RADC/CADC Venture 2010-2 

LIMITED LIABILITY COMPANY INTEREST 


SALE AND ASSIGNMENT AGREEMENT 


by and among 


COLFIN 2011 ADC Funding, LLC 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


AS RECEIVER WITH RESPECT TO THE SEPARATE RECEIVERSHIPS FOR 


EACH OF THE VARIOUS FAILED FINANCIAL INSTITUTIONS LISTED ON 


SCHEDULE I HERETO 


and 


RADC/CADC VENTURE 2010-2, LLC 


Dated as of January 26, 2011 


RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
LIMITED LIABILITY COMPANY INTEREST 


SALE AND ASSIGNMENT AGREEMENT 


THIS LIMITED LIABILITY COMPANY INTEREST SALE AND 

ASSIGNMENT AGREEMENT (this "Agreement") is made as of January 26, 2011, by 

and among ColFin 2011 ADC Funding, LLC, a limited liability company organized and 

existing under the laws of Delaware (the "Private Owner"), and the Federal Deposit 

Insurance Corporation (in any capacity, the "FDIC"), in its separate capacities as receiver 

with respect to the separate receiverships for each of the various failed financial 

institutions listed on Schedule I hereto (including its successors and assigns thereto) 

(collectively, the "Initial Member"), and RADC/CADC Venture 2010-2, LLC, a limited 

liability company organized and existing under the laws of Delaware (the "Company"). 

Capitalized terms used and not defined in this Agreement shall have the respective 

meanings set forth in the RADC/CADC Venture 2010-2 Structured TransactionAgreement of Common Definitions entered into on the Closing Date by and among the 

Private Owner, the Initial Member, the FDIC and the Company, among others (the 

"Agreement of Common Definitions"). 

RECITALS 

WHEREAS, the FDIC has separately been appointed receiver for each of the 

various failed financial institutions listed on Schedule I hereto (individually or 

collectively, the "Failed Banks"); and 

WHEREAS, the Initial Member formed the Company by causing the Certificate 

of Formation of the Company to be filed with the Secretary of State of the State of 

Delaware on January 19, 2011 and holds the sole limited liability company interest in the 

Company, and has entered into the Original LLC Operating Agreement; and 

WHEREAS, pursuant to the Contribution Agreement, the Initial Member has 

contributed in part and sold in part to the Company all of the Initial Member's right, title 

and interest in and to the Assets; and 

WHEREAS, after conducting a sealed bid sale for a fifty percent (50%) percent 

LLC Interest (the "Transferred LLC Interest"), the FDIC selected ColFin 2011 ADC 

Funding, LLC, a Delaware limited liability company (the "Sponsor") as the successful 

bidder pursuant to the bid form submitted by it (the "Bid Form") and, in accordance with 

the instructions governing the sealed bid sale, the Sponsor has deposited $4,820,936.00 

(the "Earnest Money Deposit") with the FDIC; and 

WHEREAS, following its selection as the successful bidder, the Sponsor formed 

the Private Owner as a Qualified Transferee; and 

WHEREAS, the Initial Member desires to transfer the Transferred LLC Interest to 

the Private Owner (upon which the Initial Member will retain a fifty percent (50%) LLC 

Interest) and enter into the LLC Operating Agreement in the form attached hereto as 

1 

RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
Exhibit A, and the Private Owner desires to acquire the Transferred LLC Interest and 

enter into the LLC Operating Agreement; and 

WHEREAS, the Initial Member and the Private Owner desire, as capital 

contributions to the Company pro rata in accordance with their proportionate LLC 

Interests (after giving effect to the transfer of the Transferred LLC Interest), to fund the 

Working Capital Reserve Account with an aggregate amount of $10,000,000.00 (such 

sum, the "WCR Account Deposit"); and 

WHEREAS, the Initial Member's pro rata share of such WCR Account Deposit is 

$5,000,000 (the "Initial Member WCR Account Deposit") and Private Owner's pro 

rata share of such WCR Account Deposit is $5,000,000 (the "Private Owner WCR 

Account Deposit"); 

NOW, THEREFORE, in consideration of the foregoing and the mutual promises 

and agreements hereinafter contained, and for other good and valuable consideration the 

receipt and sufficiency of which are hereby acknowledged, the Initial Member, the 

Private Owner and the Company hereby agree as follows: 

1. Sale and Assignment; Purchase Price; Funding of Working Capital 

Reserve; Closing. 

(a) Sale and Assignment. Subject to the terms and conditions of this 

Agreement, the Initial Member hereby sells to the Private Owner, and the Private Owner 

hereby purchases from the Initial Member, all of the Initial Member's right, title and 

interest in and to the Transferred LLC Interest for a purchase price of $48,209,362.00 

(the "Transferred LLC Interest Sale Price"). On the date hereof, in satisfaction of its 

obligation to pay the Transferred LLC Interest Sale Price, the Private Owner shall (i) 

remit to the Initial Member, by wire transfer of immediately available funds, to such 

account as the Initial Member may direct in writing, an amount (the "Purchase Price 

Payment") equal to the positive difference (if any) between (x) the Transferred LLC 

Interest Sale Price and (y) the sum of (A) the Earnest Money Deposit and (B) the Initial 

Member WCR Account Deposit, and (ii) (x) remit, on behalf of the Initial Member, by 

wire transfer of immediately available funds, an amount equal to the Initial Member 

WCR Account Deposit to the Paying Agent for credit to the Working Capital Reserve 

Account, and (y) remit, on its own behalf, by wire transfer of immediately available 

funds, an amount equal to the Private Owner WCR Account Deposit to the Paying Agent 

for credit to the Working Capital Reserve Account. 

(b) Closing Procedure. Upon (i) the receipt by the Initial Member of 

(x) the Purchase Price Payment, (y) evidence of the establishment of the Working Capital 

Reserve Account in accordance with the provisions of Section 3.6 of the Custodial and 

Paying Agency Agreement ,and (z) confirmation of receipt by the Paying Agent of each 

of the Initial Member WCR Account Deposit and the Private Owner WCR Account 

Deposit, (ii) the delivery of the executed LLC Operating Ageement by the parties thereto 

(as required by Section 2), (iii) the delivery of the Additional Security (as required by 

Section 3), (iv) the delivery of the completed Asset Value Schedule, in the form attached 

RADC/CADC Venture 2010-2 2 2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
hereto as Exhibit B allocating the Transferred LLC Interest Sale Price among the Assets 

(the "Asset Value Schedule"), which shall be appended to the Contribution Agreement 

as the Asset Value Schedule thereunder, (v) the delivery of the executed Transferee 

Acknowledgment and Certification, in the form attached hereto as Exhibit C, and (vi) the 

delivery of the executed Joinder and Consent Agreement, in the form attached hereto as 

Exhibit D, the sale and assignment of the Transferred LLC Interest to the Private Owner 

and the closing of the other transactions contemplated hereby (collectively, the 

"Closing") shall be effective. 

2. LLC Operating Agreement. Contemporaneously with the execution and 

delivery of this Agreement, the Private Owner shall execute and deliver to the Company 

and the Initial Member the LLC Operating Agreement. 

3. Additional Security. Contemporaneously with the execution of this 

Agreement and the LLC Operating Ageement, the Private Owner shall, pursuant to the 

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

Agency Ageement, establish the Private Owner Pledged Account and deliver (or cause 

to be delivered) to the Initial Member the Additional Security, [in the form of a 

Qualifying Letter of Credit] [Qualifying Cash Collateral], in an amount not less than the 

Private Owner Pledged Amount. 

4. Representations and Warranties of Private Owner. The Private Owner 

hereby represents and warrants separately to each of the Initial Member and the Company 

as follows: 

(a) The Private Owner is a "Qualified Transferee," as such term is 

defined in the LLC Operating Agreement, and as such, represents and warrants that each 

item included in such definition is true and correct in all respects as of the date hereof as 

if set forth herein. 

(b) All information and documents provided to the Initial Member or 

its agents by or on behalf of the Private Owner or any Affiliate thereof (including the 

Sponsor) in connection with this Agreement and the transactions contemplated hereby, 

including, but not limited to, the Purchaser Eligibility Certification, the Bid Certification, 

the Structured Transaction Qualification Request, and the Structured Transaction 

Confidentiality Agreement, are true and correct in all respects as of the date hereof and 

do not fail to state any fact necessary to make the information contained therein not 

misleading. 

5. Exclusivity of Representations. THE TRANSFERRED LLC 

INTEREST IS SOLD "AS IS" AND "WITH ALL FAULTS," WITHOUT ANY 

REPRESENTATION, WARRANTY, GUARANTY OR RECOURSE WHATSOEVER, 

INCLUDING AS TO ITS VALUE (OR THE VALUE, COLLECTABILITY OR 

CONDITION OF THE ASSETS HELD BY THE COMPANY OR ANY OF THE 

COLLATERAL FOR SUCH ASSETS), FITNESS FOR ANY PARTICULAR 

PURPOSE, MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR ANY 

OTHER MATTER, WHETHER EXPRESS OR IMPLIED OR BY OPERATION OF 

RADC/CADC Venture 2010-22 3 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
LAW OR OTHERWISE, AND THE INITIAL MEMBER SPECIFICALLY 

DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR 

WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE 

TRANSFERRED LLC INTEREST, THE ASSETS, OR THE COLLATERAL 

SECURING THE ASSETS. 

6. Assignment. This Agreement and all of the provisions hereof shall be 

binding upon and inure to the benefit of the parties hereto and their respective heirs (in 

the case of any individual), successors and permitted assigns; provided, however, that the 

Private Owner may not assign this Ageement or any of its rights, interests or obligations 

hereunder. Any purported assignment or delegation in violation of this Agreement shall 

be null and void ab initio. 

7. Beneficiaries. This Agreement shall inure to the benefit of, and may be 

enforced by, the Initial Member, the Private Owner and the Company and their respective 

successors and assigns. Except for the FDIC (in its corporate capacity), which shall be 

considered a third party beneficiary to this Agreement, there shall be no other third party 

beneficiaries hereunder. 

8. Waivers and Amendments. No amendment or waiver of any provision 

of this Agreement shall be effective unless the same shall be in writing and executed by 

the Initial Member, the Private Owner, the Company and the FDIC (in its corporate 

capacity). 

9. Failure to Consummate Transaction. If for any reason, without fault of 

the Initial Member, the Private Owner fails to consummate the purchase of the 

Transferred LLC Interest, upon the terms and conditions set forth in this Agreement, the 

Initial Member's liquidated damages, and sole and exclusive remedy, shall be to retain 

the Earnest Money Deposit. The Private Owner and the Initial Member agree that the 

failure or refusal of the Initial Member to alter or modify, in any way, the terms or 

conditions of this Agreement, the LLC Operating Ageement or any other Transaction 

Document shall not constitute fault on the part of the Lnitial Member. The Private Owner 

shall not be liable for any of the foregoing damages if the Private Owner is forced to 

withdraw its bid made pursuant to the Bid Form after award as the result of a supervisory 

directive given by the FDIC or any other federal or state financial regulatory agency, 

provided that the Initial Member shall be satisfied that such supervisory directive is 

legally effective. In such event, the Initial Member shall refund the Earnest Money 

Deposit. 

10. Governing Law. EACH PARTY TO THIS AGREEMENT AGREES 

AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE 

GENERAL OBLIGATIONS LAW QF THE STATE OF NEW YORK, THIS 

AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE 

WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUDING ANY CONFLICT 

OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR 

THE CONSTRUCTION OF THIS AGREEMENT TO THE LAWS OF ANOTHER 

JURISDICTION, AND EACH PARTY TO THIS AGREEMENT 

RADC/CADC Venture 2010-22 4 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT 

THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. Nothing in this Agreement shall require any unlawful action or inaction 

by any party hereto. 

11. Jurisdiction; Venue and Service. 

(a) Each of the Private Owner and the Company, in each case on 

behalf of 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 of Columbia for any suit, action or proceeding against it or 

any of its Affiliates commenced by the Initial Member arising out of, relating to, or in 

connection with this Agreement or any 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 Initial Member 

files the action, suit or proceeding) without the consent of the Initial Member; 

(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, County of New York, for any suit, action or proceeding against it or 

any of its Affiliates commenced by the Initial Member arising out of, relating to, or in 

connection with this Agreement or any Transaction Document (other than the LLC 

Operating Agreement), and waives any right to: 

(A) remove or transfer such suit, action or proceeding to 

any other court or dispute-resolution forum without the consent of the Initial Member); 

(B) assert that venue is improper in the Supreme Court 

of the State of New York, County of New York; or 

(C) assert that the Supreme Court of the State of New 

York, County of New York is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding by it or any of 

its Affiliates against the Initial Member arising out of, relating to, or in connection with 

this Agreement or any Transaction Document (other than the LLC Operating Ageement) 

in only 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 

RADC/CADC Venture 2010-22 5 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
or transfer such suit, action or proceeding to any other court or dispute-resolution forum 

without the consent of the Initial Member, and agrees to consent thereafter to transfer of 

the suit, action or proceeding to either the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia at 

the option of the Initial Member; and 

(iv) agrees, if the United States District Court for the Southern 

District of New York and the United States District Court for the District of Columbia 

both lack jurisdiction to hear a suit, action or proceeding falling within Section 11(a)(iii), 

to bring that suit, action or proceeding in only the Supreme Court of the State of New 

York, County of New York, and waives any right to remove or transfer such suit, action 

or proceeding to any other court or dispute-resolution forum without the consent of the 

Initial Member. 

(b) Each of the Private Owner and the Company, in each case on 

behalf of itself and its Affiliates, hereby irrevocably and unconditionally agrees that any 

final judgment entered against it in any suit, action or proceeding falling within Section 

11(a) may be enforced in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 11(d), each of the Private 

Owner and the Company, in each case 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 11(a) or Section 

11(b) 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 11 (with copies to such 

other Persons as specified therein); provided, however, that nothing contained in this 

Section 11(c) shall affect the right of any party to serve process in any other manner 

permitted by Law. 

(d) Nothing in this Section 11 shall constitute consent to jurisdiction in 

any court by the FDIC, other than as expressly provided in Section 11(a)(iii) and Section 

11(a)(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 the FDIC in any forum. 

12. Waiver of Jury Trial. EACH OF THE PRIVATE OWNER AND THE 

COMPANY, FOR ITSELF AND ITS AFFILIATES, AND THE INITIAL MEMBER, 

HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT 

MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING OUT OF OR 

RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE 

SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 

13. Notices. All notices, requests, demands and other communications 

required or permitted to be given or delivered under or by reason of the provisions of this 

Agreement shall be in writing and shall be given by certified or registered mail, postage 

prepaid, by delivery by hand or by nationally recognized courier service, or by electronic 

mail, in each case mailed or delivered to the applicable address or electronic mail address 

specified in, or in the manner provided in, this Section 13 below. All such notices, 

RADC/CADC Venture 2010-22 6 

Limited Liability Company Interest Sale and Assigmnent Agreement 

13312141.2 
requests, demands and other communications shall be deemed to be given or made upon 

the earlier to occur of (i) actual receipt (or refusal thereof) by the relevant party hereto 

and (ii) (A) if delivered by hand or by nationally recognized courier service, when signed 

for (or refused) by or on behalf of the relevant party hereto; (B) if delivered by mail, 

when delivered (or refused), and (C) if delivered by electronic mail (which form of 

delivery is subject to the provisions of this paragaph), when delivered and capable of 

being accessed from the recipient's office computer, providedthat any notice, request, 

demand or other communication that is received 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. In no event shall a voice mail message be effective as a 

notice, communication or confirmation hereunder. From time to time, any party may 

designate a new address for purposes of notice to it hereunder by notice to such effect to 

the other parties hereto in the manner set forth in this Section 13. 

If to the Initial Member, to: 

Assistant Director, Structured Transactions - Resolutions and 

Receiverships 

Federal Deposit Insurance Corporation 

550 17thStreet, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email Address: rmalami@fdic.gov 

with a copy to: 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

Email Address: dgearin@fdic.gov 

If to the Private Owner or to the Company, to: 

RADC/CADC Venture 2010-2, LLC 

2450 Broadway, 6 th Floor 

Santa Monica, California 90404 

Attention: Paul A. Fuhrman 

E-mail Address: 

RADC/CADC Venture 2010-2 7 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
with a copy to: 

Colony Capital, LLC 

660 Madison Avenue 

New York, New York 10065 

Attention: Ronald M. Sanders 

E-mail Address: 

14. Counterparts; Facsimile Signatures. This Agreement may be executed 

in any number of counterparts, each of which shall be an original and all of which shall 

together constitute one and the same instrument. It shall not be necessary for any 

counterpart to bear the signature of all parties hereto. This Agreement and any 

amendments hereto, to the extent signed and delivered by facsimile or other electronic 

means, shall be treated in all manner and respects as an original ageement and shall be 

considered to have the same binding legal effect as if it were the original signed version 

thereof delivered in person. No signatory to this Agreement shall raise the use of a 

facsimile machine or other electronic means to deliver a signature or the fact that any 

signature or agreement was transmitted or communicated through the use of a facsimile 

machine or other electronic means as a defense to the formation or enforceability of a 

contract and each such Person forever waives any such defense. 

15. Headings. Paragraph titles or captions contained in this Ageement are 

inserted only as a matter of convenience and for reference and in no way define, limit, 

extend or describe the scope of this Ageement or the intent of any provisions hereof. All 

Section and paragraph references contained herein shall refer to Sections and paragraphs 

in this Agreement unless otherwise specified. 

16. Compliance with Law; Rules of Construction. Except as otherwise 

specifically provided herein, each party to this Agreement shall, at its own cost and 

expense, obey and comply with all Laws, as they may pertain to such party's 

performance of its obligations hereunder. Section 1.2of the Contribution Agreement 

(Construction) is hereby incorporated by reference into this Agreement. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

RADC/CADC Venture 2010-2 8 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly 

executed as of the date first written above. 

PRIVATE OWNER: 

COLFIN 2011 ADC FUNDING LLC, a 

Delaware limited liability company 

By: 

Name: Mark M. Hedstrom 

Title: Vice President 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

VARIOUS FAILED FINANCIAL 

INSTITUTIONS LISTED ON 

SCHEDULE I HERETO 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

COMPANY: 

RADC/CADC Venture 2010-2, LLC 

By: Federal Deposit Insurance 

Corporation, in its Separate Capacities 

as Receiver with respect to the 

Separate Receiverships for each of the 

Various Financial Institutions Listed 

on Schedule I Hereto 

By: 

Name: 

Title: 

Heidi Silverberg 

Attorney-in-Fact 

[SIGNATURE PAGE TO LLC INTEREST SALE AND ASSIGNMENT AGREEMENT] 

RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly 

executed as of the date first written above. 

PRIVATE OWNER: 

COLFIN 2011 ADC FUNDINGILLC, a 

Delaware imited 

By:

Name: I ark M. H.ds; 

Title: Vice President 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

VARIOUS FAILED FINANCIAL 

INSTITUTIONS LISTED ON 

SCHEDULE I HERETO 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

COMPANY: 

RADC/CADC Venture 2010-2, LLC 

By: Federal Deposit Insurance 

Corporation, in its Separate Capacities 

as Receiver with respect to the 

Separate Receiverships for each of the 

Various Financial Institutions Listed 

on Schedule I Hereto 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

[SIGNATURE PAGE TO LLC INTEREST SALE AND ASSIGNMENT AGREEMENT] 

RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
SCHEDULE I 

RADC/CADC Venture 2010-2 

List of Various Failed Financial Institutions 

Bank Name 

Security Bank of Bibb County (SRES) 

Desert Hills Bank 

Irwin Union Bank & Trust Company 

Irwin Union Bank F.S.B. 

Warren Bank 

Hillcrest Bank of Florida 

Republic Federal Bank, N.A. 

Citizens State Bank 

Rockbridge Commercial Bank 

Barnes Banking Company 

Florida Community Bank 

Centennial Bank 

Citizens Bank & Trust Company of Chicago 

The Bank of Bonifay 

Arcola Homestead Savings Bank 

AmTrust Bank 

Independent Bankers' Bank 

Bank of Leeton 

CF Bancorp (Citizens First) 

Ci 

Macon 

Phoenix 

Columbus 

Columbus 

Warren 

Naples 

Miami 

New Baltimore 

Atlanta 

Kaysville 

Immokalee 

Ogden 

Chicago 

Bonifay 

Arcola 

Cleveland 

Springfield 

Leeton 

Port Huron 

State 

GA 


AZ 


IN 


IN 


MI 


FL 


FL 


MI 


GA 


UT 


FL 


UT 


IL 


FL 


IL 


OH 


IL 


MO 


MI 


Fund Closin . Date 

10085 7/24/2009 

10205 3/26/2010 

10120 9/18/2009 

10121 9/18/2009 

10125 10/02/2009 

10131 10/23/2009 

10158 12/11/2009 

10162 12/18/2009 

10164 12/18/2009 

10171 1/15/2010 

10181 1/29/2010 

10193 3/05/2010 

10220 4/23/2010 

10234 5/07/2010 

10246 6/04/2010 

10155 12/4/2009 

10166 12/18/2009 

10174 1/22/2010 

10226 4/30/2010 

13297937 1 
Exhibit A 

Form of LLC Operating Agreement 

RADC/CADC Venture 2010-2 


Limited Liability Company Interest Sale and Assignment Agreement 


13312141.2 
RADC/CADC Loan and REO Structured Transaction 2010-2 

AMENDED AND RESTATED 


LIMITED LIABILITY COMPANY OPERATING AGREEMENT 


RADC/CADC VENTURE 2010-2, LLC 


Dated as of January 26, 2011 


RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
TABLE OF CONTENTS 


Page 

ARTICLE I Certain Definitions 2 2 

1.1 Definitions2 2 

1.2 Construction 2 10 

ARTICLE II Organization of the Company 2 11 

2.1 Formation; Continuation and Admission of Members. 2 11 

2.2 Name. 2 11 

2.3 Organizational Contributions and Related Actions. 2 12 

2.4 Registered Office; Chief Executive Office 2 12 

2.5 Purpose; Duration 2 12 

2.6 Single Purpose Entity; Limitations on Company's Activities 13 

2.7 Ratification of Certain Actions 2 15 

ARTICLE III Management and Operations of the Company 2 15 

3.1 Management of the Company's Affairs 2 15 

3.2 Removal of the Manager 2 19 

3.3 Employees and Services 2 19 

3.4 Restrictions on Manager and Private Owner 2 19 

3.5 Related Party Agreements 2 21 

3.6 Real Property 2 21 

3.7 Custodian and Paying Agent 2 21 

3.8 Relationships with Borrowers, etc 2 22 

3.9 No Conflicting Obligations 2 22 

3.10 Compliance with Law 2 23 

3.11 No Bankruptcy Filing 2 23 

3.12 No Liens 2 23 

3.13 Remedies Upon an Event of Default; Security Interest 2 23 

3.14 Purchase Right of Initial Member 2 28 

3.15 No ERISA Plan Assets 2 29 

ARTICLE IV Membership Interests; Rights and Duties of, and Restrictions on, 

Members 2 29 

4.1 General 2 29 

4.2 LLC Interests 2 30 

4.3 Filings; Duty of Members to Cooperate 2 30 

4.4 Certain Restrictions and Requirements 2 31 

4.5 Liability of the Initial Member 2 31 

4.6 Indemnification 2 32 

ARTICLE V Capital Contributions; Discretionary Funding Advance; Excess Working 

Capital Advance 2 36 

5.1 Capital Contributions 2 36 

5.2 Working Capital Reserve Account 2 36 

5.3 Reserved 2 37 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
TABLE OF CONTENTS 

(Continued) 

Paee 

5.4 Discretionary Funding Advance 2 37 

5.5 Excess Working Capital Advances 2 38 

ARTICLE VI Capital Accounts; Allocations; Priority of Payments; Distributions 39 

6.1 Capital Accounts 2 39 

6.2 Allocations to Capital Accounts 2 39 

6.3 Tax Allocations 2 41 

6.4 Determinations by Tax Matters Member 2 41 

6.5 Priority of Payments 2 42 

6.6 Distributions 2 42 

ARTICLE VII Accounting, Reporting, Taxation, Business Plans and Verification 43 

7.1 Fiscal Year 2 43 

7.2 Maintenance of Books and Records 2 43 

7.3 Financial Statements 2 45 

7.4 Additional Reporting and Notice Requirements 2 45 

7.5 Designation of Tax Matters Member 2 48 

7.6 Tax Information 2 48 

7.7 Business Plans 2 49 

ARTICLE VIII Restrictions on Disposition of LLC Interests 2 51 

8.1 Limitations on Disposition of LLC Interests 2 51 

8.2 Change of Control 2 52 

8.3 Additional Provisions Relating to Permitted Dispositions 2 52 

8.4 Effect of Permitted Dispositions 2 52 

8.5 Effect of Prohibited Dispositions 2 53 

8.6 Distributions after Disposition 2 54 

8.7 Transfers by the Initial Member 2 54 

8.8 Resignation; Dissolution 2 54 

8.9 Applicable Law Withdrawal 2 54 

ARTICLE LX Dissolution and Winding-Up of the Company 2 55 

9.1 Dissolution 2 55 

9.2 Winding-Up Procedures 2 55 

9.3 Termination of the Company 2 57 

ARTICLE X Qualified Transferees 2 57 

10.1 Qualified Transferees 2 57 

ARTICLE XI Manager Liability 2 60 

11.1 Liability of Manager 2 60 

ARTICLE XII Servicing of Assets 2 61 

12.1 Servicing 2 61 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
TABLE OF CONTENTS 

(Continued) 

Pa2e 

12.2 Servicing Standard 2 64 

12.3 Servicing of Assets 2 66 

12.4 Removal of Servicer 2 70 

12.5 Interim Management Fee and Interim Servicing Fee; Management Fee 74 

12.6 Working Capital Expenses 2 74 

12.7 Use of Asset Proceeds 2 75 

12.8 Collection Account 2 75 

12.9 Distribution Account 2 75 

12.10 Defeasance Account 2 75 

12.11 Working Capital Reserve Account 2 76 

12.12 Reserved 2 77 

12.13 Reserved 2 77 

12.14 Other Uses of Company Funds 2 77 

12.15 Certain Servicing and Asset Administration Decisions 2 77 

12.16 Management and Disposition of Collateral 2 78 

12.17 Acquisition of Collateral 2 78 

12.18 Administration of Acquired REO Properties 2 79 

12.19 Releases of Collateral 2 81 

12.20 Clean-Up Call Rights 2 81 

12.21 Certain Transfer Obligations 2 82 

12.22 Seller Financing 2 82 

ARTICLE XIII Miscellaneous 2 83 

13.1 Waiver of Rights of Partition and Dissolution 2 83 

13.2 Entire Agreement; Other Agreements 2 83 

13.3 Third Party Beneficiaries 2 83 

13.4 Expenses 2 84 

13.5 Waivers and Amendments 2 84 

13.6 Notices 2 86 

13.7 Counterparts; Facsimile Signatures 2 88 

13.8 Successors and Assigns 2 88 

13.9 Compliance with Law; Severability 2 88 

13.10 Power of Attorney 2 89 

13.11 Governing Law 2 89 

13.12 Jurisdiction; Venue and Service 2 90 

13.13 Waiver of Jury Trial 2 91 

ANNEX I Member Schedule 2 I-1 

EXHIBIT A Certificate of Formation 2 A-1 

EXHIBIT B Information, Form of Monthly Report 2 B-1 

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Amended and Restated Limited Liability Company Agreement 

13312136.2 
TABLE OF CONTENTS 

(Continued) 

Pa2e 

EXHIBIT C Form of Assignment and Assumption Agreement 2 C-1 


EXHIBIT D Form of Letter of Credit 2 D-1 


iv 


RADC/CADC Venture 2010-2 


Amended and Restated Limited Liability Company Agreement 


13312136.2 
RADC/CADC VENTURE 2010-2, LLC 


AMENDED AND RESTATED 


LIMITED LIABILITY COMPANY OPERATING AGREEMENT 


THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING 

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

the terms hereof, this "Agreement"), is made and entered into as of the 26th day of January, 

2011 (the "Closing Date"), by and among the Federal Deposit Insurance Corporation (in any 

capacity, the "FDIC"), as the Receiver (including its successors and assigns hereto), the "Initial 

Member"), ColFin 2011 ADC Funding, LLC, a Delaware limited liability company (the 

"Private Owner"), and RADC/CADC Venture 2010-2, LLC, a Delaware limited liability 

company (the "Company"). 

WHEREAS, the FDIC has been appointed receiver (in such separate capacities as 

receiver for the separate receiverships, the "Receiver") for each of the various failed financial 

institutions listed on Schedule I hereto (collectively, the "Failed Banks" and each individually, a 

"Failed Bank"); and 

WHEREAS, on January 19, 2011, the Initial Member formed the Company as a 

Delaware limited liability company and was admitted as its initial, and sole, member (owning a 

one hundred percent (100%) limited liability company interest), and the Initial Member and the 

Company entered into a certain Limited Liability Company Operating Agreement dated as of 

January 26, 2011 (the "Original LLC Operating Agreement"); 

WHEREAS, (i) pursuant to the Contribution Ageement, the Initial Member has sold in 

part and (as the sole member of the Company at the time) contributed in part, in each case to the 

Company, and the Company purchased and accepted such contribution from the Initial Member, 

all of the Initial Member's right, title and interest in and to the Assets, and assumed the 

Obligations, (ii) the Company executed and delivered to the Initial Member that certain Purchase 

Money Note for the benefit of the Initial Member, (iii) Cle Purchase Money Note Guarantor 

guaranteed payment of principal on the Purchase Money Note pursuant to the terms of the 

Guaranty Ageement, and (iv) pursuant to the Reimbursement, Security and Guaranty 

Agreement, the Company granted to the Collateral Agent, for the benefit of the Purchase Money 

Note Guarantor and the holders of the Purchase Money Note, a security interest in the Assets and 

the Collateral; 

WHEREAS, following closing of the transactions contemplated by the Contribution 

Agreement and the execution of the Original LLC Operating Agreement, the Initial Member 

agreed, pursuant to the terms of the Transferred LLC Interest Sale Agreement, to sell to the 

Private Owner, effective as of the Closing Date an LLC Interest representing a fifty percent 

(50%) equity interest in the Company; 

WHEREAS, after giving effect to the transactions contemplated by the Transferred LLC 

Interest Sale Agreement, as of the Closing Date the Initial Member and the Private Owner will 

own all the issued and outstanding limited liability company interests in the Company; 

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13312136 
WHEREAS, the Manager has agreed to cause the Company to establish the Working 

Capital Reserve Account to provide the Company with capital to fund Working Capital Expenses 

and Permitted Vertical Completion Expenses, and the Private Owner and the Initial Member 

have agreed to initially fund the Working Capital Reserve Account; and 

WHEREAS, the parties desire to amend and restate the Original LLC Operating 

Agreement in its entirety in order to reflect the admission of the Private Owner as a Member of 

the Company and to set forth the terms and conditions on which the Company shall be owned 

and operated. 

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

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

sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 

ARTICLE I 


Certain Defmitions 


1.1 Definitions. This Agreement constitutes the "limited liability company 

agyeement" (as such term is defined in the Act) of the Company. For purposes of this 

Agreement, (a) terms used herein, to the extent the same are defined in the Agreement of 

Common Definitions and not otherwise defined herein, shall have the respective meanings and 

definitions given in such Agreement of Common Definitions, and (b) the following terms shall 

have the meanings and definitions hereinafter respectively set forth. 

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

Company. 

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

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

Year, after giving effect to the following adjustments: 

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

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

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

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

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

foregoing definition of Adjusted Capital Account Deficit is intended to be read with the 

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

consistently therewith. 

"Agreement" shall have the meaning given in the preamble. 

"Agreement of Common Definitions" shall mean the RADC/CADC Venture 

2010-2 Structured Transaction-Agreement of Common Definitions, dated as of the date hereof, 

by and among the Initial Member, the Company, the Private Owner, the Purchase Money Note 

Guarantor, the Collateral Agent, the Custodian/Paying Agent and the Servicer. 

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13312136.2 
"Asset Level Business Plan" shall have the meaning given in Section 7.7. 

"Book Value" shall mean, (i) with respect to contributed property, the initial Fair 

Market Value of such property, and (ii) with respect to any other Company asset, the adjusted 

basis of such asset for federal income Tax purposes; provided, however, that the Book Values of 

all Company Assets shall be adjusted to equal their respective Fair Market Values, in accordance 

with the rules set forth in Section 1.704-1(b)(2)(iv)(0 of the Treasury Regulations, except as 

otherwise provided herein, immediately prior to: (a) the date of the acquisition of any additional 

LLC Interest by any new or existing Member in exchange for more than a de minimis Capital 

Contribution; (b) the date of the actual distribution of more than a de minimis amount of 

Company property (other than a pro rata distribution) to a Member in connection with the 

redemption of all or part of such Member's LLC Interest; or (c) the date of the actual liquidation 

of the Company within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations; 

and provided further, that adjustments pursuant to clauses (a) and (b) above shall be made only if 

the Tax Matters Member reasonably determines, after consultation with the Initial Member, that 

such adjustments are necessary or appropriate to reflect the relative economic interests of the 

Members. The Book Value of any Company Property distributed to any Member shall be 

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

"Business Plan" shall have the meaning given in Section 7.7. 

"Buy-Out Closing" shall have the meaning given in Section 3.14(a). 

"Buy-Out Closin2 Date" shall have the meaning given in Section 3.14(b)(i). 

"Buy-Out Notice" shall have the meaning given in Section 3.14(a). 

"Buy-Out Valuation Date" shall have the meaning given in Section 3.14(a). 

"Capital Account" shall mean the capital account of a Member related to such 

Member's outstanding LLC Interests, as adjusted to account for allocations of Net Income (and 

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

such LLC Interests, as provided in &eater detail in Section 6.2 and elsewhere in this Agreement. 

"Capital Contribution" shall mean a contribution to the capital of the Company 

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

Contribution Agreement, or this Agreement. 

"Certificate" shall have the meaning given in Section 2.1(a). 

"Clean-up Call" shall have the meaning given in Section 12.20. 

"Company" shall have the meaning given in the preamble. 

"Consolidated Business Plan" shall have the meaning given in Section 7.7. 

"Covered Persons" shall have the meaning given in Section 4.6(f). 

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13312136.2 
"Direct Owner" shall mean, with respect to any Person, any other Person who 

has any direct ownership interest in such Person. 

"Discretionary Fundin2 Advance" shall have the meaning given in Section 5.4. 

"Disposition" shall mean any sale, assignment, alienation, gift, exchange, 

conveyance, transfer, pledge, hypothecation, granting of a security interest or other disposition or 

attempted disposition whatsoever, in each case, whether voluntary or involuntary, and including 

any of the foregoing by operation of Law (including any merger into, or any consolidation with, 

any other Person). For the avoidance of doubt, it is understood and agreed that a statutory 

conversion of a Person into another form of Person does not constitute a Disposition. The term 

"Dispose" shall mean to make or consummate a "Disposition." 

"Dispute Resolution Procedure" shall mean the following procedure solely for 

the purpose of determining a particular amount: 

Each Member shall submit to the other, within five (5) Business Days of referral 

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

such time period, then the amount shall be the single proposal provided. If the higher of the two 

(2) proposals is not greater than one hundred ten percent (110%) of the lower proposal, then the 

amount shall be the average of such two (2) proposals. If the higher of such two (2) proposals is 

greater than one hundred ten percent (110%) of the lower amount then the Members shall, within 

seven (7) days of their submission of such proposals, jointly select a nationally recognized 

investment banking firm which shall, within fifteen (15) days of its appointment, select the 

proposed amount previously submitted by the Members pursuant to this procedure that in its 

opinion more closely reflects the amount being determined as described in this Agreement, and 

the proposal thus selected shall be considered the amount for purposes of this Agreement. If the 

Members fail to agree on such investment banking firm within such seven (7)-day period, then 

each Member shall nominate, within such seven (7)-day period, a nationally recognized 

investment banking firm that is not an Affiliate thereof and the investment banking firm that is to 

make such determination shall be chosen by the two (2) nominated firms promptly after the 

expiration of such seven (7)-day period; provided, that if either Member shall fail to nominate 

such an investment banking firm within such seven (7)-day period, such determination shall be 

made by the investment banking firm nominated by the other Member. The fees of the selected 

investment-banking firm shall be paid in the manner provided in this Agreement. Any 

determination of any amount made by any investment-banking firm selected in accordance with 

this procedure shall be final and binding on the Members and, without limitation of the 

foregoing, may be enforced by any court having jurisdiction in the premises. 

"Dissolution Event" shall mean, with respect to any specified Person, (i) in the 

case of a specified Person that is a partnership or limited partnership or a limited liability 

company, the dissolution and commencement of winding up of such partnership, limited 

partnership or limited liability company, (ii) in the case of a specified Person that is a 

corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or the 

revocation of its charter and the expiration of ninety (90) days after the date of notice to the 

corporation of such revocation without a reinstatement of its charter, and (iii) in the case of any 

other specified entity, the termination of such entity. For the avoidance of doubt, it is understood 

4 

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13312136.2 
and agreed that a statutory conversion of a Person into another form of Person does not constitute 

a "Dissolution Event." 

"Distributable Cash" shall have the meaning given in Section 6.5. 

"Embargoed Person" shall mean any Person subject to trade restrictions under 

United States Law, including, without limitation, the International Emergency Economic Powers 

Act, 50 U.S.C. §§1701, et seq., the Trading with the Enemy Act, 50 U.S.C. §§ App. 1, et seq., 

any foreign assets control regulations of the United States Treasury Department (31 C.F.R., 

Subtitle B, Chapter V, as amended), or any enabling legislation or regulations promulgated 

thereunder or any executive order relating theretO (including Executive Order 13224 of 

September 21, 2001 Blocking Property and Prohibiting Transactions With Persons Who 

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

§594.101, et seq.) with the result that a purchase of assets or any other transaction entered into 

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

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

"Event of Default" shall mean any one of the following events (whatever the 

reason for such Event of Default and whether it shall be voluntary or involuntary or be effected 

by operation of Law or pursuant to any judgment, decree or order of any court or any order, rule 

or regulation of any administrative or governmental body): 

(a) the receipt by the Company of notice from the Collateral Agent 

that an Event of Default under and as defined in the Reimbursement, Security and Guaranty 

Agreement has occurred (in each case, unless such an Event of Default has not actually so 

occurred); or 

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

other than as may be provided for in the definition of Insolvency Event or in clause (ii)) (i) with 

respect to the Company or the Private Owner; or (ii) with respect to any Servicer or any 

Subservicer; provided, that such Insolvency Event under this clause (ii) (that is not otherwise an 

Insolvency Event under clause (i) hereof) shall not be an Event of Default hereunder (but shall in 

all events be a default under the applicable Servicing Agreement or Subservicing Agreement) so 

long as the Manager shall have fully replaced (or caused the replacement of) such affected 

Servicer or Subservicer within thirty (30) days after the occurrence of such Insolvency Event; or 

(iii) the occurrence of any Dissolution Event with respect to the Private Owner; or 

(c) any failure of the Company to pay any Working Capital Expense 

when due in accordance with Section 12.6 of this Agreement, which failure continues 

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

requiring the same to be remedied shall have been given by the Initial Member to the Company; 

or 

(d) the failure of the Company or the Private Owner (for the avoidance 

of doubt, in any capacity, including as a Member and/or as the Manager) to comply in any 

material respect with and enforce the provisions of this Agreement, which continues unremedied 

5 

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13312136.2 
for a period of thirty (30) days after the date on which written notice of such failure requiring the 

same to be remedied shall have been given by the Initial Member to the Private Owner; or 

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

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

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

same to be remedied shall have been given by the Manager (in its individual capacity) or the 

Initial Member to the Servicer, or (ii) a failure by the Manager (in its individual capacity) to 

replace the Servicer upon the occurrence of either (x) an Event of Default under the 

Reimbursement, Security and Guaranty Agreement as a result of the Servicer's acts or omissions 

or (y) a material breach of or event of default under the Servicing Agreement by the Servicer, in 

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

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

Initial Member to the Manager (in any capacity); or 

(0 the failure of the Manager (in any capacity) to comply in any 

material respect with its obligations under the Servicing Agreement or the Company to comply 

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

(including any failure to pay fees or expenses when due thereunder) which, in either case, 

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

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

applicable, the Custodian or the Paying Agent, to the Manager (in any capacity) or the Company, 

as applicable; or 

(g) there shall be a change in the Private Owner or the Manager (other 

than a manager appointed subsequent to the Closing Date) or there shall occur a Change of 

Control with respect to the Private Owner (other than as expressly permitted pursuant to Section 

8.2), or the Manager (other than a manager appointed subsequent to the Closing Date) or any 

transfer of any direct or indirect ownership interest in the Private Owner or the Manager (other 

than a manager appointed subsequent to the Closing Date) or any transaction with a similar 

effect (other than as expressly permitted pursuant to Section 8.1) or any Restricted Servicer 

Change of Control; provided, that, any such Restricted Servicer Change of Control shall not be 

an Event of Default hereunder (but shall in all events be an event of default under the applicable 

Servicing Agreement) so long as the Manager shall have fully replaced (or caused the 

replacement of) such affected Servicer within thirty (30) days after the occurrence of such 

Restricted Servicer Change of Control; provided, further, any indirect transfer of the Private 

Owner Interest is permitted so long as such transfer does not result in a Change of Control; or 

(h) the failure of the Company to remit or cause to be remitted all 

Asset Proceeds to the Paying Agent (or to the applicable account maintained with the Paying 

Agent) as and when required; or 

(i) the failure of the Manager to cause the Company to repay (or remit 

available funds for the repayment of) Discretionary Funding Advances to the full extent Asset 

Proceeds from the applicable Asset are available for such repayment; or 

6 

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13312136.2 
(i) any failure, for any reason, of the amount of the Additional 

Security to be equal to or to exceed the Private Owner Pledged Amount, or any failure by an 

Issuing Bank to comply with any terms, agreements or conditions of any Qualifying Letter of 

Credit; or 

(k) the occurrence of a Purchase Money Trigger Event. 

"Excess Working Capital Advance" shall have the meaning given in 

Section 5.5. 

"Fair Market Value" shall mean, with respect to any Asset on a given date, the 

gross fair market value of such asset, unreduced by any liability, on such date as determined in 

good faith by the Manager after consultation with the Initial Member or, in the case of a BuyOut, in accordance with Section 3.14(b) below; provided, however, that the initial Fair Market 

Value for each Asset shall be the value thereof as set forth on the Asset Value Schedule; and, 

provided, further, that the parties hereto acknowledge and agree that, as of the Closing Date, the 

Fair Market Value of the Capital Contribution made by the Initial Member shall be based on the 

Transferred LLC Interest Sale Price, as set forth in the Transferred LLC Interest Sale Agyeement, 

and such Fair Market Value shall be utilized for determining the initial Capital Accounts of the 

Members as of the Closing Date. 

"FDIC" shall have the meaning given in the recitals. 

"Indenmified Parties" shall have the meaning given in Section 4.6(a). 

"Initial Member" shall have the meaning given in the preamble. 

"Initial Member Capital Contribution" shall have the meaning given in 

Section 2.3(a)(i). 

"Issuin2 Bank" shall mean, with respect to any Qualifying Letter of Credit, the 

applicable issuing bank. 

"LC Reissuance/Extension Failure" shall mean, with respect to any Qualifying 

Letter of Credit, (i) any failure of Issuing Bank to be and remain a Qualified Issuer, or (ii) any 

failure of such Qualifying Letter of Credit to be automatically renewed (for an additional year) at 

least sixty (60) days prior to the then-scheduled expiry of such Qualifying Letter of Credit, or the 

receipt by the Initial Member of any notice to the effect that such Qualifying Letter of Credit will 

not be automatically renewed (for such additional one year period), in each case unless, within 

ten (10) days of the occurrence of such failure or the Initial Member's receipt of such notice, as 

the case may be, the Private Owner shall have fully replaced such Qualifying Letter of Credit 

with a new Qualifying Letter of Credit issued by a Qualified Issuer (in conformance with all of 

the requirements set forth in this Agreement with respect to Qualifying Letters of Credit) or 

otherwise provided Qualifying Cash Collateral in the full undrawn face amount of such 

Qualifying Letter of Credit. 

"Mana2er" shall have the meaning given in Section 3.1(a). 

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13312136.2 
"Maturity Date Report" shall have the meaning given in Section 7.4(b). 

"Members" shall mean (i) the Person from time to time constituting the "Initial 

Member" in accordance with this Agreement, and (ii) from and after the Closing Date, the 

Person from time to time constituting the "Private Owner" in accordance with this Agreement, in 

each case so long as such Person remains a member of the Company. For purposes of 

clarification, references in this Agreement to the term "member" (lowercase) shall mean a 

"member" as such term is defined in the Act. 

"Member Schedule" shall mean the schedule attached hereto (and hereby 

incorporated in this Agreement) as Annex I, as amended, restated, supplemented or otherwise 

modified from time to time. 

"Net Income and Net Loss" shall mean, for each Fiscal Year or other period, the 

taxable income or loss of the Company, or particular items thereof, determined in accordance 

with the accounting method used by the Company for federal income tax purposes with the 

following adjustments: (a) all items of income, gain, loss, deduction or expense specially 

allocated pursuant to this Agreement (including pursuant to Sections 6.2(b)(i) through (iv)) shall 

not be taken into account in computing such taxable income or loss; (b) any income of the 

Company that is exempt from federal income taxation and not otherwise taken into account in 

computing the taxable income of the Company shall be added to such taxable income or loss; 

(c) if the Book Value of any asset differs from its adjusted Tax basis for federal income tax 

purposes, any gain or loss resulting from a disposition of such asset shall be calculated with 

reference to such Book Value; (d) upon an adjustment to the Book Value of any asset pursuant to 

the definition of Book Value, the amount of the adjustment shall be included as gain or loss in 

computing such Net Income or Net Loss; (e) if the Book Value of any asset differs from its 

adjusted tax basis for federal income tax purposes, the amount of depreciation, amortization or 

cost recovery deductions with respect to such asset for purposes of determining Net Income or 

Net Loss shall be an amount which bears the same ratio to such Book Value as the federal 

income Tax depreciation, amortization or other cost recovery deductions bears to such adjusted 

Tax basis (provided that if the federal income Tax depreciation, amortization or other cost 

recovery deduction is zero, the Tax Matters Member may use any reasonable method for 

purposes of determining depreciation, amortization or other cost recovery deductions in 

calculating Net Income or Net Loss); and (f) except for items in (a) above, any expenditures of 

the Company not deductible in computing taxable income or loss, not properly capitalizable and 

not otherwise taken into account in computing Net Income or Net Loss pursuant to this 

definition, shall be treated as deductible items. 

"Original LLC Operating Agreement" shall have the meaning given in the 

recitals. 

"Permitted Disposition" shall haVe the meaning given in'Section 8.1. 

"Plan Asset Regulation" shall have the meaning given in Section 10.1(r). 

"Previously Approved Matters" shall have the meaning given in Section 2.7. 

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13312136.2 
"Private Owner" shall have the meaning given in the preamble. 

"Purchaser Eligibility Certification" shall mean, (i) with respect to the Private 

Owner, any Purchaser Eligibility Certification delivered by the Private Owner or any of its 

Affiliates to the Receiver in connection with the transactions contemplated in this Agreement 

and the other Transaction Documents, including the Purchaser Eligibility Certification delivered 

by the Private Owner to the Receiver on or about the Closing Date, and, (ii) with respect to any 

Permitted Disposition (and the applicable transferee in connection therewith), a Purchaser 

Eligibility Certification in substantially the form of the Purchaser Eligibility Certification 

referenced in item (i), with such changes as the Initial Member may require based on changes to 

such form of Purchaser Eligibility Certification as maintained by the FDIC. 

"Qualified Issuer" shall mean any FDIC-insured depository institution that is 

"well capitalized" as defmed in 12 U.S.C. § 1831o(b)(1)(A), is in the business of issuing letters 

of credit and either (i) maintains offices in either or both of New York City, NY and 

Washington, D.C. where presentation and drawings on such letters of credit can be duly made, or 

(ii) maintains a letter of credit department at its offices in another city and confirms to the Initial 

Member that its standard institutional practice is to permit presentation and drawing on such 

letters of credit by facsimile transmission of documents to such office. 

"Qualified Transferee" shall have the meaning given in Section 10.1. 

"Qualifying Letter of Credit" shall mean an irrevocable standby letter of credit 

delivered to the Initial Member in an amount at least equal to the Private Owner Pledged 

Amount, substantially in the form of Exhibit D hereto (or in such other form as may be 

acceptable to, and approved in writing by, the Initial Member), duly issued by an Issuing Bank 

that is, as of the date of issuance thereof, a Qualifying Issuer. Such Letter of Credit shall be 

drawable either (i) at such Issuing Bank's offices in New York City, NY or Washington, D.C. or 

(ii) through a letter of credit department located at its offices in another city which permits 

presentation and drawing on such letters of credit by facsimile transmission of documents to such 

office; provided, however, with respect to subsection (ii) above, such Qualifying Issuer shall 

confirm to the Initial Member that such Issuer's standard institutional practice is to permit 

presentation and drawing on such letters of credit by facsimile transmission of documents to such 

office. The Qualifying Letter of Credit shall have an initial term of one (1) year with automatic 

renewals thereafter (without amendment except for extension of the then current expiry date by 

an additional year) until the Initial Member has delivered written notice to the Issuing Bank to 

the effect that such Qualifying Letter of Credit is being released in its entirety. 

"Receiver" shall have the meaning given in the recitals. 

"Related Party Agreement" shall have the meaning given in Section 3.5. 

"Secured Assets" shall have the meaning given in Section 3.13(c). 

"Servicing Obligations" shall have the meaning given in Section 12.1(a). 

"Servicing Standard" shall have the meaning given in Section 12.1(a). 

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13312136.2 
"Successor" shall mean, (i) with respect to a Member, any future Member which 

is a direct or indirect transferee (whether by Permitted Disposition, merger, consolidation or 

otherwise) of the LLC Interest of such Member; (ii) with respect to any former Member, the 

current Member which is the direct or indirect transferee (whether by Permitted Disposition, 

merger, consolidation or otherwise) of the LLC Interest of such former Member and (iii) with 

respect to the Initial Member, any Person that is a direct or indirect transferee (whether by 

Disposition, merger, consolidation or otherwise) of any of the Initial Member's rights or interests 

under this Agreement or any other Transaction Document. 

"Tax Allocation Report" shall have the meaning given in Section 7.6(b). 

"Tax Matters Member" shall have the meaning given in Section 7.5. 

"Third Party Claim" shall have the meaning given in Section 4.6(a). 

"Treasury Regulations" shall mean the regulations promulgated by the United 

States Department of the Treasury pursuant to and in respect of provisions of the Code, and all 

references to sections of the Treasury Regulations shall include any corresponding provision or 

provisions of succeeding, substitute, proposed or final Treasury Regulations. 

"Unreimbursable Expense" shall have the meaning given in Section 4.6(e). 

"s" shall mean Lawful currency of the United States of America. 

1.2 Construction. 

(a) Captions. Paragraph titles or captions contained in this Agreement are 

inserted only as a matter of convenience and for reference and in no way define, limit, extend or 

describe the scope of this Agreement or the intent of any provisions hereof. All Section and 

paragraph references contained herein shall refer to this Agreement unless otherwise specified. 

(b) References to Persons Exclusive. References to "Affiliates" or 

"Subsidiaries" of a specified Person refer to, and include, only other Persons which from time to 

time constitute "Affiliates" or "Subsidiaries," as the case may be, of such specified Person, and do 

not include, at any particular time, other Persons that may have been, but at such time have ceased 

to be, "Affiliates," or "Subsidiaries," as the case may be, of such specified Person, except to the 

extent that any such reference specifically provides otherwise. A reference to a Member or other 

Person, in and of itself, does not, and shall not be deemed to, refer to or include any other Person 

having an interest in a Member or other Person (such as, without limitation, any stockholder or 

member of or partner in a Member, or other Person). 

(c) Use of "Or." The term "or" is not exclusive. 

(d) References to Laws. A reference in this Agreement to a Law includes any 

amendment, modification or replacement to such Law. 

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(e) Use of Accounting Terms. Accounting terms used herein shall have the 

meanings assigned to them by GAAP applied on a consistent basis by the accounting entity to 

which they refer. 

(0 References to Documents. References to any document, instrument or 

agreement (i) shall be deemed to include all appendices, exhibits, schedules and other attachments 

thereto and all documents, instruments or agreements issued or executed in replacement thereof, 

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

(g) Use of "Herein." Unless otherwise specified, the words "hereof," "herein" 

and "hereunder" and words of similar import when used in this Agreement shall refer to this 

Agreement as a whole and not to any particular provision of this Agreement. 

(h) Use of "Including." The words "include" and "including" and words of 

similar import when used in this Agreement are not limiting and shall be construed to be followed 

by the words "without limitation," whether or not they are in fact followed by such words. 

(i) Use of "During." The word "during" when used in this Agreement 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. 

ARTICLE II 


Organization of the Company 


2.1 Formation; Continuation and Admission of Members. 

(a) On January 19, 2011, the Receiver caused the Certificate of Formation of 

the Company, in the form attached as Exhibit A hereto (the "Certificate"), to be filed in the office 

of the Secretary of State of the State of Delaware. The Certificate shall not be amended except to 

change the registered agent or office of the Company. 

(b) The Company shall continue as a limited liability company under the Act 

and in accordance with the further terms and provisions of this Agreement. 

(c) The Initial Member previously was, and the Private Owner hereby agrees 

to be, and is, admitted as a member of the Company such that, as of the Closing Date, the Initial 

Member and the Private Owner are the only members of the Company. Until the Company is 

dissolved pursuant to Section 9.1, and subject to the rights of the Initial Member under Section 

13.5, the Company shall at all times have two, and only two (2), members. 

2.2 Name. 

(a) The name of the Company shall be RADC/CADC Venture 2010-2, LLC. 

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(b) The Business of the Company shall be conducted only under the name of 

the Company or such other name or names that comply with applicable Law as the Members may 

select from time to time. 

2.3 Organizational Contributions and Related Actions. 

(a) Prior to the execution of this Agreement, pursuant to the terms of the 

Contribution Agreement, the Initial Member: 

(i) made a Capital Contribution to the Company in the form of certain 

Assets (the "Initial Member Capital Contribution"); and 

(ii) sold and assigned to the Company, and the Company purchased 

and accepted such assignment from the Initial Member, Assets (other than that portion of the 

Assets comprising the Initial Member Capital Contribution) and assumed the Obligations in 

exchange for the Purchase Money Note. 

(b) Contemporaneously with the execution of this Agreement, pursuant to the 

terms of the Transferred LLC Interest Sale Agreement, the Private Owner is acquiring from the 

Initial Member a fifty percent (50%) limited liability company interest in the Company for the 

Transferred LLC Interest Sale Price in accordance with the terms thereof. 

(c) Upon the consummation of the transactions contemplated in 

Sections 2.3(a) the Private Owner shall own a fifty percent (50%) limited liability company 

interest in the Company and the Initial Member shall own a fifty percent (50%) limited liability 

interest in the Company. 

2.4 Registered Office ., Chief Executive Office. The Company shall maintain a 

registered office and registered agent in Delaware to the extent required by the Act, which office 

and agent shall be as determined by the Manager from time to time and which shall be set forth 

in the Certificate. Initially (and until otherwise determined by the Manager), the registered office 

in Delaware shall be, and the name and address of the Company's registered agent in Delaware 

shall be, as specified in the Certificate as originally filed, which may be amended by the 

Manager from time to time as necessary to correctly reflect the name and address of the 

Company's registered agent. The chief executive office of the Company shall be located at 2450 

Broadway, 6th Floor, Santa Monica, California 90404, or such other place as shall be determined 

by the Manager from time to time. 

2.5 Purpose., Duration. 

(a) The purpose of the Company is to engage in and conduct the Business, 

directly or, to the extent specifically authorized in this Agreement, indirectly through other 

Persons. The Company shall not form or have any Subsidiaries other than Ownership Entities or 

as otherwise authorized in or pursuant to this Agreement. The Company shall have all powers 

necessary, desirable or convenient, or which the Manager deems necessary, desirable or 

convenient, and may engage in any and all activities necessary, desirable or convenient, or which 

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the Manager deems necessary, desirable or convenient, in each case to accomplish the purposes of 

the Company or consistent with the furtherance thereof. 

(b) Subject to Section 9.1, the Company shall continue in existence 

perpetually. 

2.6 Single Purpose Entity; Limitations on Company's Activities. Except to the extent 

expressly permitted by this Agreement or the other Transaction Documents, the following shall 

govern for so long as the Company is in existence: 

(a) Subject to Section 9.1, the Manager shall cause the Company to do or 

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

rights (charter and statutory) and franchises, and the Manager also shall cause the Company to: 

(i) maintain financial statements separate from any Affiliate; 

provided, however, that each Ownership Entity shall be consolidated in the financial statements 

of the Company; and provided, further, that the assets, liabilities and results of operations of the 

Company may be included in the consolidated financial statements of its parent or ultimate 

parent in accordance with GAAP; 

(ii) at all times hold itself out to the public as a legal entity separate 

from the Members and any other Person; 

(iii) file its own Tax returns, as may be required under applicable Law, 

and pay any Taxes so required to be paid under applicable Law; 

(iv) except as contemplated hereby or by the other Transaction 

Documents, segregate its assets and not commingle its assets with assets of any other Person; 

(v) conduct the Business in its own name and strictly comply with all 

organizational formalities to maintain its separate legal existence; 

(vi) pay its own liabilities only out of its own funds; 

(vii) maintain an arm's length relationship with any Affiliate upon 

terms that are commercially reasonable and that are no less favorable to the Company than could 

be obtained in a comparable arm's length transaction with an unrelated Person; 

(viii) subject at all times to Section 3.3, pay the salaries of its own 

employees, if any, and maintain, or cause to be maintained, a sufficient number of employees, if 

any, in light of its contemplated operation of the Business; 

(ix). allocate, fairly and reasonably, shared expenses, including any 

overhead for shared office space; 

(x) use separate stationery, invoices and checks; 

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(xi) correct any known misunderstanding regarding its separate 

identity; and 

(xii) maintain adequate capital in light of its contemplated business 

purpose, transactions and liabilities, if any. 

(b) Neither the Manager nor the Private Owner may cause or permit a 

Dissolution Event or an Insolvency Event to occur with respect to the Company or any of its 

Subsidiaries to which the Initial Member has not provided its written consent, and neither the 

Manager nor the Private Owner may, without the written consent of the Initial Member, cause or 

permit the Company or any of its Subsidiaries to: 

(i) except as contemplated hereby or by the other Transaction 

Documents, hold out its credit or assets as being available to satisfy the obligations of others, or 

become bound by any Guarantee of, or otherwise obligate itself with respect to, the Debts of any 

other Person, including any Affiliate; 

(ii) except as contemplated hereby or by the other Transaction 

Documents (including the Purchase Money Note), the Guaranty Agreement, and the 

Reimbursement, Security and Guaranty Agreement), pledge its assets for the benefit of any other 

Person, make any loans or advances to any other Person, or encumber or permit any Lien to be 

placed on the Assets, the Collateral, or the proceeds therefrom; provided that, the Company may 

(x) invest its funds in interest bearing accounts held by any bank that is not its Affiliate and 

otherwise in accordance with the terms of this Agreement and the Custodial and Paying Agency 

Agreement and (y) make advances in accordance with Article XII; 

(iii) own any assets, or engage in any business, unrelated to the 

Business; 

(iv) incur, create or assume any Debt other than the Purchase Money 

Note, any Discretionary Funding Advance, any Excess Working Capital Advance or as otherwise 

expressly permitted hereby or by the other Transaction Documents to which the Initial Member 

is a party; 

(v) make or permit to remain outstanding any loan or advance to, or 

own or acquire any stock or securities of, any Person (other than an Ownership Entity), except 

that the Company may invest in those investments permitted under the Transaction Documents 

and may make any advance required or expressly permitted to be made pursuant to any 

provisions of Article XII or the other Transaction Documents and permit the same to remain 

outstanding in accordance with such provisions; 

(vi) acquire any LLC Interest (or any portion of any LLC Interest); 

(vii) consolidate or merge with or into any other Person, convert into 

any other type of Person (including into a limited liability company organized under the Laws of 

a jurisdiction other than the State of Delaware), transfer, domesticate or continue the Company 

or any Subsidiary of the Company pursuant to Section 18-213 of the Act, or take any other action 

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for which the consent of some or all of the members of a limited liability company is (unless 

otherwise provided in the limited liability company agreement of such limited liability company) 

required by the Act; 

(viii) convey or transfer its properties and assets as an entirety or 

substantially as an entirety to any Person, transfer its ownership interests, or engage in any 

dissolution or liquidation, except in each case to the extent such activities are expressly permitted 

pursuant to any provision of this Agreement or the other Transaction Documents (and subject to 

obtaining any approvals required hereunder or thereunder, as applicable); 

(ix) except as contemplated or permitted by this Agreement, form, 

acquire or, subject to the second proviso of the definition of Ownership Entity, hold any 

Subsidiary other than an Ownership Entity or form any trust for the purpose of holding Assets 

for the benefit of the Company; or 

(x) breach or violate any representation, warranties, covenants or 

agreements contained in any of the Transaction Documents. 

(c) The failure of the Company, any Member and/or the Manager to comply 

with any of the foregoing covenants or any other covenants contained in this Agreement shall not 

affect the status of the Company as a separate legal entity or the limited liability of the Members. 

2.7 Ratification of Certain Actions. Prior to the Closing Date, the Company 

previously approved (a) each of the Transaction Documents, (b) the issuance of the LLC 

Interests, and (c) the taking of all action reasonably necessary to effect the foregoing approvals, 

including without limitation the execution and performance of this Agreement and the other 

Transaction Documents (the "Previously Approved Matters"). The Previously Approved 

Matters, and all actions taken by the Company in furtherance of the Previously Approved 

Matters, are hereby ratified, approved and confirmed in their entirety by each Member and the 

Manager is hereby authorized and directed to execute and deliver, for and on behalf of the 

Company, any and all documents as may now or hereafter be reasonably required in order to 

effect the Previously Approved Matters. 

ARTICLE III 


Management and Operations of the Company 


3.1 Management of the Company's Affairs. 

(a) Subject to the terms and conditions of this Agreement, the management of 

the Company shall be vested exclusively in the Person appointed from time to time hereunder as 

the "Manager" of the Company (the "Manager"), which Manager may, but is not required to be, a 

Members Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. 

Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive 

power and discretion to, and shall, manage the business and affairs of the Company in accordance 

with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or 

delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other 

Person, and shall serve as Manager until such time as (i) the Private Owner Interest is Disposed of 

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in accordance with the terms of this Agreement and the transferee is admitted as a member of the 

Company and Successor to the Private Owner, in which case the transferee Member shall, 

effective upon such Disposition, be appointed as the "Manager" to the extent the Private Owner 

held such role immediately prior to such Disposition, (ii) the Private Owner is removed as 

Manager by the Initial Member or the Purchase Money Note Guarantor and replaced in 

accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the 

business and affairs of the Company are wound up, in accordance with the terms of this 

Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to 

manage the Company as set forth in this Agreement. Without limitation of the foregoing, the 

Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by 

the Tax Matters Member, from time to time, in connection with the Tax Matters Member's 

performance of its obligations under this Agreement. The Private Owner (and any Successor to 

the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, 

this Agreement constitutes a personal services contract between the Private Owner and the 

Company, and (y) except as may otherwise be expressly specified herein, it shall not be entitled to 

any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its 

service as the Manager hereunder (including with respect to the Manager's Asset servicing and 

management obligations under Article XII). 

(b) Except as otherwise specifically provided in this Agreement and without 

limitation of the powers expressly granted to the Manager under any other provision of this 

Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be 

identical to the authority, duties (including fiduciary duties) and functions of the board of directors 

and the officers of a corporation organized under the Delaware General Corporation Law (and not 

electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take 

or authorize the taking of any action in contravention of any express term of this Agreement. 

(c) No Person dealing with the Company or the Manager shall be required to 

determine, and any such Person may conclusively assume and rely upon, the authority of the 

Manager to execute any instrument or make any undertaking on behalf of the Company. No 

Person dealing with the Company or the Manager shall be required to determine any facts or 

circumstances bearing upon the existence of such authority. Without limitation of the foregoing, 

any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed 

by the Manager as to: 

(i) the identity of the Members; 

(ii) the existence or non-existence of any fact or facts that constitute a 

condition precedent to acts by the Manager or are in any other manner germane to the affairs of 

the Company; 

(iii) the identity of Persons who are authorized to execute and deliver 

any instrument or document of or on behalf of the Company; or 

(iv) any act or failure to act by the Company or any other matter 

whatsoever involving the Company or the Members. 

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(d) Notwithstanding anything to the contrary contained in this Agreement, the 

parties hereto acknowledge and agree that: 

(i) nothing contained in this Agreement creates any fiduciary duty or 

similar obligation owed by or on behalf of the Initial Member; 

(ii) the Private Owner and the Company each hereby expressly waives 

any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the 

Private Owner or the Company; and 

(iii) the Initial Member shall be entitled to act and exercise any right of 

approval or consent that it has under this Agreement in its interest, in its sole and absolute 

discretion, without regard to and against the interests of the Private Owner or the Company. 

(e) Unless and to the extent reimbursement is due under an express provision 

hereof or pursuant to a Related Party Agreement or any Transaction Document, the Company 

shall not be liable for, and the Manager shall not seek reimbursement from the Company or any 

Member for, any expenses or costs incurred after the formation of the Company by the Manager 

and/or its Affiliates on behalf of or for the benefit of the Company. 

(0 Notwithstanding Section 12.5, Manager shall have the right to delegate 

to Colony AMC 2011 ADC, LLC ("Colony AMC") all or any portion of Manager's management 

duties under this Agreement and direct payment to Colony AMC of all or any portion of the 

Interim Management Fee and the Management Fee subject to the following requirements, 

limitations, representations and warranties. 

(i) Any such delegation or direction shall not relieve the Private 

Owner of any of its obligations or duties (including its fiduciary duty) as Manager 

under this Agreement. Any breach or failure to perform any obligation or duty by 

Colony AMC shall be deemed to be and shall constitute a breach or failure to 

perform such obligation or duty by Manager. All acts or failures to act by Colony 

AMC shall be imputed to Manager as if Manager had taken such action or failed 

to take such action itself. All rights and remedies provided to the Initial Member, 

the Collateral Agent, the Purchase Money Note Guarantor, the Paying Agent and 

the Custodian against the Manager or Private Owner under any Transaction 

Document shall remain in full force and effect and be exercisable against Private 

Owner and Manager regardless of any such delegation or direction of payment. 

(ii) Manager may delegate its duties under Section 12.3(a) provided 

that Colony AMC's agreement with any servicer has to be subject to the FDIC's 

rights under this Agreement. 

(iii) Except as expressly provided in this Section 3.1(f), no additional 

delegation by Manager of any of its management duties shall be permitted and 

Manager shall prevent Colony AMC from further delegating such duties. 

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(iv) In no event shall Colony AMC be deemed to be a third-party 

beneficiary to or under this Agreement. 

(v) Except for Servicing Expenses, Pre-Approved Charges, and as 

otherwise expressly provided in the Transaction Documents, none of the expenses 

or costs incurred to perform or related to the duties and obligations of the 

Manager (including any such costs or expenses as may be incurred by Colony 

AMC) shall be charged to the Company or deducted from Asset Proceeds in any 

way, directly or indirectly. 

(vi) The Manager represents that Colony AMC is under common 

control with the Private Owner. If at any time the Private Owner and Colony 

AMC are not under common control, the delegation to Colony AMC of any 

management duties and redirection of the Management Fee and the Manager's 

right to delegate any of its management duties and its right to redirect payment of 

any portion of the Management Fee to Colony AMC shall terminate immediately 

and, thereafter, the Management Fee shall be paid directly to Manager. 

(vii) Upon the occurrence of any Insolvency Event with regard to 

Colony AMC, the delegation to Colony AMC of any management duties and 

redirection of the Management Fee and the Manager's right to delegate any of its 

management duties and its right to redirect payment of any portion of the 

Management Fee to Colony AMC shall terminate immediately and, thereafter, the 

Management Fee shall be paid directly to Manager. 

(viii) Manager certifies, represents and warrants with respect to Colony 

AMC (referred to as "it") that (i) neither it nor any of its Affiliates or Direct 

Owners is an Embargoed Person; (ii) neither it nor any of its Affiliates or Direct 

Owners engages in any dealings or transactions, or is otherwise "associated with" 

(as defined in 31 C.F.R. 594.101, et seq.), any Embargoed Person; and (iii) if and 

to the extent it or any of its Affiliates are required by Law to maintain an antimoney laundering compliance prop-am under applicable anti-money laundering 

Laws and regulations, including without limitation, the Uniting and Strengthening 

America by Providing Appropriate Tools Required to Intercept and Obstruct 

Terrorism Act of 2001 (Public Law 107-56) such compliance programs are 

currently being maintained. The foregoing certifications, representations and 

warranties are based upon a due inquiry and investigation; provided, however, 

that for purposes of determining whether any of the same with respect to indirect 

ownership are true, the undersigned shall not be required to make an investigation 

into the ownership of publicly-traded securities (including securities of open-end 

investment companies registered under the Investment Company Act) or the 

ownership of assets by a collective investment fund that holds assets for employee 

benefit plans or retirement arrangements 

(g) This Section 3.1 is subject to any express requirement of direct Initial 

Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 8.1, 

8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the 

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Company or the Manager requiring the consent of the Initial Member under this Agreement shall 

be null and void ab initio unless and until the Initial Member's consent is obtained. 

3.2 Removal of the Manager. Upon an Event of Default (and so long as the Private 

Owner is then the Manager), any of the Required Consenting Parties may remove the Private 

Owner as the Manager and appoint a successor Manager in the sole discretion of any of the 

Required Consenting Parties in accordance with Section 12.4, whereupon such successor 

Manager shall immediately succeed to all, or such portion as the Required Consenting Parties 

and successor Manager agree, of the rights, powers, duties and obligations of the "Manager" 

hereunder, and the predecessor Manager shall promptly take such actions as may be reasonably 

requested by any of the Required Consenting Parties to facilitate the transition to such successor 

Manager. 

3.3 Employees and Services. After the Closing Date, the Manager shall cause to be 

made available to the Company, from time to time, employees, facilities and support services in 

a manner and to an extent reasonably required for it to fulfill its duties and obligations as the 

Manager and for the day-to-day operation of the Business, including the Manager's employees, 

facilities and support services. If necessary to meet the foregoing requirements, the Manager 

shall enter into contractual arrangements to secure employees, facilities and support services 

from third parties (including its Affiliates); provided, however, that the Manager shall at all times 

provide for the servicing of the Assets through a Servicer under contract with the Manager (in its 

individual capacity) in accordance with Article XII and the safekeeping of the Notes and other 

Asset Documents by a Custodian under contract with the Company in accordance with the 

provisions of Section 3.7 below. Notwithstanding anything to the contrary contained in this 

Section 3.3, (a) the Company shall not have any employees, (b) no employees of the Manager or 

any third party (including any Affiliate) shall be deemed to be employees of the Company, (c) 

any contractual relationships entered into by the Manager to provide employees, facilities or 

support services to the Company shall be relationships between the third parties (or Affiliates) 

and the Manager (and not the Company) and shall not relieve the Manager of its obligations or 

any liability hereunder, and (d) no expenses incurred to secure or maintain employees (or 

independent contractors performing relevant services for the day-to-day operation of the 

Company in lieu of performance of the same by such employees), facilities or support services 

shall be an expense of the Company unless the same is expressly reimbursable by the Company 

pursuant to the provisions of Article XII below or is otherwise expressly set forth in this 

Agreement or in any other Transaction Documents to be an expense of the Company. 

3.4 Restrictions on Manager and Private Owner. Neither the Private Owner nor, 

notwithstanding any delegation of authority to it hereunder, the Manager may or shall in any 

event (x) do, or cause the Company to do, any act or take, or cause the Company to take, any 

action in contravention of any Law, or (y) take any of the following actions on behalf of, or with 

respect to, the Company, or otherwise cause the Company to take any of the following actions, in 

the case of all of the foregoing without the prior written approval of the Required Consenting 

Parties, which approval may be withheld or conditioned in the sole and absolute discretion of 

each such Required Consenting Party: 

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(i) admitting additional or substitute Members of the Company, 

except in accordance with Article VIII; 

(ii) changing the legal form of the Company to other than a limited 

liability company; 

(iii) taking any action that would cause the Company to be treated as 

other than a partnership for federal Tax purposes; 

(iv) taking any action that would make it impossible to carry on the 

ordinary business of the Company; 

(v) during any of the first two (2) successive 12-month periods after 

the Closing Date, conducting Bulk Sales in an aggregate amount (for such 12-month period) in 

excess of ten percent (10%) of the aggregate Unpaid Principal Balance of all Assets as of the 

beginning of such 12-month period (or, for such first 12-month period, as at the Cut-Off Date as 

indicated on the Asset Schedule), it being understood that for purposes of the foregoing the sale 

or other disposition of an Ownership Entity (or any voting or equity interest therein) shall 

constitute a sale or other disposition of the Acquired Property (including any Acquired REO 

Property) held directly or indirectly by such Ownership Entity; 

(vi) incurring any liability on behalf of the Company (other than 

liabilities to trade creditors in the ordinary course of the Business and such other liabilities as 

may be permitted by this Agreement or any other Transaction Document); 

(vii) possessing or transferring Company Property for other than 

Company purposes; 

(viii) taking any action that would require the Company to register as an 

"investment company" (as defined in the Investment Company Act); 

(ix) selling or otherwise transferring any Asset, Collateral or Acquired 

Property (or any portion thereof) to the Manager, the Private Owner, any Servicer, any 

Subservicer, or any Affiliate of any of the foregoing or of the Company; 

(x) financing the sale or other transfer of any Asset, Collateral or 

Acquired Property (or any portion thereof); 

(xi) selling any Asset, Collateral or Acquired Property (or any portion 

thereof) in a transaction that provides for any recourse against the Company, the Initial Member 

or the FDIC, in any capacity, or against the LLC Interest held by the Initial Member or any share 

of the Asset Proceeds allocable to the Initial Member, other than contractual obligations with 

respect to customary post-closing purchase price adjustments and prorations; 

(xii) disbursing, or causing the disbursement of, funds from the 

Collection Account, the Distribution Account, the Working Capital Reserve Account or other 

accounts created under this Agreement, the Custodial and Paying Agency Agreement, or any 

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Servicing Agreement other than in accordance with (and without violation of any requirement 

contained in) the provisions of this Agreement, the Custodial and Paying Agency Agreement, 

and the applicable Servicing Agreement and the Reimbursement, Security and Guaranty 

Agreement; 

(xiii) advancing additional funds that would increase the Unpaid 

Principal Balance of any Asset other than (A) Funding Draws, (B) Permitted Vertical 

Completion Expenses, or (C) Servicing Expenses to the extent that capitalizing such Servicing 

Expenses is or, with respect to Acquired Property would have been prior to the conversion of the 

Loan to Acquired Property, permitted under the applicable Asset Documents; 

(xiv) reimbursing the Manager for any expense or cost (other than 

Servicing Expenses and Pre-Approved Charges) incurred by (or paid by) any Affiliate of any of 

the Company, the Private Owner or the Manager, the Servicer or any Subservicer; 

(xv) taking any action or omitting to take any action that causes the 

Company to breach any representation, warranty, covenant or other ageement contained herein 

or in any other Transaction Document (for avoidance of doubt, nothing in this clause (xv) shall 

require the Private Owner or the Manager to make any capital contribution or advances which 

are not otherwise required of it under the express tetins of this Agreement or any other 

Transaction Document); or 

(xvi) taking any action for which the consent of some or all of the 

members of a limited liability company is (unless otherwise provided in the limited liability 

company agreement of such limited liability company) required by the Act. 

3.5 Related Party Agreements. Neither the Company nor any of its Subsidiaries shall 

enter into any current or future contract, agreement, commitment, arrangement or transaction 

(including any ageement to sell Company Property, incur any Debt or become bound by any 

Guarantee of any obligations) with or for the benefit of, or pay any fee to, the Private Owner or 

any Affiliate of the Company or the Private Owner (a "Related Party Agreement"), except for 

the Purchase Money Note or as may otherwise be expressly provided herein or in any other 

Transaction Document to which the Initial Member is a party or as may be approved by both 

Members. 

3.6 Real Property. The Company shall not take title in its own name to any Acquired 

REO Property, and any acquisition or ownership of any such Acquired REO Property shall be 

subject to Sections 12.17 and 12.18 and the relevant terms of the Servicing Agreement. 

3.7 Custodian and Paying Agent. The Manager shall cause the Company to retain 

and enter into and, at all times, be a party to a written custodial agreement with a Custodian (as 

selected by the Company in accordance herewith), and such Custodian shall at all times have 

custody and possession of the Notes and other Custodial Documents (subject to the applicable 

provisions herein and in such custodial ageement with respect to the release thereof). The 

Manager shall also cause the Company to retain and enter into and, at all times, be a party to 

written paying agency agreement with a Paying Agent (as selected by the Company in 

accordance herewith), which Paying Agent shall receive and distribute Asset Proceeds in 

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accordance with the Custodial and Paying Agency Agreement. Such Custodian and Paying 

Agent shall be (and remain) a Qualified Custodian and Paying Agent acceptable to and approved 

by the Initial Member, such approval not to be unreasonably withheld, delayed or conditioned. 

Except as may be determined by the Initial Member in connection with an exercise of its rights 

under Section 13.5 below, the Custodian and the Paying Agent shall be the same; and the 

custodial and paying agency functions shall be performed on the terms set forth in the Custodial 

and Paying Agency Agreement (which shall be in a form acceptable to the Initial Member). At 

no time shall the Company have more than one (1) Custodian or one (1) Paying Agent, who may 

be the same Person. The fees and expenses paid to the Custodian and Paying Agent shall be no 

more than market rates and the Custodian and Paying Agent may be terminated by the Company 

upon no more than thirty (30) days notice provided to either, without cause under the Custodial 

and Paying Agency Agreement. For purposes of clarification, the parties acknowledge that, as of 

the Closing Date, the Custodial and Paying Agency Agreement delivered on the Closing Date is 

acceptable to the Initial Member, including as to the fees and expenses expressly set forth 

therein. In the event that the Manager removes, or causes the Company (or any Servicer) to 

remove, any Notes or other Custodial Documents from the possession of the Custodian (which 

shall be done only in accordance with the relevant Custodial and Paying Agency Agreement), 

(i) any loss or destruction of or damage to such Notes or Custodial Documents shall be the 

personal liability of the Manager (who, along with the relevant Servicer(s), shall be responsible 

for safeguarding such Notes and Custodial Documents when not in possession of the Custodian), 

and (ii) such Notes shall be returned to the Custodian within the time provided under the 

applicable Uniform Commercial Code to maintain the perfection of the secured party's security 

interest therein by possession. If any Notes or any other Custodial Documents are removed in 

connection with the modification, restructuring or foreclosure of a Loan, the modified or 

restructured Notes and other Custodial Documents removed in connection therewith shall be 

returned to the Custodian as soon as possible following the completion of the restructuring, 

modification or foreclosure (and, in any event, in accordance with clause (ii) of the immediately 

preceding sentence). Notwithstanding the foregoing if any Notes or other Custodial Documents 

are retained by the applicable court, such Notes and other Custodial Documents shall be returned 

to the Custodian as soon as possible after they are released by such court. The Manager shall 

ensure that the Initial Member receives a copy of each demand, notice or other communication 

given under the Custodial and Paying Agency Agreement at the time that such notice or other 

communication is given thereunder. 

3.8 Relationships with Borrowers, etc. Except as otherwise consented to by the Initial 

Member, none of the Private Owner, the Manager or any Affiliate of either shall, at any time, 

(a) be an Affiliate of or a partner or joint venturer with any Borrower or Obligor, (b) be an agent 

of any Borrower or Obligor, or allow any Borrower or Obligor to be an agent of the Manager or 

the Company, or (c) except as is otherwise contemplated by the Company's ownership of the 

Assets and its right to hold Acquired Property, have any interest whatsoever in any Borrower, 

Obligor or other obligor with respect to any Asset or any of the Collateral. • 

3.9 No Conflicting Obligations. The Manager shall cause the Company to comply 

with the Transaction Documents in accordance with their terms, and shall not, at any time, enter 

into or become a party to any agreement that would conflict with the terms of this Agreement. 

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3.10 Compliance with Law. The Manager shall, and shall cause the Company to, at all 

times, comply with applicable Law in connection with the performance or exercise of its rights, 

powers, duties or obligations under this Agreement, be duly authorized and qualified to transact 

any and all business to be conducted by it in any state in which an Asset is located and comply 

with the doing business laws of any such state, to the extent necessary to ensure its ability to 

manage the Assets in accordance with the terms of this Agyeement and to perform any of its 

other obligations under this Agreement in accordance with the terms hereof. 

3.11 No Bankruptcy Filing. Neither the Manager nor the Private Owner may cause or 

permit the Company to: (a) file a voluntary petition for bankruptcy, (b) file a petition or answer 

seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or 

similar relief under any Law, (c) make an assignment for the benefit of creditors, (d) seek, 

consent or acquiesce in the appointment of a trustee, receiver or liquidator or of all or any 

substantial part of its properties, (e) file an answer or other pleading admitting or failing to 

contest the material allegations of (i) a petition filed against it in any proceeding described in 

clauses (a) through (d), or (ii) any order adjudging it a bankrupt or insolvent or for relief against 

it in any bankruptcy or Insolvency Proceeding, or (f) allow itself to become unable to pay its 

obligations as they become due. 

3.12 No Liens. The Manager shall not cause the Company to place, or permit 

(voluntarily or involuntarily) to be placed, any Lien on any of the Assets, the Collateral, the 

Asset Documents, or the Asset Proceeds, except, in the case of Collateral, such Liens caused or 

permitted by the Manager (i) as permitted under the Asset Documents where the applicable 

Borrower is not in default thereunder and (ii) as permitted by the terms of the Reimbursement, 

Security and Guaranty Ageement; and the Manager shall not take any action to interfere with 

the Collateral Agent's rights as a secured party with respect to Assets, the Collateral and the 

Asset Proceeds. 

3.13 Remedies Upon an Event of Default; Security Interest. 

(a) Upon the occurrence of an Event of Default, in addition to all other 

remedies available hereunder or under the other Transaction Documents upon such an Event of 

Default, the Initial Member shall be entitled to: 

(i) remove the Private Owner as the Manager or Servicer pursuant to 

Sections 3.2 and 12A; 

(ii) remove the Private Owner as a Member in connection with the 

exercise by the Initial Member of its remedial rights under (and subject to the terms and 

conditions of) this Section 3.13(a); 

(iii) purchase (or cause a designee to purchase) the LLC Interest of the 

Private Owner pursuant to Section 3.14; 

(iv) designate itself or any applicable transferee Member as the 

Manager hereunder, and/or 

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(v) with or without notice to or demand upon the Private Owner 

(except as may be required by Law), exercise any or all rights and remedies with respect to the 

Secured Assets and any Qualifying Letter of Credit, specifically including the right (A) to 

foreclose on the LLC Interest held by the Private Owner and transfer such LLC Interest to a third 

party (it being agreed that none of the Private Owner, the Manager or any of their Affiliates shall 

participate in any sale of the Private Owner Interest without the written consent of the Initial 

Member); (B) to draw upon any or all Qualifying Letters of Credit, by presenting to the 

applicable Issuing Bank one or more drafts or demands and any other necessary documents, and 

to receive (in a lump sum or in several sums from time to time at the sole discretion of the Initial 

Member) any or all amounts available for drawing under each such Qualifying Letter of Credit; 

and/or (C) to exercise any rights under the Private Owner Pledged Account Control Agreement 

(or otherwise) with respect to the Private Owner Pledged Account, including the right to assume 

exclusive control over the Private Owner Pledged Account and to cause the funds therein to be 

remitted (in a lump sum or in several sums from time to time at the sole discretion of the Initial 

Member) to or at the direction of the Initial Member. 

The removal of the Private Owner as Member shall be subject to Section 8.4. 

(b) For the avoidance of doubt, in the event that the Initial Member 

determines to exercise its remedies against any Secured Assets or any Qualifying Letter of Credit, 

it shall have the absolute right to deduct from the proceeds of such exercise of remedies (including 

proceeds of any foreclosure sale with respect to the LLC Interests, any drawing on a Qualifying 

Letter of Credit and any receipt of funds from the Private Owner Pledged Account), any 

Indemnified Losses arising out of or resulting from such Event of Default incurred by the 

Indemnified Parties, together with all costs and expenses (including, without limitation, attorneys' 

fees and disbursements) incurred by the Initial Member in connection with enforcing its rights and 

remedies hereunder and under the other Transaction Documents; and any Private Owner 

Obligations then due and payable (in each case in such order as the Initial Member may determine 

in its sole discretion); provided that the Initial Member may, in its sole discretion, hold any such 

proceeds as additional security for any existing or future Private Owner Obligations. Without 

limitation of the foregoing, in no event shall the Initial Member have any obligation (but it shall at 

all times have the right in its sole discretion) to use or apply any proceeds of the Secured Assets 

toward payment of any Private Owner Obligations owing to the Company (whether or not the 

same are due and payable), and the Private Owner shall remain fully obligated to pay and perform 

all such Private Owner Obligations owing to the Company notwithstanding any such election by 

the Initial Member to so refrain from applying such proceeds toward payment of the same; and, in 

the event that, for any reason any such proceeds of the Secured Assets are used for payment of 

any Private Owner Obligations owing to the Company, any and all rights of the Private Owner to 

payments, reimbursements or distributions from the Company on account of any such payment to 

the Company (including rights to any repayment of any deemed Excess Working Capital 

Advances, to the extent any such proceeds are used to fund the same), shall be considered as part 

of the Secured Assets and shall, to the extent paid or payable by the Company, be paid directly to 

the Initial Member (and the Initial Member shall have the right to direct the Paying Agent to so 

remit to the Initial Member any applicable distributions or payments by the Paying Agent with 

respect thereto) to be held and applied by the Initial Member as part of the proceeds of the 

Secured Assets (as collateral for the Private Owner Obligations). Any Secured Assets or proceeds 

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13312136.2 
thereof as held by the Initial Member may be commingled with the Initial Member's own funds, 

without any need to pay interest or income thereon. Upon indefeasible payment and performance 

in full all of the Private Owner Obligations (following the dissolution of the Company), any 

remaining unapplied proceeds (from an exercise of remedies by the Initial Member against the 

rights of the Private Owner to the Secured Assets or any Qualifying Letter of Credit) so held by 

the Initial Member, shall be released to the Private Owner (or such other Person as may have 

applicable rights therein in accordance with applicable Law). In any event, the Private Owner 

shall remain liable for any deficiency in payment of the Private Owner Obligations. 

(c) This Agreement shall constitute a security ageement under applicable 

Law for the benefit of the Initial Member and, in furtherance thereof, the Private Owner (in all of 

its capacities) and the Company (as applicable) shall be deemed to have granted, and each does 

hereby punt, to the Initial Member, for itself (and its assignees), a valid and continuing first 

priority Lien on and security interest in all of the Private Owner's right, title and interest in, to and 

under, the Secured Assets, whether now owned or existing, or hereafter acquired and arising in, to 

and under the Secured Assets and all of the proceeds of the foregoing, as security for the payment 

and performance (when due) by the Private Owner (including in its roles as the Manager and the 

Tax Matters Member) of the Private Owner Obligations. For the avoidance of doubt, the parties 

acknowledge that the Secured Assets are not, pursuant to the foregoing, collateral for the separate 

payment obligations of the Company except to the extent that, pursuant to this Agreement or the 

other Transaction Documents, the Private Owner, in any capacity, is required to pay (or advance 

applicable funds to pay) or otherwise bear such obligations (and in such case, such Secured Assets 

secure such obligations of the Private Owner to the Company and, if applicable, the Initial 

Member and the Indemnified Parties only, and not any such separate obligations of the Company 

to any other Persons), such that the Secured Assets do not secure the Company's payment 

obligations under the Purchase Money Note. For purposes of this Agreement, the term "Secured 

Assets" shall mean (x) all right, title and interest of the Private Owner in and to the Private Owner 

Pledged Account (and all funds therein and related rights thereto as more specifically described in 

the Private Owner Pledged Account Control Agreement), (y) the LLC Interest held by the Private 

Owner and all other rights of the Private Owner (in any capacity) under this Agreement and the 

other Transaction Documents (including rights to any distributions or payments on account of any 

Excess Working Capital Advances or Discretionary Funding Advances made by or on behalf of 

the Private Owner), and (z) all proceeds of any of the foregoing at any time (including 

distributions thereon or other income in respect thereof). The Private Owner represents and 

warrants that its does and shall at all times own the Secured Assets free and clear of any Liens, 

security interests or other encumbrances and, upon the filing of a UCC financing statement with 

respect thereto, as applicable, the Initial Member shall have a perfected and continuing first 

priority Lien on and security interest in the Secured Assets, whether now owned or existing, or 

hereafter acquired and all of the proceeds thereof, as security for the payment and performance 

(when due) by the Private Owner (including in its roles as the Manager and the Tax Matters 

Member) of the Private Owner Obligations. 

(d) As additional security for the Private Owner Obligations (and, as 

applicable, as part of the Secured Assets), the Private Owner shall deliver on the Closing Date, 

and at all times thereafter cause to be maintained, the Additional Security. Such Additional 

Security shall consist of either Qualifying Cash Collateral and interest earned thereon (and 

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13312136.2 
Permitted Investments with respect thereto) or one or more Qualifying Letters of Credit. In the 

event that the Private Owner determines to fulfill its obligation to provide the Additional Security 

by issuance of a Qualifying Letter of Credit, the Private Owner shall cause the issuance and 

delivery to the Initial Member, on the Closing Date, of a single Qualifying Letter of Credit in the 

full amount of such Additional Security. For the avoidance of doubt, during the term of the 

Transaction, the Private Owner may make a one-time substitution of the form of the Additional 

Security by substituting, as the case may be, either (x) a Qualifying Letter of Credit for Qualifying 

Cash Collateral, or (y) Qualifying Cash Collateral for a Qualifying Letter of Credit; provided, 

however, that at all times the amount of the Additional Security is equal to or greater than the 

Private Owner Pledged Amount; and provided, further, however, the Private Owner shall solely be 

responsible for any incurred costs of the Initial Member, the Company, the Purchase Money Notes 

Guarantor, and the Collateral Agent associated with any such substitution of the form of the 

Additional Security as referenced in this sentence. The Initial Member shall have the unilateral 

right to draw on any such Qualifying Letter of Credit and to provide instructions to the Paying 

Agent for the disposition of the Qualifying Cash Collateral in the Private Owner Pledged Account, 

in each case without any requirement for any further consent, confirmation or instructions from 

the Private Owner; provided, however, that as between the Initial Member and the Private Owner 

(and without creating any right or obligation of the Paying Agent or any Issuing Bank to refuse to 

honor, or inquire as to the accuracy or sufficiency of, any applicable instructions from the Initial 

Member), the Initial Member agrees that (i) it shall not exercise such rights to so draw on any 

such Qualifying Letter of Credit unless there shall have occurred an Event of Default (whether or 

not relating to any Qualifying Letter of Credit) or an LC Reissuance/Extension Failure (with 

respect to such Qualifying Letter of Credit), and (ii) it shall not exercise such rights to so 

unilaterally direct the disposition of the Qualifying Cash Collateral from the Private Owner 

Pledged Account unless there shall have occurred an Event of Default. 

(e) On the Closing Date (and whether or not the Private Owner has elected to 

provide the Additional Security in the form of Qualifying Cash Collateral), the Private Owner 

shall establish the Private Owner Pledged Account with the Paying Agent for the exclusive 

purpose of holding Qualifying Cash Collateral (including in the form of any proceeds from a 

drawing on a Qualifying Letter of Credit at any time deposited in the Private Owner Pledged 

Account in accordance herewith). The Private Owner Pledged Account (and all funds and 

financial assets therein) shall be subject to the security interest granted herein for the benefit of the 

Initial Member pursuant to the terms of this Agreement, the Custodial and Paying Agency 

Agreement and the Private Owner Pledged Account Control Agreement. Funds in the Private 

Owner Pledged Account may be invested at the direction of the Private Owner from time to time 

in Permitted Investments in accordance with the Custodial and Paying Agency Agreement; 

provided, however, that the Private Owner is authorized to instruct the Custodian and Paying 

Agent to release that portion of the proceeds in the Private Owner Pledged Account which exceed 

the required Private Owner Pledged Amount, all in accordance with Section 3.7(b) of the 

Custodial and Paying Agency Agreement. 

Upon the occurrence of any LC Reissuance/Extension Failure, the Initial 

Member shall have the right (but not the obligation) to draw on all or any part of the undrawn 

amount of any Qualifying Letter of Credit subject to such LC Reissuance/Extension Failure; and 

the funds received by the Initial Member as a result of any such draw shall be deposited in the 

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13312136.2 
Private Owner Pledged Account (as Qualifying Cash Collateral) and such LC 

Reissuance/Extension Failure shall not be deemed an Event of Default hereunder, in each case 

only so long as (i) there shall not have occurred any Event of Default (other than such LC 

Reissuance/Extension Failure), (ii) the Private Owner Pledged Account shall then be and remain 

open and subject to the Private Owner Pledged Account Control Agreement, and (iii) upon such 

deposit in the Private Owner Pledged Account (of the funds received by the Initial Member from 

such draw), the aggregate amount of the Additional Security (disregarding such affected 

Qualifying Letter of Credit) shall be in an amount not less than the Private Owner Pledged 

Amount, it being understood that, in the event the foregoing conditions are not satisfied, the Initial 

Member shall have the right to hold and apply such funds pursuant to Section 3.13(b) above. 

(g) The Private Owner hereby authorizes the filing by the Initial Member and 

its assignees of such financing or continuation statements in such jurisdictions as the Initial 

Member or its assignees deem appropriate (in their sole and absolute discretion) to perfect and 

continue their first priority Lien and security interest with respect to the Secured Assets. The 

Private Owner shall deliver to the Initial Member an assignment and assumption agreement with 

respect to the LLC Interest held by it, in the form attached hereto as Exhibit C, endorsed in blank, 

and executed by the Private Owner. The Initial Member may use the assignment and assumption 

agreement to effect the assignment of the LLC Interest held by the Private Owner at any time if an 

Event of Default occurs and is continuing. The Initial Member's election to exercise any remedy 

under this Section 3.13 shall in no way limit the Initial Member's rights under the other 

Transaction Documents. 

(h) After all of the obligations secured by the Secured Assets have been 

indefeasibly paid and performed in full (following the dissolution of the Company), the Initial 

Member shall, upon the request of the Private Owner, release any then outstanding Qualifying 

Letters of Credit and consent to the termination of the Private Owner Pledged Account Control 

Agreement. 

(i) The Initial Member's rights and remedies under this Agreement, any other 

Transaction Document or otherwise are cumulative and may be exercised singularly (and in such 

order as the Initial Member may determine in its sole discretion) or concurrently. Neither any 

failure nor delay on the part of the Initial Member to exercise any other right or remedy shall 

operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude 

any other or further exercise thereof or of any other right or remedy howsoever arising. In no 

event shall the Initial Member have any obligation to seek or exhaust any particular remedy prior 

to exercising any other remedy, and the Private Owner hereby waives any and all right to require 

the marshalling of assets in connection with any exercise by the Initial Member of its remedies 

hereunder or under any other Transaction Document. Under no circumstances shall the Initial 

Member be deemed or construed to have waived its right to draw upon any Qualifying Letter of 

Credit, to proceed against the Private Owner Pledged Account, to foreclose upon the LLC Interest 

of the Private Owner or to exercise any of its other rights or remedies unless such waiver is in 

writing and executed by a duly authorized representative of the Initial Member. A waiver of any 

right or remedy on any one occasion shall not operate as a waiver of such right or remedy on any 

future occasion or as a waiver of any other right or remedy. 

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13312136.2 
3.14 Purchase Right of Initial Member. Without prejudice to the rights of the Initial 

Member to foreclose on the LLC Interest of the Private Owner in accordance with Section 3.13: 

(a) Upon the occurrence and during the continuance of an Event of Default, 

the Initial Member may at any time, by notice (a "Buy-Out Notice") to the Private Owner, 

elect to purchase (or cause one or more designees to purchase) the Private Owner Interest for an 

amount, payable in cash, equal to (x) the fair market value of such LLC Interest (determined, if 

necessary, in accordance with Section 3.14(b)(iv)) as of a date (the "Buy-Out Valuation Date") 

selected by the Initial Member in its discretion between the date of the Buy-Out Notice and the 

closing of such purchase (the "Buy-Out Closing"), less (y) any amounts owed by the Private 

Owner pursuant Section 3.14(b)(v), and less (z) any distributions paid by the Company to or for 

the account of the Private Owner between the date of the Buy-Out Valuation Date and the BuyOut Closing. 

If the Private Owner receives a Buy-Out Notice, the Buy-Out Closing 

shall be consummated as follows: 

(i) The Buy-Out Closing shall be held at the principal offices of the 

Company on a day selected by the Initial Member, which day shall, subject to Section 

3.14(b)(iv), be no later than six (6) months after the Buy-Out Notice was delivered to the Private 

Owner or at such other place or on such other date as the parties may agree (the "Buy-Out 

Closing Date"). 

(ii) The Initial Member shall purchase (and/or cause one or more 

designees to purchase in the aggregate) all but not less than all of the of the Private Owner 

Interest for the consideration set forth in Section 3.14(a), and against delivery of such 

consideration, the Private Owner shall deliver all such documents and instruments as are 

necessary to transfer to the Initial Member (and/or its designee(s)), and in any event shall be 

deemed to have transferred, and to have represented and warranted to the Initial Member (and/or 

its designee(s)) that it has transferred, to the Initial Member (and/or its designee(s)), good title to 

(and, in any event, all right, title and interest of the Private Owner in and to) the entire Private 

Owner Interest, free and clear of all Liens other than those created by this Agreement and the 

other Transaction Documents. 

(iii) The Private Owner shall obtain all material consents, approvals or 

waivers (including expiration or termination of a specified waiting period) of any Govermnental 

Authority or Person that may be required in connection with the purchase and sale of the Private 

Owner Interest (other than any such consent, approval or waiver which has, if permitted by Law, 

been waived by the Initial Member). 

(iv) In the event of the delivery of a Buy-Out Notice, the Members 

shall attempt to agree on the fair market Value of the Private Owner Interest as of the Buy-Out 

Valuation Date. If the Members are unable to agree on such value within fifteen (15) days after 

the date of delivery of the Buy-Out Notice (or, if sooner, by the Buy-Out Closing Date), then 

such value shall be determined immediately thereafter in accordance with the Dispute Resolution 

Procedure, and, if applicable, the Buy-Out Closing Date shall be delayed until such date (after 

completion of the applicable valuation) as may be selected by the Initial Member. For the 

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13312136.2 
avoidance of doubt, in no event shall the right under this Section 3.14 or any valuation resulting 

from a Dispute Resolution Procedure create any obligation with respect to, or otherwise limit the 

rights of the Initial Member in connection with, any concurrent or subsequent foreclosure (or 

sale) of the Private Owner Interest pursuant to Section 3.13 and/or exercise of relevant rights 

under the Uniform Commercial Code or otherwise, and the Private Owner acknowledges and 

agrees that any foreclosure and sale pursuant to Section 3.13 and relevant rights under the 

Uniform Commercial Code or otherwise may result in a sale price for the LLC Interest that is 

significantly lower than the fair market value of the Private Owner Interest potentially (or having 

actually been) determined pursuant to this Section or other price set out in any Buy-Out Notice. 

(v) All out-of-pocket costs and expenses incurred by the Initial 

Member in connection with the exercise of its rights under this Section 3.14 and the sale of the 

LLC Interest by the Private Owner (including fees of any investment banking firm retained in 

connection with the Dispute Resolution Procedure and legal fees and expenses incurred in 

connection with obtaining any necessary consents, approvals or waivers (including expiration or 

termination of a specified waiting period) of Governmental Authorities) shall be borne by the 

Private Owner and may be deducted from the purchase price otherwise payable by the Initial 

Member (or its designee(s)) for the Private Owner Interest. 

(c) The failure of the Initial Member to exercise its rights under this Section 

3.14 in connection with any Event of Default shall in no way affect or limit the exercise of such 

rights in connection with any other Event of Default by the Private Owner. 

(d) At any time prior to the Buy-Out Closing, the Initial Member may elect 

not to proceed with the Buy-Out Closing (without any liability or further obligation with respect 

thereto), and the Private Owner shall remain responsible for amounts owed under Section 

3.14(b)(v) notwithstanding any such election by the Initial Member. 

(e) Any distributions payable by the Company to the Private Owner after the 

Buy-Out Valuation Date shall, at the option of the Initial Member, be paid to and held by the 

Initial Member (or, if permitted by the Paying Agent, held by the Paying Agent in the Distribution 

Account) and, at the Buy-Out Closing or a reasonable time thereafter, be released to the Private 

Owner less, without duplication, any amounts owed by the Private Owner pursuant to this 

Agreement (including costs and expenses pursuant to Section 3.14(b)(v)). For the avoidance of 

doubt, neither the Initial Member nor the Paying Agent shall have any obligation to segregate, or 

pay interest or other income in respect of, any sums held pursuant to this Section 3.14(e). 

3.15 No ERISA Plan Assets. The Manager shall use its reasonable best efforts to 

ensure that the Company's assets are not deemed to be "plan assets" within the meaning of 

Section 3(42) of ERISA and the Plan Asset Regulation. 

ARTICLE IV 


Membership Interests; Rights and Duties of, and Restrictions on, Members 


4.1 General. The membership of the Company shall consist of the Members listed 

from time to time in Annex I (the Member Schedule), and such substituted Members as may be 

admitted to the Company pursuant to Article VIII. The Manager shall cause Annex I (the 

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13312136.2 
Member Schedule) to be amended from time to time to reflect the admission of any additional 

Members, additional Capital Contributions of the Members, the issuance of additional limited 

liability company interests, transfers of LLC Interests, repurchases, redemptions or cancellations 

of LLC Interests, the cessation or withdrawal of a Member for any reason or the receipt by the 

Company of notice of any change of name or address of a Member. 

4.2 LLC Interests. 

(a) Creation and Issuance. The Company is only authorized to issue the LLC 

Interests that exist as of the date hereof, and the Company may not hereafter create or issue any 

limited liability company interest, provided that nothing in this sentence restricts the Disposition 

of any outstanding LLC Interest by any Member (which matter is governed by Article VIII). The 

Company's LLC Interests shall be uncertificated. The LLC Interests shall have the relative rights, 

powers, duties and obligations specified in this Section 4.2. As of the Closing Date, the LLC 

Interests are owned by the Initial Member and the Private Owner, as set forth in Annex I (the 

Member Schedule). Other than as set forth in this Agreement, each LLC Interest shall be identical 

in all respects to each other outstanding LLC Interest. 

(b) Distributions. Subject to Sections 6.6, distributions to the holders of LLC 

Interests shall be made as provided in Section 6.6(b) and Section 9.2. 

(c) No Retirement Fund or Conversion. The LLC Interests shall not be 

subject to the operation of a retirement or sinking fund to be applied to the purchase or redemption 

thereof for retirement and shall not be convertible into any other class of limited liability company 

interests. 

(d) Voting Rights. Except to the extent otherwise required by the Act or 

expressly provided in this Agreement, the holders of the LLC Interests shall be entitled to vote on 

all matters upon which the Members have the right to vote as set forth in this Agreement or 

provided in the Act. Except as expressly set forth elsewhere in this Agreement (including 

Section 3.1 and Section 3.4), the voting rights of each holder of LLC Interests shall be based on 

such holder's Percentage Interest. 

4.3 Filings; Duty of Members to Cooperate. The Manager shall promptly cause to be 

executed, delivered, filed, recorded or published, as appropriate, and the Private Owner will, as 

requested by the Manager from time to time, execute and deliver, (a) all certificates, documents 

and other instruments that the Manager deems necessary or appropriate to form, qualify or 

continue the existence or qualification of the Company as a limited liability company in the State 

of Delaware or as a foreign limited liability company in all other jurisdictions in which the 

Company may, or may desire to, conduct business or own Company Property, (b) any 

amendment to the Certificate or any instrument described in clause (a) required because of, or in 

order to effectuate, an dmendment to this Agreement, or any change in the membership of the 

Company, in accordance with the terms hereof, (c) all certificates, documents and other 

instruments (including conveyances and a certificate of cancellation) that the Manager deems 

necessary or appropriate to reflect the dissolution and liquidation of the Company pursuant to the 

terms of this Agieement, and (d) such other certificates, documents and other instruments as are 

required by Law or by any Governmental Authority to be executed by them in connection with 

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13312136.2 
the Business as conducted or proposed to be conducted by the Company from time to time. As 

soon as reasonably practical after the date hereof, the Manager shall cause the Company to apply 

for, and thereafter use its reasonable best efforts to obtain, as quickly as possible, and maintain, 

all such licenses as are required to conduct the Business, including qualifications to conduct 

business in jurisdictions other than Delaware and licenses to purchase, own or manage the 

Assets, if the failure to so obtain such licenses would reasonably be expected to result in the 

imposition of fines, penalties or other liabilities on the Company, claims and defenses being 

asserted against the Company (including counterclaims and defenses asserted by any Borrower 

under the Assets), or materially adversely affect the Company or the Company's ability to 

foreclose on the Collateral securing any Loan or otherwise realize the full value of any Asset or 

Acquired Property. 

4.4 Certain Restrictions and Requirements. 

(a) No Member may use or possess Company Property other than for a 

Company purpose, except as provided under license or other contractual arrangements. No 

Member shall have authority to bind, or otherwise to act on behalf of, the Company except 

pursuant to authority expressly granted herein or pursuant to authority granted by the Manager in 

accordance with the terms hereof. 

(b) From and after the Closing Date, no Person may or shall be admitted as a 

member of the Company except pursuant to and in accordance with Article VIII hereof. 

(c) Each Member, other than the Initial Member, shall at all times meet the 

qualifications of a Qualified Transferee. 

4.5 Liability of the Initial Member. Neither the Initial Member nor any other Initial 

Member Related Person shall be liable, responsible or accountable, whether directly or 

indirectly, in contract or tort or otherwise, to the Company, any other Person in which the 

Company has a direct or indirect interest or any Member (or any Affiliate of any of the 

foregoing), for any Damages asserted against, suffered or incurred by the Company, any Person 

in which the Company has a direct or indirect interest or any Member (or any Affiliate of any of 

the foregoing) arising out of, relating to or in connection with this Agreement or any act or 

failure to act pursuant to this Agreement or otherwise with respect to: 

(a) the management or conduct of the business and affairs of the Company or 

any Person in which the Company has a direct or indirect interest or any of their respective 

Affiliates (including, without limitation, actions taken or not taken by any Initial Member Related 

Person as an officer or director of any Person in which the Company has a direct or indirect 

interest or any Affiliates of such Person); 

(b) the offer and sale of limited liability company interests in the Company 

(including the LLC Interests) or the issuance of the Purchase Money Note; and 

(c) the management or conduct of the business and affairs of any Initial 

Member Related Person insofar as such business or affairs relate to the Company or any Person in 

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13312136.2 
which the Company has a direct or indirect interest or to any Member in its capacity as such, 

including, all: 

(i) activities in the conduct of the Business, and 

(ii) activities in the conduct of other business engaged in by any Initial 

Member Related Person which might involve a conflict of interest vis-à-vis the Company or any 

Person in which the Company has a direct or indirect interest or any Member (or any of their 

respective Affiliates) or in which any Initial Member Related Person realizes a profit or has an 

interest; 

except, in each case, that this sentence does not apply to Damages resulting from acts or 

omissions of such Initial Member Related Person which were taken or omitted which constituted 

fraud, gross negligence, willful misconduct, or an intentional material breach of this Agreement 

or any other Transaction Document. 

4.6 Indenmification. 

(a) The Private Owner shall indemnify, defend and hold harmless the Initial 

Member and the Initial Member's Affiliates, and their respective officers, directors, employees, 

partners, principals, agents and contractors (all of the foregoing, collectively, the "Indemnified 

Parties"), from and against any Indemnified Losses, arising out of or resulting from (i) any breach 

after the Closing Date, by (x) the Company (during any period when the Private Owner is the 

Manager, and subject to the clarification set forth below in this Section 4.6(a)), the Private Owner 

(in any capacity, including as the Manager) or any of their respective Affiliates or (y) any of the 

respective officers, directors, employees, partners, principals, agents or contractors of any Person 

described in sub-clause (x), of the obligations of the Company or the Private Owner (in any 

capacity, including as the Manager) under, or any other covenants, agreements or other terms and 

conditions contained in, this Agreement or any other Transaction Document (including 

Indemnified Losses relating to (1) the Company's obligations with respect to litigation referred to 

in Section 4.5 of the Contribution Agreement to the extent provided therein, (2) the Company's 

obligations under Sections 3.1 and 3.2 of the Contribution Agreement (including all costs and 

expenses of the Initial Member in completing any applicable transfers pursuant to exercise of 

rights under such section), and (3) any claim asserted by the Initial Member against the Company 

or the Private Owner (in any capacity, including as the Manager) to enforce its rights hereunder or 

by any third party), or any third-party allegation or claim based upon facts alleged that, if true, 

would constitute such a breach; (ii) any gross negligence, bad faith or willful misconduct 

(including any act or omission constituting theft, embezzlement, breach of trust or violation of any 

Law) on the part of any Person described in sub-clause (i)(x) or (i)(y); or (iii) any Indemnified 

Losses with respect to which the Initial Member was released, or with respect to which the 

Company should have obtained a release from the applicable Borrowers or other Obligors, in 

accorddnce with Section 4.17(b) of the Contribution Agreement. Such indemnity shall survive the 

termination of this Agreement. Each Indemnified Party shall deliver notice of a Loss or a claim or 

demand made by any Person against the Indemnified Party (a "Third Party Claim") to the 

Private Owner 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 

32 


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13312136.2 
is available to the Indemnified Party and as the Private Owner may reasonably request. The 

failure or delay to provide such notice, however, shall not release the Private Owner from any of 

its obligations under this Section 4.6 except to the extent that it is materially prejudiced by such 

failure or delay. The Private Owner acknowledges and agrees that it shall have no recourse 

against the Company for any amounts the Private Owner is required to pay pursuant to this 

Section 4.6. For the purposes of this Section 4.6, the term "Initial Member" shall be deemed to 

include any Person at any time constituting the "Initial Member" hereunder (other than for 

purposes of this Section 4.6) and (without limitation of the foregoing) any Person at any time 

holding all or any portion of the LLC Interest initially held by the Initial Member immediately 

after the Closing, in each case even if such Person has since ceased to be a Member of the 

Company or to hold any limited liability company interest in the Company. For purposes of 

clarification, with respect solely to the obligations of the Private Owner under this Section 4.6(a) 

in connection with a breach by the Company (during any period when the Private Owner is the 

Manager), the Private Owner shall not be responsible for any Indemnified Losses arising out of or 

resulting from any failure by the Company to pay its separate payment obligations (including such 

payment obligations under the Purchase Money Note), to the extent that all of the following are 

satisfied: (1) such failure is the result of the Company having insufficient available funds 

notwithstanding the servicing of the Assets and management of the Company by the Manager 

(and, as applicable, the Servicer and any Subservicers) in accordance with this Agreement and the 

other Transaction Documents (including through exercise of any discretionary authority with 

respect to incurrence of payment obligations and maintenance and application of applicable 

reserves in a manner so as to reasonably avoid any such breach), (2) such failure and resulting 

Indemnified Losses are not attributable in whole or in part to any breach (or other action or 

omission in violation of the Servicing Standard or any provision of this Ageement or any other 

Transaction Document) by the Private Owner (in any capacity, including as Manager) or any of its 

Affiliates (other than the Company), or by any of the respective officers, directors, employees, 

partners, principals, agents or contractors of any of the foregoing, and (3) the Private Owner (in 

any capacity) is not required to pay (or advance applicable funds to the Company for payment of) 

or otherwise bear such payment obligations pursuant to the terms of this Agreement or any other 

Transaction Document. 

(b) If for any reason the indemnification provided for herein is unavailable or 

insufficient to hold harmless the Indemnified Parties, the Private Owner shall contribute to the 

amount paid or payable by the Indemnified Parties as a result of the Indemnified Losses of the 

Indemnified Parties in such proportion as is appropriate to reflect the relative fault of the 

Indemnified Parties, on the one hand, and the Private Owner (in any capacity, including as the 

Manager) (including the Servicer or any Subservicer), on the other hand, in connection with the 

matters that are the subject of such Indemnified Losses. 

(c) If the Private Owner confirms in writing to the Indemnified Party within 

fifteen (15) days after receipt of a Third Party Claim the Private Owner's responsibility to 

indemnify, defend and hold harmless the Indemnified Party therefor, the Private Owner may elect 

to assume control over the compromise or defense of such Third Party Claim at the Private 

Owner's sole expense and with counsel selected by the Private Owner, 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 

33 

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13312136.2 
assist in the handling (but not control the defense) of any Third Party Claim; (ii) the Private 

Owner shall keep the Indemnified Party advised of all material events with respect to any Third 

Party Claim; (iii) the Private Owner 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 the Indemnified Party or any of its Affiliates; and (iv) the Private 

Owner will not, without the prior written consent of the 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 Private 

Owner to satisfy the full amount of the liability in connection with such Third Party Claim and 

includes an unconditional release of such Indemnified Party from all liability arising out of such 

Third Party Claim. 

(d) Notwithstanding anything contained herein to the contrary, the Private 

Owner 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 Private Owner shall 

nevertheless be required to pay all Indemnified 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 Private Owner (in any capacity, including as the Manager) or any 

Affiliate of the Private Owner, on one hand, and the Indemnified Party, on the other hand, are 

named as parties and either the Private Owner (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 

Private Owner 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 Private Owner shall nevertheless be required to pay all Indemnified Losses incurred by 

the Indemnified Party in connection with such defense, settlement or compromise). In connection 

with any defense of a Third Party Claim (whether by the Private Owner or the Indemnified Party), 

all of the parties hereto shall, 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. 

(e) In the event the Company is reimbursed for or uses any funds on deposit 

in the Working Capital Reserve Account, or Excess Working Capital Advances to pay costs or 

expenses of the type referred to in clause (v) or (vi) of the definition of Servicing Expenses and it 

is subsequently determined that the Company was not entitled to reimbursement for (or to use the 

Working Capital Reserve Account, or Excess Working Capital Advances to pay) all or any 

portion of such costs and expenses because the Company did not satisfy the requirements of 

Section 4.6(c) or clause (v) of the definition of Servicing Expenses (such costs and expenses, the 

34 

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Amended and Restated Limited Liability Company Agreement 

13312136.2 
"Unreimbursable Expenses"), the Manager shall, in addition to any other Indemnified Losses for 

which the Manager may be liable with respect to the claim to which such costs and expenses 

relate, reimburse the cost of such Unreimbursable Expenses to each Member based on such 

Member's Percentage Interest as set forth below, except to the extent such Unreimbursable 

Expenses were funded through Excess Working Capital Advances that remain outstanding (in 

which case the portion of any such outstanding Excess Working Capital Advance that was so used 

for Unreimbursable Expenses shall itself become unreimbursable and be deemed forgiven with no 

further right of the Manager to collect or receive the same). Any such reimbursement by the 

Manager pursuant to the foregoing shall be as follows: within ten (10) Business Days after 

written demand therefor from either Member, the Manager shall pay each Member by wire 

transfer of immediately available funds to an account specified by each Member an amount equal 

to such Member's Percentage Interest (as of the later of (x) the date of such demand or (y) the date 

of such payment) multiplied by the amount of all such Unreimbursable Expenses. 

(0 The Company shall indemnify, defend and hold harmless each Member 

and each Member's respective officers, directors, employees and members (all of the foregoing 

collectively, the "Covered Persons") for any Indemnified Losses incurred by such Covered 

Person by reason of a Third Party Claim relating to any act or omission by or of such Covered 

Person in connection with the exercise or performance of the rights, powers, responsibilities and 

obligations of such Covered Person (or, if such Covered Person is other than a Member, of the 

Member in respect of which such Covered Person so constitutes a Covered Person) regarding the 

Company except for (i) any Third Party Claim or Indemnified Losses resulting from fraud, gross 

negligence, willful misconduct or an intentional breach of this Agreement or any other 

Transaction Document by such Covered Person (or if such Covered Person is other than a 

Member, by the Member in respect of which such Covered Person so constitutes a Covered 

Person), and (ii) in the case of the Private Owner (in any capacity, including as the Manager), (x) 

any claim or demand by any Servicer or Subservicer (or, for the avoidance of doubt, any 

Indemnified Losses arising out of or related to such claim or demand) and (y) any Third Party 

Claim or Indemnified Losses that is in whole or in part covered by or subject to an 

indemnification obligation of the Private Owner (in any capacity, including as the Manager) under 

any provision of this Agreement or any other Transaction Document, including the foregoing 

provisions of Section 4.6(a). 

(g) Tax Liability of Ownership Entity. Notwithstanding anything to the 

contrary contained herein, if any Ownership Entity is not a pass-through entity with no entitylevel income Tax obligations, distributions to the Initial Member pursuant to Section 6.6 

(including for the purposes of Section 9.2(c)) shall be allocated before accrual or payment of any 

income Tax payable by such Ownership Entity, and the Private Owner (or its successors or 

assigns) shall indemnify and hold harmless the Initial Member from and against any liability for 

any income Taxes payable by the Ownership Entity; provided, however, that the foregoing special 

allocation and indemnity shall not apply if (i) the Private Owner (and each of its successors and 

assigns) has taken all steps necessary to secure pass-through treatment of the Ownership Entity 

and (ii) the liability for income Taxes payable by the Ownership Entity arises solely as a result of 

a change in Law applicable to pass-through entities occurring after the date hereof and not as a 

result of action (or inaction) by the Private Owner (or its successors or assigns). 

35 

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Amended and Restated Limited Liability Company Agreement 

13312136.2 
(h) Offsets. Without limiting any other rights of the Initial Member 

hereunder, in the event the Initial Member exercises any rights or remedies as a result of or in 

connection with a breach hereunder or the occurrence of an Event of Default (including relating to 

a breach of Section 4.6), all 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 claim) incurred by the Initial Member with respect 

thereto may be offset by the Initial Member against any payment or distribution otherwise payable 

to the Private Owner (including any Interim Management Fee or the Management Fee), whether 

in its capacity as a Member or as the Manager (in each case except to the extent such breach or 

Event of Default is attributable exclusively to a Manager having been appointed by the Initial 

Member following removal of the Private Owner in such capacity, or to any applicable Servicer 

(and any of its Subservicers) having been engaged by the Initial Member, the Company or the 

applicable replacement Manager following such removal of the Private Owner as the Manager, in 

each case that is not an Affiliate of the Private Owner). 

ARTICLE V 


Capital Contributions; Discretionary Funding Advance; 


Excess Working Capital Advance 


5.1 Capital Contributions. 

(a) Members' Contribution. Pursuant to the Contribution Ageement, the 

Initial Member made a Capital Contribution to the Company in an amount equal to the Initial 

Member Capital Contribution. In connection with the Transferred LLC Interest Sale Agreement, 

Private Owner acquired from the Initial Member the Transferred LLC Interest representing a fifty 

percent (50%) equity interest in the Company in exchange for the Transferred LLC Interest Sale 

Price. After giving effect to the foregoing transactions, (and to the Capital Contributions 

referenced in Section 5.2 below), the respective Capital Accounts of the Initial Member and the 

Private Owner as of the Closing Date are as set forth in Annex I (the Member Schedule). 

(b) From and after the Closing Date (and except as provided in Sections 5.2 

and 5.3 below), the Members shall have no obligation to make any additional Capital 

Contributions to the Company. 

5.2 Working Capital Reserve Account. On the Closing Date, the Initial Member and 

the Private Owner shall fund, as Capital Contributions to the Company, the Working Capital 

Reserve Account in accordance with the provisions of Section 12.11 hereof and Section 1 of the 

Transferred LLC Interest Sale AgTeement, wIlich funds shall be used for payment of Working 

Capital Expenses and Permitted Vertical Completion Expenses in accordance with the provisions 

in such Section 12.11 and as otherwise permitted pursuant to the Custodial and Paying Agency 

Agreement. 

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13312136.2 
5.3 Reserved. 

5.4 Discretionary Funding Advance. 

(a) In the event there are insufficient funds in the Collection Account and no 

funds in the Working Capital Reserve Account in excess of the Working Capital Reserve Floor 

(after use of all available funds from each such source) to fund Permitted Vertical Completion 

Expenses with respect to specific Assets, the Manager may, in its discretion, make an advance to 

the Company (a "Discretionary Fundin2 Advance"), which Discretionary Funding Advance 

shall be reimbursable (and shall accrue interest as set forth herein) only to the extent used 

exclusively for the applicable Permitted Vertical Completion Expenses for such specified Assets. 

In no event may Discretionary Funding Advances be used for payment of any Working Capital 

Expenses. The proceeds of Discretionary Funding Advances shall be deposited into the 

Collection Account for disbursement therefrom for the payment of the applicable Permitted 

Vertical Completion Expenses. All Discretionary Funding Advances, together with a detailed 

statement of the sources and uses thereof (which shall be broken out by the reimbursable and 

unreimbursable portions thereof) and description of the allocation to the Assets for which such 

Discretionary Funding Advance was made, shall be reflected in the Monthly Report with respect 

to the calendar month during which the relevant Discretionary Funding Advance was made. 

Notwithstanding anything to the contrary herein or in any other Transaction Document, any 

amounts disbursed or advanced by the Company in respect of Discretionary Funding Advances 

made by the Manager to the Company shall be disbursed or advanced in accordance herewith on 

behalf of the Company and not on behalf of the Manager in its individual capacity. The Manager 

agrees and acknowledges that the making of a Discretionary Funding Advance to the Company, 

and the advancing or disbursing of such amount by the Company in respect of an Asset, shall not 

create (i) a mortgage, lien, security interest or other encumbrance in favor of, or for the benefit of, 

the Manager in respect of such Asset, and (ii) a participation interest or other rights in favor of, or 

for the benefit of, the Manager in respect of any existing mortgage, lien or security interest held 

by or on behalf of the Company relating to such Asset. Discretionary Funding Advances shall not 

be regarded as additional Capital Contributions. 

(b) Discretionary Funding Advances shall bear interest on the outstanding 

principal amount thereof at a rate per annum equal to the thirty (30) day LIBOR Rate in effect 

from time to time, plus 3.0%. Interest shall be calculated on the basis of a 360 day year and actual 

days elapsed. Interest shall accrue on each Discretionary Funding Advance for the day on which 

the Discretionary Funding Advance is made, and shall not accrue on a Discretionary Funding 

Advance, or any portion thereof, for the day on which the Discretionary Funding Advance or such 

portion is paid. Each Discretionary Funding Advance, including interest accrued with respect 

thereto, shall be repaid in accordance with Sections 3.1 and 5A of the Custodial and Paying 

Agency Agreement (and subject to Section 3.12 hereof and Section 5.2 of the Reimbursement, 

Security and Guaranty Agreement), only out of the Asset Proceeds from the Asset in respect of 

which such Discretionary Funding Advance was made, it being agreed that, as to any specific 

amounts to be so applied to the repayment of one or more Discretionary Funding Advances 

relating to the same Asset, such amounts shall be applied first to outstanding interest on such 

Discretionary Funding Advances (on a pro rata basis as among such Discretionary Funding 

Advances, if applicable) and then to the principal amount (on a pro rata basis as among such 

37 

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Amended and Restated Limited Liability Company Agreement 

13312136.2 
Discretionary Funding Advances, if applicable). The Manager may not assign, sell, transfer, 

participate, pledge, or hypothecate, in whole or in part, its interest in any Discretionary Funding 

Advances without the consent of each of the Required Consenting Parties. 

5.5 Excess Working Capital Advances. In the event that (a) there are insufficient 

funds in the Collection Account, and insufficient available funds in the Working Capital Reserve 

Account (including, as applicable, by a permitted release of such funds to the Collection Account 

or as otherwise permitted in the Custodial and Paying Agency Agreement) to pay any Working 

Capital Expenses, or (b) there are insufficient funds in the Collection Account and also 

insufficient funds in the Working Capital Reserve Account (with such sufficiency of the 

Working Capital Reserve Account funds measured for purposes of this clause (b), but not for the 

foregoing clause (a), based on funds therein in excess of the Working Capital Reserve Floor, and 

including, as applicable, by a permitted release of such excess funds to the Collection Account or 

as otherwise permitted in the Custodial and Paying Agency Agreement) to fund the Defeasance 

Account by such amount as may be required to cure a Purchase Money Note Trigger Event, then 

the Manager (x) shall, except as otherwise provided in Section 12.6, make an advance of its own 

funds to the Company to be used by the Company for payment of such permitted (or required, as 

applicable) Working Capital Expenses and (y) may (but shall not have an obligation to) make an 

advance of its own funds to the Company to be used by the Company for such funding of the 

Defeasance Account (any such advance to the Company pursuant to the foregoing, an "Excess 

Working Capital Advance"). In no event may Excess Working Capital Advances be made or 

used for the payment of Permitted Vertical Completion Expenses. No Excess Working Capital 

Advance shall accrue any interest thereon. Excess Working Capital Advances shall be repaid in 

accordance with Section 5.1 of the Custodial and Paying Agency Agreement. The proceeds of 

Excess Working Capital Advances for payment of Working Capital Expenses shall be deposited 

into the Collection Account for disbursement therefrom for the payment of such permitted 

Working Capital Expenses. The proceeds of any Excess Working Capital Advance for an 

applicable funding of the Defeasance Account shall be deposited into (and the Manager shall 

remit such proceeds to the Paying Agent for such deposit into) the Defeasance Account. To the 

extent multiple Working Capital Expenses (payment of which is permitted to be made using such 

Excess Working Capital Advance) are outstanding, any funding or use by the Manager of Excess 

Working Capital Advances for payment of all or any of the same shall follow the relevant 

priorities as set forth in the Priority of Payments and in Section 3.1 of the Custodial and Paying 

Agency Agxeement, as applicable. All Excess Working Capital Advances, together with a 

detailed statement of the sources and uses thereof (which shall be broken out by the reimbursable 

and unreimbursable portions thereof), shall be reflected in the Monthly Report with respect to the 

calendar month during which (or, as applicable, the Distribution Date for which) the relevant 

Excess Working Capital Advance was made. The Manager may not assign, sell, transfer, 

participate, pledge, or hypothecate, in whole or in part, its interest in any Excess Working 

Capital Advances without the consent of each of the Required Consenting Parties. Excess 

Working Capital Advances shall not be regarded as additional Capital Contributions. 

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Amended and Restated Limited Liability Company Agreement 

13312136.2 
ARTICLE VI 


Capital Accounts; Allocations; Priority of Payments; Distributions 


6.1 Capital Accounts. A Capital Account shall be established and maintained for 

each Member to which shall be credited the Capital Contributions made by such Member and 

such Member's allocable share of Net Income (and items thereof), and from which shall be 

deducted distributions to such Member of cash or other Company Property and such Member's 

allocable share of Net Loss (and items thereof). As to the Private Owner, the initial Capital 

Account shall correspond to that portion of the Capital Account of the Initial Member that is 

attributable to the Transferred LLC Interest acquired by the Private Owner pursuant to the 

Transferred LLC Interest Sale Agreement, together with the Private Owner WCR Account 

Deposit made pursuant to the Transferred LLC Interest Sale Agreement. A Member's Capital 

Account also shall be adjusted for items specially allocated to such Member under this 

Article VI. The Capital Accounts of the Members generally shall be adjusted and maintained in 

accordance with Treasury Regulations Section 1.704-1(b)(2)(iv); provided, however, that such 

adjustments to, and maintenance of, the Capital Accounts shall not adversely affect the manner 

in which distributions are to be made to the Members under Section 6.6. 

6.2 Allocations to Capital Accounts. Allocation of Net Income and Net Loss shall be 

made as provided in this Article VI. 

(a) Except as otherwise provided in this Agreement, Net Income and Net Loss 

(and, to the extent necessary, individual items of income, gain, loss, deduction or credit) of the 

Company shall be allocated among the Members in a manner such that, after giving effect to the 

special allocations set forth in Section 6.2(b), the Capital Account balance of each Member, 

immediately after making such allocation, is, as nearly as possible, equal to (i) the distributions 

that would be made to such Member pursuant to Section 6.6 if the Company were dissolved, its 

affairs wound up and its assets sold for cash equal to their Book Value, all Company liabilities 

were satisfied (limited with respect to each nonrecourse liability to the basis of the assets securing 

such liability), and the net assets of the Company were distributed, in accordance with Section 

9.2(c), to the Members immediately after making such allocation, minus (ii) such Member's share 

of "partnership minimum gain" and "partner nonrecourse debt minimum gain" (as such terms are 

used in Treasury Regulations Section 1.704-2), computed immediately prior to the hypothetical 

sale of assets. 

(b) Allocations in Special Circumstances. The following special allocations 

shall be made in the following order: 

(i) Minimum Gain Chargeback. Notwithstanding any other provision 

of this Article VI, if there is a net decrease in minimum gain (as it corresponds to the definition 

of "partnership minimum gain" in Treasury Regulations Section 1.704-2(b)(2) and (d)) during 

any Fiscal Year, the Members shall be specially allocated items of Compariy income and gain foi 

such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to the portion 

of such Member's share of the net decrease in minimum gain, determined in accordance with 

Treasury Regulations Section 1.704-2(f) and (g). This Section 6.2(b)(i) is intended to comply 

with the "minimum gain chargeback" requirement in such section of the Treasury Regulations 

and shall be interpreted consistently therewith. 

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Amended and Restated Limited Liability Company Agreement 


13312136.2 
(ii) Member Minimum Gain Chargeback. Notwithstanding any other 

provision of this Article VI other than Section 6.2(b)(i), if there is a net decrease in minimum 

gain attributable to a Member nonrecourse debt (as it corresponds to the definition of 

"partnership nonrecourse debt minimum gain" in Treasury Regulations Section 1.704-2(i)) 

during any Fiscal Year, each Member shall be specially allocated items of Company income and 

gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to the 

portion of such Member's share of the net decrease in such minimum gain attributable to such 

Member's nonrecourse debt, determined in accordance with Treasury Regulations Section 1.704-

2(i). This Section 6.2(b)(ii) is intended to comply with the "partner minimum gain chargeback" 

requirement in such section of the Treasury Regulations and shall be interpreted consistently 

therewith. 

(iii) Qualified Income Offset. In the event any Member, for any reason, 

whether expected or not, has an Adjusted Capital Account Deficit, items of Company income 

and gain shall be specially allocated to each such Member in an amount and manner sufficient to 

eliminate, to the extent required by the Treasury Regulations, such Adjusted Capital Account 

Deficit as quickly as possible, provided that an allocation pursuant to this Section 6.2(b)(iii) shall 

be made only if and to the extent that such Member would have such Adjusted Capital Account 

Deficit after all other allocations provided for in Section 6.2 have been tentatively made as if this 

Section 6.2(b)(iii) were not in this Ageement. This Section 6.4b)(iii) is intended to comply with 

the "qualified income offset" provisions in Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and 

shall be interpreted consistently therewith. 

(iv) Nonrecourse Deductions. Any nonrecourse deductions attributable 

to a Member nonrecourse debt (as described in Treasury Regulations Section 1.704-2(i)) shall be 

allocated to the Member who bears the economic risk of loss with respect to such nonrecourse 

debt. Otherwise, nonrecourse deductions shall be allocable in accordance with the Members' 

respective Percentage Interests. 

(v) Loss Allocation Limitation. No allocation of Net Loss (or any item 

thereof) shall be made to any Member to the extent that such allocation would create or increase 

a Member's Adjusted Capital Account Deficit. If, in the allocation of Net Loss (or any item 

thereof), less than all Members would have an Adjusted Capital Account Deficit as a result of 

such allocation, then any Net Loss (or item thereof) not allocable to any such Member(s) as a 

result of such limitation shall be allocated (subject to such limitation) to the other Member so as 

to allocate the maximum permissible Net Loss to each Member under Treasury Regulation 

Section 1.704-1(b)(2)(ii)(d). 

(vi) Curative Allocations. The allocation provisions of this 

Section 6.2(b) are intended to comply with certain requirements of the Treasury Regulations. 

Notwithstanding any other provisions of this Article VI, any allocation effected pursuant to this 

Section 6.2(b) shall be taken into account in allocating Net IncOme and Net Loss ainong the 

Members such that the cumulative effect of all such allocations achieves the fundamental 

purpose of Section 6.2(a), so that the Capital Account balances correspond to the amounts 

distributable to the Members. 

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(c) Transfer of or Change in LLC Interests. The Tax Matters Member is 

authorized to adopt any convention or combination of conventions likely to be upheld for federal 

income Tax purposes regarding the allocation of items of Company income, gain, loss, deduction 

and expense with respect to a Transferred LLC Interest. A transferee of an LLC Interest in the 

Company shall succeed to the Capital Account of the transferor Member to the extent it relates to 

the Transferred LLC Interest. 

6.3 Tax Allocations. 

(a) General Rules. Except as otherwise provided in Section 6.3(b), for each 

Fiscal Year, items of Company income, gain, loss, deduction and expense shall be allocated, for 

federal, state and local income Tax purposes among the Members in the same manner as the Net 

Income (and items thereof) or Net Loss (and items thereof) of which such items are components 

were allocated pursuant to Section 6.2. 

(b) Section 704(c) of the Code. Income, gains, losses and deductions with 

respect to any property (other than cash) contributed or deemed contributed to the capital of the 

Company shall, solely for income Tax purposes, be allocated among the Members so as to take 

account of any variation between the Company's adjusted basis of such property, with respect to 

each member of the Company, for federal income Tax purposes and its Fair Market Value at the 

time of the contribution or deemed contribution in accordance with Section 704(c) of the Code 

and the Treasury Regulations promulgated thereunder. Such allocations shall be made in such 

manner and utilizing such permissible Tax elections as determined in good faith by the Tax 

Matters Member, following consultation with the Initial Member. In the event of a revaluation of 

Company Property pursuant to the definition of Book Value, subsequent allocations of income, 

gains, losses or deductions with respect to such Company Property shall take account of any 

variation between the Book Value and Fair Market Value of such Company Property, as so 

determined from time to time, in accordance with Section 704(c) of the Code and the Treasury 

Regulations promulgated thereunder. Such allocations shall be made in such manner and utilizing 

such permissible Tax elections as determined in good faith by the Tax Matters Member, following 

consultation with the Initial Member. 

(c) Intentionally Omitted. 

(d) Capital Accounts Not Affected. Allocations pursuant to this Section 6.3 

are solely for federal, state and local Tax purposes and shall not affect, or in any way be taken into 

account in computing, any Member's Capital Account or allocable share of Net Income (or items 

thereof) or Net Loss (or items thereof). 

(e) Tax Allocations Binding. The Members acknowledge that they are aware 

of the Tax consequences of the allocations made by this Section 6.3 and hereby agree to be bound 

by the provisions of this Section 6.3 in reporting their respective shares of items of Company 

income, gain, loss, deduction and expense. 

6.4 Determinations by Tax Matters Member. All matters concerning the computation 

of the Capital Accounts, the allocation of items of Company income, gain, loss, deduction and 

expense and the adoption of any accounting procedures not expressly provided for by the terms 

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of this Agreement shall be determined by the Tax Matters Member in good faith, following 

consultation with the Initial Member. Following such consultation, such determinations shall be 

final and conclusive as to all the Members. Without in any way limiting the scope of the 

foregoing, if and to the extent that, for income Tax purposes, any contribution to or distribution 

by the Company or any payment by any Member or by the Company is recharacterized, the Tax 

Matters Member may, in good faith following consultation with the Initial Member, specially 

allocate items of Company income, gain, loss, deduction or expense and/or make correlative 

adjustments to the Capital Accounts of the Members in a manner so that the net amount of 

income, gain, loss, deduction and expense realized by each relevant party (after taking into 

account such special allocations) and the net Capital Account balances of the Members (after 

taking into account such special allocations and adjustments) shall, as nearly as possible, achieve 

the fundamental purpose of Section 6.2(a), such that the Capital Account balances correspond to 

the amounts distributable to the Members, as if such recharacterization had not occurred. 

6.5 Priority of Payments. Each calendar month the amounts deposited in the 

Distribution Account under the Custodial and Paying Agency Agreement shall be distributed by 

the Paying Agent in the order of the Priority of Payments; provided, however, that for the 

avoidance of doubt, to the extent amounts are available for distribution to the Members with 

respect to their respective LLC Interests (such available amounts, the "Distributable Cash"), 

such Distributable Cash shall be distributed to the Members in accordance with Section 6.6 

below. 

6.6 Distributions. 

(a) No Right to Withdraw. No Member shall have the right to withdraw 

capital or demand or receive distributions or other returns of any amount in its Capital Account, 

except as expressly provided in this Agreement. 

(b) Ordinary Distributions. 

(i) Timing. Distributable Cash, if any, shall be distributed to the 

Members on a monthly basis by the Paying Agent out of the Distribution Account in the manner 

set forth in the Custodial and Paying Agency Agreement; provided, however, that the Manager 

shall instruct the Paying Agent as to how such distributions are to be allocated as between the 

Initial Member and the Private Owner based on Section 6.6(b)(ii) below (which instructions shall 

be included in one or more reports to be provided to Paying Agent in accordance with 

Section 7.4(b)). 

(ii) Distributions of Distributable Cash. Each distribution of 

Distributable Cash shall be made to the Members fifty percent (50%) to the Initial Member and 

fifty percent (50%) to the Private Owner. 

(c) [Intentionally Omitted.] 

(d) Restrictions on Distributions. The foregoing provisions of this Article VI 

to the contrary notwithstanding, no distribution shall be made if such distribution would violate 

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13312136.2 
any contract or agreement to which the Company is then a party or any Law or directive of any 

Governmental Authority then applicable to the Company. 

(e) Withholding. Notwithstanding any other provision of this Agreement, the 

Manager is authorized to take any action that it determines to be necessary or appropriate to cause 

the Company to comply with any foreign or United States federal, state or local withholding 

requirement with respect to any allocation, payment or distribution by the Company to any 

Member or other Person. All amounts so withheld shall be treated as distributions to the 

applicable Members under the applicable provisions of this Agreement. If any such withholding 

requirement with respect to any Member exceeds the amount distributable to such Member under 

the applicable provisions of this Agreement, or if any such withholding requirement was not 

satisfied with respect to any amount previously allocated or distributed to such Member, such 

Member and any successor or assignee with respect to such Member's LLC Interest hereby agrees 

to indemnify and hold harmless the Manager and the Company for such excess amount or such 

withholding requirement, as the case may be. 

(0 Record Holders. Any distribution of Company Property, whether pursuant 

to this Article VI or otherwise, shall be made only to Persons that, according to the books and 

records of the Company, were the holders of record of LLC Interests on the date determined by 

the Manager as of which the Members are entitled to any such distribution. 

(g) Final Distribution. The Final Distribution shall be made in accordance 

with the provisions of Section 9.2. 

ARTICLE VII 

Accountin2, Reportina, Taxation, Business Plans and Verification 

7.1 Fiscal Year. The books and records of the Company shall be kept on an accrual 

basis and the fiscal year of the Company shall commence on January 1 and end on December 31. 

7.2 Maintenance of Books and Records. 

(a) Maintenance of Books and Records. At all times during the continuance 

of the Company, the Manager shall cause to be kept and maintained (including by the Servicer 

and any Ownership Entity and including records transferred by the Initial Member and any 

predecessors-in-interest (including any Failed Banks) to the Company in connection with its 

conveyance of the Assets to the Company under the Contribution Agreement), at all times, at the 

Company's chief executive office referred to in Section 2.4, a complete and accurate set of files, 

books and records regarding the Assets and the Collateral, and the Company's and the relevant 

secured parties' interests in the Assets and the Collateral, including records relating to the 

Collection Account, the Escrow Accounts, the Working Capital Reserve Account, any liquidity 

reserve account (if permitted), the Defeasance Account, and the disbursement of all Asset 

Proceeds. This obligation to maintain a complete and accurate set of records shall encompass all 

files in the Manager's or the Company's custody, possession or control pertaining to the Assets 

and the Collateral, including (except as required to be held by the Custodian pursuant to the 

Custodial and Paying Agency Agreement) all original and other documentation pertaining to the 

Assets and the Collateral, all documentation relating to items of income and expense pertaining to 

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13312136.2 
the Assets and the Collateral, and all of the Manager's (and the Servicer's and any Subservicer's) 

internal memoranda pertaining to the Assets and the Collateral. The books of account shall be 

maintained in a manner that provides sufficient assurance that: (a) transactions of the Company 

are executed in accordance with the general or specific authorization of the Manager consistent 

with the provisions of this Agreement; and (b) transactions of the Company are recorded in such 

form and manner as will: (i) permit preparation of federal, state and local income and franchise 

Tax returns and information returns in accordance with this Agreement and as required by Law; 

(ii) permit preparation of the Company's financial statements in accordance with GAAP and as 

otherwise set forth herein and the provisions of the reports required to be provided hereunder; and 

(iii) maintain accountability for the Company's assets. 

(b) Retention of Books and Records. The Manager shall cause all such books 

and records to be maintained and retained until the date that is the later of ten (10) years after the 

Closing Date and three (3) years after the date on which the Final Distribution is made. All such 

books and records shall be available during such period for inspection by the Initial Member, the 

FDIC or any of their respective representatives (including any Govermnental Authority) and 

agents at the Company's chief executive office referred to in Section 2.4 at all reasonable times 

during business hours on any Business Day (or, in the case of any such inspection after the term 

hereof, at such other location as is provided by notice to the Initial Member and the FDIC), in 

each instance upon two (2) Business Days' prior notice to the Manager. Upon request by the 

Initial Member or the FDIC, the Manager shall promptly send copies (the number of copies of 

which shall be reasonable) of such books and records to such requesting Person or its designee. 

The Manager shall provide the Initial Member and the FDIC with reasonable advance notice of 

the Manager's intention to destroy or dispose of any documents or files relating to the Assets and, 

upon the request of the Initial Member or the FDIC, shall allow such requesting Person to recover 

the same (or copies thereof) from the Company and in the case both the Initial Member and the 

FDIC so request the same, the FDIC shall have the right to recover such documents or files, but 

the Initial Member shall have the right to make copies of such applicable documents or files so 

long as such copies are made while such documents files remain with the Manager or the 

Company (and prior to recovery of the same by the FDIC). The Manager shall also maintain 

complete and accurate records reflecting the status of Taxes, ground leases or other recurring 

charges which could become a Lien on any Collateral. Any expense incurred by the Initial 

Member or the FDIC and any reasonable out-of-pocket expense incurred by the Company in 

connection with the exercise by the Initial Member or the FDIC of its respective rights in this 

Section 7.2(b) to recover or make (or otherwise receive) copies of books, records, documents or 

files shall be borne by such Person so exercising such rights; provided, however, that any expense 

incident to the exercise of such rights pursuant to this Section 7.2(b) as a result of or during the 

continuance of an Event of Default shall in all cases be borne by the Private Owner (except to the 

extent such Event of Default is attributable exclusively to a Manager having been appointed by 

the Initial Member following removal of the Private Owner in such applicable capacity, or to any 

applicable Servicer (and any of its Subservicers) having been engaged by the Initial Member, the 

Company or the applicable replacement Manager following such removal of the Private Owner as 

the Manager, in each case that is not an Affiliate of the Private Owner). 

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7.3 Financial Statements. 

(a) Annual Financial Statements. As soon as practicable following, but no 

later than ninety (90) days immediately after, the end of each Fiscal Year (commencing with 

respect to the 2011 Fiscal Year), the Manager shall prepare and deliver to the Initial Member an 

audited consolidated balance sheet of the Company and the Ownership Entities as at the end of 

such Fiscal Year, and audited consolidated statements of operations and cash flow of the 

Company and the Ownership Entities for such Fiscal Year, each prepared in accordance with 

GAAP and accompanied by the Accountants' report thereon, which shall be certified in the 

customary manner by the Accountants. 

(b) Quarterly Financial Information. As soon as practicable following, but no 

later than forty-five (45) days immediately after, the end of each quarter of each Fiscal Year (other 

than the last quarter of such Fiscal Year, and commencing with the calendar quarter ending on or 

about June 30, 2011), the Manager shall prepare and deliver to the Initial Member unaudited 

consolidated balance sheet of the Company and the Ownership Entities as at the end of such 

calendar quarter, and unaudited consolidated statements of operations and cash flow of the 

Company and the Ownership Entities for such calendar quarter (for the first such report, covering 

the period from the Closing Date through the end of such calendar quarter), each prepared in 

accordance with GAAP. 

7.4 Additional Reporting and Notice Requirements. 

(a) Manager's Duty to Initial Member and Secured Parties; Delivery of 

Certain Notices. In addition to such other reports and access to books, records and reports as are 

required to be provided under this Agreement, the Manager shall cause to be delivered to the 

Required Consenting Parties such information as is specified in Exhibit B (in addition to the 

Monthly Report) and such other information relating to the Assets, the Collateral, the Company, 

the Servicers and any Subservicers as such Required Consenting Party may reasonably request 

from time to time and, in any case, shall ensure that the Required Consenting Parties is promptly 

advised, in writing, of any matter of which the Manager, any Servicer or any Subservicer becomes 

aware relating to the Assets, the Collateral, the Collection Account, the Escrow Accounts, the 

Working Capital Reserve Account, the Defeasance Account, or any Borrower or Obligor that 

materially and adversely affects the interests of such Required Consenting Parties under any 

Transaction Document. Without limiting the generality of the foregoing, the Manager shall cause 

to be delivered to the Initial Member and the Purchase Money Note Guarantor information 

indicating any possible Environmental Hazards with respect to any Collateral. To the extent that 

the Initial Member or the Purchase Money Note Guarantor requests information which is 

dependent upon obtaining such information from a Borrower, Obligor or other third party, the 

Manager shall cause to be made commercially reasonable efforts to obtain such information but it 

shall not be a breach by the Manager of this Agreement if the Manager fails to cause such 

information to be provided to the Initial Member or the Purchase Money Note Guarantor because 

a Borrower, Obligor or other Person has failed to provide such information after such efforts have 

been made. 

(b) Monthly Reports. On or prior to the day which is five (5) Business Days 

prior to the Distribution Date for each month, commencing on the Distribution Date following the 

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Amended and Restated Limited Liability Company Agreement 


13312136.2 
calendar month in which the Closing Date occurs, the Company shall deliver or cause the 

Manager to deliver to the Paying Agent and to the Required Consenting Parties the Monthly 

Report (in the form set forth in Exhibit B hereto) with respect to the relevant Due Period, which 

Monthly Report shall include the Distribution Date Report specifying the amounts and recipients 

of all funds to be distributed by the Paying Agent on such Distribution Date; provided however, 

that (unless the Company and the Initial Member agree otherwise) the Initial Member will prepare 

and deliver to each other Required Consenting Party and to the Paying Agent each such Monthly 

Report (including a Distribution Date Report) on behalf of the Company for all Due Periods 

ending on or before the last occurring Servicing Transfer Date. Following receipt by the Paying 

Agent of the Monthly Report (including the Distribution Date Report) with respect to a given Due 

Period, the Paying Agent shall prepare and deliver the Custodian and Paying Agent Report with 

respect to such Due Period in accordance with the terms of the Custodial and Paying Agency 

Agreement. For the Distribution Date immediately preceding the Maturity Date for each The 

Purchase Money Note, the Manager shall also deliver to the Paying Agent, the Initial Member and 

the Purchase Money Note Guarantor (if applicable), an additional report (the "Maturity Date 

Report"), which report shall include the amount on deposit in the Defeasance Account to pay the 

Purchase Money Note as of the Maturity Date. Each Monthly Report (including the Distribution 

Date Report and the Maturity Date Report, as applicable) prepared and delivered by the Manager 

shall be certified by the chief financial officer (or an equivalent officer) of the Manager. Each 

Monthly Report prepared and delivered by the Manager shall also include a certification of the 

Manager that all withdrawals by the Manager from the Collection Account during such Due 

Period were made in accordance with the terms of this Agreement and the Custodial and Paying 

Agency Agreement. 

(c) Annual Compliance Certificates. The Manager shall, and shall cause the 

Servicer and any Subservicer to, deliver to the Required Consenting Parties, on or before March 

15 of each year, commencing in the year 2012, an officer's certificate stating, as to the signer 

thereof, that (i) a review of such party's (in the case of the Manager, for the avoidance of doubt, in 

any capacity under this Agreement) activities during the preceding Fiscal Year (or other 

applicable period as set forth below in this Section 7.4(c)) and of its performance under this 

Agreement (or, as applicable, the Servicing Agreement or any Subservicing Agreement) has been 

made under such officer's supervision, and (ii) to the best of such officer's knowledge and belief, 

based on such review, such party (in the case of the Manager, for the avoidance of doubt, in any 

capacity under this Agreement) has fulfilled all of its obligations under this Agreement (or, as 

applicable, the Servicing Agreement or Subservicing Agreement) in all material respects 

throughout such year (or other applicable period as set forth below in this Section 7.4(c)) or, if 

there has been a failure to fulfill any such obligation in any material respect, specifying each such 

failure and the nature and status thereof. The first such officer's certificate shall cover the period 

commencing on the Closing Date (and with respect to each Asset, shall include relevant 

information with respect thereto for the period commencing on the Servicing Transfer Date for 

such Asset), and continuing through the end of the 2011 Fiscal Year. In the event a Servicer or 

any Subservicer was terminated, resigned or otherwise performed in such capacity for only part of 

a year (or other applicable period, as the case may be, with respect to the period commencing, 

with respect to any Asset, on the applicable Servicing Transfer Date through the end of the 2011 

Fiscal Year), such party shall provide an officer's certificate pursuant to this Section 7.4(c) with 

respect to such portion of the year (or other applicable period). 

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13312136.2 
(d) Annual Compliance Report. On or before March 15 of each year, 

commencing in the year 2012, the Manager shall cause each Servicer and Subservicer to provide 

to each of the Paying Agent and the Required Consenting Parties the annual reports (including the 

independent accountant report) for the prior Fiscal Year (or other applicable period as set forth 

below) required under Section 1122 of Regulation AB (regardless of whether any such 

requirements apply, by their terms, only to companies registered or required to file reports with 

the Securities and Exchange Commission) with respect to the relevant servicing criteria provisions 

of Section 1122(d)(1) of Regulation AB that are applicable to the servicing being conducted under 

this Agreement (and the Servicing Agreement) pursuant to Section 12.3(d) below. The first such 

reports shall cover the period commencing on the Closing Date (and with respect to each Asset, 

shall include the relevant information with respect thereto for the period from the applicable 

Servicing Transfer Date) and continuing through the end of the 2011 Fiscal Year. 

(e) Audits. Until the later of the date that is ten (10) years after the Closing 

Date and the date that is three (3) years after the Final Distribution, the Manager shall, and shall 

cause each Servicer and Subservicer to, (i) provide any representative of the Initial Member 

(including any Governmental Authority), during normal business hours and on reasonable notice, 

with access to all of the books of account, reports and records relating to the Assets or any 

Collateral, the Servicing Obligations, the Collection Account, the Escrow Accounts, the Working 

Capital Reserve Account, any account created under the Servicing Agreement, the Defeasance 

Account, disbursements under the Custodial and Paying Agency Agreement, distributions 

hereunder or any other matters relating to this Agreement or the rights or obligations hereunder or 

under the other Transaction Documents; (ii) permit such representatives to make copies of and 

extracts from the same, (iii) allow the Initial Member to cause such books to be audited by 

accountants selected by the Initial Member, and (iv) allow the Initial Member's representatives to 

discuss the Company's, the Manager's and the Servicer's and any Subservicer's affairs, finances 

and accounts, as they relate to the Assets, the Collateral, the Servicing Obligations, the Collection 

Account, the Escrow Accounts, the Working Capital Reserve Account, the Defeasance Account, 

or any other matters relating to this Agreement, the other Transaction Documents, or the rights or 

obligations hereunder and thereunder, with the Company's, the Manager's, the Servicer's and any 

Subservicer's officers, directors, employees, attorneys and accountants (and by this provision the 

Company and the Manager hereby authorize the accountants of each of the Company, the 

Manage, the Servicer and any Subservicer to discuss such affairs, finances and accounts with such 

representatives). Any expense incurred by the Initial Member and any reasonable out-of-pocket 

expense incurred by the Company in connection with the exercise by the Initial Member of its 

rights in this Section 7.4(e) shall be borne by the Initial Member; provided, however, that any 

expense incident to the exercise by the Initial Member of its rights pursuant to this Section 7.4(e) 

as a result of or during the continuance of an Event of Default shall in all cases be borne by the 

Private Owner (except to the extent such Event of Default is attributable exclusively to a Manager 

having been appointed by the Initial Member following removal of the Private Owner in such 

capacity, or to any applicable Servicer (and its Subservicers) having been engaged by the Initial 

Member, the Company or the applicable replacement Manager following such removal of the 

Private Owner as Manager, in each case that is not an Affiliate of the Private Owner). 

(0 In addition to the foregoing, the Manager shall provide or cause to be 

provided to the Initial Member, all reports, information (financial or otherwise), certificates and 

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13312136.2 
other documents required to be provided by the Company pursuant to the Reimbursement, 

Security and Guaranty Agreement, and by the Servicer under the Servicing Agreement. 

(g) The rights afforded to the Members under this Section 7.4 are in addition 

to, and not in limitation of, the rights of the Members under Section 18-305(a) of the Act. Section 

18-305(c) of the Act shall not apply in relation to the Initial Member. 

7.5 Designation of Tax Matters Member. The Private Owner is hereby designated as 

the "Tax Matters Member" under Section 6231(a)(7) of the Code and under other similar Laws 

of other relevant jurisdictions, to manage, in consultation with the Initial Member, administrative 

Tax proceedings conducted at the Company level by the Internal Revenue Service or other Tax 

authorities with respect to Company matters. Each Member expressly consents to such 

designation and agees that, upon the request of the Tax Matters Member, it will execute, 

acknowledge, deliver, file and record at the appropriate public offices such documents as may be 

necessary or appropriate to evidence such consent. The Tax Matters Member is specifically 

directed and authorized to take whatever steps the Tax Matters Member in its sole and absolute 

discretion deems necessary or desirable to perfect such designation, including, without 

limitation, filing any forms or documents with the Internal Revenue Service (or other Tax 

authorities) and taking such other action as may from time to time be required under the Code, 

Treasury Regulations or other Laws. The Tax Matters Member shall keep the other Members 

fully informed as to any Tax audits of the Company, including promptly providing the other 

Members with copies of any correspondence from any Taxing authority and permitting the other 

Member to participate in any conferences or meetings with any Taxing authority and in any 

subsequent administrative or judicial proceedings. The Tax Matters Member shall have the 

authority, following consultation with the Initial Member, to make any Tax elections on behalf of 

the Company permitted to be made, including the election pursuant to Section 754, under any 

section of the Code or the Treasury Regulations promulgated thereunder or under other Laws. In 

the event the Company may be deemed to be a "small partnership" as described in 

Section 6231(a)(1)(B), each Member consents to the Company's electing to be treated as a 

partnership to which the provisions of Code Section 6221 et. seq. apply (thereby electing to have 

Code Section 6231(a)(1)(B)(i) not apply). The Initial Member may, at any time following the 

occurrence and during the continuation of an Event of Default, remove the Private Owner as the 

Tax Matters Member, appoint itself (or any other willing Member at the time) as the Tax Matters 

Member, and serve (or cause such other Member to so serve) in such capacity; provided that 

such removal shall not relieve the Private Owner as Tax Matters Member of any obligations or 

liabilities under this Agreement or any other Transaction Document arising, relating to, 

occurring, or required to have been paid or performed by, the Private Owner as the Tax Matters 

Member in its capacity as such. 

7.6 Tax Information. 

(a) Within ninety (90) days after the end of each Fiscal Year, the Tax Matters 

Member shall send, or cause to be sent to, each Person who was a Member at any time during the 

Fiscal Year then ended a Schedule K-1 and such Company Tax information as the Tax Matters 

Member reasonably believes shall be necessary for the preparation by such Person of its United 

States federal, state and local Tax returns in accordance with any Law. Such information shall 

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include a statement showing such Person's share of distributions, income, gain, loss, deductions 

and expenses and other relevant items of the Company for such Fiscal Year. Promptly upon the 

request of any Member (or any former Member, for Tax years during which such Person was a 

Member), the Tax Matters Member will furnish to such Member (or former Member): 

(i) United States federal, state and local income Tax returns or 

information returns, if any, filed by the Company; and 

(ii) at the sole cost and expense of the requesting Member, such other 

information as such Member may reasonably request for the purpose of applying for refunds of 

withholding Taxes. 

(b) The Manager shall prepare and deliver, or cause the Company to prepare 

and deliver, together with delivery to the Initial Member of the annual financial statements 

pursuant to Section 7.3(a), a report which shall specify, for each Due Period and for such annual 

reporting period, the information with respect to each Asset that is sold or otherwise disposed of 

by the Company so as to enable the Company (and each Member) to comply with allocation 

provisions of Section 704(c) of the Code, as determined as of the close of business on the 

applicable Determination Date and certified by an authorized representative (who shall be the 

chief financial officer (or an equivalent officer)) of the Company (the "Tax Allocation Report"). 

7.7 Business Plans. As promptly as possible, but in no event later than the time 

periods set forth herein (and, as applicable, with current information as of the month most 

recently ended prior to delivery thereof) the Manager shall deliver to the Initial Member written 

plans (each, together with any updates thereto, a "Business Plan") detailing the strategy to be 

used by it in managing and disposing of the Assets of the Company (and the Ownership Entities) 

in respect of all of the Assets for achieving the Company's purposes with respect thereto, in 

conformance with the Servicing Standard, based, to the extent appropriate, on information 

gathered by the Company with respect to the Assets, which shall include (i) individual BorrowerBusiness Relationship Business Plans for each of the fifteen (15) largest borrower-business 

relationships based on their Unpaid Principal Balance as of the Cut-Off Date (determined by 

aggregating those Assets held by or in favor of Persons or entities under Common Control or 

Affiliated with each other as set forth on the Asset Schedule), and (ii) a consolidated Business 

Plan covering all Assets (a "Consolidated Business Plan"). Such initial Borrower-Business 

Relationship Business Plans shall be delivered not more than sixty (60) days after the Closing 

Date, and such initial Consolidated Business Plan (including updated Borrower-Business 

Relationship Business Plans) shall be delivered not more than one hundred twenty (120) days 

after the Closing Date. With respect to the first such Business Plans and Consolidated Business 

Plan, the Manager shall meet with the Initial Member as reasonably requested by the Initial 

Member from time to time during the thirty (30) Business Days following the Initial Member's 

receipt of the same, or such later date as requested by the Initial Member, to review and discuss 

such'Business Plans and Consolidated Business Plan, including changes thereto suggested by the 

Initial Member. Within thirty (30) Business Days following expiration of such review period, 

the Manager will deliver to the Initial Member a final version of such Business Plans and 

Consolidated Business Plan reflecting such changes as the Manager considers to be appropriate 

in light of its discussions with the Initial Member during such review period. The Manager shall 

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13312136.2 
thereafter review and revise each Business Plan as the circumstances may require, and in any 

event provide periodic updates to such Business Plans (and for each such update to the 

Borrower-Business Relationship Business Plans, the same shall cover the fifteen (15) largest 

borrower-business relationships based on their Unpaid Principal Balance as of the time of such 

update) to the Initial Member, in July (current as of June 30) of each year and January (current as 

of December 31 of the immediately preceding year), commencing in December of 2011, with 

each such periodic update to be delivered as part of the Monthly Reports due at such time 

pursuant to Section 7.4(b). With respect to each such Business Plan (including any update 

thereto), upon reasonable notice by the Initial Member, the Company shall make its Personnel 

who are familiar with such Business Plans available during normal business hours for the 

purposes of discussing such Business Plans with representatives of the Initial Member and 

responding to questions therefrom (and, as applicable, revising the same to reflect such changes 

as the Manager considers to be appropriate in light of such discussions with the Initial Member). 

(a) Each Business Plan (including any update thereto) will set forth a strategy 

for the disposition of the Assets addressed thereby which strategy may consist of one or more of 

the following: (i) the pay-off of Assets at a discount; (ii) modifications of the related note and/or 

mortgage, including reductions in the mortgage loan interest rate, reductions in the principal 

balance and rescheduling principal payments; (iii) foreclosure upon the related Collateral (or 

acquisition thereof by deed in lieu of foreclosure) and subsequent sale thereof; (iv) assumptions of 

Assets by new borrowers; (v) repairs to and, if applicable, completion of construction of the 

related Collateral, with a view towards selling such Collateral or the Asset secured thereby; (vi) 

sale of an Asset, either singly or in pools, before or after restructuring; and (vii) any other method 

of work-out, rehabilitation and disposition consistent with the Servicing Standard and other 

general duties of the Company specified in this Agreement. 

(b) Each Business Plan (including any update thereto) will set forth a strategy 

for the disposition of each related Acquired Property which strategy may consist of one or more of 

the following: (i) the sale or leasing of the Acquired Property in whole or in parts, or in pools; (ii) 

making repairs to and, if applicable, completion of construction the Acquired Property or making 

changes to the Acquired Property so that it may be used for uses other than its current use, with a 

view toward selling the Acquired Property; (iii) rehabilitation or improvement and, if applicable, 

completion of construction of the Acquired Property, with a view toward selling the Acquired 

Property; (iv) continued leasing or sales activity with respect to the Acquired Property available 

for leasing or sale (in whole or in part) at the time it is transferred to a Ownership Entity; and (v) 

maintenance, landscaping and general upkeep of the Acquired Property. To the extent any such 

Business Plan (and related strategy) includes any permitted Vertical Development to be funded by 

the Company (other than pursuant to Funding Draws), such Business Plan (and any update 

thereto) shall include a description of such Vertical Development in reasonable detail (including 

the related budget and timeline). 

(c) Each Business Plan (including any update thereto) shall contain the 

Company's estimate (or determination, as applicable) of (i) the present value of the net amount 

that is recoverable with respect to each related Asset (including, with respect to all related 

Acquired Property, the Net Fair Value thereof), (ii) with respect to all Acquired Property and 

Mortgaged Property included in any Asset covered by such Business Plan, in the event such 

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Acquired Property or Mortgaged Property includes more than one parcel of real property (or 

would otherwise potentially be sold by the Company in severable parts), the applicable Release 

Price for each such parcel (or other severable part) of such Acquired Property and Mortgaged 

Property, and (iii) projected Working Capital Expenses, Permitted Vertical Completion Expenses 

and any other permitted expenditures with respect to each of the 15 largest Assets (including any 

Acquired Property), and, in each case including in reasonable detail the manner of calculation of 

each of the foregoing. The Consolidated Business Plan (including any update thereto) shall 

include projected financials including statements of income, assets, and cash flows for the 

Company (and, for purposes of clarification, the information required pursuant to the immediately 

preceding sentence with respect to all Assets). Such cash flow projections shall, for the 

Consolidated Business Plan and each update thereto, include an Excel model of projected cash 

flows, as of June 30 and December 31 of each year (or, in the case of the initial Consolidated 

Business Plan, as of the date of preparation and delivery thereof) and covering the period through 

Maturity Date, on a monthly basis for the upcoming twenty-four (24) months and not less than a 

quarterly basis thereafter, including projected cash inflows (including projected Asset Proceeds, 

Excess Working Capital Advances, Discretionary Funding Advances, projected cash outflows 

(including projected Servicing Expenses, Funding Draws and other Working Capital Expenses, 

Permitted Vertical Development Funding Draws and other Permitted Vertical Completion 

Expenses, projected Working Capital Reserve levels, projected net monthly cash available for 

deposit into the Defeasance Account, and the amount and allocation of any projected distributions 

to the Initial Member and the Private Owner. 

(d) Each Business Plan and update thereto shall include descriptions and 

explanations for the largest variances to the previously reported corresponding Business Plan. 

Variance explanations shall include changes in capital expenditures for Acquired Property, 

protective advances, internal rates of return, strategy for the disposition of the Assets, actual 

principal and interest income and other collection proceeds, cash flows, and projected 

distributions to the Members, and other changes in strategy or other relevant matters as compared 

to the previously reported corresponding Business Plan. 

ARTICLE VIII 


Restrictions on Disposition of LLC Interests 


8.1 Limitations on Disposition of LLC Interests. Except as otherwise provided in this 

Article VIII, the Private Owner shall not, directly or indirectly, Dispose of or permit to be 

Disposed of, all or any part of its LLC Interest or any of its rights or interests under this 

Agreement (including its rights to any distributions or other payments), provided, however, that 

the Private Owner may make a direct, outright transfer of its entire (but not less than its entire) 

LLC Interest if, and only if, (a) (i) the transferee is a single Person that is a Qualified Transferee, 

(ii) such transferee delivers to the Initial Member a Purchaser Eligibility Certification and the 

representations and warranties made by such transferee therein shall be true and correct both 

before and after giving effect to such transfer of the LLC Interest, and (iii) the Private Owner 

first obtains the prior written consent of each Required Consenting Party to such transfer, or 

(b) such Disposition is done by or at the direction of the Initial Member pursuant to Sections 3.13 

or 3.14; provided, further, any indirect Disposition of the Private Owner Interest is permitted so 

long as such Disposition does not result in a Change of Control. The Private Owner may not 

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under any circumstances Dispose of less than all of its LLC Interest. Transfers by the Private 

Owner satisfying the foregoing criteria are hereinafter referred to as "Permitted Dispositions." 

8.2 Change of Control. The Private Owner will not permit any Change of Control to 

occur with respect to the Private Owner unless (i) it first obtains the prior written consent of each 

Required Consenting Party, and (ii) following such Change of Control, the Private Owner would 

be a Qualified Transferee; provided, however, any indirect Disposition of the Private Owner 

Interest is permitted as long as such indirect Disposition does not result in a Change of Control. 

Without limitation of the preceding sentence, the Private Owner will provide the Initial Member 

with immediate notice at the address specified in Section 13.6 of the occurrence of any Change 

of Control with respect to the Private Owner. Furthermore, the Private Owner may not directly 

or indirectly sell or pledge (or engage in any transaction with a similar effect) any interest in the 

Private Owner without the prior written consent of the Initial Member, and if a Purchase Money 

Note is outstanding, the Purchase Money Note Guarantor; provided, further, any indirect transfer 

or pledge of the Private Owner Interest is permitted so long as such transfer does not result in a 

Change of Control. 

8.3 Additional Provisions Relating to Permitted Dispositions. Except as otherwise 

expressly provided in this Section 8.3, the following provisions shall apply to each Permitted 

Disposition under this Article VIII: 

(a) In the event the Private Owner proposes to make a Permitted Disposition, 

the Private Owner shall be required to pay any and all filing and recording fees, fees of counsel 

and accountants and other out-of-pocket costs and expenses reasonably incurred by the Initial 

Member and/or the Company in connection with such Permitted Disposition. 

(b) The transferee in a Permitted Disposition shall deliver to the Company, 

with a copy to the Initial Member, an agreement, in form and substance reasonably satisfactory to 

the Initial Member, by which such transferee shall (i) agree to become a party to and be bound by 

this Agreement as the "Private Owner," agee (if the transferor Member, prior to such transfer, 

also was the Manager) to be appointed as the "Manager", and without limitation of the generality 

of the foregoing, agree to be bound by the other terms of Section 8.4 hereof, (ii) assume and agree 

to perform when due all of the obligations of the Private Owner and the Manager (if the transferor 

Member, prior to such transfer, also was the Manager) under this Ageement, and (iii) represent 

and warrant that it complies with the requirements set forth in Article X. 

(c) In connection with each Permitted Disposition, the Private Owner and the 

transferee shall deliver to the Company and the Initial Member such other documents and 

instruments as the Initial Member reasonably may request and which are required to effect the 

Permitted Disposition and substitute the transferee as a Member. 

8.4 Effect of Permitted Dispositions. 

(a) Upon consummation of any Permitted Disposition: 

(i) the transferee shall be admitted as a Member of the Company and 

be deemed to be a party to this Agreement as the "Private Owner" and, if the transferor Member, 

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prior to such transfer, also was the Manager, such transferee shall be appointed as the Manager 

(in the place of the transferor Member); 

(ii) the Transferred LLC Interest shall continue to be subject to all the 

provisions of this Agreement, and the transferee Member shall have the same status as the 

Private Owner had at the time of consummation of such Permitted Disposition and, without 

limiting the generality of the foregoing, any outstanding breach, misrepresentation, violation or 

default (with respect to this Agreement or any other Transaction Document) by any direct or 

indirect predecessor to the transferee as the Member, or by any Affiliate of any such predecessor 

Member, shall be deemed to constitute an outstanding breach, misrepresentation, violation or 

default as the case may be, by the transferee Member; and 

(iii) subject to Section 8.4(b) and the last sentence of Section 13.8, the 

transferor Member shall cease to be a member of the Company (and accordingly, except as 

expressly otherwise provided in Section 8.4(b) or the last sentence of Section 13.8, shall cease to 

be responsible for the payment or performance of any of the obligations or liabilities under this 

Agreement of the Private Owner, in any capacity hereunder). 

(b) No Permitted Disposition (and no resulting withdrawal or resignation of 

the transferor Member from the Company) shall: 

(i) relieve the transferor Member of any of the obligations or 

liabilities of the transferor Member, in any capacity, under this Agreement or any other 

Transaction Document required to have been paid or performed prior to the consummation of 

such Permitted Disposition (or of any liability it may have arising out of any breach, 

misrepresentation, violation or default by the transferor Member prior to such consummation); 

(ii) result in the termination of, relieve the transferor Member (or any 

of its Affiliates) of, or otherwise affect, any of the obligations or liabilities of the transferor 

Member, in any capacity, or its Affiliates under, any Related Party Agreement (such Related 

Party Agreements to continue in effect in accordance with their respective terms), except to the 

extent expressly provided in such Related Party Agreement; or 

(iii) dissolve the Company. 

8.5 Effect of Prohibited Dispositions. Any attempted or purported Disposition of the 

Private Owner Interest (or any portion thereof) not strictly in accordance with the terms of this 

Agreement shall be void ab initio and of no force or effect whatsoever. The Private Owner shall 

not be entitled, and hereby specifically waives any right, to receive Company distributions 

during (i) the period between any attempted or purported Disposition of the Private Owner 

Interest (or any portion thereof) not strictly in accordance with the terms of this Agreement and 

the express rescission of such attempted or purported Disposition by the Private Owner and (ii) 

during any period when a Member is in violation of Section 8.2, provided that all such omitted 

Company distributions shall (subject to Section 8.6) be made to the Private Owner (without 

interest) forthwith after the end of the relevant suspension period. 

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8.6 Distributions after Disposition. Distributions with respect to an LLC Interest 

made on or after the effective date of the Permitted Disposition of such LLC Interest shall be 

made to the transferee Member with respect to such LLC Interest, regardless of when such 

distributions accrued on the books of the Company. 

8.7 Transfers by the Initial Member. Notwithstanding anything to the contrary 

contained in this Agreement, except as provided by applicable Law, there shall be no restriction 

on the Initial Member's ability to Dispose of the Initial Member Interest, directly or indirectly, to 

any Person and the Private Owner shall have no right to purchase or right-of-first-refusal in 

connection with any such sale; provided, however, that, the Initial Member may not assign the 

consent and voting rights associated with the Initial Member Interest to more than one (1) Person 

(for the avoidance of doubt, except as expressly provided above, the foregoing restriction shall 

not otherwise limit the Initial Member's right to Dispose of any interest associated with the 

Initial Member Interest) and provided, further, that in the event the Initial Member determines to 

sell the Initial Member Interest through an auction process, the Private Owner shall be entitled to 

participate in such auction on the same terms that apply generally to other participants in the 

auction. At the election of the Person then constituting the "Initial Member" under this 

Agreement, the transferee in any direct Disposition of any portion of the Initial Member Interest 

shall, upon delivery to the Company, with a copy to the Private Owner, of an agreement by 

which such transferee shall agree to become a party to and be bound by this Agreement as the 

"Initial Member," be admitted as a Member of the Company and be deemed to be a party to this 

Agreement as the "Initial Member", and thereupon, subject to last sentence of Section 13.8, the 

transferor Member shall cease to be a Member of the Company (and accordingly, except as 

expressly otherwise provided in last sentence of Section 13.8, shall cease to be responsible for 

the payment or performance of any of the obligations or liabilities under this Agreement of the 

Initial Member). 

8.8 Resignation; Dissolution. 

(a) The Private Owner may not withdraw or resign from the Company, except 

(i) in connection with a Permitted Disposition made in accordance with the applicable provisions 

of this Article VIII or (ii) with the prior written consent of the Initial Member. 

(b) The Private Owner covenants that it shall not allow a Dissolution Event to 

occur with respect to itself. 

(c) Section 18-304 of the Act shall not apply to the Company. Nothing in this 

Section 8.8(c) shall limit the terms of Section 9.1 hereof. 

(d) Except as is otherwise expressly provided in this Agreement, no Member 

shall be entitled to receive any payment pursuant to Section 18-604 of the Act. 

8.9 Applicable Law Withdrawal. If, as a result of applicable Law, the ownership of 

an LLC Interest by a Member becomes illegal or is likely to become illegal or the applicable 

Law more likely than not requires divestiture of such Member's LLC Interest, or the applicable 

Law would require the Company to register as an investment company under the Investment 

Company Act, then the Manager and such Member shall use their respective commercially 

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reasonable efforts to avoid a violation of any such applicable Law by such Member or the need 

for the Company to register as an investment company. These steps may include, depending on 

the provisions of such applicable Law, (i) arranging for the sale of the Member's LLC Interest to 

a third party upon terms reasonably satisfactory to the Member in a transaction that complies 

with Articles VIII and X; (ii) making any appropriate applications to the relevant Governmental 

Authority, (iii) prohibiting such Member from making further Capital Contributions, and 

converting its LLC Interest into a special interest with no voting or similar rights but with only 

an economic right (identical to its prior rights as a Member), or (iv) permitting the Member to 

withdraw from the Company in exchange for a "payment" to such Member equal to the value of 

its LLC Interest at the time of withdrawal, such value to be determined by a third party appraiser 

mutually agreeable to the Manager and all Members. The aforesaid "payment" shall be made in 

cash unless the Manager determines that the payment in cash would be economically detrimental 

to the Company, in which case such payment may be made in kind, subject to the applicable 

Law. The timing of any such withdrawal must be mutually agreeable to the Member and the 

Manager taking proper account of the effective date of the applicable Law or registration 

requirement that is the basis for the withdrawal or other remedy provided herein and the need of 

the Manager for a reasonable period of time to find a solution to the illegality or requirement for 

divestiture or renegotiation. Such illegality, divestiture or registration requirement must be 

established by (x) an opinion of counsel (which counsel shall be reasonably satisfactory to the 

Manager and the Initial Member) substantially to the effect that the ownership of the LLC 

Interest more likely than not will result in such illegality or requirement for registration or 

divestiture or (y) upon a ruling or order from a Governmental Authority. 

ARTICLE IX 


Dissolution and Windine-Up of the Company 


9.1 Dissolution. A dissolution of the Company shall take place upon the first to occur 

of the following: 

(a) the agreement by all Members to dissolve the Company (it being 

understood and agreed that neither Member, acting alone, shall have the right unilaterally to 

dissolve the Company); 

(b) the sale of all or substantially all of the Company Property (other than 

cash and cash equivalent instruments), including as an entirety or substantially as an entirety; or 

(c) notice to such effect to the Private Owner from the Initial Member at any 

time after the occurrence of a Dissolution Event or an Insolvency Event with respect to the Private 

Owner or any Person that Controls the Private Owner; or 

(d) exercise of the Clean-Up Call and liquidation of all remaining Assets and 

Acquired Property of the Company in accordance with Section 12.20. 

9.2 Winding-Up Procedures. If a dissolution of the Company pursuant to Section 9.1 

occurs, subject to the Company's compliance with its obligation under the other agreements to 

which it is a party, the other terms and conditions of this Agreement or the other Transaction 

Documents, the Manager shall proceed as promptly as practicable to wind up the affairs of the 

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Company in an orderly and businesslike manner. A final accounting shall be made by the 

Manager. As part of the winding up of the affairs of the Company, the following steps will be 

taken: 

(a) The assets of the Company shall be sold except to the extent that some or 

all of the assets of the Company are retained by the Company for distribution to the Members as 

hereinafter provided. 

(b) The Company shall comply with Section 18-804(b) of the Act. 

(c) Distributions of the assets of the Company after dissolution of the 

Company shall be conducted as follows: 

(i) first, to creditors, but excluding the Members who are creditors and 

the Initial Member (to the extent it continues to hold the Purchase Money Note), to the extent 

otherwise permitted by Law (and, to the extent permitted, in accordance with the Priority of 

Payments), in satisfaction of liabilities of the Company (whether by payment or the making of 

reasonable provision for payment thereof); 

(ii) second, to the Members or former Members who are creditors, to 

the extent otherwise permitted by Law, in satisfaction of liabilities of the Company (whether by 

payment or the making of reasonable provision for payment thereof) other than liabilities for 

which reasonable provision for payment has been made and liabilities for distributions to the 

Members and former Members under Section 18-601 of the Act; 

(iii) third, to the Members and former Members in satisfaction of 

liabilities (if any) for distributions under Section 18-601 of the Act; and 

(iv) finally, to the Members in the manner set forth in Section 6.6(b). 

(d) Upon dissolution, the Manager, may, with the consent of all the Members, 

(i) liquidate all or a portion of the Company Assets and apply the proceeds of such liquidation in 

the manner set forth in Section 9.2(c) and/or (ii) hire independent appraisers to appraise the value 

of Company Assets not sold or otherwise disposed of or determine the Fair Market Value of such 

assets, and allocate any unrealized gain or loss determined by such appraisal to the Members' 

respective Capital Accounts as though the properties in question had been sold on the date of 

distribution and, after giving effect to any such adjustment, distribute said assets in the manner set 

forth in Section 9.2(c), provided that the Manager shall in good faith attempt to liquidate sufficient 

Company assets to satisfy in cash the debts and liabilities described in Section 9.2. If a Member 

shall, upon the advice of counsel, determine that there is a reasonable likelihood that any 

distribution in kind of an asset would cause such Member to be in violation of any Law, such 

Member and the Manager shall each use its best efforts to make alternative arrangements for the 

sale or transfer into an escrow account of any such distribution on mutually agreeable terms. 

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9.3 Termination of the Company. 

Upon the dissolution of the Company and the completion of the winding up 

process set forth in Section 9.2, the Manager (or such other Person or Persons as the Act may 

require or permit) shall cause the cancellation of the Certificate and any filings made as provided 

in clause (c) of Section 4.3 and shall take (or cause to be taken) such other actions as may be 

necessary to terminate the Company. 

ARTICLE X 


Qualified Transferees 


10.1 Qualified Transferees. Each Member, other than the Initial Member (including, 

for the avoidance of doubt, its Successors and transferees), shall at all times be in compliance 

with the following (and any proposed transferee of any LLC Interest in compliance with the 

following shall be deemed a "Qualified Transferee"): 

(a) Organization; Good Standing; Licenses. Such Member (i) is a Single 

Purpose Entity duly organized, validly existing and in good standing under the Laws of the state 

of its organization, (ii) has qualified or will qualify to do business as a foreign corporation, 

partnership or other entity and will remain so qualified, and is and will remain in good standing, in 

each jurisdiction in which the character of its properties or the nature of its activities makes such 

qualification necessary and in which failure to so qualify would have a material adverse effect 

upon such Member or its ability to perform its obligations hereunder, (iii) has full power to own 

its property, to carry on its business as presently conducted, and to enter into and perform its 

obligations under this Agreement, (iv) has all licenses or other governmental approvals necessary 

to perform its obligations hereunder; and (v) in the case of the Private Owner, as of the Closing 

Date, is, directly or indirectly, at least 50.1% owned and Controlled by its Specified Parent. 

(b) Authorization; No Violation. The execution and delivery by such Member 

of this Agreement and the consummation of the transactions contemplated hereby have been duly 

and validly authorized by all necessary action. Neither the execution and delivery of this 

Agreement, nor the consummation of the transactions herein contemplated, nor compliance with 

the provisions hereof, will conflict with or result in a breach of, or constitute a default under, 

(i) any of the provisions of any Law binding on such Member or its properties, (ii) the constituent 

documents of such Member, or (iii) any of the provisions of any indenture, mortgage, contract or 

other instrument to which such Member is a party or by which it is bound or result in the creation 

or imposition of any Lien upon any of its property pursuant to the terms of any such indenture, 

mortgage, contract or other instrument. 

(c) Governmental Approvals. All actions, approvals, consents, waivers, 

exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to 

be taken, given or obtained, as the case may be, by or from any Governmental Authority or 

agency that are necessary in connection with the execution and delivery by such Member of this 

Agreement and the consummation of the transactions contemplated hereby and the performance of 

its obligations hereunder, have been duly taken, given or obtained, as the case may be, are in full 

force and effect, are not subject to any pending proceedings or appeals (administrative, judicial or 

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otherwise) and either the time within which any appeal therefrom may be taken or review thereof 

may be obtained has expired or no review thereof may be obtained or appeal therefrom taken. 

(d) No Litigation. On the date such Member becomes a party to this 

Agreement, there is no action, suit, proceeding or investigation pending or threatened against such 

Member before any Governmental Authority. 

(e) No Violation of Orders, Decrees, etc. Such Member is not in default with 

respect to any order or decree of any Govermnental Authority or in violation of any Law. 

Third Party Consents. No consents, approvals, waivers or notifications of (0

stockholders, creditors, lessors or other nongovernmental Persons are required to be obtained by 

such Member in connection with the execution and delivery of this Agreement and the 

consummation of all the transactions herein contemplated and the performance of its obligations 

hereunder. 

(g) Owners Accredited Investors. All of the equity owners of such Member 

are "accredited investors," as that term is defined in Rule 501 under the Securities Act. 

(h) Knowledge and Experience. Such Member, either by itself or through its 

advisers and principals, has such knowledge and experience in the origination, servicing, sale 

and/or purchase of performing and non-performing or distressed loans, including construction 

loans and loans secured by residential and commercial properties, as well as financial and 

business matters, as to enable such Member to utilize the information made available to it with 

respect to the LLC Interest acquired by it and the Assets to evaluate the merits and risks of a 

purchase of the Private Owner Interest and, indirectly, the Assets, and to make an informed 

decision with respect thereto. 

(0 Economic Risks. Such Member acknowledges, understands and 

represents that it is able to bear the economic risks associated with the acquisition and ownership 

of the Private Owner Interest and, indirectly, the Assets, including the risk of a total loss of its 

investment in the Company and, indirectly, the Assets and/or the risk that it may be required to 

hold the Private Owner Interest and, indirectly, the Assets for an indefinite period of time. 

(1) No Representations. Such Member hereby acknowledges that, except as is 

otherwise expressly provided in this Agreement, the Transferred LLC Interest Sale Agreement, or 

the Contribution Agreement, none of the Initial Member or the FDIC or any Affiliate of either, or 

any of their respective officers, directors, employees, agents or contractors, makes or has made 

any representation or warranty regarding the Company, the LLC Interests or the Assets or the 

value of any Collateral. 

(k) Due Diligence. Such Member acknowledges and agrees that, whether or 

not information is available with respect to the LLC Interests or the Assets and whether or not it 

chooses to review any information that is or was made available to it regarding the LLC Interests 

or the Assets, such Member, by itself or through its advisers or principals, has the ability and shall 

be responsible for making its own independent investigation and evaluation of the LLC Interests 

and the Assets and the economic, credit or other risks involved in an acquisition of the Private 

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Owner Interest and, indirectly, the Assets. Except as is otherwise expressly provided in this 

Ageement, none of the Initial Member or the FDIC or any Affiliate of either, or any of their 

respective officers, directors, employees, agents or contractors, makes or has made any 

representation or warranty as to the completeness or accuracy of any information provided. 

No Securities. Such Member acknowledges and agrees that (i) neither the 

offer nor the sale of the Private Owner Interest (and, indirectly, the Assets) is intended to 

constitute an offer or sale of a "security" within the meaning of the Securities Act or any 

applicable federal or state securities Laws, (ii) no inference that any of the LLC Interests or the 

Assets is a "security" under such federal or state securities Laws shall be drawn from any of the 

certifications, representations or warranties made by any Person in this Agreement, (iii) it is not 

contemplated that any filing will be made with the Securities and Exchange Commission or 

pursuant to the "Blue Sky" or securities Laws of any jurisdiction, and (iv) if any of the LLC 

Interests or the Assets is a security, such may not be resold or otherwise transferred by such 

Member except in accordance with any and all applicable securities and Blue Sky Laws. 

(m) Resales. Such Member is acquiring the Private Owner Interest (and, 

indirectly, the Assets) for its own account and not with a view toward resale in a distribution 

within the meaning of the Securities Act. 

(n) Resales in Compliance with Law. Such Member will not (i) offer, pledge, 

sell or otherwise dispose of the Private Owner Interest (or any interest therein) or any Asset (or 

any interest therein or evidence thereof) to, or (ii) solicit any offer to buy or accept a transfer, 

pledge or other disposition of the Private Owner Interest (or any interest therein) or any Asset (or 

any interest therein or evidence thereof) from, or (iii) otherwise approach or negotiate with respect 

to the Private Owner Interest (or any interest therein) or any Asset (or any interest therein or 

evidence thereof) with, any Person or entity in any manner, or take any other action, that would 

(A) not comply with Article VIII, or (B) render the transfer to such Member of the Private Owner 

Interest or any interest in any Asset a violation of any Law relating to the issuance, regulation, 

registration or disposition of securities, nor will it authorize any Person or entity to so act, in any 

manner with respect to the Private Owner Interest (or any interest therein) or any Asset (or interest 

therein or evidence thereof). 

(o) Acquisition in Compliance with Law. Such Member's acquisition of the 

Private Owner Interest and the resulting investment in the Assets will comply with all applicable 

Laws, including any and all Laws and/or restrictions imposed on resale of the Private Owner 

Interest and the Assets by federal and state securities or Blue Sky Laws. 

(I)) Independent Evaluation. Such Member has made an independent 

evaluation of the Company and its assets (including the Assets and related Asset files and/or any 

electronic data made available to it pertaining to the Assets held by the Company). Such Member 

also has conducted such other investigations ' as it deems approciriate, including searches of 

Uniform Commercial Code, title, court, bankruptcy and other public records. Such Member 

agrees and represents that it is entering into this Ageement solely on the basis of its own 

investigations and its judgment as to the value of the Private Owner Interest and the nature, 

validity, enforceability, collectability and value of the Assets and all other facts material to their 

ownership, including the legal matters and risks relating to collection and enforcement, and the 

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performance of any obligations under any of the Assets in any jurisdiction. Such Member further 

acknowledges that no officer, director, employee, agent, representative or contractor of the Initial 

Member or any of its Affiliates has been authorized to make any statements or representations 

other than those specifically contained in this Agreement or the Contribution Agreement. 

Embargoed Person. Such Member certifies, represents and warrants that (q)

(i) no consideration that such Member or any of its Affiliates contributes hereunder or under the 

other Transaction Documents in connection with any transaction regarding any assets will have 

been derived from or related to any activity that is deemed criminal under United States Law; 

(ii) neither it nor any of its Affiliates or Direct Owners is an Embargoed Person; (iii) neither it nor 

any of its Affiliates or Direct Owners engages in any dealings or transactions, or is otherwise 

"associated with" (as defined in 31 C.F.R. 594.101, et seq.), any Embargoed Person; and (iv) if 

and to the extent such Member or any of its Affiliates are required by Law to maintain an antimoney laundering compliance program under applicable anti-money laundering Laws and 

regulations, including without limitation, the Uniting and Strengthening America by Providing 

Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-

56)) such compliance programs are currently being maintained. The foregoing certifications, 

representations and warranties shall be based upon a due inquiry and investigation; provided, 

however, that for purposes of determining whether any of the same with respect to indirect 

ownership are true, the undersigned shall not be required to make an investigation into the 

ownership of publicly-traded securities (including securities of open-end investment companies 

registered under the Investment Company Act) or the ownership of assets by a collective 

investment fund that holds assets for employee benefit plans or retirement arrangements. 

(r) ERISA Plan Asset. The assets of such Member (including any successor to 

or transferee of such Member) are not deemed to be "plan assets" within the meaning of Section 

3(42) of ERISA) and the "plan asset" regulations set forth in 29 C.F.R. Section 2510.3-101 as 

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

"Plan Asset Regulation"). 

(s) Purchase Eligibility. Each of such Member and any Person that, together 

with its Affiliates, directly or indirectly holds in excess of nine and nine-tenths percent (9.9%) of 

the equity interests of such Member is and remains capable of truthfully making the 

representations and warranties in the Purchaser Eligibility Certification. 

(t) Qualified Purchaser. Such Member is a "qualified purchaser" within the 

meaning of Section 3(c)(7) of the Investment Company Act. 

ARTICLE XI 


Manager Liability 


11.1 Liability of Manager. 

(a) Except as otherwise specifically provided in this Agreement (including in 

the other subsections of this Section 11.1), the duties (including fiduciary duties) and obligations 

owed to the Company and the Initial Member by the Manager shall be as provided in 

Section 3.1(b) hereof. 

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(b) The Manager may rely, and shall be protected in acting or refraining from 

acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, 

consent, order, bond, debenture or other paper or document reasonably believed by it to be 

genuine and to have been signed or presented by the proper party or parties. 

(c) The Manager may consult with legal counsel, accountants, appraisers, 

management consultants, investment bankers and other consultants and advisers selected by it, 

and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to matters 

that the Manager reasonably believes to be within such Person's professional or expert 

competence shall be conclusively presumed to have been done or omitted in good faith and in 

accordance with such opinion. 

(d) The Manager shall not be liable to the Company or the Members for its 

good faith reliance on the provisions of this Agreement. 

(e) The limitations and exculpation afforded by each provision of this 

Section 11.1 are cumulative and not exclusive. Nothing in this Section 11.1 is intended, or shall 

be deemed, to permit conduct that would otherwise constitute misappropriation of a trade secret of 

the Company under applicable Law or conduct that, even disregarding the terms hereof otherwise 

would be actionable by the Company or any Member. 

ARTICLE XII 


Servicing of Assets 


12.1 Servicing. 

(a) Appointment and Acceptance as Servicer. Effective as of the Closing 

Date, but subject to Section 3.3 of the Contribution Agreement (with which the Manager agrees to 

comply), the Manager is hereby appointed (and hereby accepts the appointment) with full 

authority and responsibility, in its own name, to act as the servicer for the Assets and any 

Collateral. Until such time as the Company is dissolved and liquidated pursuant to Article IX, and 

except as otherwise provided in Section 12.4 and subject to the interim servicing being provided 

by or on behalf of the Initial Member pursuant to Section 3.3 of the Contribution Agreement, the 

Manager shall, with respect to each Asset or Group of Assets, from and after the Servicing 

Transfer Date with respect thereto, be responsible for (and hereby assumes responsibility for) 

servicing, administering, managing and disposing of the Assets and the Collateral in accordance 

with the standards (collectively, the "Servicing Standard") set forth in Section 12.2 (such 

obligations referred to collectively herein as the "Servicing Obligations") and the other 

provisions of this Article XII, including the provisions of Section 12.3 (which require that 

servicing be performed through a Qualified Servicer). Without in any way limiting the foregoing, 

but subject to Section 3.3 of the Contribution Ageement, the Manager shall cause the Assets 

(including, for all purposes under this Article XII, the related Collateral) to be serviced as follows: 

(a) such Asset shall, from and after the applicable Servicing Transfer Date, and except as provided 

in the immediately following subsection (b) or as otherwise expressly permitted by the Initial 

Member (with respect to performance of applicable services by the Manager itself), be serviced by 

the Servicer(s) appointed in accordance with Section 12.3 below, and (b) following the 

replacement of the Servicer as a result of an Event of Default, the Assets shall be serviced by the 

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Servicer appointed by the Initial Member in accordance with Section 12.4 below. All servicing of 

Assets following the Closing Date shall be performed in accordance with the terms of the 

Contribution Agreement and this Article XII. 

(b) Servicing and Subservicing Agreement Requirements. Except as is 

otherwise agreed in writing by the Initial Member, each Servicing Agreement (and any 

Subservicing Agreement with any Subservicer) shall, among other things, 

provide for the servicing of the Assets and management of the 

Collateral by the Servicer (or any Subservicer) in accordance with the Servicing Standard and the 

other terms of this Agreement; 

(ii) be terminable upon no more than thirty (30) days prior notice if an 

Event of Default or any default under the Servicing Agreement (or Subservicing Agreement) has 

occurred; 

(iii) provide that the Manager (in its individual capacity) and the Initial 

Member (and, in the case of any Subservicing Agreement, the Servicer) shall be entitled to 

exercise termination rights under the relevant Servicing Agreement or Subservicing Agreement 

(it being understood that the Initial Member shall only exercise such termination rights as 

contemplated or permitted in this Agreement); 

(iv) provide that the Servicer (or any Subservicer) and the Manager (in 

its individual capacity) acknowledge that the Servicing Agreement (or Subservicing Agreement) 

constitutes a personal services agreement between the Manager (in its individual capacity) and 

the Servicer (or between the Servicer and the Subservicer, as applicable); 

(v) provide that (A) each of the Company, the Purchase Money Note 

Guarantor and the FDIC are third party beneficiaries thereunder to the extent of any rights 

expressly granted to such Person under the Servicing Agreement or Subservicing Agreement and 

is entitled to enforce the Servicing Agreement or Subservicing Agreement, as applicable, with 

respect to such rights, (B) the Initial Member and, in the case of any Subservicing Agreement, 

the Manager (in its individual capacity) is a third party beneficiary thereunder; and further 

provide that in no event shall any amendment or waiver to any such Servicing Agreement or 

Subservicing Agreement limit or affect any rights of any such third party beneficiary thereunder 

without the express written consent of such third party beneficiary; 

(vi) provide that (A) upon the removal of the Private Owner as the 

Manager or the occurrence of an Event of Default, the Initial Member (and any successor 

Manager) may exercise all of the rights of the Manager thereunder and cause the termination or 

assignment of the same from the Private Owner as the Manager to any other Person, without 

penalty or payment of any fee, and (B) upon the occurrence of any default under the Servicing 

Agreement, the Initial Member (and any successor Manager) may exercise all of the rights of (1) 

the Manager under such Servicing Agreement and cause the termination or assignment of the 

same from the Private Owner as the Manager to any other Person, without penalty or payment of 

any fee, and (2) the Servicer under the Subservicing Agreement and cause the termination or 

assignment of the Subservicing Agreement from the Private Owner as the Manager to any other 

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Person, without penalty or payment of any fee (it being understood that the Initial Member shall 

only exercise the foregoing rights as contemplated or permitted in this Agreement); 

(vii) provide that the Initial Member, the Manager, the Purchase Money 

Note Guarantor (if a Purchase Money Note is outstanding) and the Company (and each of their 

respective representatives) shall each have access to and the right to review, copy and audit the 

books and records of each Servicer and any Subservicers and that all Servicers and all 

Subservicers shall make available their respective officers, directors, employees, accountants and 

attorneys to answer the Initial Member's, the Manager's, the Purchase Money Note Guarantor's 

and the Company's (and each of their respective representatives') questions or to discuss any 

matter relating to the Servicer's or Subservicer's affairs, finances and accounts, as they relate to 

the Assets, the Collateral, the Collection Account or any other accounts established or 

maintained pursuant to this Agreement, the Custodial and Paying Agency Agreement, the 

Servicing Agreement or any Subservicing Agreement, or any matters relating to the Servicing 

Agreement or any Subservicing Agreement or the rights or obligations thereunder; 

(viii) provide that all Asset Proceeds are to be deposited into the 

Collection Account on a daily basis (without reduction or setoff) within two (2) Business Days 

of receipt and that under no circumstances are funds, other than Asset Proceeds and interest and 

earnings thereon, Excess Working Capital Advances and Discretionary Funding Advances, to be 

commingled in the Collection Account; 

(ix) provide that the Servicer or any Subservicer shall not sell, transfer 

or assign its rights under the Servicing Agreement or Subservicing Agreement, as applicable, 

other than Servicer's rights to delegate to Subservicers certain responsibilities thereunder as and 

to the extent permitted by this Agreement, and that any prohibited sale, transfer or assigmnent 

shall be void ab initio; 

(x) provide that (A) the Servicer or any Subservicer consents to the 

immediate termination of the Servicer or Subservicer, as applicable, upon the occurrence of a 

termination event under the Servicing or Subservicing Agreement, as applicable, and upon the 

occurrence of any Insolvency Event with respect to the Servicer or any Subservicer or any of 

their respective Related Parties, as applicable, and (B) the occurrence of any Restricted Servicer 

Change of Control with respect to the Servicer or of any Insolvency Event with respect to the 

Servicer or any Subservicer or any Related Party thereof constitutes a default under the Servicing 

Agreement or Subservicing Agreement, as applicable; provided, however, that, in the case of the 

Servicing Agreement, the occurrence of an Insolvency Event with respect to a Subservicer or 

Related Party thereof (which is not an Related Party of the Servicer) may, at the election of the 

Manager, be subject to a cure period of not more than thirty (30) days for replacement of the 

affected Subservicer (in a manner that will permit the Manager to comply with its obligations 

hereunder); 

(xi) provide that there shall be no right of setoff on the part of the 

Servicer or any Subservicer against the Asset Proceeds (or the Company); 

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(xii) provide for such other matters as are necessary or appropriate to 

ensure that the Servicer or any Subservicer is obligated to comply with the Servicing Obligations 

of the Manager hereunder; 

(xiii) provide a full release and discharge of each Prior Servicer from 

any and all claims (including any counterclaim or defensive claim), demands, causes of action, 

judgments or legal proceedings and remedies of whatever kind or nature that the Servicer had, 

has or might have in the future, whether known or unknown, which are related in any manner 

whatsoever to the servicing of the Assets by the Prior Servicers prior to the applicable Servicing 

Transfer Date (other than due to gross negligence, violation of Law or willful misconduct of such 

Prior Servicer); 

(xiv) provide that, to the extent required under Section 12.3(g) hereof, 

all Loans registered on the MERS® System shall remain registered unless default, foreclosure or 

similar legal or MERS requirements dictate otherwise; 

(xv) provide that none of the Servicer, any Subservicer or any Affiliate 

of the Servicer or any Subservicer may at any time, (A) be or become a partner or joint venturer 

with any Borrower or Obligor, (B) be or become an agent of any Borrower or Obligor, or allow 

any Borrower or Obligor to be an agent of such Servicer or any Subservicer or of any Affiliate of 

the Servicer or any Subservicer, or (C) have any interest whatsoever in any Borrower or Obligor, 

and shall immediately notify the Manager and the Initial Member upon becoming aware of any 

of these occurrences; 

(xvi) provide that the Servicer shall immediately notify the Manager and 

the Initial Member of the occurrence of any Change of Control with respect to the Servicer; and 

(xvii) not conflict with the Servicing Standard or any other terms or 

provisions of this Agreement, the Custodial and Paying Agency Agreement or any of the other 

Transaction Documents insofar as such other terms or provisions hereof or thereof are required 

to be imposed by the Manager (in its individual capacity) on the Servicer (or any Subservicers) 

in the Servicing Agreement (or Subservicing Agreements). Nothing contained in any Servicing 

Agreement or any Subservicing Agreement shall alter any obligation of the Manager under this 

Agreement and, in the event of any inconsistency between the Servicing Agreement (or any 

Subservicing Agreement) and the terms of this Agreement, among the Parties to this Agreement 

the terms of this Agreement shall control. 

12.2 Servicing Standard. The Manager shall perform (or cause the performance of) the 

Servicing Obligations: (i) in the best interests and for the benefit of the Members and the 

Company, (ii) in accordance with the terms of the Assets (and related Asset Documents), (iii) in 

accordance with the terms of this Agreement and the other Transaction Documents, (iv) in 

accordance with all applicable Law, and (v) to the extent consistent with the foregoing terms, in 

the same manner in which a prudent servicer would service and administer similar loans and in 

which a prudent servicer would manage and administer similar properties for its own portfolio or 

for other Persons, whichever standard is higher, but using no less care and diligence than would 

be customarily employed by a prudent servicer following customary and usual standards of 

practice of prudent mortgage lenders, loan servicers and asset managers servicing, managing and 

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administering similar loans and properties on an arms' length basis; provided, however, that, 

with respect to each Asset and related Collateral, in the absence of a customary and usual 

standard of practice, the Company shall comply with the applicable Fannie Mae Guidelines, if 

any, with respect to similar loans and properties in similar situations. The Manager shall cause 

its Servicing Obligations with respect to the Assets and the Collateral to be performed without 

regard to (w) any relationship that the Company, the Manager, or any Servicer or Subservicer, or 

any of their respective Affiliates may have to any Borrower, Obligor or other obligor, or any of 

their respective Affiliates, including any other banking or lending relationship, (x) the 

Company's, the Manager's, or any Servicer's or Subservicer's, obligation to make disbursements 

and advances with respect to the Assets and Collateral, (y) any relationship that the Servicer or 

any Subservicer may have to each other or to the Company, the Manager or any of their 

respective Affiliates, or any relationship that any of their respective Affiliates may have to the 

Company, the Manager or any of their respective Affiliates (other than the contractual 

relationship evidenced by this Agreement or the Servicing Agreement or any Subservicing 

Ageement), and (z) the Manager's, or any Servicer's or Subservicer's, right to receive 

compensation (including the Management Fee and any Interim Management Fee) for its services 

under this Agreement, the Servicing Agreement or any Subservicing Agreement. Without 

limiting the generality of the foregoing, the Manager's Servicing Obligations hereunder shall 

include the following: 

(a) discharging in a timely manner each and every obligation which the Asset 

Documents provide is to be performed by the lender thereunder, on its own behalf and on behalf 

of the Company and the Initial Member and in the case of Acquired REO Property, which the 

Asset Documents that were applicable to the Collateral before it became Acquired REO Property 

provided were to be performed by the Borrower thereunder in respect of such Collateral (not 

including payment of debt service under the applicable Asset Documents), together with such 

additional obligations as are required of the Company under this Agreement, or the Servicing 

Agreement in respect of such Acquired REO Property; 

(b) incurring costs (including Servicing Expenses (or Interim Servicing 

Expenses) and Pre-Approved Charges) in accordance with the provisions of the Asset Documents, 

and in the case of Acquired REO Property, in accordance with the Asset Documents that were 

applicable to the Acquired REO Property before it became and Acquired REO Property (not 

including payment of debt service under the applicable Asset Documents) and otherwise in 

accordance with the terms and conditions of the Reimbursement, Security and Guaranty 

Agreement; 

(c) causing insurance to be maintained on the Collateral (including any 

Acquired Property) with respect to each Asset with respect to which an Ownership Entity or the 

Borrower has failed to maintain required insurance with extended coverage as is customary in the 

area in which the Collateral is located and in such amounts and with such deductibles as the 

Manager may, in the exercise of its reasonable discretion, determine are prudent and as required 

under this Agreement, and the Reimbursement, Security and Guaranty Agreement; 

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(d) diligently seeking compliance with the terms and conditions of each 

insurer under any hazard policy and preparing and presenting claims under any policy in a timely 

fashion in accordance with the terms of the policy; 

(e) supervising and coordinating the construction, ownership, management, 

leasing and preservation of the Acquired Property as well as all other matters involved in the 

administration, preservation and ultimate disposition of the Acquired Property as would be taken 

by a prudent asset manager managing properties similar to the Acquired Property and as required 

of the Company under this Agreement, and/or the Reimbursement, Security and Guaranty 

Agreement; 

administering the making of advances to Borrowers under Loans pursuant 

to and in accordance with the provisions herein and in the Custodial and Paying Agency 

Agreement governing the making of Permitted Vertical Development Funding Draws and 

Funding Draws; 

(g) to the extent consistent with the foregoing, seeking to maximize the timely 

and complete recovery of principal and interest on the Assets and otherwise to maximize the value 

of the Assets and the Collateral; 

(h) except as otherwise set forth in this Agreement, making decisions under, 

and enforcing and performing in accordance with, the Asset Documents all loan administration, 

inspections, review of financial data and other matters involved in the servicing, administration 

and management of the Assets and the Collateral; 

ensuring that all filings required to maintain perfection in any Collateral 

remain up to date and in force, including Uniform Commercial Code financing statements; 

(i) ensuring that each Borrower (or in the case of Acquired REO Property, the 

applicable Ownership Entity) is diligently performing all applicable construction work (including 

all Substantially Complete Vertical Development) using all commercially reasonable efforts in 

accordance with the requirements of the applicable Asset Documents and of this Agreement; and 

(k) providing the Servicers and any Subservicers with copies of such 

Transaction Documents (or portions thereof) as are necessary for the Servicers or any 

Subservicers to be familiar with in order to perform their respective obligations provided for in 

this Agreement, the Servicing Agreements or the Subservicing Agreements, as applicable. 

12.3 Servicing of Assets. 

(a) Appointment of Servicers. The Manager (in its individual capacity) has 

entered into one or more Servicing Agreements dated the date hereof to provide for the servicing 

and administration and management of the Assets and Collateral by the Qualified Servicer named 

therein. Each Servicer, at all times during which it acts as Servicer, shall satisfy (and must 

continue to satisfy) the definition of Qualified Servicer. Subject, with respect to the Interim 

Servicing Period, to the provisions of Section 3.3 of the Contribution Agreement, each Asset shall 

at all times be serviced (and any Collateral managed) by or through at least one (1) Servicer 

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(including any Subservicers engaged by the Servicer as permitted hereunder) and the performance 

of all day-to-day Servicing Obligations of the Manager shall be conducted by or through one (1) 

or more Servicers (including any Subservicers permitted hereunder). Subject to the other terms 

and conditions of this Agreement, any Servicer may be an Affiliate of the Private Owner or of the 

Manager. Each Servicer may engage or retain one (1) or more Subservicers, including Affiliates 

of the Private Owner or of the Manager, to perform certain of its duties under the Servicing 

Agreement, as it may deem necessary and appropriate, by entering into a Subservicing Agreement 

with each such Subservicer, provided that any Subservicer meets (and at all times continues to 

meet) the requirements set forth in the definition of Qualified Servicer and the terms of the 

applicable Subservicing Agreement comply with the terms of this Agreement and the applicable 

Servicing Agreement. The costs and fees of the Servicers (and any Subservicers) shall be borne 

exclusively by the Manager in its individual capacity without any right of reimbursement from the 

Company or the Initial Member (it being understood that the Manager will receive the Interim 

Management Fee and Management Fee in accordance with Section 12.5 hereof). Under no 

circumstances shall the Manager transfer, or permit to be transferred, to any Servicer or any other 

Person any ownership interest in the servicing rights with respect to the Assets or any right to 

transfer or sell the servicing rights with respect to the Assets (other than in connection with the 

sale of any Asset), and no Servicer shall be permitted to assign, pledge or otherwise transfer to 

any Subservicer or other Person or purport to assign, pledge or otherwise transfer any interest in 

the servicing rights with respect to the Assets (other than in connection with the sale of any 

Asset), and any purported assignment, pledge or other transfer in violation of this provision shall 

be void ab initio and of no effect. 

(b) Manager Liable for Servicer and Subservicers. Notwithstanding anything 

to the contrary contained herein, the use of any Servicer (or any Subservicer) shall not release the 

Manager from any of its Servicing Obligations or other obligations under this Agreement, and the 

Manager shall remain responsible and liable for all acts and omissions of each Servicer (and each 

Subservicer of each Servicer) as fully as if such acts and omissions were those of the Manager. 

All actions of each Servicer (or any Subservicer) performed pursuant to the Servicing Agreement 

(or any Subservicing Agreement) shall be performed as an agent of the Manager (or, in the case of 

Subservicers, the Servicer). 

(c) Copies of Servicing and Subservicing Agreements. Copies of all fully 

executed Servicing Agreements and Subservicing Agreements, including all supplements and 

amendments thereto, shall be provided to the Required Consenting Parties. 

(d) Regulation AB Requirements. The Manager shall use commercially 

reasonable efforts to confirm, where applicable, that each Servicer (and any Subservicer) has in 

place policies and procedures to (i) comply with the relevant servicing criteria provisions of 

Section 1122(d)(1) of Regulation AB that are applicable and relate to the servicing being 

conducted under this Agreement, and (ii) provide to the Manager, at the Servicer's (and any 

Subservicer's) expense the annual reports (including the independent accountant report) required 

pursuant to Section 7.4(d) above; provided, however, that the following Regulation AB criteria 

shall not be deemed relevant to the servicing being conducted under this Agreement (or the 

Servicing Agreement): Section 1122(d)(1)(iii) regarding backup servicer requirements; Sections 

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1122(d)(3)(i-iv) regarding paying agent requirements; and Section 1122(d)(4)(xv) regarding 

external credit enhancement. 

(e) Servicer and Subservicer Fees. No Servicer or Subservicer shall be paid 

any fees or indemnified out of any Asset Proceeds (or funds in the Collection Account, the 

Working Capital Reserve Account, or any other Company account), it being understood that all 

fees and related costs or liabilities (other than Servicing Expenses or Pre-Approved Charges) of 

the Servicers and Subservicers shall be the sole responsibility of the Manager (without any right 

of reimbursement from the Company or the Initial Member). 

(0 Fidelity Bond; E&O Insurance. The Servicer and each Subservicer shall 

maintain each of the following types of insurance coverage having such limits as described below: 

(i) Errors & Omissions Liability with limits of not less than 

$10,000,000 per claim and $10,000,000 in the aggregate. The Manager shall be notified 

immediately upon the reduction of or potential reduction of fifty percent (50%) of the limits. 

The Manager may require that the Servicer and each Subservicer purchase additional limits to 

provide back to the required limits as stated above. "Potential reduction of fifty percent (50%)" 

shall mean any knowledge by the Servicer or Subservicer, as applicable, that a claim or the sum 

of all claims, current or initiated after effective date of policy which would reduce the limits by 

fifty percent (50%). 

(ii) Directors & Officers Liability with limits of not less than 

$10,000,000 each claim and $10,000,000 in the aggregate. 

(iii) Crime Insurance or a Fidelity Bond in an amount of not less than 

$10,000,000 per claim and $10,000,000 in the aggregate, covering employee theft, forgery & 

alteration, wire/funds transfer, computer fraud, client coverage. Such coverage shall insure all 

employees or any other Persons authorized by the Servicer or any Subservicer to handle any 

funds, money, documents and papers relating to any Asset, and shall protect the Servicer or 

Subservicer, as applicable, against losses arising out of theft, embezzlement, fraud, 

misplacement, and other similar causes. The Manager and the Company shall each be named as 

a loss payee with respect to claims arising out of assets handled under this Agreement or any 

applicable Servicing Agreement or Subservicing Ageement. 

(iv) General Liability with limits of not less than $1,000,000 each 

occurrence, $2,000,000 in the aggregate, including coverage for products/completed operations, 

advertising and personal injury. The Manager and the Company shall each be named as 

additional insured. The policy shall include a waiver of subrogation in favor of the Manager and 

the Company. 

(v) Auto Liability with a combined single limit of not less than 

$1,000,000 to provide coverage for any owned, hired, or non-owned vehicles. 

(vi) Workers Compensation in such amount as required by the states in 

which the Servicer or Subservicer, as applicable, operates, including coverage for Employer's 

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Liability in an amount not less than, $1,000,000. The policy shall include a waiver of 

subrogation in favor of the Manager and the Company. 

(vii) Umbrella Liability in an amount of not less than $10,000,000 each 

occurrence and in the aggregate. 

All such policies shall be written with carriers having a minimum insurer rating of A- VIII from 

A.M. Best and A from Standard & Poor's. All such policies shall have a minimum notice of 

cancellation of thirty (30) days, except for non-payment of premium whereby a ten (10) day 

notice of cancellation is acceptable. Certificates shall show each of the Manager and the 

Company as certificate holder, or as otherwise designated by the language in clauses ci)-(vii) 

above. 

The Manager shall provide (or shall cause each Servicer and Subservicer to provide) the 

Required Consenting Parties with certificates evidencing all such policies on the Closing Date 

(and, with respect to each Asset, on or before the applicable Servicing Transfer Date with respect 

thereto) and each anniversary of the Closing Date thereafter, and otherwise upon request of any 

Required Consenting Party. Copies of fidelity bonds and insurance policies required to be 

maintained pursuant to this Section 12.3(f) shall be made available to the Required Consenting 

Parties or their respective representatives on the Closing Date (and, with respect to each Asset, 

on or before the applicable Servicing Transfer Date with respect thereto), and shall otherwise be 

made available to any of the Required Consenting Parties and their respective representative 

upon request. 

(g) MERS Requirements. In the event that any of the Loans are (or are 

required by the terms hereof to be) registered on the MERS® System, and unless and until no 

Loan so remains registered on the MERS® System in accordance herewith, (i) the Manager shall 

cause the Servicer to be (or become) a member of MERS on or before the initial Servicing 

Transfer Date, and maintain itself as a MERS member in good standing (including paying all dues 

and other fees required to maintain its membership and complying with MERS policies and 

procedures), and (ii) the Servicer shall maintain (or register, as applicable) such Loan on the 

MERS® System and execute and deliver on behalf of the Company (including, as applicable, on 

behalf of the Manager, in turn on behalf of the Company) any and all instruments of assignment 

and other comparable instruments with respect to such assignment or re-recording of a mortgage 

securing a Loan in the name of MERS, solely as nominee for the Company and its successors and 

assigns. With respect to each Loan that is registered on the MERS® System, (x) the Servicer 

shall be designated as the "servicer" and the "investor" with respect to such Loan, and, if 

applicable, the Manager may cause or permit an applicable Subservicer to be designated as the 

"subservicer" with respect to such Loan (provided, that the Manager may, as determined in 

accordance with the Servicing Standard and so long as each applicable designee is and remains a 

MERS member in good standing, (1) designate the Company as the "investor" with respect to any 

such Loan, and (2) designate the Manager as the "servicer" with respect to any such Loan, in 

which case the Servicer shall be designated as the "subservicer" with respect thereto), and (y) no 

other Person shall be identified on the MERS® System as having any interest in such Loan unless 

otherwise consented to by the Initial Member (or required pursuant to the Electronic Tracking 

Agreement). All Loans registered on the MERS® System shall remain registered on the MERS® 

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System unless default, foreclosure or similar legal or MERS requirements dictate otherwise; 

provided, however, that if the Manager determines, in accordance with the Servicing Standard and 

other applicable provisions herein and in the other Transaction Documents, to remove any or all 

such Loans so registered with MERS from the MERSO System, the Manager shall have the right 

to cause such removal so long as, with respect to any such Loan to be so removed, (A) the 

applicable mortgage (or other Collateral Document) and rights to Collateral for such Loan that are 

so registered in the name of MERS are duly transferred and assigned to the Company (with all 

applicable recordings or filings with respect thereto being duly made) so as to cause the Company 

to have the full benefit of its applicable security (or other) interest in all such Collateral, and (B) 

for any such removal occurring on or before the applicable Servicing Transfer Date, the same is 

accomplished in accordance with the applicable requirements (and delivery of the applicable 

notice) in Section 3.1(c) of the Contribution Agreement, and (C) for any such removal prior to the 

Purchase Money Note Defeasance Date, the Company shall have duly delivered to the Collateral 

Agent such documents and otherwise taken such actions (including execution and recordation of 

applicable assignments in accordance with the Reimbursement, Security and Guaranty 

Agreement), in each case so as to cause all such Collateral to be and remain subject to the first 

priority security interest granted under the Reimbursement, Security and Guaranty Agreement. 

The Servicer shall provide the Manager and the Initial Member with such reports from the 

MERS® System as the Manager or the Initial Member, from time to time, may request, including 

to allow the Manager and the Initial Member to verify the Persons identified on the MERS® 

System as having any interest in any of the Loans and to confirm that the Loans required to be 

registered on the MERS® System are so registered. For so long as any Loans remain registered 

with MERS, the same shall be subject to an Electronic Tracking Agreement in the form of Exhibit 

B to the Servicing Agreement, and, to the extent any such Loans are so registered with MERS as 

of the Closing Date, the Servicer, the Manager, the Collateral Agent and the Initial Member shall 

execute such Electronic Tracking Agreement on the Closing Date and deliver the same to MERS. 

Without limiting the foregoing, upon the request of the Manager or the Initial Member, the 

Servicer shall cause MERS to run a query with respect to any and all specified fields on the 

MERS® System with respect to any or all of the Loans registered on the MERS® System and 

provide the results to the Manager and the Initial Member and, if requested by the Manager or the 

Initial Member (and subject to any applicable provisions of the Electronic Tracking Agreement), 

shall cause MERS to change the information in such fields, to the extent MERS will do so in 

accordance with its policies and procedures, to reflect its instructions. 

12.4 Removal of Servicer. 

(a) Removal of Servicer. Upon the occurrence of an Event of Default, in 

addition to any other rights it may have pursuant to this Agreement, any other Transaction 

Document or applicable Law (including the Uniform Commercial Code), whether at Law or in 

equity and whether pursuant to statute or regulation or otherwise, the Initial Member shall have 

the right to take, at the Initial Member's option and the Manager's expense, one or more of the 

following actions: (i) upon notice in writing to the Manager (effective at such time as is specified 

in such notice), to act on behalf of the Manager (in its individual capacity) to terminate the 

existing Servicer (and any Subservicers) and to cause the Manager (in its individual capacity) to 

enter into a new Servicing Agreement with a servicer (a "successor Servicer") selected by the 

Initial Member (in its sole and absolute discretion), and (ii) upon notice in writing to the Manager 

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(effective at such time as is specified in such notice), to remove the Private Owner as the Manager 

and appoint a successor Manager (which successor Manager may be the Initial Member) in the 

sole discretion of the Initial Member, whereupon (without limitation of Section 13.5), such 

successor Manager shall immediately succeed to all, or such portion as the Initial Member and 

successor Manager agree, of the rights and obligations of the Private Owner as the Manager of the 

Company, and, in such case, the Initial Member shall further have the right (A) to terminate the 

Servicer (in its sole and absolute discretion), and cause or permit the successor Manager selected 

by the Initial Member (and/or the Company directly, as determined by the Initial Member in its 

sole discretion) to enter into a Servicing Agreement with a successor Servicer, such Servicing 

Agreement to be between the applicable successor Manager (and/or the Company) and the 

successor Servicer chosen by the Initial Member, or (B) to retain the existing Servicer and cause 

or permit the successor Manager (and/or the Company directly, as determined by the Initial 

Member in its sole discretion) to enter into a new Servicing Agreement between such successor 

Manager (and/or the Company) and the Servicer (or to effect an assignment of the existing 

Servicing Agreement from the existing Manager (in its individual capacity) to such successor 

Manager (and/or the Company). None of the Initial Member, any successor Manager or the 

Company shall have any obligation to assume any obligations or liabilities of the removed 

Manager (in its individual capacity) under or in connection with any Servicing Agreement. 

Notwithstanding the foregoing, the Initial Member shall not exercise its right to terminate a 

Servicer that is not an Affiliate of the Manager or of the Private Owner in the absence of (1) an 

Event of Default attributable in whole or in part to the failure by the Servicer or any of its 

Subservicers to perform any material obligation under its applicable Servicing Agreement or 

Subservicing Agreement, (2) an Event of Default as described in clause (b) or clause (g) of the 

definition thereof with respect to the Servicer or any Related Party thereof or any of its 

Subservicers or any Related Party thereof, (3) an Event of Default resulting from the failure of the 

Servicer or any of its Subservicers at any time to meet the criteria of a Qualified Servicer, (4) an 

Event of Default as described in clause (e) of the definition thereof, to the extent relating to such 

Servicer or any of its Subservicers, or (5) any other Event of Default that consists of a breach of a 

servicing obligation under this Agreement. Subject to the foregoing, the Manager hereby consents 

to the immediate termination of the Servicer upon the occurrence of any Event of Default. For the 

avoidance of doubt, the rights of the Initial Member in this Section 12.4 are in addition to, and can 

be exercised independently of the rights of the Initial Member in Sections 3.2, 3.13, and 3.14; and 

in any event all rights and remedies of the Initial Member under this Agreement with respect to or 

following an Event of Default shall be cumulative, and any or all thereof may be exercised instead 

of or in addition to each other or any other remedies available to the Initial Member, whether 

under this Agreement, any other Transaction Document or otherwise. Notwithstanding the 

foregoing, if any Purchase Money Note is outstanding, the Purchase Money Note Guarantor shall 

have the same rights under this Section 12.4(a) as the Initial Member. 

(b) Appointment of Successor Servicer. If the Initial Member exercises its 

right to act on behalf of the Manager (in its individual capacity) to appoint a successor Servicer, 

the costs and expenses associated with such successor Servicer (including any servicing fees) shall 

be borne by the Manager (and not the Company or the Initial Member), and no termination or 

other fee shall be due to the Manager or the Servicer or any Subservicer in connection with or as a 

result of any such action; provided, however, that, if the Initial Member or the Purchase Money 

Guarantor has also exercised its right to remove the Manager (such that such removed Manager no 

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longer has rights to the Management Fee), then, with respect to servicing fees of such successor 

Servicer (but not costs and expenses in connection with the replacement of the Servicer with such 

successor Servicer) such removed Manager shall be responsible only for the portion of such fees 

that, as of any particular Distribution Date, are in excess of the Management Fee payable to the 

successor Manager on such Distribution Date. 

(c) Removal of Manager; Management Fee. If the Initial Member exercises 

its right pursuant to this Section 12.4 to remove the Private Owner as the Manager and appoint a 

successor Manager, (i) the successor Manager selected by the Initial Member shall immediately 

succeed to all, or such portion as the Initial Member and successor Manager agee, of the rights 

and obligations of the Private Owner as the Manager of the Company, and all references in this 

Agreement to the Private Owner, in its capacity as Manager of the Company, shall be deemed to 

be references to the successor Manager so appointed by the Initial Member, (ii) without limitation 

of Section 13.5, the Initial Member shall have the right to determine, in its sole discretion, the 

extent, terms and conditions of the appointment of any such successor Manager, including as to 

compensation (whether from the Initial Member or the Company), indemnification by the 

Company, term of appointment and removal rights, in each case without the necessity for any 

consent from the Private Owner or any other Person, and (iii) the successor Manager appointed by 

the Initial Member shall be entitled to be paid the Interim Management Fee or Management Fee 

(or, in each case, such portion thereof as the Initial Member and the successor Manager agree) in 

accordance with the terms of this Agreement and the Custodial and Paying Agency Agreement. 

The removal of the Private Owner as the Manager shall not relieve the Private Owner of (x) any of 

the liabilities and/or obligations of the Private Owner as Manager to the extent required under the 

terms of this Agreement to have been paid and/or performed prior to such removal or (y) any 

liability the Private Owner may have arising out of any act or omission by the Private Owner as 

Manager. No successor to the Private Owner as Manager shall have any liability or obligation for 

any of the matters described in clause (x) or (y) of the preceding sentence, except as may be 

otherwise specified pursuant to any modification to this Agreement pursuant to Section 13.5. In 

connection with any such removal of the Manager, the Initial Member and any successor Manager 

selected by the Initial Member are each hereby authorized and empowered, as attorney-in-fact or 

otherwise, to execute and deliver, on behalf of and at the expense of the removed Manager (in its 

individual capacity), any and all documents and other instruments and to do or take any and all 

acts necessary or appropriate to effect the termination and replacement of such Manager and the 

Servicer and, in the event the Initial Member decides to retain a new Servicer, to enter into a new 

Servicing Agreement between the successor Manager (and/or the Company) and the Servicer or to 

effect an assignment of the existing Servicing Agreement from the removed Manager (in its 

individual capacity) to the successor Manager (and/or the Company). Notwithstanding the 

foregoing, if any Purchase Money Note is outstanding, the Purchase Money Note Guarantor shall 

have the same rights under this Section 12.4(a) as the Initial Member. 

(d) Cooperation To Facilitate Transfer. In the event any of the Manager, a 

Servicer or a Subservicer is terminated pursuant to the provisions of this Article XII, the Manager 

(in its individual capacity) shall, and shall cause any Servicer (and any Subservicer) to, provide 

the Initial Member and any successor Manager or Servicer in a timely manner with all documents, 

records and data (including electronic documents, records and data) requested by the Initial 

Member or any successor Manager or Servicer to enable such Person to assume the 

responsibilities as Manager under this Agreement and any applicable Servicing Agreement, and to 

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cooperate with the Initial Member in effecting the termination of any Servicer (or Subservicer) or 

the Manager's rights as "Manager" under this Agreement, including, in each case subject to 

applicable requirements in the Custodial and Paying Agency Agreement and the Reimbursement, 

Security and Guaranty Agreement, (x) the transfer within one (1) Business Day to such account as 

the Initial Member may specify of all cash amounts which, at the time, shall be or should have 

been credited to the Collection Account or are thereafter received with respect to any Assets or 

Acquired Property, and (y) the transfer of all lockbox accounts with respect to which payments or 

other amounts with respect to the Assets are directed or the redirection of all such payments and 

other amounts to such account as the Initial Member may specify, and (z) the assignment to the 

Initial Member (or the applicable successor Manager or Servicer as indicated by the Initial 

Member) of the right to access all such lockbox accounts, the Collection Account, any Defeasance 

Account and any other account into which Asset Proceeds or Borrower escrow payments are 

deposited or held. The Manager (in its individual capacity) shall be liable for all costs and 

expenses incurred by the Initial Member or the Company (x) associated with the complete transfer 

of the servicing data, (y) associated with the completion, correction or manipulation of servicing 

data as may be required to correct errors or insufficiencies in the servicing data to enable the 

Initial Member and any successor Manager and successor Servicer (and Subservicers) to service 

the Assets and Acquired Property properly and effectively, and (z) to retain and maintain the 

services of a successor Manager and/or successor Servicer (and any Subservicers), it being 

understood that, as to the compensation to be paid to the successor Manager (and servicing fees 

due and payable to any Servicer or Subservicer engaged by or through such successor Manager), 

the removed Manager shall be responsible only for the portion of such compensation and fees that, 

as of any particular Distribution Date, are in excess of the Management Fee payable to the 

successor Manager on such Distribution Date. Within a reasonable time after receipt of a written 

request of the Manager (in its individual capacity) for the same, the Initial Member shall provide 

reasonable documentation evidencing such costs and expenses, but the Initial Member's right to 

reimbursement of such costs and expenses (and to exercise offset rights under Section 4.6(h) on 

account thereof) shall not be subject to or contingent upon the provision of such documentation. 

(e) Power of Attorney. The Company hereby irrevocably constitutes and 

appoints the Initial Member and any officer or agent thereof, with full power of substitution, as its 

true and lawful attorney-in-fact for the purposes of this Agreement and allowing the Initial 

Member to perfect, preserve the validity, perfection and priority of, and enforce any Lien granted 

by this Ageement and, after the occurrence and during the continuance of any Event of Default, 

to exercise its rights, remedies and powers and privileges under this Agreement. This appointment 

as attorney-in-fact is irrevocable and coupled with an interest until this Agreement is terminated 

and the security interests created hereby are released. Without limiting the generality of the 

foregoing, but subject at all times to the rights of a secured party under the Reimbursement, 

Security and Guaranty Agreement, the Initial Member shall be entitled under this Section 12.4(e) 

to do any of the following if an Event of Default has occurred and is continuing: (i) ask, demand, 

collect, sue for, recover, receive and give receipt and discharge for amounts due and to become 

due under and in respect of any or all of the Assets; (ii) file any claims or take any action or 

proceeding in any court of law or equity that the Initial Member may reasonably deem necessary 

or advisable for the collection or other enforcement of all or any part of the Assets, defend any 

suit, action or proceeding brought against the Company with respect to any Asset, and settle, 

compromise or adjust any such suit, action or proceeding; (iii) execute, in connection with any 

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sale or disposition of the Assets, any endorsements, assignments, bills of sale or other instruments 

of conveyance or transfer with respect to all or any part of the Assets; (iv) enforce the rights of the 

Company under any provision of any Servicing Ageement to the extent permitted thereunder and 

under the terms of this Agreement; (v) pay or discharge Taxes and Liens levied or placed on the 

Assets; (vi) generally, sell, transfer, pledge and make any agreement with respect to or otherwise 

deal with any of the Assets as fully and completely as though the Initial Member were the 

absolute owner thereof for all purposes; and (vii) do, at the Initial Member's option and the 

Company's expense, at any time and from time to time, all acts and things that the Initial Member 

reasonably deems necessary to protect, preserve, or realize upon the Assets and the Initial 

Member's security interests in any Secured Assets and to effect the intent of this Ageement, all as 

fully and effectively as the Company might do. Anything in this Section 12.4(e) to the contrary 

notwithstanding, the Initial Member agrees that it shall not exercise any right under the power of 

attorney provided for in this Section 12.4(e) unless an Event of Default shall have occurred and be 

continuing. 

12.5 Interim Management Fee and Interim Servicing Fee; Management Fee. (a)(i) For 

each Due Period commencing after the Closing Date (and as determined separately for each 

Group of Assets), (a) with respect to any Group of Assets for which the Servicing Transfer Date 

has not occurred as of the first day of such Due Period, the Company shall pay the Interim 

Management Fee to the Manager and (ii) for each Due Period commencing after the Cut-Off 

Date (and as determined separately for each Group of Assets for which the Servicing Transfer 

Date has not occurred as of the first day of such Due Period), the Company shall pay the Interim 

Servicing Fee to the Initial Member, and (b) for each Group of Assets for which the Servicing 

Transfer Date has occurred as of (or occurs on) the first day of such Due Period, the Company 

shall pay the Management Fee to the Manager. Each such payment of any Interim Servicing 

Fee, Interim Management Fee and Management Fee shall be made in the manner described in the 

Custodial and Paying Agency Agreement (and, as applicable, on the Distribution Date with 

respect to the applicable Due Period). In the event the Manager is removed and replaced by the 

Initial Member or the Purchase Money Note Guarantor in accordance with Section 12.4 above, 

the Management Fee and Interim Management Fee shall thereafter be payable to the Initial 

Member or the Purchase Money Note Guarantor or successor Manager, as determined by the 

Initial Member pursuant to such Section 12.4. The Manager may not assign its right to receive 

the Management Fee without the prior written consent of the Initial Member or the Purchase 

Money Note Guarantor, which consent may be withheld in the sole discretion of the Initial 

Member or the Purchase Money Note Guarantor. 

12.6 Working Capital Expenses. Subject to Section 3.3 of the Contribution Ageement 

(with respect to the Interim Servicing Period, including as to any Interim Servicing Expenses), 

from and after the Closing Date (and, with respect to each Asset, from and after the Servicing 

Transfer Date with respect thereto), the Manager shall cause the Company to pay, from available 

Company funds (in the Collection Account, the Working Capital Reserve Account qr any other 

applicable Company account the funds of which may be used for such purpose, or otherwise 

through Excess Working Capital Advances funded by the Manager) all amounts due as Servicing 

Expenses (or, as applicable, Pre-Approved Charges), Funding Draws and other Working Capital 

Expenses in a timely manner, and in each case in accordance with applicable requirements set 

forth in the Custodial and Paying Agency Ageement (and, as applicable, the Contribution 

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Agreement); provided, however, that anything to the contrary herein or in any other Transaction 

Document notwithstanding, the Manager shall not have an obligation to fund Excess Working 

Capital Advances for purposes of the payment by the Company of (i) any Pre-Approved 

Charges, or (ii) any specific Servicing Expense relating to an Asset to the extent that the 

Manager has reasonably determined in accordance with the Servicing Standard that such 

Servicing Expense, if so paid, when combined with all unreimbursed previous Servicing 

Expenses, Permitted Vertical Completion Expenses, Funding Draws and Pre-Approved Charges 

with respect to such Asset (and any remaining Interim Servicing Expenses or other amounts 

owing to the Initial Member with respect to its servicing of such Assets during the Interim 

Servicing Period pursuant to Sections 2.3, 2.4, 3.1 and 3.3 of the Contribution Agreement), 

would not ultimately be recoverable from the Asset Proceeds for such Asset. All Working 

Capital Expenses (and Excess Working Capital Advances for the funding of the same) shall be 

reimbursed in accordance with the Custodial and Paying Agency Agreement. 

12.7 Use of Asset Proceeds. 

(a) Permitted Payments. Subject to Section 12.7(b), each month the Asset 

Proceeds shall be utilized and distributed in the manner set forth in the Custodial and Paying 

Agency Agreement following receipt by the Paying Agent from the Manager of the Distribution 

Date Report required to be provided under Section 7.4(b). 

(b) Costs That Are Not Reimbursable. Notwithstanding anything else to the 

contrary contained herein or in any other Transaction Document, without the prior written consent 

of the Initial Member (which may be withheld, conditioned or delayed in the Initial Member's 

sole and absolute discretion), in no event may the Manager deduct, from the Asset Proceeds, or 

otherwise use Asset Proceeds to reimburse itself or any Servicer or Subservicer or pay for, any 

Excluded Expenses (all of which shall be borne by the Manager in its individual capacity). 

12.8 Collection Account. On the Closing Date, the Manager shall cause the Company 

to establish and maintain the Collection Account with the Paying Agent in accordance with the 

Custodial and Paying Agency Agreement. The Collection Account (and all funds therein) shall 

be subject to the security interest granted under the Reimbursement, Security and Guaranty 

Agreement and to the Account Control Agreement under the Custodial and Paying Agency 

Agreement. 

12.9 Distribution Account. On the Closing Date, the Manager shall cause the 

Company to establish the Distribution Account with the Paying Agent in accordance with the 

Custodial and Paying Agency Ageement. The Distribution Account (and all funds therein) shall 

be subject to the security interest granted under the Reimbursement, Security and Guaranty 

Agreement and to the Account Control Agreement under the Custodial and Paying Agency 

Agreement. 

12.10 Defeasance Account. On the Closing Date, the Manager shall cause the Company 

to establish the Defeasance Account with the Paying Agent in accordance with the Custodial and 

Paying Agency Ageement. The Defeasance Account (and all funds therein) shall be subject to 

the security interest ganted under the Reimbursement, Security and Guaranty Agreement. 

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12.11 Working Capital Reserve Account. 

(a) Establishment of Working Capital Reserve Account. On the Closing Date, 

the Manager shall cause the Company to establish the Working Capital Reserve Account with the 

Paying Agent for the exclusive purpose of holding the Working Capital Reserve to cover Working 

Capital Expenses to the same extent, and in the same order of priority, as are applicable to Asset 

Proceeds in accordance with the terms hereof and the Custodial and Paying Agency Agreement 

(and, as of any date of determination, the amount of the Working Capital Reserve shall be deemed 

to be the amount of the funds in such Working Capital Reserve Account). The Working Capital 

Reserve Account (and all funds therein) shall be subject to the security interest granted under the 

Reimbursement, Security and Guaranty Agreement and to the Account Control Agreement under 

the Custodial and Paying Agency Agreement. 

(b) Funding Working Capital Reserve Account. On the Closing Date, the 

Initial Member and the Private Owner shall fund the Working Capital Reserve Account in an 

initial principal amount of the WCR Account Deposit as follows: the Initial Member shall deposit 

cash in the amount of the Initial Member WCR Account Deposit, and the Private Owner shall 

deposit cash in the amount of the Private Owner WCR Account Deposit, which deposits shall be 

made in accordance with the applicable provisions of the Transferred LLC Interest Sale 

Agreement. The Company may fund the Working Capital Reserve Account with Asset Proceeds 

in accordance with the terms of the Custodial and Paying Agency Agreement and must maintain 

certain deposit amounts to comply with the Working Capital Reserve Floor and the Working 

Capital Reserve Cap established under the Custodial and Paying Agency Agreement. 

(c) Use of Working Capital Reserve. The Manager or the Initial Member (in 

relation to its interim servicing obligations) may direct the Company to withdraw funds from the 

Working Capital Reserve Account (including, as applicable, through release of such funds into the 

Collection Account) only to cover Working Capital Expenses and Permitted Vertical Completion 

Expenses in accordance with Section 3.6 of the Custodial and Paying Agency Agreement. The 

Manager shall not permit withdrawals from the Working Capital Reserve Account for any other 

purpose; provided, that, to the extent expressly permitted in the Custodial and Paying Agency 

Agreement, the Manager may cause the release of funds from the Working Capital Reserve 

Account (including for purposes of distributions to the Members) in accordance with, and subject 

to, the terms of the Custodial and Paying Agency Agreement. With respect to any Asset, on the 

Servicing Transfer Date, the Initial Member shall be reimbursed from the Working Capital 

Reserve Account for an amount equal to all Working Capital Expenses (and any advance of the 

Initial Member that is reimbursable pursuant to the Contribution Agreement) paid by it at any time 

after the Cut-Off Date and on or before such Servicing Transfer Date (to the extent the same have 

not been otherwise reimbursed pursuant to the Contribution Agreement or Custodial and Paying 

Agency Agreement). 

(d) Permitted Investments: The Working Capital Reserve shall be invested in 

Permitted Investments in accordance with the Custodial and Paying Agency Agreement. 

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12.12 Reserved. 

12.13 Reserved. 

12.14 Other Uses of Company Funds. Subject to the terms and conditions herein and in 

the other Transaction Documents, the Company shall use Asset Proceeds, Excess Working 

Capital Advances, Discretionary Funding Advances and funds in the Working Capital Reserve 

Account, the Collection Account or any other Company account solely for such purposes as are 

expressly permitted herein, in the Custodial and Paying Agency Agreement and in the other 

applicable Transaction Documents. Accordingly, except as may be required in connection with 

Funding Draws, Vertical Development of or with respect to an Asset (including by the Company 

or by any Borrower under a Loan) with use of Company funds shall be limited to Substantially 

Complete Vertical Development (and related Permitted Vertical Completion Expenses) funded 

from the Collection Account, the Working Capital Reserve Account, and, if applicable, 

Discretionary Funding Advances pursuant to the applicable provisions herein and in the 

Custodial and Paying Agency Agreement and the other Transaction Documents. The foregoing 

notwithstanding, at the request of the Manager and the Private Owner, and subject to the specific 

written approval of the Initial Member (which approval may be granted or withheld in the sole 

discretion of the Initial Member, and shall require the consent of each other Required Consenting 

Party to the extent amounts with respect thereto are to be repaid with priority over amounts 

payable to such Required Consenting Party), the Company may, on an Asset-by-Asset basis, 

fund or incur additional expenses with respect to an Asset (not otherwise expressly permitted to 

be funded by the Company), including for purposes of the completion (by the applicable 

Borrower under a Loan or by the Company with respect to Acquired REO Property) of Vertical 

Development that is Substantially Complete (to the extent the Company is not otherwise required 

to fund the same pursuant to Required Funding Advances). Any such request by the Manager 

and the Private Owner to the Initial Member shall specify in reasonable detail the applicable 

requested expenses (including an applicable budget and timeline with respect thereto) and 

requested sources (including any applicable use of funds in the Collection Account, the Working 

Capital Reserve, and any right or obligation to make Excess Working Capital Advances or 

Discretionary Funding Advances with respect thereto), and any such requested expenses and 

sources shall be permitted only to the extent expressly set forth in the applicable written 

approval, if any, by the Initial Member. 

12.15 Certain Servicing and Asset Administration Decisions. The Manager shall have 

full power and authority, acting alone or through any Servicer or any Subservicer, to cause to be 

done any and all things in connection with the servicing and administration of the Assets that the 

Manager may deem necessary or desirable, and cause to be made all servicing decisions in its 

reasonable discretion, subject to its obligation to comply with the Servicing Standard and other 

applicable provisions herein and in the other Transaction Documents. Upon the occurrence of an 

event of default under any of the Asset Documents, but subject to the other terms and conditions 

of this Agreement (including the Servicing Standard), the Manager shall cause to be determined 

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

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

protect the interests of the Company in the Assets and the Collateral, (ii) the declaration and 

recording of a notice of such default and the acceleration of the maturity of the Asset, (iii) the 

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institution of proceedings to foreclose under the Asset Documents securing the Asset pursuant to 

the power of sale contained therein or through a judicial action, (iv) the institution of proceedings 

against any Obligor, (v) the acceptance of a deed in lieu of foreclosure, (vi) the purchase of the 

real property Collateral at a foreclosure sale or trustee's sale or the purchase of the personal 

property Collateral at a Uniform Commercial Code sale, and (vii) the institution or continuation 

of proceedings to obtain a deficiency judgment against such Borrower or any Obligor. 

Notwithstanding any provision to the contrary herein, the Manager shall not, and shall not cause 

any Servicer or any Subservicer to, take any action that is inconsistent with or prohibited by the 

terms of the Reimbursement, Security and Guaranty Agreement or the Custodial and Paying 

Agency Agreement in each case without the prior written consent of the Initial Member. 

12.16 Management and Disposition of Collateral. Subject to the other terms and 

conditions of this Agreement (including the Servicing Standard) and the Reimbursement, 

Security and Guaranty Agreement, the Manager shall have full power and authority, acting alone 

or through any Servicer and any Subservicer, to cause to be done any and all things in connection 

with the Manager's management of any Collateral or Acquired Property, that the Manager may 

deem necessary or desirable, and cause to be made all asset management decisions in its 

reasonable discretion. 

12.17 Acquisition of Collateral. 

(a) If title to any Collateral that constitutes real property is to be acquired by 

foreclosure, by deed in lieu of foreclosure, by power of sale or by sale pursuant to the Uniform 

Commercial Code, or otherwise, title to such Acquired REO Property shall be taken and held in 

the name of an Ownership Entity; provided, however, that for any Acquired REO Property with 

respect to which there exists any Environmental Hazard, the Ownership Entity that holds such 

Acquired REO Property may hold title only to the relevant Acquired REO Property with respect 

to which the Environmental Hazard exists. 

(b) Nothing in this Article XII or anything else in this Agreement shall be 

deemed to affirmatively require the Manager to cause the Company to acquire all or any portion 

of any Acquired REO Property with respect to which there exists any Environmental Hazard. 

Prior to acquisition of title to any Acquired REO Property (whether by foreclosure, deed in lieu of 

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

the Manager shall cause to be commissioned with respect to such Acquired REO Property either 

(i) a Transaction Screen Process consistent with ASTM Standard E 1528-06, by an environmental 

professional or (ii) such other Site Assessment, and the cost of such Site Assessment shall be 

deemed to be a Servicing Expense as long as the costs for such Site Assessment were not paid to 

any Affiliate of the Manager, or any Affiliate of the Servicer or any Subservicer. 

(c) The Company shall be the sole Member of any Ownership Entity. The 

purposes of each Ownership Entity shall be to' hold the Acquired Property pending sale, to 

complete applicable permitted construction of any such Acquired Property and to operate the 

Acquired Property as efficiently as possible in order to minimize financial loss to the Company 

and the Required Consenting Parties, and to sell the Acquired REO Property as promptly as 

practicable in a way designed to minimize financial loss to the Company and the Required 

Consenting Parties. 

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12.18 Administration of Acquired REO Properties. The following terms and conditions 

shall be binding on the Company and the Ownership Entities (and on the Manager's performance 

of its obligations hereunder) with respect to any Acquired REO Properties, in addition to any 

other terms and conditions concerning the same subject matter set forth in this Agreement and 

any of the other Transaction Documents: 

(a) Insurance. With respect to each Acquired REO Property, the Manager 

shall cause the applicable Ownership Entity to maintain, with financially sound and reputable 

insurers, insurance (including, as applicable, public liability insurance, property insurance, flood 

insurance, boiler and machinery insurance, business interruption or rent insurance and other 

insurance), in such amounts, with such deductibles, covering such risks and otherwise on such 

terms and conditions, in each case as are customarily maintained by property owners for other real 

property and buildings similar to such Acquired REO Property in the area in which such Acquired 

REO Property is located, all as determined by the Manager in accordance with the Servicing 

Standard and the provisions of this Agreement and the other Transaction Documents. All 

insurance policies shall name the Collateral Agent, the Manager and the Company as an additional 

insured, loss payee or mortgagee thereunder, as applicable, as its interest may appear. Each policy 

shall provide that such policy may not be cancelled or materially changed except upon thirty (30) 

days' prior written notice to the Company and to the Collateral Agent, and shall further provide 

that no act or thing done by the applicable Ownership Entity shall invalidate any policy as against 

the Collateral Agent. 

(b) Leasing Covenants. With respect to each Acquired REO Property, the 

Manager shall cause the applicable Ownership Entity to (i) perform the obligations that such 

Ownership Entity is required to perform under the leases to which it is a party in all material 

respects and (ii) enforce, in accordance with commercially reasonable practices for properties 

similar to the applicable Acquired REO Property, the material obligations to be performed by the 

tenants under such leases. 

(c) Zoning. The Manager shall not permit any Ownership Entity to initiate or 

consent to any zoning reclassification of any portion of the Acquired REO Property owned by 

such Ownership Entity, or use or permit the use of any portion of an Acquired REO Property in 

any manner that could result in such use (taking into account any applicable variance obtained in 

accordance with the Servicing Standard) becoming a non-conforming use under any zoning 

ordinance or any other applicable land use Law, rule or regulation, without the prior consent of the 

Required Consenting Party. 

(d) No Joint Assessment. The Manager shall not permit any Ownership 

Entity to suffer, permit or initiate the joint assessment of Acquired REO Property (i) with any 

other real property constituting a Tax lot separate from such Acquired REO Property, and (ii) with 

any portion of a Acquired REO Property which may be deemed to constitute personal property, or 

any other proceduie whereby the Lien of any Taxes which may be levied against such personal 

property shall be assessed or levied or charged to such Acquired REO Property. 

(e) Maintenance, Repairs and Alterations. From and after the completion of 

any buildings or other improvements at an Acquired REO Property, the Manager shall cause the 

applicable Ownership Entity to maintain such Acquired REO Property in a good and safe 

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condition and repair (subject to such alterations as the Manager may from time to time determine 

to be appropriate in accordance with the Servicing Standard and applicable requirements herein 

and in the other Transaction Documents) and in accordance with applicable Law. 

(0 Property Management. All property managers with respect to any 

Acquired REO Property shall, in their respective property management agreements or by separate 

agreement, subordinate their rights under such ageements (including their right to receive 

management fees) to the rights and interest of the Collateral Agent under the applicable REO 

Mortgage. 

(g) Ground Leases. With respect to any Acquired REO Property that is 

leased under a ground lease or other lease, the Manager shall cause the applicable Ownership 

Entity to (i) pay all rents and other sums required to be paid by the tenant under and pursuant to 

the provisions of the applicable ground lease as and when such rent or other charge is payable, and 

(ii) diligently and timely perform and observe all of the terms, covenants and conditions binding 

on the tenant under the ground lease. The Manager shall not permit the applicable Ownership 

Entity to subordinate or consent to the subordination of any Ground lease to any mortgage, lease 

or other interest on or in the ground lessor's interest in the applicable Acquired REO Property 

without the prior consent of the Collateral Agent unless such subordination is required under the 

provisions of such Ground lease. 

(h) Additional Construction Covenants. In the event the Manager elects to 

cause the Company to fund any permitted construction with respect to Acquired REO Property, 

then the Manager shall cause each applicable Ownership Entity to pursue with diligence the 

construction of the Acquired REO Property owned by such Ownership Entity (i) in accordance 

with the construction, construction management (if any) and all other material contracts relating to 

such construction, and all requirements of Law, all restrictions, covenants and easements affecting 

such Acquired REO Property, and all applicable governmental approvals, (ii) in the case of any 

Substantially Complete Vertical Development, in substantial compliance with the plans and 

specifications therefor as in existence on the Closing Date and as thereafter modified by the 

Manager in its business judgment exercised in accordance with the Servicing Standard and 

applicable provisions in this Ageement and the other Transaction Documents, (iii) in a good and 

workmanlike manner and free of defects, (iv) in a manner such that such Acquired REO Property 

remains free from any Liens, claims or assessments (actual or contingent) for any material, labor 

or other item furnished in connection therewith and (v) in conformance with the all other 

applicable requirements set forth herein and in the other Transaction Documents. 

(i) Acquired REO Property Generally. Notwithstanding any other provision 

of this Section 12.15 to the contrary, (i) in operating, managing, leasing or disposing of any 

Acquired REO Property, the Manager shall act in the best interests of the Company, and the 

Members and creditors of the Company (including the FDIC in its various capacities) and in 

accordande with the Servicing Standard, and (ii) without relieving the Manager of any obligation 

elsewhere in this Agreement or any other Transaction Document, the Manager shall not be 

required to act in accordance with a specific provision of this Section 12.15 if such action is (A) 

not in the best interests of Company and the Members and creditors of the Company (including 

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the FDIC in its various capacities), as determined by the Manager in the exercise of its reasonable 

discretion, or (B) not in accordance with the Servicing Standard. 

(j0 Reports. The Manager shall furnish to the Initial Member and the 

Collateral Agent such reports regarding the construction, leasing and sales efforts of or relating to 

the Acquired REO Property as the Initial Member or the Collateral Agent shall reasonably 

request. Without limitation of the foregoing, the Monthly Reports shall include applicable 

reporting, in form and substance satisfactory to the Initial Member and the Collateral Agent, with 

respect to all permitted Vertical Development, including, as applicable, a tracking of progess of 

construction and use of funds with a comparison thereof to any applicable Business Plan or update 

thereto (in the case of any other permitted Vertical Development). 

12.19 Releases of Collateral. The Manager is authorized to cause the release or 

assignment of any Lien granted to or held by the Company on any Collateral upon payment of 

any Loan in full and satisfaction in full of all of the secured obligations with respect to a Loan, 

upon receipt of a discounted payoff as payment in full of a Loan, or upon a sale of the Loan to 

any Person, in each case as and to the extent permitted hereunder and under the Reimbursement, 

Security and Guaranty Agreement. 

12.20 Clean-Up Call Rights. 

(a) If, and only if, all amounts owing under the Purchase Money Note have 

paid in full, and all reimbursement and other obligations to the FDIC under the Reimbursement, 

Security and Guaranty Agreement have been satisfied in full, or with the consent of the Required 

Consenting Parties, the Initial Member shall have the right, exercisable in its sole and absolute 

discretion, to require the liquidation and sale, for cash consideration, of any remaining Assets held 

by the Company or any Ownership Entity at any time after the earlier to occur of (i) the seventh 

(7th) anniversary of the Closing Date and (ii) the date on which the then Unpaid Principal Balance 

is ten percent (10%) or less of the Unpaid Principal Balance as of the Cut-Off Date as set forth on 

the Asset Schedule (such right to cause such liquidation and sale at such time, the "Clean-Up 

Call"). 

(b) In order to exercise its rights under this Section 12.20, the Initial Member 

and the Purchase Money Note Guarantor shall give notice in writing to the Manager, setting forth 

the date by which the remaining Assets are to be liquidated by the Company, which date shall be 

no less than one hundred and fifty (150) calendar days after the date of such notice. 

(c) The Manager shall proceed expeditiously to cause to be commenced the 

liquidation of the remaining Assets and Acquired Property by means of sealed bid sales to Persons 

other than Affiliates of the Company, the Servicer or any Subservicer, or Affiliates of the Servicer 

or any Subservicer. The selection of any financial adviser or other Person, broker or sales agent 

retained for the liquidation of the remaining Assets pursuant to this Section 12.20 shall be subject 

to the prior approval of the Initial Member, such approval not to be unreasonably withheld, 

delayed or conditioned as long as the fees to be charged by such financial adviser or other Person, 

broker or sales agent are reasonable and such Person is not an Affiliate of the Manager or any 

Servicer or Subservicer. In the event the remaining Assets and are not liquidated by the date 

specified in the notice provided by the Initial Member pursuant to Section 12.20(b), the Initial 

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Member shall be entitled to liquidate the remaining Assets in its discretion and the Manager shall, 

and shall cause the Company to, cooperate and assist with such liquidation to the extent 

reasonably requested by the Initial Member. In the event the Manager or any Affiliate thereof 

desires to bid to acquire the remaining Assets, then the Initial Member shall be entitled to 

liquidate the remaining Assets in its discretion. In the event the Initial Member undertakes to 

liquidate the remaining Assets pursuant to this Section 12.20(c), all costs and expenses incurred 

by it shall be deducted from the Asset Proceeds and retained by the Initial Member and the 

remaining Asset Proceeds shall be distributed in accordance with Section 9.2. 

12.21 Certain Transfer Obligations. Without limitation of other obligations of the 

Manager with respect to the Contribution Agreement, the Manager agrees to cause the Company 

to comply with its obligations under the Contribution Agreement with respect to preparing, 

furnishing, executing and recording transfer documents with respect to the Assets (including 

special warranty deeds to convey the real property subject to any contract for deed and any 

Acquired Property to the Company). Any title curative work with respect to such Assets, if 

required, shall be at the Company's sole cost and expense. 

12.22 Seller Financing. The Manager may propose to the Initial Member that the 

Company provide one or more seller financed loans ("Seller Financed Loans") to purchasers of 

Acquired Property (or any portion thereof) (any borrower with respect to any such seller 

financed loan is referred to herein as an "SFL Borrower" and any guarantor, indemnitor or other 

Person having any obligations under the applicable Seller Financed Loan documents is referred 

to herein as an "sn Obli2or)). In such case, the Manager shall submit to the Initial Member at 

least sixty (60) days prior to the proposed closing date of such Seller Financed Loan for the 

Initial Member's approval (in its sole and absolute discretion), a written proposal (the "SFL 

Proposal") to offer such seller financing by the Company to an SFL Borrower, which SFL 

Proposal shall identify all material terms and conditions of the proposed Seller Financed Loan, 

including without limitation, (i) the interest rate, (ii) the loan term, (iii) the loan-to-value ratio, 

(iv) the underwriting criteria for establishing the creditworthiness for any SFL Borrowers and 

SFL Obligors, (v) the form of Seller Financed Loan documents, which forms shall be similar to 

those of other prudent lenders financing collateral of similar type and size of the Seller Financed 

Loans collateral (the "sn Collateral"), and including a form loan commitment letter specifying 

the conditions of making such Seller Financed Loan, (vi) the identity of the proposed servicer (if 

other than the Servicer; provided, that in such case, such servicer executes a servicing agreement 

in the form as the Servicing Agreement and which complies with the Servicing Standard, this 

Agreement, and the terms of the other Transaction Documents), (vii) the amount and source of 

payment of any applicable servicing fee, and (viii) any other term or condition that the Initial 

Member may determine in its reasonable discretion is necessary for it to approve or disapprove 

such SFL Proposal. If the Initial Member shall, in its sole and absolute discretion, approve the 

proposed Seller Financed Loan, each such Seller Financed Loan shall be evidenced by a 

promissory note (a "Seller Financed Loan Note") payable to the order of the Company that is 

secured by a mortgage, or a deed of trust, as applicable, in either case in recordable form for the 

jurisdiction in which the SFL Collateral is located, to secure the Seller Financed Loan Note. The 

Manager shall, or shall cause the Company to, promptly deliver the original Seller Financed 

Loan Note and the other original Seller Financed Loan documents to the Custodian. The Initial 

Member shall have thirty (30) days from the time the SFL Proposal is delivered by the Manager 

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according to Section 13.6 hereof to approve or disapprove such SFL Proposal. If the Initial 

Member shall not have provided a response within such thirty (30) day period, such SFL 

Proposal shall be deemed disapproved by the Initial Member. 

ARTICLE XIII 


Miscellaneous 


13.1 Waiver of Rights of Partition and Dissolution. Each Member (other than the 

Initial Member) hereby irrevocably waives all rights it may have at any time to maintain any 

action for division or sale of the Company Property as now or hereafter permitted under any 

applicable Law. Each Member (other than the Initial Member) hereby waives and renounces its 

rights to seek a court decree of dissolution or to seek the appointment of a court receiver for the 

Company as now or hereafter permitted under any applicable Law. 

13.2 Entire Agreement; Other Agreements. 

(a) This Agreement, together with the Annexes and Exhibits hereto and the 

other Transaction Documents (and any other agreements expressly contemplated hereby or 

thereby), constitutes the entire agreement and understanding, and supersedes all other prior 

agreements and understandings, both written and oral, between the Members or their respective 

Affiliates or any of them and the Company with respect to the subject matter hereof; provided, 

however, that any Confidentiality Agreement between the FDIC and the Private Owner or any 

Affiliates of the Private Owner (including by way of joinder) with respect to the transaction that is 

the subject of this Agreement and the other Transaction Documents shall remain in full force and 

effect to the extent provided therein, except that the Company's rights under Article VI of the 

Contribution Agreement shall not be deemed a repurchase option for purposes of Section 2 of any 

such Confidentiality Agreement. The Members acknowledge that certain agreements or other 

instruments are being (or were) executed by the Company, the Members and/or Affiliates of the 

Members simultaneously or otherwise in connection with the execution of this Agreement and 

that notwithstanding anything to the contrary contained in the foregoing sentence of this 

Section 13.2, such agreements shall be effective and binding on the parties thereto in accordance 

with the terms thereof. 

(b) By executing this Agreement, the Manager agrees to be bound by the 

terms of the Transaction Documents pursuant to which the Manager is expressly required to take 

or omit from taking certain actions, as in each case, with the same effect as if the Manager were a 

party to such Transaction Document. 

13.3 Third Party Beneficiaries. Each of the FDIC, the Purchase Money Note 

Guarantor and the Initial Member is hereby constituted an express third party beneficiary of this 

Agreement with respect to those provisions of this Agreement which expressly grant rights to 

such Person, and, as such, each is entitled to enforce such provisions of this Agreement as if such 

Person were a party hereto; provided that, with respect to each Person (other than the Initial 

Member) that is a Required Consenting Party, at such time when such Person ceases to be a 

Required Consenting Party (and subject to any rights of such Required Consenting Party that, by 

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their terms or nature, survive such date), such Person shall cease to have any of the specified 

rights set forth herein with respect to consents/approvals, the exercise of remedies following an 

Event of Default and receipt of reports and other information with respect to the continued 

operation of the Business, in each case (i) to the extent relating exclusively to the period 

following such date on which such Person so ceases to be a Required Consenting Party, and (ii) 

with respect to the Purchase Money Note Guarantor, except as to any rights or remedies relating 

to (or the exercise or non-exercise of which rights or remedies would affect) the Defeasance 

Account or the repayment of the Purchase Money Note (if any, in the case of the Purchase 

Money Note Guarantor) in accordance with the terms hereof and of the other Transaction 

Documents, as determined by the Purchase Money Note Guarantor in its sole discretion. Each 

Person ceasing to constitute the "Initial Member" under this Agreement (as a result of a 

Disposition of its LLC Interest) shall remain a third-party beneficiary of this Agreement with 

respect to Section 4.6 and, as such is entitled to enforce Section 4.6 as if such Person remained a 

party hereto. For the avoidance of doubt, in furtherance and without limitation of the preceding 

sentence, each Person comprising the "Initial Member" pursuant to the last sentence of Section 

4.6(a) may enforce the provisions of Section 4.6 with respect to itself and/or any other 

Indemnified Party(ies) in relation to itself (in its own name and/or in the name of and/or 

otherwise on behalf of such other Indemnified Party(ies)). Subject to Section 11.1 and to the 

preceding provisions of this Section 13.3, (i) this Agreement is for the benefit solely of, and shall 

inure solely to the benefit of, the Members and the Company, and (ii) this Agreement is not 

enforceable by any Person (including any creditor of the Company or of any Member) other than 

the Members and the Company. 

13.4 Expenses. Except as may otherwise be expressly provided herein or in any other 

Transaction Document, each Member shall pay its own expenses (including legal, accounting 

investment banker, broker or finder's fees) incident to the negotiation and execution of this 

Agreement and the other Transaction Documents, the consummation of the transactions 

contemplated by Section 2.3 hereof and the performance of its obligations hereunder. 

13.5 Waivers and Amendments. 

(a) This Agreement may be amended or modified, and the terms hereof may 

be waived, only by a written instrument signed by all Members, provided, however, that, 

following an Event of Default, from time to time this Agreement may be amended or modified 

and/or the terms hereof may be waived, in each case, by a written instrument signed only by the 

Initial Member as long as such amendment, modification or waiver would not (i) adversely affect 

the Private Owner's or the Company's limited liability status; (ii) adversely affect the Private 

Owner's share of the Company's distributions, income, gains or losses; (iii) impose on the Private 

Owner any additional obligations or (iv) amend Section 3.13 or this Section 13.5; provided 

further, that in no event shall any amendment, modification or waiver limit or otherwise adversely 

affect the rights expressly granted in this Agreement to (x) any Person comprising the "Initial 

Member" pursuant to the last sentence of Section 4.6(a) (and/or any other Indemnified Party(ies) 

in relation to such Person) without the express written consent of such Person so comprising the 

"Initial Member" or (y) a third party beneficiary of this Agreement (to the extent such third party 

beneficiary is, and remains, a third party beneficiary pursuant to Section 13.3 above) without the 

express written consent of such third party beneficiary. Except where a specific period for action 

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or inaction is provided herein, no failure on the part of a Member to exercise, and no delay on the 

part of a Member in exercising, any right, power or privilege hereunder shall operate as a waiver 

thereof; nor shall any waiver on the part of such Member of any such right, power or privilege, or 

any single or partial exercise of any such right, power or privilege, preclude any other or further 

exercise thereof or the exercise of any other right, power or privilege. 

(b) Notwithstanding anything to the contrary contained elsewhere in this 

Agreement (including without limitation the foregoing Section 13.5(a)) or in any other 

Transaction Document, but subject to the restrictions in Section 8.4 of the Contribution 

Agreement, in order to facilitate any restructuring or sale of the Purchase Money Note, the FDIC, 

without the consent of the Private Owner or the Company, may at any time that the FDIC is the 

Holder of one hundred percent (100%) of the Purchase Money Note or beneficial interest therein, 

cause the Company to replace or reissue the Purchase Money Note and make related changes, 

modifications or amendments to this Agreement and the other Transaction Documents, in each 

case subject to the applicable limitations set forth in Section 8.4 of the Contribution Agreement; 

provided, however, that such changes, amendments or modifications shall not adversely affect in 

any material respect the rights or interests of any Noteholder of the Purchase Money Note or any 

owner of any interest therein; provided, further, that no such change, amendment or modification 

shall adversely affect in any material respect (i) the amount or timing of any payments or 

distributions to the Private Owner or any permitted successor or assign pursuant to the Priority of 

Payments, or (ii) any other rights or obligations of, or the need for any advances, contributions or 

payments from, the Private Owner or its Affiliates or any permitted successor or assign pursuant 

to this Agreement or any other Transaction Document or otherwise; and provided, further that 

such changes, amendments or modifications shall not in the determination of the Purchase Money 

Note Guarantor, adversely affect in any material respect the rights or interests of a Holder. Prior 

to effecting any such changes, amendments or modifications, the FDIC shall notify each of the 

Private Owner and the Company of any such contemplated changes, amendments or 

modifications. Each of the Private Owner and the Company agrees that it will (A) cooperate in 

good faith with the FDIC in effectuating all such changes, amendments and modifications, and 

will cause legal counsel for each of the Private Owner and the Company to issue such legal 

opinions as may reasonably be requested or required in connection with such replacement or 

restructuring and/or sale of the Purchase Money Note, and (B) provide such information and 

documentation as may be reasonably requested by the Initial Member in connection therewith, 

including, without limitation, such information and documentation as may be necessary or 

advisable for compliance with the Securities Act of 1933, the Securities Exchange Act of 1934, 

the Investment Company Act of 1940 and such other applicable Laws, or as would be otherwise 

customarily provided in connection with the issuance or reissuance or sale of securities similar to 

the Purchase Money Note. For avoidance of doubt, (A) any applicable fees of the Custodian in 

connection with additional reporting required by the Initial Member or the Purchase Money Note 

Guarantor in connection with or as a result of such replacement, reissuance or sale shall be 

considered as part of fees of the Custodial to be paid by the Company pursuant to this Agreement 

and the other Transaction Documents, and (B) no legal fees or expenses associated with changes, 

clarifications or amendments to documents requested by the Private Owner shall constitute 

Reimbursable Company Administrative Expenses. 

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(c) Notwithstanding anything to contrary contained elsewhere in this 

Ageement (including without limitation the foregoing Section 13.5(a)) or in any other 

Transaction Documents), this Agreement may be amended or modified by a written instrument 

signed only by the Initial Member to the extent determined by the Initial Member in good faith to 

be necessary or desirable in order to facilitate any Disposition by the Initial Member of only a 

portion of the Initial Member Interest, or a Disposition by the Initial Member of the entire Initial 

Member Interest to more than one (1) Person, including to provide for more than two (2) Persons 

being members of the Company, provided that no such amendment or modification shall (i) 

adversely affect the Private Owner's or the Company's limited liability status; (ii) adversely affect 

the Private Owner's share of the Company's distributions, income, gains or losses; (iii) impose on 

the Private Owner any additional obligations or (iv) amend Section 3.13 (other than to the extent 

that such amendment or modification amends or modifies which member or members of the 

Company shall constitute the "Initial Member" hereunder) or this Section 13.5. 

(d) Reasonable attorneys' fees actually incurred in connection with the 

preparation of legal opinions and the review of certificates, closing documents and any 

amendments to this Agreement or any Transaction Documents requested or required by the Initial 

Member or the Purchase Money Note Guarantor in connection with the replacement or reissuance 

or sale of the Purchase Money Note shall constitute Reimbursable Company Administrative 

Expenses. 

13.6 Notices. All notices, requests, demands and other communications required or 

permitted to be given or delivered under or by reason of the provisions of this Agreement shall 

be in writing and shall be given by certified or registered mail, postage prepaid, by delivery by 

hand or by nationally recognized courier service, or by electronic mail (followed up by a hard 

copy delivered through an alternate manner permitted under this Section 13.6), in each case 

mailed or delivered to the applicable address or electronic mail address specified in, or in the 

manner provided in, this Section 13.6. All such notices, requests, demands and other 

communications shall be deemed to be given or made upon the earlier to occur of (i) actual 

receipt (or refusal thereof) by the relevant party hereto and (ii) (A) if delivered by hand or by 

nationally recognized courier service, when signed for (or refused) by or on behalf of the 

relevant party hereto, and (B) if delivered by electronic mail (which form of delivery is subject to 

the provisions of this paragraph), when delivered and capable of being accessed from the 

recipient's office computer, provided, however, that any notice, request, demand or other 

communication that is received 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. In no event 

shall a voice mail message be effective as a notice, communication or confirmation hereunder. 

From time to time, any party may designate a new address for purposes of notice to it hereunder 

by notice to such effect to the other parties hereto in the manner set forth in this Section 13.6. 

If to the Company, to: 

RADC/CADC Venture 2010-2, LLC 

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2450 Broadway, 6th Floor 

Santa Monica, California 90404 

Attention: Paul A. Fuhrman 

E-mail:

with a copy to: 

Colony Capital, LLC 

660 Madison Avenue 

New York, New York 10065 

Attn: Ronald M. Sanders 

E-mail: 

If to the Initial Member, to: 

Assistant Director, Structured Transactions — Resolutions and Receiverships 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email Address: RMalami@FDIC.gov 

with a copy to: 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

Email Address: DGearin@FDIC.gov 

If to the Private Owner (including in its role as Manager and/or Tax Matter 

Member), to: 

ColFin 2011 ADC Funding, LLC 

2450 Broadway, 6 th Floor 

Santa Monica, California 90404 

Attention: Paul A. Fuhrman 

E-mail:

with a copy to: 

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Colony Capital, LLC 

660 Madison Avenue 

New York, New York 10065 

Attn: Ronald M. Sanders 

E-mail:

13.7 Counterparts; Facsimile Signatures. 

(a) This Agreement may be executed in any number of counterparts, each of 

which shall be an original and all of which shall together constitute one and the same instrument. 

It shall not be necessary for any counterpart to bear the signature of all parties hereto. 

(b) This Agreement and any amendments hereto, to the extent signed and 

delivered by facsimile or other electronic means, shall be treated in all manner and respects as an 

original agreement and shall be considered to have the same binding legal effect as if it were the 

original signed version thereof delivered in Person. No signatory to this Agreement shall raise the 

use of a facsimile machine or other electronic means to deliver a signature or the fact that any 

signature or agreement was transmitted or communicated through the use of a facsimile machine 

or other electronic means as a defense to the formation or enforceability of a contract and each 

such Person forever waives any such defense. 

13.8 Successors and Assigns. Except as otherwise specifically provided in this 

Agreement (including in Article VIII), this Agreement shall be binding upon and inure to the 

benefit of the Members and the Company and their respective Successors and assigns. Without 

limitation of Section 8.4, this Agreement, as in effect on the date that any particular Person shall 

cease to be Member, shall continue to bind such Person in relation to the period during which it 

was Member. 

13.9 Compliance with Law; Severability. 

(a) Compliance with Law. Except as otherwise specifically provided herein, 

each party to this Agreement shall obey and comply with all applicable Laws, as they may pertain 

to such party's performance of its obligations hereunder. 

(b) Severability. Any provision of this Agreement 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 respect to such particular 

Person or Persons and/or under such particular circumstance or circumstances, as the case may be; 

(ii) without limitation of clause (i), such provision shall in any event be ineffective only as to such 

jurisdiction and only to the extent of such prohibition or 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. Without limitation of the 

preceding sentence, it is the intent of the parties to this Agreement that in the event that in any 

court proceeding, such court determines that any provision of this Agreement is prohibited or 

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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 applicable, by limiting the duration or 

scope of such provision and/or the Persons against whom, and/or the circumstances under which, 

such provision shall be effective in such jurisdiction) for purposes of such proceeding to the 

minimum extent necessary so that such provision, as so modified, may then be enforced in such 

proceeding and (y) enforce such provision, as so modified pursuant to clause (x), in such 

proceeding. Nothing in this Section 13.9(b) 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 13.11. 

13.10 Power of Attorney. 

(a) The Private Owner does hereby constitute and appoint the Manager as its 

true and lawful representative and attorney-in-fact, in its name, place and stead to make, execute, 

sign, acknowledge, deliver or file any certificate, document or other instrument that the Private 

Owner is required to execute and deliver pursuant to clause (a), (b), (c) or (d) of Section 4.3 

hereof. The foregoing notwithstanding, the Manager shall not have any right, power or authority 

to amend or modify this Agreement. The power of attorney granted hereby is coupled with an 

interest and shall (i) survive and not be affected by the subsequent death, incapacity, disability, 

dissolution, termination or bankruptcy of the Private Owner granting the same or the transfer of all 

or any portion of the Private Owner Interest and (ii) extend to the Private Owner's Successors, 

assigns and legal representatives. 

(b) The Company hereby grants to the Manager a limited power of attorney to 

execute all documents on its behalf in accordance with the Servicing Standard set forth above and 

as may be necessary to effectuate the Manager's obligations under Article XII until such time as 

the Company revokes said limited power of attorney. Revocation of the limited power of attorney 

shall take effect upon (i) the receipt by the Manager of written notice thereof from the Initial 

Member, or (ii) removal of the Manager in accordance with the terms of this Agreement; 

provided, however, in the event of such removal, the power of attorney granted hereunder shall 

thereafter automatically be vested in the successor or replacement Manager appointed in 

accordance with this Agreement. 

13.11 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE 

CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 

EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER 

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAWS 

OF ANOTHER JURISDICTION, AND EACH PARTY TO THIS AGREEMENT 

UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT 

THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS AGREEMENT. In the event 

of a direct conflict between the provisions of this Ageement and any mandatorY, non-waivable 

provision of the Act, such provision of the Act shall control to the extent necessary to eliminate 

such direct conflict. Nothing in this Ageement shall require any unlawful action or inaction by 

any Person. 

89 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
13.12 Jurisdiction; Venue and Service. 

(a) Each of the Private Owner (for the avoidance of doubt, in any capacity, 

including as a Member and/or as the Manager) and the Company, in each case on behalf of 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 of Columbia for any suit, action or proceeding against it (in the case of the Private 

Owner and for the avoidance of doubt, in any capacity, including as a Member and/or as the 

Manager) or any of its Affiliates commenced by the Initial Member arising out of, relating to, or 

in connection with this Agreement or any other Transaction Document, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum (other than the court in which the Initial 

Member files the action, suit or proceeding) without the consent of the Initial 

Member; 

(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 Chancery Court of the State of 

Delaware for any suit, action or proceeding against it (in the case of the Private Owner and for 

the avoidance of doubt, in any capacity, including as a Member and/or as the Manager) or any of 

its Affiliates commenced by the Initial Member arising out of, relating to, or in connection with 

this Agreement or any other Transaction Document, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the Initial 

Member); 

(B) assert that venue is improper in the Chancery Court of the 

State of Delaware; or 

(C) assert that the Chancery Court of the State of Delaware is 

an inconvenient forum. 

(iii) agrees to bring any suit, action or proceeding by it (in the case of 

the Private Owner and for the avoidance of doubt, in any capacity, including as a Member and/or 

as the Manager) or any of its Affiliates against the Initial Member arising out of, relating to, or in 

connection with this Agreement or any other Transaction Document in only the United States 

District Court for the Southern District of New York or the United States District Court for the 

90 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
District of Columbia, and waives any right to remove or transfer such suit, action or proceeding 

to any other court or dispute-resolution forum without the consent of the Initial Member, and 

agrees to consent thereafter to transfer of the suit, action or proceeding to either the United States 

District Court for the Southern District of New York or the United States District Court for the 

District of Columbia at the option of the Initial Member; and 

(iv) agees, if the United States District Court for the Southern District 

of New York and the United States District Court for the District of Columbia both lack 

jurisdiction to hear a suit, action or proceeding falling within Section 13.12(a)(iii), to bring that 

suit, action or proceeding in only the Chancery Court of the State of Delaware, and waives any 

right to remove or transfer such suit, action or proceeding to any other court or dispute-resolution 

forum without the consent of the Initial Member. 

(b) Each of the Private Owner (in any capacity, including as a Member and/or 

as the Manager) and the Company, in each case on behalf of itself and its Affiliates, hereby 

irrevocably and unconditionally agiees that any fmal judgment entered against it in any suit, 

action or proceeding falling within Section 13.12(a) may be enforced in any court of competent 

jurisdiction; 

(c) Subject to the provisions of Section 13.12(d), each of the Private Owner 

(in any capacity, including as a Member and/or as the Manager) and the Company, in each case 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 13.12(a) or Section 13.12(b) 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 13.6 

(with copies to such other Persons as specified therein); provided, however, that nothing contained 

in this Section 13.12(c) shall affect the right of any party to serve process in any other manner 

permitted by Law; 

(d) Nothing in this Section 13.12 shall constitute consent to jurisdiction in any 

court by the FDIC (in any capacity, including as the Initial Member), other than as expressly 

provided in Section 13.12(a)(iii) and Section 13.12(4)(iv), or in any way limit the FDIC's (in any 

capacity, including as the Initial Member) right to remove, transfer, seek to dismiss, or otherwise 

respond to any suit, action, or proceeding against it (in any capacity, including as the Initial 

Member) in any forum. 

13.13 Waiver of Jury Trial. EACH OF THE PRIVATE OWNER AND THE 

COMPANY, FOR ITSELF AND ITS AFFILIATES, AND THE INITIAL MEMBER, HEREBY 

IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A 

TRIAL BY JURY OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS 

AGREEMENT OR THE TRANSACTION DOCUMENTS AND AGREES THAT ANY SUCH 

DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. ' 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

91 

RADC/CADC Venture 2010-2 


Amended and Restated Limited Liability Company Agreement 


13312136.2 
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly 

executed as of the date first written above. 

PRIVATE OWNER: 

COLFIN 2011 ADC FUNDING/LLC, a 

Dela r limited liabili , co

By:

Name: Mark M. d 

Title: Vice Preside 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

VARIOUS FAILED FINANCIAL 

INSTITUTIONS LISTED ON 

SCHEDULE I HERETO 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

COMPANY: 

RADC/CADC Venture 2010-2, LLC 

By: Federal Deposit Insurance 

Corporation, in its Separate Capacities 

as Receiver with respect to the 

Separate Receiverships for each of the 

Various Financial Institutions Listed 

on Schedule I Hereto 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

[SIGNATURE PAGE TO LLC INTEREST SALE AND ASSIGNMENT AGREEMENT] 

RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly 

executed as of the date first written above. 

PRIVATE OWNER: 

COLFIN 2011 ADC FUNDING LLC, a 

Delaware limited liability company 

By: 

Name: Mark M. Hedstrom 

Title: Vice President 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

VARIOUS FAILED FINANCIAL 

INSTITUTIONS LISTED ON 

SCHEDULE I HERETO 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

COMPANY: 

RADC/CADC Venture 2010-2, LLC 

By: Federal Deposit Insurance 

Corporation, in its Separate Capacities 

as Receiver with respect to the 

Separate Receiverships for each of the 

Various Financial Institutions Listed 

on Schedule I Hereto 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

[SIGNATURE PAGE TO LLC INTEREST SALE AND ASSIGNMENT AGREEMENT] 

RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
Annex I 

Member Schedule 

Member Percentage Interests Capital 

Contributions to 

Working Capital 

Reserve Account 

Other Capital 

Contributions' 

Initial Member 50% $5,000,000 $48,209,362.00 

Private Owner 50% $5,000,000 $48,209,362.00 

The amounts listed in this column do not include capital contributions made to the Working Capital Reserve 

Account. 

I-1 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
EXHIBIT A 

FORM OF 


CERTIFICATE OF FORMATION 


OF 


RADC/CADC Venture 2010-2, LLC 


Pursuant to and in accordance with the provisions of Section 18-201 of the 

Delaware Limited Liability Company Act, the undersigned hereby certifies that: 

FIRST, the name of the limited liability company is RADC/CADC Venture 2010-

2, LLC (the "Company"). 

SECOND, the address of the registered office of the Company in the State of 

Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE, 

in the City of Wilmington, County of New Castle. The name of the registered agent at such 

address is Corporation Service Company. 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of 

Formation of the Company on this 18th day of January, 2011. 

By: 	2 

Name: Heidi Silverberg 

Title: Authorized Person 

A-1 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
EXHIBIT B 


INFORMATION; FORM OF MONTHLY REPORT 


[ See Attached] 

B-1 


RADC/CADC Venture 2010-2 


Amended and Restated Limited Liability Company Agreement 


13312136.2 
Calculation of amounts Payable pursuant to Priority of Payments in Custodial 

Agreement 1

!INTERIM SERVICING FEE CALCULATION 


1 Loans 


Adjusted UPB, beginning of Due Period (with respect to Loans in any Group of 

Assets for which Servicing Transfer Date has not occurred as of first day in 

Due Period) 

Times interim servicing fee rate 


Times number of days in Due Period/360 


Portion of interim servicing fee with respect to Loans 

Acquired Property 

Net Fair Value, beginning of Due Period (with respect to any Acquired Property 

in any Group of Assets for which Servicing Transfer Date has not occurred as 

of first day in Due Period) 

Times interim servicing fee rate 


Times number of days in Due Period/360 


Portion of interim servicing fee with respect to Acquired Property 

Portion of interim servicing fee with respect to Loans 


) Portion of interim servicing fee with respect to Acquired Property 


TOTAL INTERIM SERVICING FEE DUE TO INITIAL MEMBER 
 — 


INTERIM MANAGEMENT FEE CALCULATION 


Loans_ 


Adjusted UPB, beginning of Due Period (with respect to Loans in any Group of 

Assets for which Servicing Transfer Date has not occurred as of first day in 

Due Period) 

— Times 50% of the Management Fee rate 


Times number of days in Due Period/360 


Portion of interim management fee with respect to Loans 

rAcquired Property 

Net Fair Value, beginning of Due Period (with respect to any Acquired Property 

in any Group of Assets for which Servicing Transfer Date has not occurred as 

of first day in Due Period) 

Times 50% of the Management Fee rate 


Times number of days in Due Period/360 


Portion of interim management fee with respect to Acquired Property 

Portion of interim management fee with respect to Loans 

(t) 	Portion of interim management fee with respect to Acquired Property 


TOTAL INTERIM MANAGEMENT FEE DUE TO MANAGER 


MANAGEMENT FEE CALCULATION 

Loans 

Adjusted UPB, beginning of Due Period (with respect to Loans in any Group of 

Assets for which Servicing Transfer Date has occurred as of first day in Due 

Period) 

Times Management Fee rate2
 

' 

Times number of days in Due Period/360 
 - -	 — Portion of management fee with respect to Loans 

Acquired Property 

$ -

0.375% 

0 

$ -

-

0.375% 

-

$ -

L 

$ -

$ 

$ -

0.375% 

-

$ -

(3) --

$ -

0.375% 

-

$ — -

$ -

-

$ - (3_) 

— 

$ -

0.75% 

$� 

-

: I 

� 
Net Fair Value, beginning of Due Period (with respect to any Acquired Property 


in any Group of Assets for which Servicing Transfer Date has occurred as of 


first day in Due Periody 


Times Management Fee rate 0.75% 


Times number of days in Due Period/360 


Portion of management fee with respect to Acquired Property (5) 

Portion of management fee with respect to Loans 


(+) Portion of management fee with respect to Acquired Property 


TOTAL MANAGEMENT FEE DUE TO MANAGER 


( ) 	Repayment only to the extent of Asset Proceeds from the Asset with respect to which the 

Discretionary Funding Advance was made. May be used to fund Substantially Complete Vertical 

Development only with respect to which such Discretionary Funding Advances relate. 

(2) 	 Applicable only to the Interim Servicing Period with respect to a Group of Assets, commencing on the day 

immediately following the Cut-off Date. 

Applicable only to the Interim Servicing Period with respect to a Group of Assets, commencing on the Closing Date. (3) 

(4) 	 Applicable to Due Periods following the Interim Servicing Period with respect to a Group of Assets. _I 

The portion of the Management Fee calculated with respect to any Acquired Property is payable for a 

maximum of 3 years after the title to such Acquired Property is first transferred to the Company (or relevant 

Ownership Entity) or such longer period as the Initial Member may expressly approve in its sole discretion 

on a case-by-case basis based on the applicable disposition plan, if any, for such Acquired Property 

prepared by the Manager. 

(5) 
- - 

- - 

- - 

- - 

- - 

Loan & REO Monthly Rollforward Report 

[Insert Month and Year] _ 

LOANS 

Unpaid principal balance, beg of Due Period 

(-) 

(-) 

_(-) 

_(:-.1 

_(-) 

(+) 

4-_)_ 

(-) 

Payments received (regular and curtailments) 

Paid-in-full loans 

Short sale proceeds 

Mortgage insurance proceeds 

UPB, transfers to REO 

Balance capitalized on loan modifications 

Commitments funded 

Principal charge-offs 

Unpaid principal balance, end of Due Period 

r 

ACQUIRED PROPERTY (REO) 

1 I 

UPB of REO, beg of Due Period 

(+) UPB on REO transfers in 

( +/- ) Adjustments to Net Fair Value 

(+) Capitalized post-acquisition costs 

( - ) Net liquidation proceeds 

(+/-) 	 Realized Gain (Losses) 

UPB of REO, end of Due Period 

TOTAL ASSETS, end of Due Period 

For the Period from 

[insert date range] 

# ASSETS AMOUNT 

- $ 

-

-

-

-

_ _ 


—.
 

- $ -

# ASSETS AMOUNT 

- $ -

-

- $ -

- $S -

(1) 	 The Unpaid Principal Balance of Acquired Property shall be the Net Fair Value of 

such Acquired Property (the expected fair value received at sale, less the direct 

sales costs).. I 
Recoverable Servicing Expenses (Advances 

Monthly Roll Forward 

(Insert date) 

(1) 

Other Total 

Tax and Recoverable Recoverable 

Insurance Servicing SeMcing 

Advances Advances Advances 

Balance, [insert date] 

Payments/Advances 

Advance Recoveries 

Balance, [insert date] 

(2) 2 

(2) 

( ) 	Servicing Expenses and Interim Servicing Expenses, as defined in the Agreement of 

Common Definitions, are authorized to be paid from Asset Proceeds collected. For 

reporting purposes, Servicing Expenses may be broken out into additional and/or 

different fields at the discretion of the Manager, sufficient to determine the 

appropriateness of the payments under the definition of Servicing Expenses. 

(2) 	 Loan servicing system should include fields to capture and report balances in each 

category, and the category totals should agree to asset-level detail tapes provided by 

the Manager as of each month-end. 

Total 

Non-Recoverable Servicing_ 

Expenses Paid _ Expenses Paid 
1 


Working Capital Reserve 


Monthly Roll Forward 


[insert date] 


L 

Balance after activity for previous Due Period 	 -

(+) linterest and earriings on Working Capital Reserve Account 	 -

Transfers to Collection Account during the Due Period: 


(-) TPayment of Working Capital Expenses - (1) 


(-) Payment of Permitted Vertical Completion Expenses -


(-) _ Release at discretion of Manager pursuant to Section 3.6 of 


the Custodial Agreement 	 -

Balance, as of the Determination Date 


I -


Settlements for Due Period, paid after month-end: 


(-) 1 Required advance to pay Working Capital Expenses for this 


Due Period 
 -

(+/-) 	Replenishment (release) of Working Capital Reserve Account 


funds from/(to) Collection Account, as of each Determination 


Date 


Balance after activity for this Due Period 

Working Capital Reserve Floor $ 10,000,000.00 ( ) 


7 — 


Working Capital Reserve Cap $ 25,000,000.00 (3) 


I 

Calculation of Required Working Capital Reserve Account Replenishment (Release) 

Target Amount, as of each Determination Date 


Working Capital Reserve balance $. -


(-) Working Capital Reserve target - (4) 


Release (replenishment) 	 $. -

Release from Working Capital Reserve to Collection 


Account (total above, if positive) $� -


Replenishment of Working Capital Reserve (total above, 


if negative) $�
 - 1 

_ 	 1 � 

(1) 	 Working Capital Expenses means any Servicing Expenses, Interim Servicing Expenses, Pre-Approved 

Charges, Funding Draws, Management Fees, Interim Management Fees, Interim Servicing Fees, and 

fees of the Custodian and Paying Agent. 

(2) 	 The minimum amount to be maintained in the Working Capital Reserve Account at any point in time, 

except that the minimum amounts can be reduced below the Floor when advances from the Working 

Capital Reserve are required, so long as the balance is restored to the Working Capital Reserve Floor as 

soon as practicable thereafter. 

(3) 	 The maximum amount to be maintained in the Working Capital Reserve Account at any point in time. 

(4) 	 The Working Capital Reserve target must be between $10,000,000 and $25,000,000, as determined by 

Manager before each Distribution Date. 
Excess Working Capital Advances 

Monthly Roll Forward 


[insert date] 


Balance, beginning of Due Period 	 -

Advanced by Manager to Collection Account for 


payments of : 


(+) Working Capital Expenses -
 I 

Advanced by Manager to Defeasance Account for 


payments: 
 , (+) 	 As needed to cure a Purchase Money Notes 


Trigger Event 


, (-) 	 Reimbursements from Cash Flow -

L 

Balance, end of Due Period 	 $ - , 	 . 

Discretionary Funding Advances 

Monthly Roll Forward 


(insert date] 


Total - Detail Advance s Asset Number 

All Advance§ Asset A Asset B Asset C 

Balance, beginning of Due Period $ 	 $ - $ - $ - . 

(+) Permitted Vertical Development Funding Draws 


Advanced by Manager to Collection Account - - - -


(+) Interest Due (30-dayLlBOR + 3.00%, actual/3601 - - - -


(7 ) Reimbursements from Asset Proceeds (1) 	 - - _ I 

Balance, end of Due Period 	 $ - - - $ - ..-----

'(1) 	Repayment only to the extent of Asset Proceeds from the Asset with respect to which 

the Advance was made. 

Private Owner Pledged Account 

Monthly Roll Forward 


(insert date] 


Balance, beginninof Due Period 	 -

(+) Proceeds from draw on Letter of Credit 

[and/orl 

(+) Qualifying Cash Collateral deposit -

_(-) Payment of expenses in connection with Event 

of Default - _ 

Balance, end of Due Period 	 - I 

I 
Funding 

Monthly 

I 

Draws 

Report 

[insert date) 

Draw Date / Loan Number / Puraose of Draw 

Amount of 

Funding Draw 

Current 

UPB 

Unfunded 

Commitment 

Funded by 

Asset 

Proceeds 

Funded 

by 

WCIR_ 

, 

Funded by 

Excess 

_ WC Adv

_ 

_ 

_ 

_ 

Total Funding Draws, for current Due Period -
1 

Permitted Vertical Completion Expenses ("PVC Expenses") 

L. 1 1 

Vertical Development of Loans and Acquired REO Prope 

Monthly Roll Forward — , [insert date] 

1 

1 

1 

Asset Number/Name 

Beginning Asset 

Balance 

PVC Expenses 

Paid (1) -

Current Due Period 

Ending Asset 1 Total Budgeted 

Balance PVC Expenses 

Total Expended 

through Current 

Due Period 

Remaining 

Budgeted PVC 1 Estimated Costs 

Expenses 1 to Complete 

$ - $ - $ -

1 

_ , _ 

1 

Total - all Assets under 

Vertical Development $ - $ - $ - $ - $ - - 1 $ -

r 

1 

t 1 

(1) Permitted Vertical Comp etion Expenses means (i) in connection with any Loan, Permitted Vertical Development Funding Draws, and/or (ii) in 1 

connection with any Acquired REO Property, the reasonable costs and expenses of Substantially Complete Vertical Development of such REO 

Property. 
Purchase Money Note and Defeasance Account 

Monthly Roll Forward 

[insert date] 

Purchase Money Note 

- - Maturity 1126/2018 - Purchase Money Note Monthly Roll 

(+) Original Aggregate Principal Amount $. -

(-) Payment from Defeasance Account -

Purchase Money Note balance, end of Due Period $� _ 

Defeasance Account Monthly Rollforward 

Balance after deposit for previous Due Period $. -

(+) Additions from Cash Flow for this Due Period -

(+) Investment Income -

(-) Release to pay Purchase Money Note -

Defeasance Account balance after activity for this 

Due Period $� -

Note Guarantor Payments 

Balance after repayment for previous Due Period $ 

(+) Payments by Guarantor, current month 

(+) Interest Due, current month 

(-) Repayments from Cash Flow for this Due Period 

Balance after activity for this Due Period $� -

Purchase Money Note Trigger Event 

A Purchase Money Note Trigger Event will be deemed to have occurred if, as of any time during the 

periods set forth below, (a) the total amount then on deposit in the Defeasance Account, plus the 

sum of the aggregate amount from the Defeasance Account previously paid by the Debtor to all 

Noteholders to repay any Purchase Money Note and the aggregate reimbursements to the 

Purchase Money Note Guarantor, divided by (b) the original aggregate principal amount of the 

Purchase Money Note as of the Closing Date, is less than: 

1/26/2015 - 1/25/2016 25% 

1/26/2016 - 1/25/2017 50% 

1/26/2017 - 1/25/2018 75% 

1/26/2018 100% 
Additional Security Report 

[insert date] 

Amount of Additional Security (in each case as of the end of the Due Period) 

Undrawn Amount under Qualifying Letters of Credit: 

[and/or] 

Balance in Private Owner Pledged Account: 

Additional Security amount equal to or in excess of $5,000,000? Y/N 

In the event of any Additional Security consisting of a Qualifying Letter of 

Credit, for each such Qualifying Letter of Credit: 

A. Capital category of Issuing Bank as of the end of the Due Period pursuant 

to the standards in 12 U.S.C. § 18310 (b)(1), or applicable replacement 

legislation: 

B. Is such Issuing Bank a Qualified Issuer? Y/N (1) 

( ) A Qualified Issuer must be "well capitalized" as defined in the regulations 

referenced above. 
Other Reports 

Withdrawals from Collection Account 

Manager hereby certifies that all withdrawals by the Manager from the Collection Account during the 

relevant Due Period were made in accordance with the terms of the LLC Operating Agreement and the 

Custodial Agreement: Y / N 

Delinquency Report 

# and $ by delinquency classification: Current, 30-59 days, 60-89 days, 90+ days, in foreclosure, in 

bankruptcy, REO 

Breakout of > 60 day delinquencies by collateral type, # and $ 

Breakout of > 60 day delinquencies by state, # and $ 

REO Report 

Listing of REO properties held to include original loan number, date of ownership, description, collateral 

type, address, UPB (of the loan prior to foreclosure), Net Fair Value, listing date, estimated sale date, 

appraisal amount, original list price, current list price, cumulative Servicing Expenses allocable, broker 

name, and comments 

Modification Report 

Listing of loans modified, to include borrower name, loan balance and terms before modification, loan 

balance and terms after modification. Show amounts of principal forgiven, if any, and principal 

forbearance amounts, if any. 

Liquidation Report 

Listing of loans and REO properties liquidated, to include borrower name, UPB, net liquidation proceeds, 

cumulative Servicing Expenses, realized loss amount 

Short Sale Report 

Listing of loans for which short sales were accepted, to include borrower name, UPB, payoff accepted, 

realized loss amount 

Judzment Report 

Listing of Judgments obtained, to include borrower name, Judgment amount, current month and 

cumulative payments received, remaining balance 
Sirnificant Litiffation Report 

Provide a litigation summary report describing any claim or counterclaim ("claim") filed against the 

Company and/or Servicer with respect to assets subject to this Agreement, the actions taken to defend such 

claim, and an estimate of the projected exposure for: a) any claim in which the Company or Servicer 

expects to incur more than $10,000 in Servicing Expenses to defend such claim, b) any claim in which 

multiple plaintiffs have joined in filing an action against the Company and/or Servicer or the same law firm 

has filed individual claims on behalf of more than one plaintiff; and c) any claim(s) regardless of the dollar 

amount naming: (i) the Failed Bank, or (ii) FDIC (in any capacity) as defendant(s). Activity should be 

updated quarterly. 

Environmental Exposure Report 

Provide a report identifying any assets in which the Site Assessment identified an Environmental Hazard 

together with information on the nature of the hazard, additional tests performed, and the cost of correcting 

the hazard identified in the Site Assessment. 

Bank Statements 

For accounts held at the Custodian, provide bank statements showing activity and ending balance for the 


current Due Period. 


MONTHLY LOAN-LEVEL DETAIL REPORTS 

Monthly Loan Trial Balance and Activity Report 

PROVIDE A MONTHLY LOAN-LEVEL REPORT 


IN EXCEL WITH THE FOLLOWING FIELDS: 


Current Loan Number 

Prior Servicer Loan Number 

P&I Constant 

Note Rate 

Next Due Date 

Payoff Date (if applicable) 

Principal Balance, end of prior month 

Principal collections - other than sales 

Principal proceeds — loan sales, including short sales 

Principal Write-Off Amount 

Other Non-Cash Principal Adjustment 

Transfer to REO 

Principal Balance, end of current month 

Escrow balance 

Other Advances Balance 

Interest collections 
Non-Cash Interest Adjustment 


Late Charges 


Pre-Payment Penalty Paid 


Other Fee Income 


Servicke System Data Download — To Initial Member 

Provide a monthly loan-level data download using the LLC data specification and template published by 


the FDIC for LLC reporting. This specification and template may be modified from time to time by the 


Initial Member. 


The LLC data specification and template may be accessed at the following link: 

http://www.fdic.gov/bank/individual/failed/lossshare/index LLC v1.0.html 

SEMIANNUAL REPORT — TO INITIAL MEMBER (in January and July of each year) 

Business Plan 

Updated Consolidated Business Plan and individual Borrower-Business Relationship Level Business Plans 

for 15 largest borrower-business relationships, as required pursuant to Section 7.7 of the LLC Operating 

Agreement. 

Projected Cash Flows 

Excel model of projected cash flows by month, as of June 30 and December 31 of each year, in format 

substantially consistent with the Cashflow and Distribution Report included in this Monthly Report. 

The projection should carry through to the termination date of the LLC, providing monthly projections for 

the first 24 months and quarterly projections thereafter. The projection should include projected cash 

inflows, outflows, and net distributable funds to the equity holders. 

AS AVAILABLE — TO INITIAL MEMBER 

Custodial Report or an updated Asset Schedule and Exception List (as defined in the Custodial Agreement) 

from the Custodian/Paying Agent, as provided to the Company. 
EXHIBIT C 


FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT 

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is 


made and entered into as of , 20 by and between [ 1, a [___] 


("Transferor"), and [2 1, a [2 1 ("Transferee"). 


RECITALS 

WHEREAS, the Transferor, is the owner of a limited liability company membership 

interest (the "LLC Interest") in RADC/CADC Venture 2010-2, LLC, a Delaware limited 

liability company (the "Company"); 

WHEREAS, the LLC Interest represents a fifty percent (50%) "Percentage Interest" in 

the Company (as defined in that certain Amended and Restated Limited Liability Company 

Operating Agreement, effective as of January 26, 2011, by and among the Federal Deposit 

Insurance Corporation, in its separate capacities as receiver with respect to the separate 

receiverships for each of the various failed financial institutions listed on Schedule I thereto (the 

"Initial Member"), Transferor and the Company (the "LLC Operating Agreement")); 

WHEREAS, the ownership and other rights associated with the LLC Interest are set forth 

in the LLC Operating Agreement; 

WHEREAS, pursuant to Section 3.13 of the LLC Operating Agreement, Transferor 

granted the Initial Member a first priority security interest in the LLC Interest in order to secure 

certain obligations of Transferor as more fully described in the LLC Operating Agreement; 

WHEREAS, an Event of Default (as defined in the LLC Operating Agreement) has 

occurred and is continuing, and the Initial Member has elected, pursuant to the LLC Operating 

Agreement, to foreclose on its security interest in the LLC Interest and effect the assignment 

contemplated hereby; 

NOW THEREFORE, in consideration of the mutual agreements contained herein and in 

the LLC Operating Agreement, and for other good and valuable consideration, the receipt and 

sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the 

parties hereto agree as follows: 

1. Assignment and Assumption. Transferor hereby assigns and transfers the LLC 

Interest to Transferee, and Transferee hereby accepts and assumes the LLC Interest and agrees to 

be bound by the LLC Operating Agreement, as amended from time to time, to the extent it 

relates to such LLC Interest. 

2. Counterparts. This Agreement may be executed in two (2) or more counterparts, 

all of which shall be considered one and the same agreement and shall become effective when 

C-1 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13277644.3 
one or more counterparts have been signed by each of the parties and delivered (including by 

telecopy) to the other party. 

3. No Third Partv Beneficiaries. This Ageement shall inure to the benefit of the 

parties hereto and their respective successors and permitted assigns. This Agreement is not 

intended to confer upon any other Person any rights or remedies hereunder. 

4. Governing Law. The laws of the State of Delaware will govern the validity, 

performance and enforcement of this Agreement, without giving effect to the principles of 

conflict of laws of the State of Delaware or any other jurisdiction. 

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement 

effective as of the date first above written. 

TRANSFEROR: 

By: [2 1, its 

Manager 

By: 

Name: 

Title: 

2 

2 

TRANSFEREE: 

By: 

Name: 

2 

Title: 

C-2 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agteement 

132776,44.3 
EXHIBIT D 


FORM OF LETTER OF CREDIT 

(Bank Letterhead Stationary) 

Federal Deposit Insurance Corporation, in its capacity as Initial Member (as defined below) 


Assistant Director, Structured Transactions — Resolutions and Receiverships 


c/o Federal Deposit Insurance Corporation 


550 17th Street, NW (Room F-7014) 


Washington, D.C. 20429-0002 


Attention: Ralph Malami 


Email Address: RMalami@FDIC.gov 


Tel: 

Fax: 


2
 

RE: Irrevocable Transferable Letter of Credit No. for 


U.S.$ , Dated 


Gentlemen: 

(this "Letter of Credit") 

We hereby issue our irrevocable transferable Letter of Credit No. 

in favor of Federal Deposit Insurance Corporation (in any capacity, 2 

including as receiver for the Failed Banks identified pursuant to the LLC Agreement defined 

below, in its corporate capacity or otherwise, the "FDIC"), as the Initial Member under the LLC 

Operating Agreement defined below (including its successors, and its assigns as provided herein, 

the "Initial Member") (such Initial Member being the beneficiary of this Letter of Credit), for 

the account of ColFin 2011 ADC Funding, LLC (the "Private Owner"). 

This Letter of Credit is issued pursuant to the Amended and Restated Limited Liability 

Company Operating Agieement dated as of January 26, 2011, (as amended or otherwise 

modified from time to time, the "LLC Operating Agreement"), by and among RADC/CADC 

Venture 2010-2, LLC (the "Company"), the Private Owner and the Initial Member. 

We undertake to honor from time to time your draft or drafts presented to us in accordance 

herewith not exceeding in the aggregate U.S. Dollars 

(U. S .$ ). All drafts hereunder (i) must be marked "Drawn under irrevocable 

transferable Letter of Credit No. , dated ", (ii) must be 

accompanied by a typewritten statement signed by a purportedly authorized representative of the 

Initial Member stating that an "Event of Default" or "LC Reissuance/Extension Failure" has 

occurred under (and as defined in) the LLC Operating Agreement, and (iii) shall include the wire 

transfer instructions for remittance by us of the amount of such draft. 

D-1 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13277644.3 
Presentation of drafts drawn hereunder, together with the required statement and 

applicable wire transfer instructions, may be made at any time on or before the expiry date 

hereof (i) by physical presentation of such draft at, or overnight delivery of such draft to, our 

offices located at [ 1, Attention: [ 1, [or (ii) by telecopier (at 

telecopier number [ 1, Attention: f ,] without further need of 

documentation. Each such drawing should be accompanied by contemporaneous telephonic 

notification to the Attention of 1 1 ) . Presentation having 

been so made at or before 12:00 noon ] on any day other than a Saturday, Sunday or 

other day on which all commercial banks in [ ] are authorized or required by Law to 

be closed ("Banking Day") shall result in payment to Initial Member in accordance herewith on 

the same date. Drafts presented after 12:00 noon [ 1 time) or on any day other than a 

Banking Day, shall result in payment to Initial Member in accordance herewith on the next 

Banking Day. 

This Letter of Credit shall expire at 5:00 p.m. (New York, New York time) on the date 

that occurs one year after the date hereof ( ); provided, however, that this Letter of Credit 

will be automatically extended without amendment for additional periods of one year each (in 

each case commencing from the expiry date hereof as then in effect), unless we elect not to 

renew this Letter of Credit and deliver to the Initial Member written notice of such election at 

least sixty (60) days prior to any such expiry date. Any such notice shall be in writing and shall 

be delivered in hand with receipt acknowledged, or by certified mail (return receipt requested), to 

the Initial Member at its address set forth above (or to such other address for any such notices 

which Initial Member may hereafter specify in a written notice delivered to the undersigned). 

Partial and multiple drafts are permitted, and the amount of this Letter of Credit will be 

reduced by each such draft honored. 

All our charges (including wire transfer fees in connection with any payments by us 

hereunder and transfer charges in connection with a transfer of this Letter of Credit by the FDIC 

(in any capacity), as Initial Member, to a transferee thereof) are for the account of the Private 

Owner, and in no event shall any such charges reduce the amount of any draft or payment 

hereunder. 

We agree that we shall have no duty or right to inquire as to the basis upon which Initial 

Member has determined to present to us any draft under this Letter of Credit. We hereby waive 

any defense based upon any allegation of fraud. 

This Letter of Credit is transferable to any transferee who has succeeded you as the Initial 

Member under the LLC Operating Agreement, and may be successively transferred. Any 

transfer request must be effected by presenting to us the attached form of Attachment I signed by 

the transferor and the transferee together with the original Letter of Credit. Upon our 

endorsement of such transfer, or the issuance of an irrevocable transferable letter of credit in the 

name of the Transferee, the transferee instead of the transferor shall, without necessity of further 

action, be entitled to all the benefits of and rights under this Letter of Credit in the transferor's 

place; provided that, in such case, any drafts of the Initial Member to be provided hereunder shall 

be signed by one who states therein that he is a duly authorized officer or agent of the transferee. 

For purposes of clarification, internal transfers within the FDIC (where following such transfer, 

D-2 

RADC/CA DC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
the FDIC, in any capacity is to remain as the beneficiary of the Letter of Credit) shall be 

effective without the need for notice or execution and delivery of any such request for transfer in 

the form of Attachment I hereto. 

Except as otherwise expressly stated herein, this Letter of Credit is subject to the 

International Standby Practices, International Chamber of Commerce Publication No. 590, 

including any amendments, modifications or revisions thereof (the "ISP 98"). As to matters not 

covered by the ISP 98, and to the extent not inconsistent with the ISP 98, this Letter of Credit 

shall be governed by and construed in accordance with the laws of the State of New York, 

including without limitation the Uniform Commercial Code as in effect in the State of New 

York, without regard to principals of conflict of laws. 

All of the terms and conditions of this Letter of Credit are contained herein and shall not be 

altered except by reduction in the amount of this Letter of Credit due to corresponding payments 

in like amount in compliance with the aforementioned terms. Except as otherwise expressly set 

forth herein, there are no conditions to this Letter of Credit. 

Very truly yours, 

By: 2 

Name:

Title: 

2 

D-3 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
ATTACHMENT I TO LETTER OF CREDIT 


REQUEST FOR TRANSFER 

[Insert Bank Name and Address] 

RE: Irrevocable Transferable Letter of Credit No. [ 1 for 

U.S.$[ 1, Dated [2 1. 

Gentlemen: 

Reference is made to that certain irrevocable transferable Letter of Credit No. 

2 ], dated (the "Letter of Credit"), issued by you in favor of 

] (the "Transferor"), for the account of ColFin 2011 ADC Funding, LLC (the 

"Private Owner"). 

The Transferor has transferred and assigned (and hereby confirms to you said transfer and 

assignment) all of its rights in and under the Letter of Credit to [name of Transferee] (the 

"Transferee") and confirms that the Transferor no longer has any rights under or interest in the 

Letter of Credit. 

The Letter of Credit is returned herewith and we request that you issue an irrevocable 

transferable letter of credit in the name of the Transferee or endorse the transfer on the reverse 

hereof and provide for notices to be sent to the Transferee at the address set forth below and in 

all other respects identical to the Letter of Credit. 

Transferee hereby certifies that it is a duly authorized transferee under the terms of the Letter of 

Credit and is accordingly entitled, upon presentation of the drafts (and applicable items) called 

for therein, to receive payment thereunder. 

Notices under the Letter of Credit should be sent to the Transferee as follows: [Name], 

[Address], [Attention: 1, Email: [ ], Fax: [ ], Tel: [ I. 

[NAME OF TRANSFEROR] 

B y

[Name and Title of Authorized 


2
 

Representative of Transferor] 


[NAME OF TRANSFEREE] 

By

[Name and Title of Authorized 


2
 

Representative of Transferee 


D-4 

RADC/CADC Venture 2010-2 

Amended and Restated Limited Liability Company Agreement 

13312136.2 
SCHEDULE I 

RADC/CADC Venture 2010-2 

List of Various Failed Financial Institutions 

Bank Name 

Security Bank of Bibb County (SRES) 

Desert Hills Bank 

Irwin Union Bank & Trust Company 

Irwin Union Bank F.S.B. 

Warren Bank 

Hillcrest Bank of Florida 

Republic Federal Bank, N.A. 

Citizens State Bank 

Rockbridge Commercial Bank 

Barnes Banking Company 

Florida Community Bank 

Centennial Bank 

Citizens Bank & Trust Company of Chicago 

The Bank of Bonifay 

Arcola Homestead Savings Bank 

AmTrust Bank 

Independent Bankers' Bank 

Bank of Leeton 

CF Bancorp (Citizens First) 

Ci 

Macon 

Phoenix 

Columbus 

Columbus 

Warren 

Naples 

Miami 

New Baltimore 

Atlanta 

Kaysville 

Immokalee 

Ogden 

Chicago 

Bonifay 

Arcola 

Cleveland 

Springfield 

Leeton 

Port Huron 

State 

GA 


AZ 


IN 


IN 


MI 


FL 


FL 


MI 


GA 


UT 


FL 


UT 


IL 


FL 


IL 


OH 


IL 


MO 


MI 


Fund Closin ! Date 

10085 7/24/2009 

10205 3/26/2010 

10120 9/18/2009 

10121 9/18/2009 

10125 10/02/2009 

10131 10/23/2009 

10158 12/11/2009 

10162 12/18/2009 

10164 12/18/2009 

10171 1/15/2010 

10181 1/29/2010 

10193 3/05/2010 

10220 4/23/2010 

10234 5/07/2010 

10246 6/04/2010 

10155 12/4/2009 

10166 12/18/2009 

10174 1/22/2010 

10226 4/30/2010 

13297937 1 
Exhibit B 

Form of Asset Value Schedule 

RADC/CADC Venture 2010-2 


Limited Liability Company Interest Sale and Assignment Agreement 


13312141.2 
Exhibit C 

FORM OF TRANSFEREE ACKNOWLEDGEMENT AND CERTIFICATION 

TRANSFEREE ACKNOWLEDGEMENT AND CERTIFICATION 

Reference is made to the Limited Liability Company Interest Sale and 

Assignment Agreement dated January 26, 2011 (the "Transferred LLC Interest Sale 

Agreement") by and among ColFin 2011 ADC Funding, LLC, a Delaware limited 

liability company (the "Private Owner"), the Federal Deposit Insurance Corporation, as 

Receiver for the various failed financial institutions listed on Schedule I hereto (including 

its successors and assigns thereto, the "Initial Member"), and RADC/CADC Venture 

2010-2, LLC, a Delaware limited liability company (the "Company"). Capitalized terms 

used, and not otherwise defined, in this Transferee Acknowledgement and Certification 

have the meanings given in the Transferred LLC Interest Sale Agreement. 

The undersigned, the Private Owner, hereby acknowledges and certifies to the 

Initial Member that it has read and understands, and is prepared to cause the Company to 

comply with, the obligations imposed upon the Company under the Contribution 

Ageement and the Transaction Documents. Without limiting the foregoing, and subject 

to the provisions of the Contribution Agreement and the Transaction Documents, the 

Private Owner is aware of and prepared to cause the Company to comply with the 

obligations as specified in the Contribution Agreement (i) to remove the Initial Member 

and the Failed Banks as a party to any litigation or actions with respect to the Assets (as 

defined in the Agreement of Common Definitions) (including without limitation the 

actions on the List (as defined below)), and to substitute the Company as the real partyin-interest in any such litigation or actions and (ii) to take all actions necessary to file (x) 

proofs of claims in pending bankruptcy cases involving any Assets for which the Initial 

Member or the Failed Banks has not already filed a proof of claim, and (y) all documents 

required by Rule 3001 of the Federal Rules of Bankruptcy Procedure and to take all such 

similar actions as may be required in any relevant jurisdiction in any pending bankruptcy 

or insolvency case or proceeding in such jurisdiction involving any Assets in order to 

evidence and assert the Company's rights. 

Attached hereto as Schedule II is a list of litigation made available with respect to 

the Assets (the "List"). The undersigned acknowledges that the Initial Member makes no 

representation or warranty as to the completeness or accuracy of the List or the 

information contained or referred to therein and that (without limitation of the foregoing) 

there may be additional litigation or bankruptcy actions pending against the Failed Banks 

or the Initial Member with respect to the Assets or with respect to other parties with 

respect to the Assets. 

[Signature page follows] 

RADC/CADC Venture 2010-2 

Transferee Acknowledgement 

13277599.2 
PRIVATE OWNER: 


COLFIN 2011 ADC FUNDING, LLC 

By: 

Name: Mark M. Hedstrom 

2 

Title Vice President 

RADC/CADC Venture 2010-2 

Transferee Acknowledgement 

13277599.2 
SCHEDULE II 

LIST OF LITIGATION 

The Initial Member makes no representation or warranty as to the completeness or 

accuracy of the List or the information contained or referred to therein. Without 

limitation of the foregoing, there may be additional litigation or bankruptcy actions 

pending against the Failed Banks or the Initial Member with respect to the Assets or with 

respect to other parties with respect to the Assets. 

RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
Exhibit D 

FORM OF JOINDER AND CONSENT AGREEMENT 

JOINDER AND CONSENT AGREEMENT 

THIS JOINDER AND CONSENT AGREEMENT, dated as of the Closing Date, is 

delivered pursuant to Section 1(b) of the Limited Liability Company Interest Sale and 

Assignment Agreement, dated as of January 26, 2011, by and among ColFin 2011 ADC 

Funding, LLC, a limited liability company organized and existing under the laws of Delaware 

(the "Private Owner"), the Federal Deposit ffisurance Corporation (in any capacity, the 

"FDIC"), in its separate capacities as receiver for each of the various failed financial institutions 

listed on Schedule I hereto (including its successors and assigns thereto) (collectively, the 

"Initial Member"), and RADC/CADC Venture 2010-2, LLC, a limited liability company 

organized and existing under the laws of Delaware (the "Company") (the "Transferred LLC 

Interest Sale Agreement"). Capitalized terms used herein without definition are used as 

defined in the Transferred LLC Interest Sale Agreement. 

By executing and delivering this Joinder and Consent Agreement, the Private Owner 

hereby becomes a party to the Asset Contribution and Sale Ageement, dated as of the date of 

this Joinder and Consent Agreement, by and between the Initial Member and the Company (the 

"Contribution Agreement") with the same force and effect as if originally named as a party to 

the Contribution Agreement and, without limiting the generality of the foregoing, consents to 

and assumes all obligations and liabilities imposed upon the Private Owner pursuant to the 

Contribution Agreement. The Private Owner hereby agrees to be bound for all intents and 

purposes as a party to the Contribution Ageement. 

[Remainder of page intentionally left blank] 

RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2 
IN WITNESS WHEREOF, the Private Owner has caused this Joinder and Consent 

Agreement to be duly executed and delivered as of the date first above written. 

COLFIN 2011 ADC FUNDING, LLC, a Delaware limited liability company, 

as the Private Owner 

By: 

Name: Mark M. Hedstrom 

2 

Title: Vice President 

ACKNOWLEDGED AND AGREED as of the date 

first above written: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, as receiver for the various 

failed financial institutions listed on Schedule I 

hereto, as the Initial Member 

By: 

Name: Heidi Silverberg 

2 

Title: Attorney-in-Fact 

RADC/CADC VENTURE 2010-2, LLC, as the Company 

By: Federal Deposit Insurance Corporation, as 

receiver for various failed financial 

institutions listed on Schedule I hereto, as 

Sole Member and Manager 

By: 

Name: Heidi Silverberg 


2
 

Title: Attorney-in-Fact 


RADC/CADC Venture 2010-2 

Limited Liability Company Interest Sale and Assignment Agreement 

13312141.2