if to any other Lender, to the address or electronic 

mail address as shall be designated by such party in a written notice to the other parties. Any 

such notice or communication shall become effective when received (or receipt is refused) by the 

addressee, provided that any notice or communication that is received (or refused) other than 

during regular business hours of the recipient shall be deemed to have been given at the opening 

of business on the next Business Day of the recipient. 

(b) Reliance by Agents and Lenders. The Agents and the Lenders 

shall be entitled to rely and act upon any notices purportedly given by or on behalfof the 

Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or 

were not preceded or followed by any other form of notice specified herein, or (ii) the terms 

thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall 

indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and 

liabilities resulting from the reliance by such Person on each notice purportedly given by or on 

behalf of the Borrower in the absence of gross negl igence or willful misconduct. 

SECTION 10.03. No Waiver; Cumulative Remedies. No failure by any 

Lender or any Agent to exercise, and no delay by any such Person in exercising, any right, 

remedy, power or privilege hereunder or under any other Loan Document shall operate as a 

waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege 

hereunder preclude any other or further exercise thereof or the exercise of any other right, 

remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and 

provided under each other Loan Document, are cumulative and not exclusive of any rights, 

remedies, powers and privileges provided by Law. 

53 Ooc#: US] :5758203v] 5 
SECTION 10.04. Attorney Costs, Expenses and Taxes. Each party shall bear 

its own costs and expenses incurred in connection with the preparation and negotiation of this 

Agreement and the other Transaction Documents. The Borrower agrees (a) to payor reimburse 

the Agents and the Lenders for all reasonable costs and expenses (including Attorney Costs) 

incurred in connection with the pr~paration, negotiation and execution of any amendment, 

waiver, consent or other modification of the provisions hereofand the other Transaction 

Documents (whether or not the transactions contemplated thereby are consummated), and (b) to 

payor reimburse each Agent and the Lenders for all costs and expenses incurred in connection 

with any workout proceeding relating to the Obligations or the enforcement of any rights or 

remedies under this Agreement or the other Loan Documents (including all such costs and 

expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief 

Law, and including all Attorney Costs of cOl:lDsel to the Agents and the Lenders). The foregoing 

costs and expenses shall include all reasonable search, filing, recording and title insurance 

charges and fees and taxes related thereto, and other expenses incurred by the applicable party. 

The agreements in this Section 10.04 shall survive the termination ofthe Commitments and 

repayment of all other Obligations. All amounts due under this Section 10.04 shall be payable on 

demand. 

SECTION 10.05. Indemnification by the Borrower. 

(a) The Borrower shaH indemnify and hold harmless each Agent and 

each Lender and each of their respective Affiliates, and their respective officers, directors, 

employees, partners, principals, agents and contractors (the "Indemnified Parties") from and 

against any losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees 

and litigation and similar costs, and other out-of-pocket expenses incurred in investigating, 

defending, asserting or preparing the defense or assertion of any of the foregoing), deficiencies, 

claims, interest, awards,judgments, penalties and fines (collectively, "Losses") arising out of or 

resulting from (i) any breach by any Loan Party or any of its Affiliates or any of their respective 

officers, directors, employees, partners, principals, agents or contractors (including the Servicer) . 

(collectively, "Related Parties") of any of their respective obligations under or covenants or 

agreements contained in this Agreement or the other Loan Documents (including any claim 

asserted by an Agent or a Lender against the Borrower to enforce its rights pursuant to Section 

8.02), or any third-party allegation or claim based upon facts alleged that, if true, would constitute 

such a breach, or (ii) any gross negligence, bad faith or willful misconduct of any of the Related 

Parties (including any act or omission constituting theft, embezzlement, breach of trust or 

violation of any Law). Such indemnity shall survive the termination of this Agreement. In order 

for an Indemnified Party to be entitled to any indemnification provided for under this Agreement 

in respect of, arising out of or involving a Loss or a claim or demand made by any Person against 

the Indemnified Party (a "Third Party Claim"), such Indemnified Party shaIl deliver notice 

thereof to Borrower promptly after receipt by such Indemnified Party of written notice of the 

Third Party Claim, describing in reasonable detail the facts giving rise to any claim for 

indemnification hereunder, the amount of such claim (if known) and such other information with 

respect thereto as is available to the Indemnified Party and as the Borrower may reasonably 

request. The failure or delay to provide such notice, however, shaH not release the Borrower 

from any of its obligations under this Section 10.05 except to the extent that it is materiaHy 

prejudiced by such failure or delay. 

(b) If for any reason the indemnification provided for herein is 

unavailable or insufficient to hold harmless the Indemnified Parties, the Borrower shall contribute 

to the amount paid or payable by the Indemnified Parties as a result of the Losses of the 

Indemnified Parties in such proportion as is appropriate to reflect the relative fault of the 

54 Doc#: USI.57S8203v1S 
Indemnified Parties, on the one hand, and the Borrower (including the Servicer), on the other 

hand in connection with a breach of the Borrower's obligations under this Agreement. 

(c) If the Borrower confirms in writing to the Indemnified Party 

within fifteen (IS) days after receipt of a Third Party Claim the Borrower's responsibility to 

indemnify and hold harmless the Indemnified Party therefor, the Borrower may elect to assume 

control over the compromise or defense of such Third Party Claim at the Borrower's own 

expense and by the Borrower's own counsel, which counsel must be reasonably satisfactory to 

the Indemnified Party, provided that (i) the Indemnified Party may, if such Indemnified Party so 

desires, employ counsel at such Indemnified Party's own expense to assist in the handling (but 

not control the defense) of any Third Party Claim; (ii) the Borrower shall keep the Indemnified 

Party advised of all material events with respect to any Third Party Claim; (iii) the Borrower shall 

obtain the prior written approval of the Indemnified Party before ceasing to defend against any 

Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party 

Claim involving injunctive or similar equitable relief being imposed upon any Indemnified Party 

or any of its Affiliates; and (iv) the Borrower will not, without the prior written consent of each 

Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending 

or threatened action in respect of which indemnification may be sought hereunder (whether or not 

any such Indemnified Party is a party to such action), unless such settlement, compromise or 

consent by its terms obligates the Borrower to satisfy the full amount of the liability in connection 

with such Third Party Claim and includes an unconditional release of the Indemnified Party from 

all liability arising out of such Third Party Claim. 

(d) Notwithstanding anything contained herein to the contrary, the 

Borrower shall not be entitled to control (and if the Indemnified Party so desires, it shall have sole 

control over) the defense, settlement, adjustment or compromise of (but the Borrower shall 

nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with 

such defense, settlement or compromise): (i) any Third Party Claim that seeks an order, 

injunction or other equitable relief against the Indemnified Party or any of its Affiliates; (ii) any 

action in which both the Borrower (or any Affiliate) and the Indemnified Party are named as 

parties and either the Borrower (or such Affiliate) or the Indemnified Party determines with 

advice of counsel that there may be one or more legal defenses available to it that are different 

from or additional to those available to the other party or that a conflict of interest between such 

parties may exist in respect of such action; and (iii) any matter that raises or implicates any issue 

relating to any power, right or obligation of the FDIC under any Law. If the Borrower elects not 

to assume the compromise or defense against the asserted liability, fails to timely and properly 

notify the Indemnified Party of its election as herein provided, or, at any time after assuming such 

defense, fails to diligently defend against such Third Party Claim in good faith, the Indemnified 

Party may pay, compromise or defend against such asserted liability (but the Borrower shall 

nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with 

such defense, settlement or compromise). In connection with any defense ofa Third Party Claim 

(whether by the Borrower or the Indemnified Party), all of the parties hereto shaU, and shall cause 

their respective Affiliates to, cooperate in the defense or prosecution thereof and to in good faith 

retain and furnish such records, information and testimony, and attend such conferences, 

discovery proceedings, hearings, trials and appeals, as may be reasonably requested by a party 

hereto in connection therewith. No Indemnified Party shall have any liability for any special, 

punitive, indirect or consequential damages relating to this Agreement or any other Loan 

Document or arising out of its activities in connection herewith or therewith (whether before or 

after the Closing Date). In the case of an investigation, litigation or other proceeding to which the 

indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such 

investigation, litigation or proceeding is brought by the Borrower, its directors, stockholders or 

55 Doc#: USI·575H203v15 
creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a 

party thereto and whether or not any of the transactions contemplated hereunder or under any of 

the other Loan Documents is consummated. The agreements in this Section 10.05 shall survive 

the termination of the Commitments and the repayment, satisfaction or discharge of all the Loans 

and other Obligations. 

SECTION 10.06. Payments Set Aside. To the extent that any payment by or 

on behalf of the Borrower is made to any Lender, or any Lender exercises its right of setoff, and 

such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, 

declared to be fraudulent or preferential, set aside or required (including pursuant to any 

settlement entered into by such Lender in its discretion) to be repaid to a trustee, receiver or any 

other party, in connection with any proceedi~g under any Debtor Relief Law or otherwise, then to 

the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall 

be revived and continued in full force and effect as if such payment had not been made or such 

setoff had not occurred. 

SECTION 10.07. Successors and Assigns. 

(a) The provisions of this Agreement shall be binding upon and 

inure to the benefit of the parties hereto and their respective successors and assigns permitted 

hereby, except that the Borrower may not assign or otherwise transfer any of its rights or 

obligations hereunder without the prior written consent of the Required Lender (and any attempt 

to effect such assignment or transfer without such consent shall be null and void). Any NonDefaulting Lender may assign or otherwise transfer any of its rights or obligations hereunder 

(i) to any Person; provided that the Receiver shall retain at all times a Pro Rata Percentage of 

more than 50% unless the Borrower shall otherwise consent, (ii) by way of participation in 

accordance with the provisions of Section 10.7(d) and (iii) by way of pledge or assignment of a 

security interest; provided that any such assignment under clause (i) for less than all of the 

Commitments and Loans shall be for a uniform pro rata portion of the assigning Lender's 

Advance Loan Commitments, outstanding Advance Loans, Authorized Overage Loan 

Commitments, outstanding Authorized Overage Loans and Working Capital Loan Commitments. 

Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person 

(other than the parties hereto, their respective successors and assigns permitted hereby, 

Participants to the extent provided in Section 1O.07(d) and, to the extent expressly contemplated 

hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this 

Agreement. 

(b) In connection with any assignment by a Lender, the parties to 

such assignment shall execute and deliver to the Administrative Agent an Assignment and 

Assumption. Subject to the acceptance and recording thereof by the Administrative Agent, from 

and after the effective date specified in each Assignment and Assumption, the assignee 

thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such 

Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, 

and the assigning Lender thereunder shall, to the extent of the interest assigned by such 

Assignment and Assumption, be released from its obligations under this Agreement (and, in the 

case of an Assignment and Assumption covering all of the assigning Lender's rights and 

obligations under this Agreement, such assigning Lender shall cease to be a party hereto but shall 

continue to be entitled to the benefits of Sections 3.0 I, 3.04, 3.05, 10.04 and 10.05 with respect to 

facts and circumstances occurring prior to the effective date of such assignment). Upon request, 

and the surrender by the assigning Lender of its Note, the Borrower (at its expense) shall execute 

and deliver a Note to the assignee Lender. 

56 Ooc#: USI.5758203v15 
(c) The Administrative Agent, acting solely for this purpose as an 

agent of the Borrower, shall maintain a register for the recordation ofthe names and addresses of 

the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the 

Loans and amounts due under Section 2.03, owing to, each Lender pursuant to the terms hereof 

from time to time (the "Register"). The entries in the Register shall be conclusive, absent 

manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name 

is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of 

this Agreement, notwithstanding notice to the contrary. The Register shall be available for 

inspection by the Borrower, any Agent and any Lender, at any reasonable time and from time to 

time upon reasonable prior notice. 

(d) A Lender may at any time, without the consent of, or notice to, 

the Borrower or any other Person, sell partiCIpations to any Person (other than a natural person) 

(each, a "Participant") in all or a portion of such Lender's rights and/or obligations under this 

Agreement (including all or a portion of its Commitment and/or the Loans (owing to it); provided 

that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender 

shall remain solely responsible to the other parties hereto for the performance of such obligations 

and (iii) the Borrower and the Agents shall continue to deal solely and directly with such Lender 

in connection with such Lender's rights and obligations under this Agreement. Any agreement or 

instrument pursuant to which a Lender sells such a participation shall provide that such Lender 

shall retain the sole right to enforce this Agreement and the other Loan Documents and to 

approve any amendment, modification or waiver of any provision ofthis Agreement or the other 

Loan Documents; provided, that such agreement or instrument may provide that such Lender will 

not, without the consent of the Participant, agree to any amendment, waiver or other modification 

described in the first proviso to Section 10.01 that directly affects such Participant. The Borrower 

agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05, to the 

same extent as if it were a Lender and had acquired its intcrest by assignment; provided that any 

sueh Participant shall have complied with the requirements of Section 3.01, including, without 

limitation, Section 3.01(d); and provided,further, that no Participant shall be entitled to recover 

greater amounts under such Sections than the selling Lender would be entitled to recover. To the 

extent permitted by applicable Law, each Participant also shall be entitled to the benefits of 

Section 10.09 as though it were a Lendcr. 

SECTION 10.08. Confidentiality. The Borrower shall keep confidential and 

shall not divulge to any party, without the prior written consent ofthc Administrative Agent, any 

information pertaining to this Agreement, the Underlying Loans or any Underlying Borrower or 

the Underlying Collateral thereunder, except as required pursuant to this Agreement and except to 

the extent that it is necessary and appropriate for the Borrower or -the Managing Member to do so 

in working with Underlying Borrowers, the representatives ofUndcrlying Borrowers, the agents 

of Underlying Borrowers, any prospective purchaser of an Underlying Loan or the Underlying 

Collateral thereunder (it being understood that the prospective purchasers to whom such 

disclosure is made will be informed of the confidential naturc of such information and the 

Borrower shall enter into a confidentiality agreement with any such prospective purchasers with 

respect to such Underlying Loan or Underlying Collateral), any guarantor of an Underlying Loan, 

legal counsel, auditors, taxing authorities, regulatory authorities or any other Governmental 

Authority; provided, that, to the extent that disclosure should be required by law, rule, regulation 

(including any securities listing requirements or the requirements of any self-regulatory 

organization), subpoena, or in connection with any legal or regulatory proceeding (including in 

connection with or pursuant to any action, suit, subpoena, arbitration or other dispute resolution 

process or other legal proceedings, whether civil or criminal, and including before any court or 

administrative or legislative body), the Borrower will use all reasonable efforts to maintain 

57 Doc#: US\:575820)vI5 
confidentiality and will (unless otherwise prohibited by law) notify the Administrative Agent 

within one (I) Business Day after its knowledge of such legally required disclosure so that 

Administrative Agent may seek an appropriate protective order. Notice shall be by telephone, by 

email and in writing. In the absence of a protective order or waiver, the Borrower may make such 

required disclosure if, in the written opinion of its outside counsel (which opinion shall be 

provided to the Administrative Agent prior to disclosure pursuant to this Section 10.08), failure to 

make such disclosure would subject the Borrower to liability for contempt, censure or other legal 

penalty or liability. 

SECTION 10.09. Setoff. In addition to any rights and remedies of the Lenders 

provided by Law, upon the occurrence and during the continuance of any Event of Default, each 

Lender and its Affiliates is authorized at any time and from time to time, without prior notice to 

the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own 

behalf and on behalf of each Loan Party and the Subsidiaries) to the fullest extent permitted by 

applicable Law, to set off and apply any and all deposits (general or special, time or demand, 

provisional or final) at any time held by, and other Indebtedness at any time owing by, such 

Lender and its Affiliates to or for the credit or the account of the respective Loan Parties and their 

Subsidiaries against any and all Obligations owing to such Lender and its Affiliates hereunder or 

under any other Loan Document, now or hereafter existing, irrespective of whether or not such 

Lender or Affiliate shall have made demand under this Agreement or any other Loan Document 

and although such Obligations may be contingent or unmatured or denominated in a currency 

differcnt from that of the applicable deposit or Indebtedness. The rights of each Lender under 

this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) 

that such Lender may have. 

SECTION 10.10. Interest Rate Limitation. Notwithstanding anything to the 

contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan 

Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable 

Law (the "Maximum Rate"). If any Agent or any Lender shall receive interest in an amount that 

exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if 

it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest 

contracted for, charged, or received by an Agent or Lender exceeds the Maximum Rate, such 

Agent or Lender may, to the extent permitted by applicable Law, (a) characterize any payment 

that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary 

prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or 

unequal parts the total amount of interest throughout the contemplated term of the 

Obligations hereunder. 

SECTION 10.11. Countemarts. This Agreement and each other Loan 

Document may be executed in two (2) or more counterparts, each of which shall be deemed an 

original but all of which together shall constitute but one and the same agreement. This 

Agreement and each other Loan Document and any amendments hereto or thereto, to the extent 

signed and delivered by facsimile or other electronic means, shall be treated in all manner and 

respects as an original agreement and shall be considered to have the same binding legal effect as 

if it were the original signed version thereof delivered in person. No signatory to this Agreement 

or any other Loan Document 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 

58 OocU: lJSJ:S758203v1S 
SECTION 1O.l2. Integration. This Agreement, together with the other Loan 

Documents, comprises the complete and integrated agreement ofthe parties on the subject matter 

hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter; 

provided that, the Confidentiality Agreement, dated August 27, 2009, between the FDIC and the 

Affiliates of the Private Owner named therein (including by way ofjoinder) shall remain in full 

force and effect to the extent provided therein, except that the Borrower's rights under Article VI 

of the Contribution Agreement shall not be deemed a repurchase option for purposes of Section 2 

of such Confidentiality Agreement. In the event of any conflict between the provisions of this 

Agreement and those of any other Loan Document, the provisions of this Agreement shall 

control; provided that the inclusion of supplemental rights or remedies in favor of any Lender or 

Agent in any other Loan Document shall not be deemed a conflict with this Agreement. Each 

Loan Document was drafted with the joint p~rticipation of the re~'Pective parties thereto and shall 

be construed neither against nor in favor of any party, but rather in accordance with the fair 

meaning thereof. 

SECTION 1O.l3. Survival of Representations and Warranties. All 

represcntations and warranties made hereunder and in any other Loan Document or other 

document delivered pursuant hereto or thereto or in connection herewith or therewith shall 

survive the execution and delivery hereof and thereof. Such representations and warranties have 

been or will be relied upon by each Agent and each Lender, regardless of any investigation made 

by any Agent or any Lender or on its behalf and notwithstanding that such Agent or such Lender 

may have had notice or knowledge of any Default at the time of any Borrowing, and shall 

continue in full force and effect as long as any Loan or any other Obligation hereunder shall 

remain unpaid or unsatisfied. 

SECTION 10.14. Severability. Any provision of this Agreement or any other 

Loan Document which 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 respcct to such particular Person or Persons and/or under such 

particular circumstancc or circumstances, as the case may be; (ii) without limitation of clause (i), 

such provision shall in any event be ineffective only as to such jurisdiction and only to the extent 

of such prohibition or 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 (ii), such ineffectiveness shall not invalidate any of 

the remaining provisions of this Agreement or such Loan Document. Without limitation of the 

preceding sentence, it is thc intent of the parties to this Agreement that in the event that in any 

court procccding, such court determines that any provision of this Agreement or any other Loan 

Document 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, (x) modify such provision (including without limitation, to the extent 

applicablc, 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 (y) enforce such provision, as so 

modified pursuant to clause (x), in such proceeding. Nothing in this Section 10.14 is intended to, 

or shall, limit (1) the ability of any party to this Agreement to appeal any court ruling or the effect 

of any favorable ruling on appeal or (2) the intended effect of Section 10.15. 

59 Doc#: USI:5758203v15 
SECTION 10.15. GOVERNING LAW. 

(a) THIS AGREEMENT SHALL BE GOVERNED BY AND 

CONSTRUED IN ACCORDANCE WITH FEDERAL LAW, BUT IF FEDERAL LAW DOES 

NOT PROVIDE A RULE OF DECISION, IT SHALL BE GOVERNED BY AND 

CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, 

EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER 

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF 

ANOTHER JURISDICTION. NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY 

UNLA WFUL ACTION OR INACTION BY ANY PARTY HERETO. 

(b) The Borrower, for itself and its Affiliates, 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 ofColumbia for any suit, action or proceeding against it or any of its 

Affiliates commenced by any party arising out of, relating to, or in connection with this 

Agreement, any other Loan Document or any other Transaction Document, and waives any right 

to: 

(A) remove or transfer such suit, action or 

proceeding to any court or dispute-resolution forum other than the court in which the 

Administrative Agent files the suit, action or proceeding without the consent ofthe 

Administrative Agent; 

(B) assert that venue is improper in either the United 

States District Court for the Southern District of New York or the United States District Court for 

the District of Columbia; or 

(C) assert that the United States District Court for 

the Southern District of New York or the United States District Court for the District of Columbia 

is an inconvenient forum. 

(ii) consents to the jurisdiction of the Supreme Court of the 

State of New York for any suit, action or proceeding against it or any of its Affiliates commenced 

by any party arising out of, relating to, or in connection with this Agreement, any other Loan 

Document or any other Transaction Document (other than the LLC Operating Agreement), and 

waives any right to: 

(A) remove or transfer such suit, action or 

proceeding to any other court or dispute-resolution forum without the consent of the 

Administrative Agent); 

(B) assert that venue is improper in the Supreme 

Court of the State of New York; or 

(C) assert that the Supreme Court of the State of 

New York is an inconvenient forum. 

60 Doc#: USI:57S8203v I 5 
(iii) agrees to bring any suit, action or proceeding by the 

Managing Member, the Borrower or its Affiliate against any Lender or Agent arising out of, 

relating to, or in connection with this Agreement or any Loan Document in only either the United 

States District Court for the Southern District of New York or the United States District Court for 

the District of Columbia, and waives any right to remove or transfer such suit, action or 

proceeding to any other court or dispute-resolution forum without the consent of the 

Administrative Agent, 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 Administrative Agent; and 

(iv) agrees, if the United States District Court for the 

Southern District ofNew 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 1O.l5(b)(iii), to 

bring that suit, action or proceeding in only the Supreme Court of the State 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 Administrative Agent. 

(c) The Borrower, on behalf of itself and its Affiliatcs, hcreby 

irrevocably and unconditionally agrees that any final judgment entered against it in any suit, 

action or proceeding falling within Section 10.15(b) may be enforced in any court of competent 

jurisdiction. 

(d) Subject to the provisions ofSection 1O.15(e), the Borrower, on 

behalf of itself and its Affiliates, and the Initial Member hereby irrevocably and unconditionally 

agrees that service of all writs, process and summonses in any suit, action or proceeding pursuant 

to Section 1O.15(b) or Section 10. I 5(c) may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to it at its address for notices pursuant to Section 

10.02 (with copies to such other Persons as specified therein); provided, however, that nothing 

contained in this Section 10.15(d) shall affect the right of any party to serve process in any other 

manner permitted by Law. 

(e) Nothing in this Section 10.15 shall constitute consent to 

jurisdiction in any court by the FDIC, other than as expressly provided in Section 1 0.15(b )(iii) 

and Section 1O.15(b)(iv), or in any way limit the FDIC's right to remove, transfer, seek to 

dismiss, or otherwise respond to any suit, action, or proceeding against it in any forum. 

SECTION 10.16. Waiver of Right to Trial by Jury. EACH OF THE 

BORROWER, FOR ITSELF AND ITS AFFILlA TES, AND THE ADMINISTRATIVE AGENT 

AND EACH OF THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALL Y 

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 SIITING WITHOUT A JURY. 

SECTION 10.17. Binding Effect. This Agreement shall become effective 

when it shall have been executed by the Borrower, the Administrative Agent and each Lender and 

thereafter shall be binding upon and inure to the benefit of the Borrower, each Agent and each 

Lender and their respective successors and assigns, except that the Borrower shall not have the 

right to assign its rights hereunder or any interest herein without the prior written consent of the 

Required Lenders. 

61 Doc#: USI.5758203vl5 
SECTION 10.IB. Lender Action. Each Lender agrees that it shall not take or 

institute any actions or proceedings, judicial or otherwise, for any right or remedy against any 

Loan Party or any other obligor under any of the Loan Documents (including the exercise of any 

right of setoff, rights on account of any banker's lien or similar claim or other rights of self-help), 

or institute any actions or proceedings, or otherwise commence any remedial procedures, with 

respect to any Collateral or any other property of any such Loan Party, without the prior written 

consent of the Administrative Agent. The provision of this Section 1 O.IB are for the sole benefit 

of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan 

Party. 

SECTION 10.19. USA PATRIOT Act. Each Lender hereby notifies the 

Borrower that pursuant to the requirements ofthe USA PATRIOT Act (Title III of Pub. L. 107-56 

(signed into law October 26,2001» (the "Act"), it is required to obtain, verify and record 

information that identifies the Borrower, which information includes the name and address of the 

Borrower and other information that will allow such Lender to identify the Borrower in 

accordance with the Act. 

SECTION 10.20. Replacement of Lenders under Certain Circumstances. 

(a) The Borrower shall be permitted to replace any Lender that (a) 

requests reimbursement for amounts owing pursuant to Section 3.04, (b) is affected in the manner 

described in Section 3.02 and as a result thereof any of the actions described in such Section is 

required to be taken or (c) becomes a Defaulting Lender, with a replacement bank or other 

financial institution; provided that (i) such replacement does not conflict with any applicable 

Law, (ii) no Event of Default under Section B.OI(a) or B.OI(e) shall have occurred and be 

continuing at the time of such replacement, (iii) the Borrower shall repay (or the replacement 

bank shall purchase) at par all Loans and other amounts (other than any disputed amounts) 

pursuant to Section 3.04, owing to such replaced Lender prior to the date of replacement, (iv) the 

replacement bank or financial institution, if not already a Lender, and the terms and conditions of 

such replacement, shall be reasonably satisfactory to the Administrative Agent, (v) the replaced 

Lender shall be obligated to make such replacement in accordance with the provisions of Section 

10.07 and (vi) any such replacement shall not be deemed to be a waiver of any rights that the 

Borrower, any Agent or any Lender shall have against the replaced Lender. 

(b) If any Lender (such Lender, a "Non-Consenting Lender") has 

failed to consent to a proposed amendment, modification, supplement, waiver, discharge or 

termination that pursuant to the terms of Section 10.01 requires the consent of all of the Lenders 

or all Lenders affected and with respect to which the Required Lenders shall have granted their 

consent, then provided no Event of Default then exists, the Borrower shall have the right (unless 

such Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by 

requiring such Non-Consenting Lender to assign its Loans and its Commitments hereunder to one 

or more assignees reasonably acceptable to the Administrative Agent, provided that: (a) all 

Obligations of the Borrower owing to such Non-Consenting Lender being replaced shall be paid 

in full to such Non-Consenting Lender concurrently with such assignment and (b) the 

replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a 

price equal to the principal amount thereof plus accrued and unpaid interest thereon. In 

connection with any such assignment, the Borrower, Administrative Agent, such Non-Consenting 

Lender and the replacement Lender shall otherwise comply with Section 10.07. 

62 Doc~: USI :S7S8203v15 
[THE REMAINDER OF TmS PAGE IS INTENTIONALLY LEFT BLANK.) 

63 
 Doc#: USI :5758203v15 
IN WITNESS WHEREOF, the parties hereto have caused this Advance Facility 

Agreement to be duly executed as of the date fU'St above written. 

CORUS CONSTRUCTION VENTURE, LLC 

By: CCV Managing Member, LLC, its Managing 

Member 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, as Receiver for Corus Bank, N.A., 

as Lender 

By: ______________________________ 

Name: Timothy A. Kruse 

Title: Senior Capital Markets Analyst 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, as Receiver for Corus Bank, N.A., 

as Administrative Agent 

By: ________________________________ 

Name: Timothy A. Kruse 

Title: Senior Capital Markets Analyst 
IN WITNESS WHEREOF, the parties hereto have caused this Advance Facility 

Agreement to be duly executed as ofthe date first above written. 

CORUS CONSTRUCTION VENTURE, LLC 

By: CCV Managing Member, LLC, its Managing 

Member 

By: ____________________________ 

Name: 

Title: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, as Receiver for Corus Bank, N.A., 

as Lender 

N

Title: Senior Capital Markets Analyst 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, as Receiver for Coms Bank, N.A., 

as Administrative Ag t 

Cond· Advance Fa,ahty A.-menl 
EXHIBIT A 

Schedule 1.01 

UNDERLYING LOANS, PROJECTS AND CLOSING DATE REO 

[To be inserted] 
3 

Schedule 2.01 

COMMITMENTS 

Advance Loan Commitment 

Federal Deposit Insurance Corporation $750,000,000 

Lender Authorized Overage Loan Commitment 

Federal Deposit Insurance Corporation $250,000,000 

'---­

Working Capital Loan Commitment 

Federal Deposit Insurance Corporation $150,000,000 

----------------------------------~---------------------------------

Doc#: US) .575820Jv)5 
4 

Schedule 2.11 

ADDITIONAL CONDITIONS TO DRAWING 

(a) The Borrower or the Administrative Agent (or Verification 

Contractor), as applicable, shall have received from the Underlying Borrower or the Borrower, as 

applicable, a funding request pursuant to the provisions ofthe applicable Underlying Loan 

Documents, accompanied by, in addition to any other items required as a condition to a loan 

advance under the applicable Underlying Loan Documents: 

(i) a detailed breakdown of the anticipated use of the 

proceeds of the requested draw, together with copies of invoices and bills for all sums requested, 

together with a certification from the Underlying Borrower or the Borrower, as applicable, that 

the proceeds of such advance will only be used for the purposes identified in the funding request; 

(ii) a statement that all costs for the payment of which the 

Underlying Borrower or the Borrower, as applicable, has previously advanced funds have in fact 

been paid; 

(iii) from each "Major Contractor" (as defined in the 

applicable Approved Business Plan), a completed and itemized Application and Certificate for 

Payment in the form of AlA Document No. G702 (including AlA Form G703 as an attachment 

thereto), or similar form reasonably acceptable to the Administrative Agent, containing the 

required certification of such Major Contractor and the Underlying Borrower's or the Borrower's, 

as applicable architect, accompanied by a cost breakdown showing the cost of work on, and the 

cost of materials incorporated into, the applicable construction project to the date of the 

requisition and the percentage of completion of each budget line item; 

(iv) to the extent not theretofore provided, a current list of 

contractors and subcontractors, by name and trade, the total amount of each contract and/or 

subcontract, the amount theretofore paid to each contractor and/or subcontractor as of the date of 

such application, and the amount to bc paid from the proceeds of the subject advance to each 

contractor and/or subcontractor; 

(v) certifications from the Underlying Borrower's or the 

Borrower's, as applicable, architect and general contractor that the work covered by the funding 

request is in accordance with the approved plans and specifications and is consistent with the 

then-applicable construction budget and construction schedule for such construction project; 

(vi) absolute, unconditional waivers oflien with respect to 

the then last preceding advance from all Persons who were paid from the proceeds of such 

advance, in form and substance reasonably acceptable to the Administrative Agent covering all 

work done and all sums received through the date of the then last preceding advance and noting 

that the only amounts then due and owing (other than any retainage) are the amounts to be paid to 

such Persons out of the advance being requested, each of which shall be certified as true and 

complete by the Underlying Borrower or the Borrower, as applicable; 

(vii) an endorsement to the title policy insuring the applicable 

Construction Loan or the Collateral Agent's Mortgage (if any) on the applicable REO Property, 

as applicable, is obtained that (x) brings down the effective date of the title policy to the date on 

which the applicable draw is made, (y) increases the liability limit of the title policy by an amount 

DocN: USI :5758203v15 
5 

at least equal to the principal amount of such draw, and (z) contains no new exceptions to title 

that have not been authorized or consented to by the Administrative Agent prior to the time the 

request for such advance is made; 

(v.iii) to the extent not theretofore provided, certified copies of 

any material contracts, change orders and leases then in effect; 

(ix) to the extent such advance request concerns materials 

not being yet delivered to or incorporated into the applicable construction project, reasonably 

detailed evidence that such materials are (or upon payment with the advanced funds will be) 

owned lien-free (other than with respect to the Borrower's or the Collateral Agent's, as 

applicable, lien under the applicable loan documents) by the Underlying Borrower or the 

Borrower, as applicable, and that they are adequately insured and will be properly stored until 

incorporation into the construction; 

(x) certification from the Underlying Borrower or the 

Borrower, as applicable, that all soft costs being requested in the applicable advance request have 

been properly incurred and are due and payable and are within budgeted amounts; and 

(xi) such other information, documents and certificates as 

reasonably requested by the Administrative Agent or the Verification Contractor. 

(b) The Administrative Agent shall have received evidence of the 

remaining cost of construction and other budgeted costs, and such evidence shows that (a) no line 

item in the applicable Approved Budget is insufficient to cover the remaining cost of the work or 

other expenses described in such line item and/or (b) the Approved Budget is "in balance" (i.e., 

the Underlying Borrower or the Borrower, as applicable, shall have delivered satisfactory 

evidence that the balance of the applicable Asset Advance Loan Sublimit and Asset Authorized 

Overage Loan Sublimit will be sufficient to cover all costs reasonably anticipated to complete 

construction and all other budgeted costs). 

(c) There shall exist no facts or circumstances rendering it 

reasonably unlikely that the applicable Approved Business Plan will be effectuated. 

(d) The Borrower or the Administrative Agent (or Verification 

Contractor), as applicable, shall have received reasonably satisfactory evidence that the 

construction to date has been completcd in accordance with the approved plans and specifications 

and that completion or construction is reasonably cstimated to occur in conformance with all 

applicable milestones set forth in the applicable Approved Construction Schedule. 

(e) The applicable Underlying Collateral or REO Property, as 

applicable, shall not have been injured or damaged by fire, explosion, accident, flood or other 

casualty, or been subject to any condemnation, governmental taking or eminent domain 

proceeding unless the Administrative Agent or the Borrower shall have received (or shall have 

received evidence reasonably satisfactory to the Administrative Agent that the Borrower or the 

Administrative Agent will receive in a timely manner) insurance proceeds or condemnation 

awards or compensation sufficient in the reasonable judgment of the Administrative Agent to 

effect the satisfactory restoration or repair ofthe Underlying Collateral or REO Property, as 

applicable, in conformance with all applicable milestones set forth in the applicable Approved 

Construction Schedule. 

noc#: USI :5758203v15 
6 

(f) In addition to the conditions set forth in clauses (a) through (e) 

above, the Borrower shall make the final advance with respect to any Construction Loan, and the 

Lenders shall be obligated to make the final advance of any Term Loan proceeds relating to an 

REO Property, only if the Borrower or Administrative Agent (and the Verification Contractor), as 

applicable, shall have received from the Underlying Borrower or Borrower, as applicable, the 

following additional items: 

(i) evidence reasonably satisfactory to the Administrative 

Agent that final completion of construction has occurred in accordance with the approved plans 

and specifications and any applicable requirements of Governmental Authorities, free and clear of 

any and all liens and claims of any Persons furnishing labor, goods, material and/or services; 

(ii) evidence reasonably satisfactory to the Administrative 

Agent that all costs (including, without limitation fees and other governmental charges) to 

achieve final completion of the construction of the applicable Underlying Collateral or REO 

Property have been paid in full (or will be paid for out of the funds requested to be advanced) and 

that no Person has a right to claim any statutory or common lien arising out of the construction of 

such Underlying Collateral or REO Property, as applicable, or the supplying of labor, goods, 

materials and/or services in connection therewith (including the delivery of final, unconditional 

lien waivers from all parties reasonably required by the Administrative Agent); 

(iii) a final survey reasonably satisfactory to the 

Administrative Agent showing the "as-built" location of the applicable Underlying Collateral or 

REO Property, as applicable, and a final set of "as-built" plans and specifications certified by the 

architect; and 

(iv) a certificate of occupancy and all other required 

governmentallicenscs, permits, sign-offs, and approvals. 

(f) The Underlying Borrower or the Borrower, as applicable, shall 

have satisfied such additional condition precedent to the funding ofthe advance as reasonably 

required by the Administrative Agent or the Borrower in light of the particular characteristics of 

the applicable Underlying Collateral or REO Property. 

Doc#: US) :5758203v15 
7 

Schedule 10.02 

ADDRESSES FOR NOTICES 

Administrative Agent 

Timothy A. Kruse 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 17th Street, N.W. 

Room F·7026 

Washington, D.C. 20429 

Tkruse@fdic.gov 

with copies to: 

George C. Alexander 

Manager, Capital Markets & Resolutions 

Federal Deposit Insurance Corporation 

Room F-7008 

550 17th Street, N.W. 

Washington, D.C. 20429 

Attention: George C. Alexander 

Galexander@fdic.gov 

Robert W. McComis 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 17th Street, N.W. 

Room F-7036 

Washington, D.C. 20429 

Rmccomis@fdic.gov 

David Gearin 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Dgearin@fdic.gov 

with a copy by email to: 

Thomas Raburn 

Trabum@fdic.gov 

Doc#: USI :5758203v15 
8 

Lender 

Timothy A. Kruse 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corponrtion 

550 17th Street, N.W. 

Room F-7026 

Washington, D.C. 20429 

Tkruse@fdic.gov 

with copies to: 

George C. Alexander 

Manager, Capital Markets & Resolutions 

Federal Deposit Insurance Corporation 

Room F-7008 

550 17th Street, N.W. 

Washington, D.C. 20429 

Attention: George C. Alexander 

Galexander@fdic.gov 

Robert W. McComis 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 17th Street, N.W. 

Room F-7036 

Washington, D.C. 20429 

Rmccomis@fdic.gov 

David Gearin 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, V A 22226 

Dgearin@fdic.gov 

with a copy by email to: 

Thomas Raburn 

Traburn@fdic.gov 

Borrower 

Corns Construction Venture, LLC 

591 West Putnam Avenue 

Greenwich, cr 06830 

Attention: John McCarthy 

Doc#: US) :5758203v15 
9 

with a copy to: 

Rinaldi, Finkelstein & Franklin, LLC 

591 West Putnam Avenue 

Greenwich, cr 06830 

Attention: Ellis Rinaldi 

Rinaldi@Starwood.com 

Doc#: USI :5758203vl 5 
10 

Exhibit A 

FORM OF 

ADVANCE AND/OR AUTHORIZED OVERAGE LOAN BORROWING NOTICE 

To: 	 Federal Deposit Insurance Corporation, as Administrative Agent 

Robert W. McComis 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 17th Street, N.W. 

Room F-7036 

Washington, D.C. 20429 

Rmccomis@fdic.gov 

Thomas Raburn 


Traburn@fdic.gov [Date] 


Ladies and Gentlemen: 

Reference is made to the Advance Facility Agreement dated as of October 16, 

2009 (as amended, supplemented or otherwise modified from time to time, the "Advance Facility 

Agreement"), among Corus Construction Venture, LLC, the Federal Deposit Insurance 

Corporation, as Administrative Agent, and the lenders from time to time party thereto. 

Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned 

to such terms in the Advance Facility Agreement. 

The undersigned Borrower hereby requests: 

_ An Advance Loan Borrowing 

_ An Authorized Overage Loan Borrowing 

to be made on the terms set forth below: 

(A) 	 Date of Borrowing 

(B) 	 Principal amount of 

Advance Loan Borrowingl 

(C) 	 Principal amount of 

Authorized Overage Loan 

Borrowing 

I Note to Draft: With respect to any Interim Tcrm Loan Borrowings, clause (B) will also include 

the aggregate amount of previously funded Interim Term Loan Borrowings to which the 

Borrower has not satisfied the provisions of Section 2.02(a) of the Advance Facility 

Agreement, ifany (which, when combined with the amount of the requested Interim Term 

Loan Borrowing, shall in no event exceed $50,000,000). 

Doc#. USI.5758203vl5 
11 

Schedule A hereto sets forth (i) the Assets to which the requested Borrowing is to be allocated 

and the principal amount of such Borrowing to be allocated to each such Asset and the purposes 

for which the proceeds of the Loans are to be used, (ii) a comparison ofthe costs and expenses to 

be paid out of such proceeds with the corresponding portions of the applicable Approved 

Business Planes), if the same shall.have been approved, which comparison shaH demonstrate that 

the incurrence of such costs and expenses is consistent with such Approved Business Plan(s) and 

(iii) all other items the delivery of which is a condition to the making of such Loan(s) pursuant to 

Section 2.11 of the Advance Facility Agreement. 

Ooc#: USI :5758203v15 
CORUS CONSTRUCTION VENTURE, LLC 

By: CCV Managing Member, LLC, its Managing 

Member 

By: _____________________________ 

Name: 


. Title: 

SCHEDULE A 
14 

Exhibit B 

FORM OF 

WORKING CAPITAL LOAN BORROWING NOTICE 

To: Federal Deposit Insurance Corporation, as Administrative Agent 

Robert W. McComis 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 17th Street, N.W. 

Room F-7036 

Washington, D.C. 20429 

Rmccomis@fdic.gov 

Thomas Raburn 


Trabum@faic.gov [Date] 


Ladies and Gentlemen: 

Reference is made to the Advance Facility Agreement dated as of October 16, 

2009 (as amended, supplemented or otherwise modified from time to time, the "Advance facility 

Agreement"), among Corus Construction Venture, LLC, the Federal Deposit Insurance 

Corporation, as Administrative Agent, and the lenders from time to time party thereto. 

Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned 

to such terms in the Advance Facility Agreement. 

The undersigned Borrower hereby requests a Working Capital Loan to be made on the terms set 

forth below: 

(A) Date of Borrowing 

(B) Principal amount 

(C) Principal amount allocable to: 

Asset Management Fee 

Custodian Amounts 

Verification Contractor 


Amounts 


Servicing Expenses 

Pre-Approved Charges 

Doc#: USI :~75820)vI5 
CORUS CONSTRUCTION VENTURE, LLC 

By: CCV Managing Member, LLC, its Managing 


Member 


By: ______ 


Name: 


Title: 


Doc#: USI·5758203v15 
16 

Exhibit C-l 

LENDER: 


PRINCIPAL AMOUNT: $ 


FORM OF 


TERM NOTE 


New York, New York 

[Date] 

FOR V ALUE RECEIVED, the undersigned, CORUS CONSTRUCTION 

VENTURE, LLC, a Delaware limited liability company (the "Borrower"), hereby promises to 

pay, or cause to be paid, to the Lender set forth above (the "Lender") or its registered assigns, in 

lawful money of the United States of America in immediately available funds to the Lender's 

Account (such term, and each other capitalized term used but not defined herein, having the 

meaning assigned to it in the Advance Facility Agreement dated as of October 16,2009 (as the 

same may be amended, supplemented or otherwise modified from time to time, the "Advance 

Facility Agreement"), among the Borrower, the Federal Deposit Insurance Corporation, as 

Administrative Agent, and the lenders from time to time party thereto (the "Lenders") (i) on the 

dates set forth in the Advance Facility Agreement, the lesser of (A) the principal amount set forth 

above plus any amount in respect of the capitalization of interest and (B) the aggregate principal 

amount of all Term Loans made by the Lender to the Borrower pursuant to the Advance Facility 

Agreement (including any amount in respect of the capitalization of interest) and (ii) on cach 

Distribution Date, interest at the rate or rates per annum as provided in the Advance Facility 

Agreement on the unpaid principal amount of all Term Loans madc by the Lender to the 

Borrower pursuant to the Advance Facility Agreement. 

The Borrower promises to pay interest, on demand, on any overdue principal 

and, to the extent permitted by law, overdue interest from their due dates at the rate or rates 

provided in the Advance Facility Agreement. 

The Borrower hereby waives diligence, presentment, demand, protest and notice 

of any kind whatsoever. The nonexereise by the holder hereof of any of its rights hereunder in 

any particular instance shall not constitute a waiver thereof in that or any subsequent instance. 

All borrowings evidenced by this note and all payments and prepayments of the 

principal hereof and interest hereon and the respective dates thereof shall be endorsed by the 

holder hereof on the schedule attached hereto and made a part hereof or on a continuation thereof 

which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its 

internal records; provided, however, that the failure of the holder hereof to make such a notation 

or any error in such notation shall not affect the obligations of the Borrower under this note. 

This note is one of the Term Notes referred to in the Advance Facility Agreement 

that, among other things, contains provisions for the acceleration of the maturity hereof upon the 

happening of ecrtain events, for optional and mandatory prepayment of the principal hereof prior 

to the maturity hereof and for the amendment or waiver of certain provisions of the Advance 

Facility Agreement, all upon the terms and conditions therein specified. 

1)0<:#: USI:5758203v15 
17 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN 

ACCORDANCE WITH FEDERAL LAW, BUT IF FEDERAL LAW DOES NOT 

PROVIDE A RULE OF DECISION, IT SHALL BE GOVERNED BY AND CONSTRUED 

IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, EXCLUDING 

ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE 

GOVERNANCE OR THE CONSTRUCTION OF THIS NOTE TO THE LAW OF 

ANOTHER JURISDICTION. 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 

Doc#: USI :5758203v15 
IN WITNESS WHEREOF, we have hereto caused this Tenn Note to be duly 

executed as of the date first above written. 

CORUS CONSTRUCTION VENTURE, LLC 

By: CCV Managing Member, LLC, its Managing Member 

By: ___________________________________ 

Name: 

Title: 

Ooc#. USI :5758203v15 
LOANS AND PAYMENTS 

Name of 

Principal Person 

Maturity Payments of Balance of Making the 

Date Amount of Loan Date PrincipallInterest Note Notation 

Doc#. USI:5758203v15 
20 

Exhibit C-2 

LENDER: 

PRINCIPAL AMOUNT: $ 

FORM OF 

WORKING CAPITAL NOTE 

New York, New York 

[Date] 

FOR VALUE RECEIVED, the undersigned, CORUS CONSTRUCTION 

VENTURE, LLC, a Delaware limited liability company (the "Borrower"), hereby promises to 

pay, or cause to be paid, to the Lender set forth above (the "Lender") or its registered assigns, in 

lawful money of the United States of America in immediately available funds to the Lender's 

Account (such term, and each other capitalized term used but not defined herein, having the 

meaning assigned to it in the Advance facility Agreement dated as of October 16,2009 (as the 

same may be amended, supplemented or otherwise modified from time to time, the "Advance 

Facility Agreement"), among the Borrower, the Federal Deposit Insurance Corporation, as 

Administrative Agent, and the lenders from time to time party thereto (the "Lenders") (i) on the 

dates set forth in the Advance Facility Agreement, the lesser of (A) the principal amount set forth 

above plus any amount in respect of the capitalization of interest and (B) the agl:,'fegate unpaid 

principal amount of all Working Capital Loans made by the Lender to the Borrower pursuant to 

the Advance Facility Agreement (including any amount in respect of the capitalization of 

interest), and (ii) interest from the date hereof on the principal amount from time to time 

outstanding on each such Working Capital Loan at the rate or rates per annum and payable on 

such dates as provided in the Advance Facility Agreement. 

The Borrower promises to pay interest, on demand, on any overdue principal 

and, to the extcnt permitted by law, overdue interest from their due dates at a rate or rates 

provided in the Advance Facility Agreement. 

The Borrower hereby waives diligence, presentment, demand, protest and notice 

of any kind whatsoever. The nonexercise by the holder hereof of any of its rights hereunder in 

any particular instance shall not constitute a waiver thereof in that or any subscquent instance. 

All borrowings evidenced by this note and all payments and prepayments of the 

principal hereof and interest hereon and the respective dates thereof shall be endorsed by the 

holder hereof on the schedule attached hereto and made a part hereof or on a continuation thereof 

which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its 

internal records; provided, however, that the failure of the holder hereof to make such a notation 

or any error in such notation shall not affect the obligations of the Borrower under this note. 

This note is one of the Working Capital Notes referred to in the Advance Facility 

Agreement that, among other things, contains provisions for the acceleration of the maturity 

hereof upon the happening of certain events, for optional and mandatory prepayment of the 

principal hereof prior to the maturity hereof and for the amendment or waiver of certain 

provisions of the Advance Facility Agreement, all upon the terms and conditions therein 

specified. 

Doc#: USI :575R203vl 5 
21 

TIDS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN 

ACCORDANCE WITH FEDERAL LAW, BUT IF FEDERAL LAW DOES NOT 

PROVIDE A RULE OF DECISION, IT SHALL BE GOVERNED BY AND CONSTRUED 

IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, EXCLUDING 

ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE 

GOVERNANCE OR THE CONSTRUCTION OF TIDS NOTE TO THE LAW OF 

ANOTHER JURISDICTION. 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 

Doc#: USI:5758203vl5 
IN WITNESS WHEREOF, we have hereto caused this Working Capital Note 

to be duly executed as ofthe date first above written. 

CORUS CONSTRUCTION VENTURE, LLC 

By: CCV Managing Member, LLC, its Managing Member 

By: 	__________________________________ 

Name: 

Title: 

Do<#: USJ.S7S820)vlS 
LOANS AND PAYMENTS 

Name of 

Principal Person 

Maturity Payments of Balance of Making the 

Date Amount of Loan Date PrincipallInterest Note Notation 

Doc#: l:SI :5758203v15 
24 

Exhibit D 

FORM OF 

U.S. TAX COMPLIANCE CERTIFICATE 

Reference is made to the Advance Facility Agreement (as amended, amended and restated, 

supplemented and otherwise modified from time to time, the "Agreement"), dated as of 

, 2009, among CORUS CONSTRUCTION VENTURE, LtC (the "Borrower"), the 

Lenders party thereto from time to time and Federal Deposit Insurance Corporation, as receiver 

for Corus Bank, N.A., as Administrative Agent (in such capacity, together with its successors and 

assigns (the "Agent"). 

Under penalties of perjury, the undersigned hereby certifies to the Lenders and to the Borrower 

that: 

I. 	 The undersigned is the sole record and beneficial owner of the loans or the 

obligations in respect of the Agreement in respect of which it is providing this 

certificate. 

2. 	 The undersigned is not a bank (as such term is used in Section 881(c)(3)(A) of the 

Internal Revenue Code of 1986, as amended (the "Code"». In this regard, the 

undersigned further represents and warrants that: 

(a) 	 the undersigned is not subject to regulatory or other legal requirements as a 

bank in any jurisdiction; and(b) the undersigned has not been treated as 

a bank for purposes ofany tax, securities law or other filing or submission 

made to any Governmental Authority, any application made to a rating 

agency or qualification for any exemption from tax, securities law or other 

legal requirements,·3. The undersigned is not a "1O-percent 

shareholder" ofthe Borrower (as such term is used in Section 88 1 (c)(3)(B) of the 

Code); 

4. 	 The undersigned is not a controlled foreign corporation related to the Borrower 

within the meaning of Section 864(d)(4) of the Code; 

We have furnished you with a certificate of our non-U.S. person status on Internal Revenue 

Service Form W-8BEN. By executing this u.s. Tax Compliance Certificate, the undersigned 

agrees that (a) if the information provided on this certificate changes, the undersigned shall so 

inform the Borrower in writing within thirty days of such change and (b) the undersigned shall 

furnish the Borrower a properly completed and currently effective certificate in either the 

calendar year in which payment is to be made by the Borrower to the undersigned, or in either of 

the three calendar years preceding such payment. 

[NAME] 

Doc#: USI :5758203v15 
25 

By: 

Name: 


Title: 


Doc#: USI:S7S820)vI5 
26 

Exhibit E 

FORM OF 

ASSIGNMENT AND ASSUMPTION 

This Assignment and Assumption (this "Assignment and Assumption") is dated 

as ofthe Effective Date set forth below and is entered into by and between the Assignor (as 

defined below) and the Assignee (as defined below). Capitalized tenns used in this Assignment 

and Assumption and not otherwise defined herein have the meanings specified in the Advance 

Facility Agreement dated as of October 16,2009 (as amended, supplemented or otherwise 

modified from time to time, the "Advance Facility Agreement"), among Corns Construction 

Venture, LLC (hereinafter referred to as the "Borrower"), thc lenders from time to time party 

thereto (the "Lenders"), and the Federal Deposit Insurance Corporation, as Administrative Agent 

(the "Administrative Agent"), receipt of a copy of which is hereby acknowledged by the 

Assignee. The Standard Tenns and Conditions set forth in Annex 1 attached hereto are hereby 

agreed to and incorporated herein by reference and made a part of this Assignment and 

Assumption as if set forth herein in full. 

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the 

Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to 

and in accordance with the Standard Terms and Conditions and the Advance Facility Agreement, as 

of the Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the 

Assignor's rights and obligations in its capacity as a Lender under the Advance Facility Agreement 

and any other documents or instruments delivered pursuant thereto to the extent related to the amount 

and percentage interest identified below of all of such outstanding rights and obligations of thc 

Assignor under the facility identified below and (ii) to the extent permitted to be assigned under 

applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity 

as a Lender) against any Person, whether known or unknown, arising under or in connection with the 

Advance Facility Agreement, any other documents or instruments delivered pursuant thereto or the 

loan transactions governed thereby or in any way based on or related to any of the foregoing, 

including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all 

other claims at law or in equity related to the rights and obligations sold and assigned pursuant to 

clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above 

being referred to herein collectively as the "Assigned Interest"). Such sale and assignment is without 

recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, 

without representation or warranty by the Assignor. 

(g) Assignor (the "Assignor"): 

(h) Assignee (the "Assignee"): 

(i) Borrower: Corus Construction Venture, LLC 

G) Administrative Agent: Federal Deposit Insurance Corporation 

(k) Assigned Interest: 

Doc#: USJ:575R203v15 
27 

Aggregate Amount of Amount of Percentage 

CommitmentILoans of CommitmcntILoans Assigned of 

Facility all Lenders Assigned Commitment! 

Loans2 

Advance Facility $ $ % 

Agreement 

Effective Date: 

Set forth, to at least 8 decimals, as a percentage of the Commitment/Loans of all Lenders 

thereunder. 

Doc#: US1.5758203v15 
IN WITNESS WHEREOF, the terms set forth in this Assignment and 

Assumption are hereby agreed to: 

[NAME OF ASSIGNOR], 

as Assignor 

By: 	_______________________________ 

Name: 

Title: 

[NAME OF ASSIGNEEl, 

as Assignee 

By: 

Name: 

Title: 

Doc#: [;S1 :5758203v15 
Accepted: 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

as Administrative Agent, 

By: 	_________________________ 

Name: 

Title: 

Doc#: US1575820)v15 
ADVANCE FACILITY AGREEMENr 


STANDARD TERMS AND CONDITIONS FOR 


ASSIGNMENT AND ASSUMPTION 


1. Representations and Warranties. 

1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and 

beneficial owner ofthe Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, 

encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all 

action necessary, to execute and deliver this Assignment and Assumption and to consummate the 

transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any 

statements, warranties or represcntations made in or in connection with the Advance Facility 

Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value 

of the Advance Facility Agreement, (iii) the financial condition of the Borrower or any of its 

Subsidiaries or Affiliates or any other Person obligated in respect of the Advance Facility 

Agreement or (iv) the performance or obscrvance by the Borrower or any of its Subsidiaries or 

Affiliates or any other Person of any of its obligations under the Advance Facility Agreement. 

1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power 

and authority, and has taken all action necessary, to cxeeute and deliver this Assignment and 

Assumption and to consummate the transactions contemplated hereby and to become a Lender 

under the Advance Facility Agreement, (ii) it satisfies the requirements, if any, specified in the 

Advance Facility Agreement that arc required to be satisfied by it in order to acquire the Assigned 

Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the 

provisions of the Advance Facility Agreement as a Lender thereunder and, to the extent of the 

Assigned Interest, shall have the obligations of a Lender thereunder and (iv) it has received a 

copy of the Advance Facility Agreement, and such other documents and information as it has 

deemed appropriate to make its own credit analysis and decision to enter into this Assignment 

and Assumption and to purchase the Assigned Interest on the basis of which it has made such 

analysis and decision independently and without reliance on the Administrative Agent or any 

other Lender; and (b) agrees that (i) it will, independently and without reliance on the ASSIgnor, 

the Administrative Agent or any other Lender, and based on such documents and information as it 

shall deem appropriate at the time, continue to make its own credit decisions in taking or not 

taking action under the Advance Facility Agreemcnt, and (ii) it will perform in accordance with 

their terms all of the obligations which by the terms of the Advance Facility Agreement are 

required to be performed by it as a Lender. 

2. Payments. From and after the Effective Date, the Administrative Agent shall 

make, or shall cause to be made, all payments in respect of the Assigned Interest (including 

Capitalized terms used in this Assignment and Assumption and not otherwise defined herein 

have the meanings specified in the Advance Facility Agreement dated as of October 16,2009 

(as amended, supplemented or otherwise modified from time to time, the "Adva!1ce Facility 

Agreement"), among Corus Construction Venture, LLC (hereinafter referred to as the 

"Borrower"), the lenders from time to time party then:to (the "Lenders"), and the Federal 

Deposit Insurance Corporation, as Administrative Agent (the "Administrative Agent"). 

00<:#: USI :5758203v15 
31 

payments of principal, interest, fees and other amounts) to the Assignor for amounts which have 

accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued 

from and after the Effective Date. 

3. General Provisions. This Assignment and Assumption shall be binding upon 

and inure to the benefit ofthe parties hereto and their respective successors and assigns. This 

Assignment and Assumption may be executed in any number of counterparts, which together 

shall constitute one instrument. Delivery of an executed counterpart of a signature page of this 

Assignment and Assumption by facsimile or other electronic transmission shall be as effective as 

delivery of a manually executed counterpart of this Assignment and Assumption. This 

Assignment and Assumption shall be construed in accordance with and governed by the law of 

the State ofNew York. 

Ooc#: USI 5758203vl5