South CRE Venture 2010-2 Structured Transaction 

AMENDED AND REST A TED 


LIMITED LIABILITY COMPANY OPERATING AGREEMENT 


SOUTH CRE VENTURE 2010-2, LLC 


DATED AS OF DECEMBER 2, 2010 


South CRE Venture 2010-2. LLC 

A mended and Restated Operating Agreement 

EXECUTION VERSION 
TABLE OF CONTENTS 


Page 

ARTICLE I CERTAIN DEFINITIONS .................................................................................... 2 


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


1.2 Construction ................................................................................................... 1 0 


ARTICLE II ORGANIZATION OF THE COMPANY ........................................................ 11 


2.1 
 Formation; Continuation and Admission ofMembers .................................. 11 


2.2 
 Name .............................................................................................................. 11 


2.3 Organizational Contributions and Related Actions ....................................... 12 


2.4 Registered Office; Chief Executive Office .................................................... 12 


2.5 Purpose; Duration .......................................................................................... 12 


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


2.7 Ratification of Certain Actions ...................................................................... 15 


ARTICLE III MANAGEMENT AND OPERATIONS OF THE COMPANY ................... 16 


3.1 Management of the Company's Affairs ......................................................... 16 


3.2 Removal ofthe Manager................................................................................ 17 


3.3 Employees and Services ................................................................................ 18 


3.4 Restrictions on Manager and Private Owner ................................................. 18 


3.5 Related Party Agreements .............................................................................. 20 


3.6 Real Property ................................................................................................. 20 


3.7 Custodian and Paying Agent.. ........................................................................ 21 


3.8 . Relationships with Borrowers, etc ................................................................. 21 


3.9 No Conflicting Obligations ............................................................................ 22 


3.1 0 Compliance with Law .................................................................................... 22 


3.11 No Bankruptcy Filing .................................................................................... 22 


3.12 No Liens ......................................................................................................... 22 


3.13 Remedies Upon an Event ofDefault; Security Interest.. ............................... 22 


3.14 Purchase Right ofthe Initial Member. ........................................................... 26 


3.15 No ERISA Plan Assets ................................................................................... 28 


ARTICLE IV MEMBERSHIP INTERESTS; RIGHTS AND DUTIES OF, AND 


RESTRICTIONS ON, MEMBERS............................................................ 28 


4.1 
 General ........................................................................................................... 28 


4.2 
 LLC Interests ................................................................................................. 28 


4.3 
 Filings; Duty ofMembers to Cooperate ........................................................ 29 


4.4 
 Certain Restrictions and Requirements .......................................................... 30 


4.5 
 Liability of the Initial Member ...................................................................... 30 


South CRE Venture 2010-2, LLC -1­

Amended and Restated Operating Agreement 

EXECUTION VERSION 
TABLE OF CONTENTS 

(continued) 

Page 

4.6 
 Indemnification .............................................................................................. 31 


ARTICLE V CAPITAL CONTRIBUTIONS; DISCRETIONARY FUNDING 


ADVANCE; EXCESS WORKING CAPITAL ADVANCE .................... 35 


5.1 
 Capital Contributions ..................................................................................... 3 5 


5.2 Working Capital Reserve Account ................................................................ 35 


5.3 Discretionary Funding Advance .................................................................... 35 


5.4 Excess Working Capital Advances ................................................................ 36 


ARTICLE VI CAPITAL ACCOUNTS; ALLOCATIONS; PRIORITY OF 


PAYMENTS; DISTRIBUTIONS ............................................................... 37 


6.1 Capital Accounts .............................................................. ~ ............................. 37 


6.2 Allocations to Capital Accounts .................................................................... 3 7 


6.3 Tax Allocations .......................................................................... : ................. ;. 39 


6.4 Determinations by Tax Matters Member ....................................................... 40 


6.5 Priority of Payments ...................................................................................... 40 


6.6 Distributions................................................................................................... 40 


ARTICLE VII ACCOUNTING, REPORTING AND TAXATION ..................................... 42 


7.1 Fiscal Year ..................................................................................................... 42 


7.2 Maintenance of Books and Records .............................................................. 42 


7.3 Financial Statements ...................................................................................... 44 


7.4 Additional Reporting and Notice Requirements ............................. ~ .............. 44 


7.5 Designation ofTax Matters Member ............................................................. 47 


7.6 Tax Information ............................................................................................. 47 


7.7 Business Plans ..................................................................... : .......................... 48 


ARTICLE VIII RESTRICTIONS ON DISPOSITION OF LLC INTERESTS .................. 50 


8.1 Limitations on Disposition of LLC Interests ................................................. 50 


8.2 Change ofControl .......................................................................................... 50 


8.3 Additional Provisions Relating to Permitted Dispositions ............................ 51 


8.4 Effect ofPermitted Dispositions .................................................................... 51 


8.5 
 Effect of Prohibited Dispositions ................................................................... 52 


8.6 
 Distributions After Disposition ...................................................................... 52 


8.7 Transfers By the Initial Member. ................................................................... 52 


8.8 
 Resignation; Dissolution ................................................................................ 53 


8.9 
 Applicable Law Withdrawal .......................................................................... 53 


South CRE Venture 2010-2. LLC 

A mended and Restated Operating Agreement 

EXECUTION VERSION II 

TABLE OF CONTENTS 

(continued) 

Page 

ARTICLE IX DISSOLUTION AND WINDING-UP OF THE COMPANY ....................... 54 


9.1 
 Dissolution .................................................................................:.-.................. 54 


9.2 
 Winding-Up Procedures ................................................................................. 54 


9.3 
 Termination ofthe Company ......................................................................... 55 


ARTICLE X QUALIFIED TRANSFEREES .......................................................................... 55 


10.1 Qualified Transferees ..................................................................................... 55 


ARTICLE XI MANAGER LIABILITY .................................................................................. 59 


11.1 Liability of Manager ...................................................................................... 59 


ARTICLE XII SERVICING OF ASSETS ..................................................... ........................ 60 


12.1 Servicing ........................................................................................................ 60 


12.2 Servicing Standard ...............................................................'.......................... 63 


12.3 Servicing of the Loans ................................................................................... 65 


12.4 Removal ofthe Servicer................................................................................. 69 


12.5 Interim Management Fe{i and Interim Servicing Fee; Management Fee ....... 73 


12.6 Servicing Expenses ........................................................................................ 73 


12.7 Use ofAsset Proceeds .................................................................................... 74 


12.8 Collection Account ............. : .......................................................................... 74 


12.9 Distribution Account ...................................................................................... 74 


12.10 Defeasance Account ............................................................ : .......................... 74 


12.11 Working Capital Reserve Account .......................... : ..................................... 74 


12.12 Certain Servicing and Asset Administration Decisions ................................. 75 


12.13 Management and Disposition of Collateral ................................................... 76 


12.14 Acquisition ofCollateral ................................................................................ 76 


12.15 Administration of Acquired REO Properties ................................................. 77 


12.16 Releases of Collateral ............. ; ............................................ .-......................... 79 


12.17 Clean-Up Call Rights ............................... ..................................................... 79 


12.18 Certain Transfer Obligations ................ : .......................................................... 79 
 . . 12.19 Seller Financing ............................................................................................. 80 


ARTICLE XIII MISCELLANEOUS ....................................................................................... 80 


13.1 Waiver of Rights of Partition and Dissolution ............................................... 80 


13.2 Entire Agreement; Other Agreements ........................................................... 81 


13.3 Third Party Beneficiaries ........................ : ...................... , ............................... 81 


13.4 Expenses ........................................................................................................ 82 


13.5 Waivers and Amendments ........................................................ : .................... 82 


South CRE Venture 2010·2. LLC 

Amended and Restated Operating A!,.'reement 

EXECUTION VERSION 11l 
TABLE OF CONTENTS 

(continued) 

Page 

13.6 Notices ........................................................................................................... 84 


13.7 Counterparts; Facsimile Signatures ............................................................... 85 


13.8 Successors and Assigns .................................................................................. 86 


13.9 Compliance with Law; Severability ............................................................... 86 


13.10 Power ofAttorney.......................................................................................... 87 


13.11 Governing Law .............................................................................................. 87 


13.12 Jurisdiction; Venue and Service ..................................................................... 87 


13.13 Waiver ofJury Trial ....................................................................................... 89 


South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION IV 

SOUTH CRE VENTURE 2010-2, LLC 


AMENDED AND RESTATED 


LIMITED LIABILITY COMPANY OPERATING AGREEMENT 


THIS AMENDED AND REST A TED 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 2nd day of December, 

2010 (the "Closing Date"), by and among the Federal Deposit Insurance Corporation (in any 

capacity, the "FDIC"), as the Receiver defined below (inCluding its successors and assigns 

hereto, the "Initial Member"), HRC SVC SOUTH 2010 LLC, a Delaware limited liability 

company (the "Private Owner"), and South CRE Venture 2010-2, LLC, a Delaware limited 

liability company (the "Company"). 

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

as receiver for the separate receiverships, the "Receiver") for each of the Failed Banks; and 

WHEREAS, on December 1, 2010, 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 (1 00%) limited liability company interest), and the Initial Member and the 

Company have entered into the original Limited Liability Company Operating Agreement; 

WHEREAS, the Initial Member and the Company have entered into the Contribution 

Agreement pursuant to which (i) the Initial Member has sold in part and (as the sole member of 

the Company at the time) contributed in part to the Company, in each case to the Company, and 

the Company purchased from the Initial Member, all of the Initial Member's right, title and 

interest in and to the Assets, and assumed the Obligations (as defined in the Contribution 

Agreement), (ii) the Company executed and delivered to the Initial Member those certain 

Purchase Money Notes for the benefit of the Initial Member, (iii) the Purchase Money Notes 

Guarantor guaranteed payment of principal on the Purchase Money Notes pursuant to the terms 

of the Guaranty Agreement, and (iv) pursuant to the Reimbursement, Security and Guaranty 

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

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

Assets and the Collateral; and 

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, the Manager and the Initial Member have agreed to initially fund the Working Capital 

Reserve Account; and 

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 that certain Transferred LLC Interest Sale Agreement, to sell to 

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

(40%) equity interest in the Company; and 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

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

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

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

WHEREAS, upon the occurrence of the Incentive Threshold Event, the Private Owner 

will own an LLC Interest representing a thirty-five percent (35%) equity interest in the Company 

and the Initial Member will own an LLC Interest representing a sixty-five percent (65%) equity 

interest in the Company; and 

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

Agreement in its entirety in order to reflect the admission of 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 Definitions 


1.1 Definitions. This Agreement constitutes the "limited liability company 

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

Agreement, certain terms used in this Agreement shall have the meanings and definitions set 

forth in that Agreement of Common Definitions. In addition, the following terms shall have the 

meanings and definitions hereinafter respectively set forth. 

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

balance, if any, in such Member's Capital Account as ofthe end ofthe relevant Fiscal Year, after_ 

giving effect to the following adjustments: 

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

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

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

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

Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and L704-1(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-l(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 South CRE 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 Notes 

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

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 2 
"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)(f) of the Treasury Regulations, except as 

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

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

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

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

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

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

and provided, further, that adjustments pursuant to clauses (a) and (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. 

"Borrower-Business Relationship Business Plan" has the meaning given in Section 

7.7. 

"Buy-Out" shall mean the purchase of the Private Owner's LLC Interest by the Initial 

Member pursuant to Section 3.14(a). 

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

"Buy-Out Closing 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 ofNet Income (and 

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

such LLC Interests, as provided in greater detail in 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 set forth in Section 12.17. 

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

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 
"Company Property" shall mean all property, whether real or personal, tangible or 

intangible, owned by the Company, including the Assets contributed or sold by the Initial 

Member pursuant to the Contribution Agreement. 

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

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

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

. direct ownership interest in such Person. 

"Discretionary Funding Advance" shall have the meaning given in Section 5.3 

"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 (11 0%) 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. 

South CRE Venture 2010-2. LLC 


Amended and Restated Operating Agreement 


EXECUTION VERSION 4 

"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 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 Def~ult and whether it shall be voluntary or involuntary or be effected by 

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

regulation of any admini~trative 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 (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 any of (x) the Company, or (y) 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 5 
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 the provisions of this 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 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 

(f) 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 of Control in the Private Owner or the 

Manager (other than as expressly permitted pursuant to Section 8.2) or any transfer of any direct 

or indirect ownership interest in the Private Owner or the Manager or any transaction with a 

similar effect 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; 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 6 
(j) any failure, for any reason, of the amount of the Additional 

Security being less than the Private Owner Pledged Amount, which includes any failure by an 

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

Credit. 

"Excess Working Capital Advance" shall have the meaning given in Section 5.4. 

"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 Buy-Out, 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 Agreement, 

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

Members as ofthe Closing Date. 

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

"Ground lease" shall have the meaning given in Section 12.5(g). 

"Incentive Threshold" shall have the meaning given in Section 6.6{b)(iv). 

"Incentive Threshold Base Amount" shall have the meaning given in Section 6.6(b). 

"Incentive Threshold Event" shall have the meaning given in Section 6.6(b)(iii). 

"Indemnified 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 meanmg given m 

Section 2.3(a)(i). 

"Issuing 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 oflssuing 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 ofCredit will 

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

ten (1 0) 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 7 
otherwise provided Qualifying Cash Collateral m the full undrawn face amount of such 

Qualifying Letter of Credit. 

"Manager" shall have the meaning given in Section 3 .I(a). 

"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. 

"Monthly Adjusted Annualized Yield" shall mean 1.8769 percent, derived as follows: 

(1 + Annualized Yield Threshold) 1112 - 1 or (1 + 0.25) 1112 - 1, where the Annualized Yield 

Threshold is 25%. 

. "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 . a~ 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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 8 
"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. 

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

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

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 defined in 12 U.S.C. § 1831o (b)(l)(A), is in the business of issuing letters of 

credit and 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. 

"Qualified Transferee" shall have the meaning given in Section 1 0.1. 

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

amount at least equal to the Private Owner Pledged Amount, substantially in the form of Exhibit 

D hereto (or as otherwise approved in writing by the Initial Member), duly issued by an Issuing 

Bank that is, as of the date of issuance thereof, a Qualified Issuer and delivered to the Initial 

Member, drawable at such Issuing Bank's offices in New York City, New York or Washington, 

D.C., and having_ an initial term 9f on~ (1) year with automatic .renewals thereafter (without 

amendment except for extensio~ 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 ofCredit 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. 

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

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

"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 

South CRE Venture 2010-2. LLC 

A mended and Restated Operating Agreement 

EXECUTION VERSION 9 
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) . 

."Threshold Increase Amount" as of any Distribution Date shall be equal to the product 

of (a) the Incentive Threshold as of the preceding Distribution Date (or, in the case of the first 

Distribution Date, the Closing Date) and (b) the applicable Monthly Adjusted Annualized Yield. 

"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). 

1.2 Construct1on. 

(a) Captions. Paragraph titles or captions contained in thjs 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. 

(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.· 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 10 
(f)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 ofMembers. 

(a) On December 1, 2010; the Receiver caused the Certificate ofFormation 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 ofthe Company. 

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

and in accordance with the further terms and provisions ofthis 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 (2), and only two (2), members. 

2.2 Name. 

(a) The name of the Company shall be South CRE Venture 2010-2, LLC. 

(b) The Business 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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTJON VERSION 11 
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 

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 Notes. 

(iii) . 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 an LLC Interest representing a forty 

percent ( 40%) limited liability company interest in the Company for the 

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

(b) Upon the consummation of the transactions contemplated in 

Sections 2.3(a) and fu} and prior to the occurrence of the Incentive Threshold Event as described 

in Section 6.6(b)(iii), the Private Owner sha11 own forty percent (40%) of the issued and 

outstanding LLC Interests and the Initial Member sha11 own sixty percent (60%) of such LLC 

Interests. Following the occurrence of the Incentive Threshold Event as .described in 

Section 6.6(b)(iii), the Private Owner shall own thirty-five percent (35%) of the issued and 

outstanding LLC Interests and the Initial Member sha11 own sixty-five percent (65%) of such 

LLC Interests. 

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 sha11 be, and the name and address of the Company's registered agent in Delaware 

shall be, as specified in the Certificate as origina11y 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 ofthe Company shall be located c/o 

Hudson Realty Capita] LLC at 250 Park A venue South, Third Floor, New York, NY 1-0003, or 

such other place as sha11 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 specifica11y authorized in this Agreement, indirectly through other 

Persons. The Company sha11 not form or have any Subsidiaries other than Ownership Entities or 

as otherwise authorized in or pursuant to this Agreement. The Company sha11 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 12 
the Manager deems necessary, desirable or convenient, in each case, to accomplish the purposes 

ofthe Company or consistent with the furtherance thereof. 

(b) Subject to Section 9 .I, the Company shall continue m 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 .I, 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 

Dqcuments, 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 ofits contemplated operation of the Business; 

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

overhead for shared office space; 

South CRE Venture 2010-2. LLC 

A mended and Restated Operating Agreement 

EXECUTION VERSION 13 
(x) use separate stationery, invoices and checks; 

(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 ofothers, 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 Notes (and any promissory note 

reissued in respect thereof pursuant to Section 2.8 of the Custodial and Paying 

Agency Agreement), 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 (y) make advances 

in accordance with Article XII; 

(iii) own any Assets, or engage m any business, unrelated to the 

Business; 

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

Notes (and any promissory note reissued in respect thereof pursuant to Section 2.8 

of the Custodial and Paying Agency Agreement), 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; 

South CRE Venture 2010-2, LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 14 
(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 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 ofholding Assets for the benefit ofthe Company; or · 

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

agreements contained in any ofthe 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 ofthe 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 15 
the "Manager" ofthe Company (the "Manager"), which Manager may, but is not required to be, 

a Member. 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's LLC 

Interest is Disposed of 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 Notes Guarantor 

and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is 

dissolved, and the business arid affairs of the Company are wound up, in accordance with the 

terms ofthis Agreement. The Manager shall devote such time to the affairs ofthe 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 be otherwise 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 M~nager under any othe~ provision of this 

Agreement, the authority, duties (i~cluding fiduciary dutie.s) a:nd 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 expressterm ofthis 

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 ofthe Members; 

South CRE Venture 2010-2. LLC 

A mended and Restated Operating Agreement 

EXECUTION VERSION 16 
(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. 

(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. · 

(f)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, tl, 8.2, 8.8(a), 

.2J., 12.3(g), 12.7(b), 12.12, 12.15, 13.5and 13.12. AnypurportedactionbytheCompanyorthe 

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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 17 
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 such 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 Restrict1ons 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 Initial Member and the. 

Required Consenting Parties, which approval may be withheld or conditioned in the Initial 

Member's sole and absolute discretion: 

(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) conducting Bulk Sales during either of the first two (2) successive 

twelve (12)-month periods after the Closing Date (unless the Purchase Money 

Notes Defeasance Date has occurred), in an aggregate amount (for each such 12­

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 18 
month period) in excess of (x) ten percent (1 0%) of the aggregate Unpaid 

Principal Balance of all Assets as of the Cut-Off Date as indicated on the Asset 

Schedule and (y) ten percent (1 0%) of the aggregate Unpaid Principal Balance of 

all Assets as of the date that is one (1) year from the Closing Date; provided, that, 

for purposes of the foregoing (A) the amount of any Bulk Sale shall be 

determined (1) for Loans, or any Bulk Sale of all or substantially all of the 

remaining Collateral (including any Acquired REO Property ot other Acquired 

Property) with respect to any Loan, based on the aggregate Unpaid Principal 

Balance as of the time of such Bulk Sale,· and (2) for Acquired Property 

(including Acquired REO Property) or any portion thereof where such Bulk Sale 

does not involve all or substantially all of the related Loan or other remaining 

Collateral (including any Acquired REO Property or other Acquired Property) 

with respect to such Loan, based on the value thereof as ofthe time ofsuch sale or 

disposition, including, where available, based on the Appraised Value Net of 

Estimated Cost to Sell, and (B) the sale or other disposition of an Ownership 

Entity (or any voting or equity interest therein) shall constitute a sale or other 

disposition ofthe 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 ordin&ry 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 ofthe foregoing or ofthe 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 REO 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 Membt:r or any share ofthe Asset Proceeds allocable to 

the Initial Member; 

(xii) disbursing or causmg the disbursement of funds from the 

Collection Account, the Working Capital Reserve Account, the Distribution 

Account, or other accounts created under this Agreement, the Custodial and 

Paying Agency Agreement or any Servicing Agreement other than in accordance 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 19 
with (and without violation of any requirement contained in) the provisions of this 

Agreement, the Custodial and Paying Agency Agreement, 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 or (B) Servicing 

Expenses to the extent that capitalizing such Servicing Expenses is or would have 

been, prior to the conversion of such Loan to Acquired REO Property, permitted 

under the applicable Asset Documents; 

(xiv) except as otherwise permitted pursuant to the terms of this 

Agreement, 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 agreement 

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 terms 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 agreement 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 Notes or any promissory note reissued in respect thereof in accordance with 

Section 2.8 of the Custodial and P?ying Agency Agreement 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 9Y both Members. . 

3.6 Real Property. The Company shall not take title in its own name to any Acquired 

REO Property, and any ownership of any such Acquired REO Property shall be subject to 

Section 12.14 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, 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 agreement with 

respect to the· release thereof). The Manager also shall cause the Company to retain and enter 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 20 
into and, at all times, be a party to a written paying agency agreement with a Paying Agent, 

which Paying Agent shall receive and distribute Asset Proceeds in 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. 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 the market rate and the Custodian and Paying Agent may be 

terminated by the Company upon no more than thirty (30) days notice without cause under the 

Custodial and Paying Agency Agreement. For purposes ofclarification, 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 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 dem~nd, not1ce 

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 Initiai 

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. 

South CRE Venture 20I 0-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 21 
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 ofthis Agreement. 


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 Agreement 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 voluntarily 

permit or involuntarily permit 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, 

S~curity. and Guaranty Agreement; ~md 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 ofDefault Security Interest. 

(a) Upon the occurrence of an Event of Default; in addition to all other 

remedies available hereunder or under the Transaction Documents upon such an. Event of 

Default, the Initial Member shall be entitled to (i) remove the Private Owner as the Manager 

pursuant to Sections 3.2 and 12.4, (ii) remove the Private Owner as a Member in cot:mection 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 (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's LLC Interest without 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 22 
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 and absolute 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 pursuant to this Section 3.13 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 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 ofthe foregoing, in no event shall the Initial Member have any obligation (but 

it shall at all times have the right in its sole and absolute 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 remairt 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), sh~ll 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 proceecis thereof as held by th~ 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 23 
therein in accordance with applicable Law). In any event, the Private Owner shall remain liable 

for any deficiency in payment ofthe Private Owner Obligations. 

(c) This Agreement shall constitute a security agreement 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 grant, 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 ofthe 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 Notes. For purposes of this 

Agreement, the term "Secured Assets" shall mean (x) all right, title and interest ofthe 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). 

(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 collateral (the "Additional 

Security"). Such Additional Security shall consist of cash and interest earned thereon (and 

Permitted Investments with respect thereto) in the Private Owner Pledged Account in an 

aggregate amount at least equal to the Private Owner Pledged Amount ("Qualifying Cash 

Collateral") or oHe or more Qualifying Letters of Credit in an aggregate amount equal to or 

greater than the Private Owner Pledged Amount. 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. . 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 24 
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 ofDefault. 

(e) On the Closing Date (and whether or not the Private Owner has elected to 

provide the Private Owner Pledged Amount in cash), the Private Owner shall establish the 

Private Owner Pledged Account with the Paying Agent for the exclusive purpose of helding 

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) ofthe 

Custodial and Paying Agency Agreement. 

(f)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 

in such case the funds received by the Initial Member as a result of any such draw shall be 

deposited in the 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 25 
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 any other Transaction Document. 

(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 Private Owner, release any then outstanding Qualifying 

Letters of Credit and consent to the termination of the Private Owner Pledged Account Control 

Agreement. 

(i)Th~ 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 and absolute 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 

ansmg. 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 ofthe 

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. 

3.14 Purchase Right of the 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's LLC Interest 

for an amount, payable in cash, equal to (x) the fair market value of such LLC Interest 

(detennined, 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 Buy-Out Closing. 

(b) If the Private Owner receives a Buy-Out Notice, the Buy-Out Closing 

shall be consummated as follows: 

South CRE Venture 20 I 0-2. LLC 

Amended and Restated Opernting Agreement 

EXECUTION VERSION 26 
(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's LLC 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, ali right, title and interest of the Private Owner in and to) the 

entire LLC Interest of the Private Owner, free and clear of all Liens other than 

those created by this Agreement and the other Transaction Documents. 

(iii) The Private Owner shall obt.ain all material consents, approvals or 

waivers (including expiration or termination of a specified waiting period) of any 

Governmental Authority or Person that may be required in connection with the 

purchase and sale of the Private Owner's LLC 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's LLC 

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 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's LLC 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 Dtherwise may 

result in a sale price for the LLC Interest that is significantly lower than a BuyOut Purchase Price 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 27 
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's LLC 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 pursuantto 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 the 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 

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 ofnotice of any change ofname 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). 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 28 
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 amendment 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 Agreement, 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 

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. 

South CRE Venture 2010-2, LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 29 
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 its successors or 

assigns 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 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 ofthe 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 the Initial Member as an 

officer or director of any Person in which the Company has a direct or indirect interest or any 

Affiliates ofsuch Person); 

(b) the offer and sale of limited liability company interests in the Company 

(including the LLC Interests) or the issuance of Purchase Money Notes; and 

(c) the management or conduct of the business and affairs of the Initial 

Member insofar as such business or affairs relate to the Company or any Person in 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 ofthe Business, and 

(ii) activities in the conduct of other business engaged in by the Initial 

Member which might involve a conflict of interest vis-a~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 the Initial Member 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 which were taken or omitted which constituted fraud, gross 

negligence, willful misconduct, or an intentional material breach of this Agreement or any 

Transaction Document. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 30 
4.6 Indemnification. 

(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, in.cluding 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 accordance with Section 4.17(b) of the Contribution Agreeme11t. 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 is available to the Indemnified Party and as the Private Owner may reasonably ' ' 

request. The failure or delay to provide such notice, however, sha11 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 Notes), to the extent that all of 

South CRE Venture 2010-2. LLC 


Amended and Restated Opernting Agreement 


EXECUTION VERSION 31 

the following are satisfied: (I) 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 actiori or omission in violation ofthe Servicing Standard or any provision of this 

Agreement 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 

ofthis 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) (includiflg the Servicer or any Subservicer), on the other hand, in connection with the 

matters that are the subject ofsuch 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, however, that (i) the Indemnified 

Party may, if such Indemnified Party so desires, employ counsel at such Indemnified Party's own 

expense to assist in the handling (but not control the defense) of any Third Party Claim; (ii) the 

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 de.fend 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 t.he 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 a11 u.nconditional 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 32 
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 ofits 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 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 

"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 Unreimlrursable 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. 

(f)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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTJON VERSJON 33 
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 claini 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). 

(h) Offsets. Without limiting any other rights of the Initial Member 

hereunder1 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 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). 

For the avoidance of doubt, the effects of any of this Section 4.6(h) and Section 4.6(g) above 

shall be disregarded for purposes of calculations with respect to the Incentive Threshold Event. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 34 
ARTICLE V 


Capital Contributions; Discretionary Funding Advance; Excess Working Capital Advance 

5.1 Capital Contributions. 

(a) Members' Contribution. Pursuant to the Contribution Agreement, 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 Trapsferred LLC Interest representing a 

forty percent (40%) 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 the Annex I (the Member Schedule). 

(b) From and after the Closing Date (and except as provided in Section 5.2 

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 Agreement, which funds shall be used for payment of Working 

Capital Expenses in accordance with the provisions in Section 12.11 and as otherwise permitted 

pursuant to the Custodial and Paying Agency Agreement. 

5.3 Discretionary Funding Advance. 

(a) In the event there are insufficient funds in the Collection Account and no 

funds in the Working Capital Reserve Account to make Funding Draws with respect to specific 

Assets (and related Acquired REO Property), the Manager may, in its discretion, make an 

advance to the Company (the "Discretionary Funding Advance"), which Discretionary 

Funding Advance shall be reimbursable (and shall accrue interest as set forth herein) only to the 

extent used exclusi.vely for the applicable Funding Draws for specified Assets. In no event may 

Discretionary Funding Advances be used for payment of any Working Capital Expenses other 

. than Funding Draws. 	 The proceeds of Discretionary Funding Advances shall be deposited into 

the Collection Account for disbursement therefrom for the making of the applicable Funding 

Draws. 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. 

(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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating At,>reement 

EXECUTION VERSION 	 35 
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 2.J. of the 

Custodial and Paying Agency 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 Discretion~ry 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 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 withoutthe consent of each ofthe Required Consenting Parties. 

5.4 Excess Working Capital Advances. In the event 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 to fund the Defeasance Account by such amount as may be required to cure 

a Purchase Money Notes 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 ofits 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 used for the making of any Funding Draws. 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 itJtO ·the. Collection Account for disbursement therefrom for the payment of 

such pern1itted 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 Payjng 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 Agreement, 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 inter~st in any Excess 

Working Capital Advances without the consent of each of the Required Consenting Parties. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 36 
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 ofNet 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 ifthe 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 Tax 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 fQllowing 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 l.704-2(b)(2) and (d)) during any Fiscal Year, the Members 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 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 37 
section of the Treasury Regulations and shall be interpreted consistently 

therewith. 

(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 Agreement. This 

Section 6.2(b)(iii) is intended to comply with the "qualified income offset" 

provisions in Treasury Regulations Section 1.704-l(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 ofNet 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 ofNet 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). 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 	 38 
(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 among 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. · 

(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 

eac,h 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 jn 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 Meinber, 

following consultation with the Initial Member. 

(c) 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 ofNet Income (or 

items thereof) or Net Loss (or items thereof). 

South CRE Venture 2010-2. LLC 


Amended and Restated Operating Agreement 


EXECUTION VERSION 39 

(d) 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 

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 t9 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 anyj 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)). 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 40 
(ii) Distributions of Distributable Cash. Each distribution of 

Distributable Cash shall be made to the Members as follows: 

(A) first, sixty percent (60%) to the Initial Member and forty 

percent (40%) to the Private Owner, until the time at which the Incentive 

Threshold Event occurs; and 

(B) thereafter, sixty-five percent (65%) to the Initial Member 

and thirty-five percent (35%) to the Private Owner. 

For the avoidance of doubt, distributions to the Members occurring on the 

Distribution Date on which the Incentive Threshold Event occurs shall, (x) with 

respect to all distributions up to the amount required for reaching such Incentive 

Threshold Event, be allocated without regard to the occurrence of such Incentive 

Threshold Event, and (y) with respect to all remaining distributions on such 

Distribution Date, be allocated taking into account the occurrence of such . 

Incentive Threshold Event. 

(iii) Incentive Threshold Event. The "Incentive Threshold Event" 

shall occur as of a Distribution Date if (A) the aggregate distributions made to the 

Private Owner pursuant to Section 6.6(b)(ii) as of such Distribution Date is equal 

to or greater than the product of two (2) times the Incentive Threshold Base 

Amount, and (B) the Incentive Threshold as of such Distribution Date is equal to 

zero. 

(iv). Incentive Threshold. The "Incentive Threshold" shall be 

determined as follows: 

(A) as of the Closing Date, the Incentive Threshold shall be 

. equal to the sum of (x) the Transferred LLC Interest Sale Price and (y) the 

amount of the Private Owner WCR pursuant to Section 12.1l(b) (the 

"Incentive Threshold Base Amount"); and 

(B) as of any Distribution Date, the Incentive Threshold shall 

be an amount equal to (1) the sum of (i) the applicable Incentive 

Threshold as of the preceding Distribution Date (or, in the case of the first 

Distribution Date, the Closing Date), and (ii) the applicable Threshold 

Increase Amount, minus (2) the monthly distributions made to the Private 

Owner pursuant to Section 6.6(b}(ii) as of such Distribution Date; 

provided, that, if, as of any Distribution Date, the amount referred to in 

clause (B)(2) of this Section 6.6(b )(iv) is greater than the amount referred 

to in clause (B)(l) ofthis Section 6.6(b}(iv), then the applicable Incentive 

Threshold shall be deemed to be zero for such Distribution Date and all 

subsequent Distribution Dates. 

(c) Restrictions on Distributions. The foregoing provisions of this Article VI 

to the contrary notwithstanding, no distribution shall be made if such distribution would violate 

South CRE Venture 20 I 0-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 41 
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. 

(d) 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. 

(e) Record Holders. Any distribution ofCompany 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. 

(f)Final Distribution. The Final Distribution shall be made in accordance with the 

provisions of Section 9.2. 

ARTICLE VII 


Accounting, Reporting and Taxation 


7 .I 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 

(the "Fiscal Year"). 

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 Receiver 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 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 42 
income and expense pertaining to 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 (1 0) 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 (inch.iding any Governmental 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 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 ofits 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 th~ Private Owner in such applicable capacity, or to any 

applicable Servicer (and its Subs~rvicers) havjng been ~ngaged 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 ofthe Private Owner). 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 43 
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 20II 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 March 3I, 20II), the Manager shall prepare and deliver to the Initial Member 

unaudited consolidated balance sheet ofthe 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 (and, for the first such report, 

also 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 each 

Required Consenting Party such information as is spec;ified 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 Parties may reasonably request 

from time to time and, in any case, shall ensure that such Required Consenting Parties are 

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 any Required 

Consenting Party. Without limiting the generality of the foregoing, the Manager shall cause to 

be delivered to the Initial Member and the Purchase Money Notes Guarantor information 

indicating any possible Environmental Hazards with respect to any Collateral. To the extent that 

the Initial Member or the Purchase Money Notes 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 Notes 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 44 
the calendar month in which the Closing Date occurs, the Company shall deliver or cause the 

Manager to deliver to the Paying Agent and any Required Consenting Party 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 and the Purchase Money Notes Guarantor on 

such Distribution Date; provided, however, that (unless the Company and the Initial Member 

agree otherwise) the Initial Member will prepare and deliver to the Paying Agent and the 

Purchase Money Notes Guarantor the Monthly Report (including the Distribution Date Report) 

on behalf of the Company for all Due Periods ending on or before the last day of the month in 

which the final Servicing Transfer Date occurs, unless otherwise agreed between the parties. 

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 1n accordance with the 

terms of the Custodial and Paying Agency Agreement. ·For the Distribution Dare immediately 

preceding the Maturity Date for each Class of Purchase Money Notes, the Manager shall also 

deliver to the Paying Agent, the Initial Memoer and the Purchase Money Notes Guarantor an 

additional report (the "Maturity Date Report"), which report shall include the amount on 

deposit in the Defeasance Account to pay such Class of Purchase Money Notes as of the 

Mahlrity Date. Each Monthly Report (including the Distribution Date Report and 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 ofthe 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 each Required Consenting Party on or before March 

15 of each year, commencing in the year 2011' an officer's certificate stating, as to the signer 

thereof; that (i) a review ofsuch ·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, with 

respect to any Asset, shall cover the period. commencing on. the Closing Date (and with respect to 

each Asset, 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 perforined 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 45 
pursuant to this Section 7.4(c) with respect to such portion of the year (or other applicable 

period). 

(d) Annual Compliance Report. On or before March 15 of each year, 

commencing in the year 2011, 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 1 122 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)(l) 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 for 

each Asset, covering the period from the applicable Servicing Transfer Date) and continuing 

through the end ofthe 2011 Fiscal Year. 

(e) Audits. Until the later of the date that is ten (1 0) years after the Closing 

Date and the date that is three (3) years after the Final Distribution, the Manager shall, and shall 

cause each Ser\ricer 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 repn;sentatives 

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 its officers, directors, 

employees, accountants (and by this provision the Company and Manager hereby authorizes 

such accountants to discuss such affairs, finances and accounts with such representatives), 

Servicers and Subservicers, and attorneys. 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). 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 46 
(f)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 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) ofthe 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 agrees 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 administrati.ve 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)(l )(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 shan 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 

Fisool 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 47 
States federal, state and local Tax returns in accordance with any Law. Such information shall 

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) For each Due Period, no later than three (3) Business Days prior to the 

Distribution Date, the Company shall prepare and deliver or cause the Manager to prepare and 

deliver to the Initial Member a report which shall specify 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)) ofthe Company 

(the "Tax Allocation Report"). 

7.7 Business Plans. As promptly as possible, but in no event later than the dates or. 

time periods provided (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, 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 Borrower-Business Relationship Business Plans for 

each of the fifteen (15) largest borrower business relationships based on their Unpaid Principal 

Balance as of the Cut-Off D.ate (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 (the "Borrower-Business Relationship Business Plans")); provided, that the Manager 

shall not be required to provide an individual Borrower-Business RelationshipBusiness Plan for 

any Asset having an Unpaid Principal Balance less than $1.5 million, and (ii) a consolidated 

J3Gsiness Plan covering all Assets (a "Consolidated Business Plan"). Such initial BorrowerBusiness 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, the Manager shall meet w.ith 

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, to review and 

discuss such Business Plans, 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 reflecting such changes as the Manager 

considers to be appropriate in light of its discussions with the Initial Member during such review 

South CRE Venture 2010·2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 48 
period. The Manager shall 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 Plan, 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 Borrower-Business Relationship Business Plan) to the Initial Member, 

in January (current as of December 31 of the immediately preceding year) and July (current of 

June 30 of such year) of each year, commencing in July 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 ). 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. 

(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 p(ly-off of Assets at a discount; (ii) modifications ofthe 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 thi~ Agreement. 

(b) Each .Business Plan (including updates thereto) will set forth a strategy for 

the disposition of each related Acquired Property which strategy may consist of one or more elf 

the following: (i) the sale or leasing of the Acquired REO 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 currerit 

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 tOr leasing or sale (in whole or in part) at the time it is transferred to an Ownership 

Entity; and (v) maintenance, landscaping and general upkeep ofthe Acquired Property. 

(c) Each Business Plan (including any update thereto) shall contain the 

Company's estimate (or determination, if 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 Pllln, in the event such 

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 with respect thereto, and, in reasonable 

detail, the manner of calculation of such estimates. The Consolidated Business Plan shall 

include projected financials including statements of income, assets, and cash flows for the 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 49 
Company. Such cash flow projections shall, for the Consolidated Business Plan and each update 

thereto, include an Excel model of projected cash flows by month, 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 the Final Purchase Money 

Notes Maturity Date, on a monthly basis a period not less than the upcoming six (6) months, 

including projected monthly cash inflows, projected Excess Working Capital Advances and/or 

Discretionary Funding Advances, projected outflows of Servicing Expenses, projected Funding 

Draws, 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 updates thereto) shall include descriptions and 

explanations for the largest variances to the previously reported Business Plan. Variance 

explanations shall include changes in capital expenditures for Acquired REO 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, 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. The Private Owner may not under any circumstances Dispose ofless 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 ofControl, the Private Owner would 

be a Qualified Transferee. 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 Notes Guarantor. 

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Amended and Restated Operating Agreement 

EXECUTION VERSION 50 
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," (ii) agree (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, 

(iii) 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 

Agreement, and (iv) represent and warrant that it complies with the req-uirements 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 t9 effect the 

Permitted Disposition and substitute the transferee as a Member. 

8.4 Effect ofPermitted 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, prior to such transfer, also was the Manager, such transferee 

shall be appointed as the Manager (in the place ofihe 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 Transactio~ 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTJON VERSJON 51 
ofthe 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 

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 respecti~e 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 

LLC Interest of the Private Owner (or any portion thereof) not strictly in accordance with the 

terms ofthis 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 LLC 

Interest of the Private Owner (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 ofthe relevant suspension period. 

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 

dit>tributions accrued on the books ofthe 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 LLC Interest, directly or 

indirectly, to any Person and the Private Owner shall have no right to purchase or right-of-firstrefusal 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 LLC 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 LLC Interest) and provided, further, that in the event 

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EXECUTION VERSION 52 
the Initial Member determines to sell the LLC Interest held by it 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 LLC 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 perfonnan·ce 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 applicab-le provisions 

ofthis Article VIII or (ii) with the prior written consent ofthe 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 the Member shall use their respective commercially 

reasonable efforts to avoid a violation of any such applicable Law by a 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 53 
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 Winding-Up of the Company 


9.1 Dissolution. A dissolution ofthe Company shall take place upon the first to occur 

ofthe 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 instrume!lts), 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 ofthe Company in accordance with Section 12.17. 

. . ~ 

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 Transaction 

Documents, the Manager shall proceed as promptly as practicable to wind up the affairs of the 

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 ofthe 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) ofthe 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 Members who are creditors (other 

than the Initial Member (to the extent it continues to hold the Purchase Money 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating A~>reement 

EXECUTION VERSION 54 
Notes)), 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 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 Members and former Members under 

Section 18-601 ofthe Act; 

(iii) third, to the Members and former Members in satisfaction of 

liabilities (if any) for distributions under Section 18-601 ofthe 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 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 mqtually agreeable terms. 

9.3 Termination ofthe 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"): 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 55 
(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 is 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 consHtute 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 oth.er 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 ofits 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 takeri, 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 su"ch 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 rriay be, are in 

full force and effect, are not subject to any pending proceedings or appeals (administrative, 

judicial or 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 Governmental Authority or in violation of any Law. 

(f)Third Party Consents. No consents, approvals, waivers or notifications of 

stockholders, creditors, lessors or other nongovernmental Persons are requited 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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 56 
(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 LLC Interest acquired by it and, indirectly, the Assets, and to make an informed 

decision with respect thereto. 

(i)Economic Risks. Such Member acknowledges, understands and represents that 

it is able to bear the economic risks assoGiated with the acquisition and ownership of the LLC 

Interest acquired by it 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 LLC Interest and, indirectly, the Assets for an indefinite period oftime. 

(j)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 I;LC 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 Interest 

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 involv~d in an acquisition of the 

LLC Interests and, indirectly, the Assets. Except as is otherwise expressly provided in this 

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 as to the completeness or accuracy of any information provided. 

. (l)No Securities. Such Member acknowledges and agrees that (i) neither the offer 

nor the sale of the Private Owner LLC 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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 57 
(m) Resales. Such Member is acquiring the LLC Interest (and, indirectly, the 

Assets) for its own account and not with a view toward resale in a distribution within the 

meaning ofthe Securities Act. 

(n) Resales in Compliance with Law. Such Member will not (i) offer, pledge, 

sell or otherwise dispose of the LLC 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 LLC 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 

LLC 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 ofthe LLC 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 so act, nor will it authorize any Person or entity to so act, in any manner 

with respect to the LLC Interest (or any interest therein) or any Asset (or interest therein or 

evidence thereof). 

(o) Acquisition in Compliance with Law. Such Member's acquisition ofthe 

LLC 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 LLC Interest and the 

Loans by federal and state securities or blue sky Laws. 

(p) . 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 appropriate, including searches 

of Uniform Commercial Code, title, court, bankruptcy and other public records. Such Member 

agrees and represents that it· is entering into this Agreement solely on the basis of its own 

investigations and its judgment as to the value of the LLC Interest and the nature, validity, 

enforceability, collectability and value of the Assets and all other facts material to their 

ownership;including to the legal matters and risks relating to the collection and enforcement, 

and the 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 

C~mtribution Agreement. 

(q) Embargoed ·Person. Such Member certifies, represents and warrants that 

(i) no consideration that such Member or any of its Affiliates contributes hereunder or under the 

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 

South CRE Venture 2010.2. LLC 

Amended and Restated Operating Agreement 

EXECUTlON VERSJON 58 
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, such certifications, representations and warranties shall be based 

upon a due inquiry and investigation; provided, however, that for purposes of determining 

whether any ofthe 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 twenty-five percent (25%) or more 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) ofthe Investment Company Act. 

ARTICLE XI 


Manager Liability 


11.1 Liability ofManager. 

(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 provi~ed in 

Section 3.1(b) hereof. 

(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 selectep 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 ofthis Agreement. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 59 
(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, blJt subj~ct 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 

Closing 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 one or more Qualified Servicers). Without in any way limiting 

the foregoing, but subject to Section 3.3 of the Contribution Agreement, 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, except as provided in the immediately following 

subsection (b) or as otherwise expressly permitted by the Initial Member (with respect to 

performanoe 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 Servicer 

as· a result of an Event of Default, the Assets shall be serviced by the 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, 

(i) 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; · 

South CRE Venture 20 I 0-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 60 
(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 Notes 

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 respeGt 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 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 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 to any other 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 

Notes 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 Notes 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 61 
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 and the proceeds of 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 

re~ponsibilities thereunder as and to the extent permitted by .this Agreement, and 

that any prohibited sale, transfer or assignment 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, 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 P.arty 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 Subser\ticer (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); 

(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 the Initial Member, the 

Company, the Existing Servicers, the FDIC, in relation to any particular Asset, the 

relevant Failed Bank and any predecessor-in-interest thereof, any Ownership 

Entities existing as of the applicable Servicing Transfer Date, and all of their 

respectitre officers, directors, . employees, agents, attorneys, contractors and 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 62 
representatives, and all of their respective successors, assigns and Affiliates (but 

excluding, in all cases, the Manager (in its individual capacity)) (any such Person, 

a "Prior Servicer" and collectively, the "Prior Servicers"), 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 

ofthe Servic~r 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 Serv'icer 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 ofthis 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 Initial Member 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 63 
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 

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 Sub~ervicer 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 ma-y 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 

Agreement), 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), toget})er 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 Acquired REO Property 

(not including payment of debt service under the applicable Asset Documents) and otherwise in 

accordance with 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 Co11ateral 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; 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 64 
(d) ensuring 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 

adminjstration, 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 the Reimbursement, Security and Guaranty 

Agreement; 

(f)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 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 Asset administration, 

inspections, review of financial data and other matters involved in the servicing, administration 

and management of the Assets and the Collateral; 

(i)ensuring that all filings required to maintain perfection in any Collateral remain 

up to. date and in force, including Uniform Commercial Code financing statements; and 

(j)erisuring that each Borrower (or in the case of Acquired REO Property, the 

applicable Ownership Entity) Is diligently performing all permitted applicable construction work · 

using all commer~ially reasonable efforts in accordance with the requirements of the applicable 

Asset Documents; 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 the Loans. 

(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 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 (including any 

Subservicers engaged by the Servicer as permitted hereunder) and the performance of all day-today Servicing Obligations of the Manager shall be conducted by or through one (1) or more 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 65 
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, however, that anySubservicer 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 respects to the Assets or any right to transfer or sell the servicing to the Assets (other than in 

connection with the sale of any Asset), and no Seivicer 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 Liab.le 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 ~ubservicers, the Servicer). 

(c) Copies of Servicing and Subservicing Agreements. Copies of all fully 

executed Servicing Agreements and Subservicing Agreements, including all suppleme~ts and 

amendments thereto, shall be provided to each Required Conse11ting Party. 

(d) Regulation AB Requirements. The Manager shall use commercially 

reasonable efforts to confirm, where applicable, that each Servicer (and any Subservicer) has in 

pface policies and procedures to (i) comply with the relevant servicing criteria provisions of 

Section 1122( d)(l) 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)(l)(iii) regarding backup servicer requirements; Sections 

1122(d)(3)(i-iv) regarding paying agent requirements; and Section 1122(d)(4)(xv) regarding 

external credit enhancement. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTJON VERSJON 66 
(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 of liabilities 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). 

(f)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 

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 ~ll 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 i'n the aggregate covenng employee theft,· 

forgery & alteration, wire/funds transfer, computer fraud, client coverage. Such 

c~·verage 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 Agreement. 

(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 ofsubrogation in favor ofthe 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 67 
Employer's Liability in an amount not less than, $1,000,000. The policy shall 

include a waiver of subrogation in favor ofthe 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 (1 0) 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 (i)-(vii) 

above. 

The Manager shall provide (or shall cause each S~rvicer 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 tqe 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 Purchase Money Notes 

Guarantor, and the Initial Member 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 applicable 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 a·s 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® System unless default, foreclosure or similar legal or MERS 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTJON VERSION 68 
requirements dictate otherwise; provided, however, that if the Manager determines, in 

accordance with the Servicing Standard and other applicable provisions herein and in the 

Transaction Documents, to remove any or all such Loans so registered with MERS® from the 

MERS® 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.l(c) of the 

Contribution Agreement, and (C) for any such removal prior to the Purchase Money Notes 

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 tirrie to time, may request, including to allow the Manager and the 

Initial MembertG 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 aqy such Loans are so registered with MERS® as of the Closing 

Date, the Servicer, the Martager, 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 'aqy or al~ 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 .;my ·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 ofthe Servicer. 

(a) Removal of the 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 Initjal Member shall have 

the right to take, at the Initial Member's sole and absolute discretion 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 imy 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 (effective at such time as is specified in such notice), to remove the Private 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 69 
Owner as the Manager and appoint a successor Manager (which successor Manager may be the 

Initial Member) in the sole and absolute 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 and absolute 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, 3.2, 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 Transaction Document or otherwise. Notwithstanding the foregoing, if any 

Purchase Money Note is outstanding, the Purchase Money Notes 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 Notes Guarantor has also exercised its right to remove the Manager (such that such 

removed Manager no longer has rights to the Management Fee), then, with respect to servicing 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 70 
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 agree, 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 and 

absolute discretion, the extent, terms and conditions of the appointment of any su.ch successor 

Manager, including as to compensation (whether from the Initial Member or the Company), 

indemnification by the Company, tenn 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 oftheJiabilities and/or obligations ofthe 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 the Purchase 

Money Note is outstanding, the Purchase Money Notes Guarantor shall have the same rights 

under this Section 12.4(c) 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 

South CRE Venture 2010.2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 71 
to 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 ofsuch 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 Agreement 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 oflaw 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 Assets, and settle, compromise or adjust any such· suit, action or proceeding; (iii) execute, in 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 72 
connection with any 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 Agreement 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 Agreement, 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), 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 Notes 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 Notes 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 Notes Guarantor, which consent may be withheld in the sole and absolute discretion of 

the Initial Member or the Purchase Money Notes Guarantor. 

12.6 Servicing Expenses. Subject to Section 3.3 ofthe Contribution Agreement (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 or 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) in a timely manner, and in each case in 

accordance with applicable requirements set forth in the Custodial and Paying Agency 

Agreement (and, as applicable, the Contribution Agreement); provided, however, that anything 

to the contrary herein or in any other Transaction Agreement notwithstanding, the Manager shall 

South CRE Venture 2010-2. LLC 


Amended and Restated Operating Agreement 


EXECUTION VERSION 73 

not have an obligation to fund Excess Working Capital Advances for purposes ofthe 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, Funding Draws and Pre-Approved Charges with 

respect to such Asset (and any remaining amounts owing to the Initial Member with respect to its 

servicing ofsuch Assets during the Interim Servicing Period pursuant to Sections 2.3, 2.4 and li 

of the Contribution Agreement), would not ultimately be recoverable from the Asset Proceeds 

for such Asset. All Servicing 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 ofAsset Proceeds. 

(a) Permitted Payments. Subject to Section 12.7(b), each month the Asset 

Proceeds shall be utilized and distributed in the manner set fortp 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 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 Agreement. 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 Agreement. The Defeasance Account (and all funds therein) shall be subject to 

the security interest granted under the Reimbursement, Security and Guaranty Agreement. 

12.11 Working Capital Reserve Account. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 74 
(a) Establishment ofWorking 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 a reserve (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 the Working Capital Reserve Account.. On the Closing Date, the 

Initial Member and the Private Owner shall make the WCR Account Deposit in an amount equal 

to the Initial Member WCR Account Deposit and the Private Owner WCR Account Deposit, 

respectively. The Company shall 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 Cap and other 

requirements as 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 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 Accouht (including for purposes of 

distributions to the Members) in accordance with, and subject<to, the tetrns 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. 

12.12 Certain Servicing and Asset Administration Decisions. The Manager shall have 

full power and authority, acting alone or through any Servicer or 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 ofthe Assets Documents, but subject to the other terms and conditions 

South CRE Venture 2010-2. LLC 

A mended and Restated Operating Agreement 

EXECUTION VERSION 75 
of this Agreement (including the Servicing Standard), the Manager shal1 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 

institution of proceedings to foreclose 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 sha11 not, and sha11 not cause 

any Servicer or 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. 

12.13 Management and Disposition of Co11atera1. · Subject to the other terms and 

conditions of this Agreement (including the Servicing Standard), and the Reimbursement, 

Security and Guaranty Agreement, the Manager shal1 have ful1 power and authority, acting alone 

or through any Servicer and any Subservicer, to cause to be done any and a11 things in connection 

with the Manager's m·anagement of any Col1ateral or Acquired Property, that the Manager may 

deem neces~ary or desirable, and cause to be made al1 asset management decisions in its 

reasonable discretion. 

12.14 Acquisition of Collateral. 

(a). If title.·to any Co11ateral 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 shal1 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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 76 
(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 Acquired 

Property and to operate the Acquired Property as efficiently as possible in order to minimize 

financial loss to the Company, and the Purchase Money Notes Guarantor and to sell the Acquired 

REO Property as promptly as practicable in a way designed to minimize financial loss to the 

Company and the Purchase Money Notes Guarantor. 

12.15 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 Acquireq REO Properties, in addition to any 

other terms and conditions concerning the same subject matter set forth in this Agreement and 

any ofthe other Transaction Documents: 

(a) I!lsurance. With respect to each Acquired REO Property, the Manager 

shall c~use 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 Agre~ent and the 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 

pohcy 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 zonirig 

ordinance or any other applicable land use Law, rule or regulation, without the prior consent of 

the Initial Member and the Collateral Agent. 

(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) 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 77
with any portion of an Acquired REO Property which may be deemed to constitute personal 

property, or any other procedure whereby the Lien of any Taxes which may be levied against 

such personal property shaH 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 shaH cause the 

applicable Ownership Entity to maintain such Acquired REO Property in a good and safe 

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 Transaction Documents) and in accordance with applicable Law. 

(t)Property Management. AH property managers with respect to any Acquired 

REO Property sha11, in their respective property management agreements or by separate 

agreement, subordinate their rights under such ·agreements (including their right to receive 

management fees) to the rights and interest of the Co11atera1 Agent under the applicable REO 

Mortgage: 

(g) Ground Leases. With respect to any Acquired REO Property that is leased 

under a ground or other lease (in each case, a "ground lease"), the Manager shall cause the 

applicable Ownership Entity to (i) pay a11 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 sha11 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 Co11atera1 Agent unless such 

subordination is required under the provisions ofsuch ground lease. 

(h) [lntentiona11y Omitted.] 

(i)Acquired REO Property Genera11y. 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 sha11 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 

accordance with the Servicing Standard, and (ii) without relieving the Manager of any obligation 

elsewhere in this Agreement or any 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 the Company and the Members and creditors of the Company (including 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. 

(j)Reports. The Manager shall furnish to the Initial Member, the Purchase Money 

Notes Guarantor so long as the Purchase Money Notes are outstanding 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, the CoHateral Agent or the Purchase Money Notes 

Guarantor shaH reasonably request. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 78 
12.16 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 Asset in full and satisfaction in full of a11 of the secured obligations with respect to an Asset, 

upon receipt of a discounted payoff as payment in full of an Asset, or upon a sale of the Asset to 

any Person, in each case as and to the extent permitted hereunder and under the Reimbursement, 

Security and Guaranty Agreement. 

12.17 Clean-Up Call Rights. 

(a) . If, and only if, all amounts owing under the Purchase Money Notes have 

been 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 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 (the "Clean-Up Call") 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 (1 0%) or less of the Unpaid 

Principal Balance as ofthe Cut-Off Date as set forth on the Asset Schedule. 

(b) In order to exercise its rights under this Section 12.17, the Initial Member 

and the Purchase Money Notes Guarantor shall give notice in writing to the Manager, setting 

foryh 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 12.17 

shall be subject to the prior approval of the Initial Member, such approval not to be unreasonably 

withhel.d, 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 are not liquidated by 

the date specified in the notice provided by the Initial Member pursuant to Section 12.17{b), the 

Initial 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 12.17(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. · 

12.18 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 79 
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 real property, 

if required, shall be at the Company's sole cost and expense. 

12.19 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 "SFL Obligor)). 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 simi.lar to 

those of other prudent lenders financing collateral of similar type and size of the Seller Financed 

Loans collateral (the "SFL 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 ~ 

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 

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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTJON VERSJON 80 
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 app1icable Law. 

13.2 Entire Agreement; Other Agreements. 

(a) This Agreement, together with the Annexes and Exhibits hereto and the 

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, that any 

Confidentiality Agreement between the FDIC and the Private Owner or any Affiliates of the 

Private Owner (including by w.ay ofjoinder) with respect to the transaction that is the subject of 

this Agreement and the 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 pursu~nt 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 Notes 

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 'lights 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 upon occurrence of the Purchase Money Notes 

Defeasance Date (and subject to any rights of the Purchase Money Notes Guarantor that, by their 

terms or nature, survive such date), such Person shall cease to have any ofthe specified rights set 

forth herein with respect to consents/approvals, exercise 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 Notes Guarantor and the Initial Member. Purchase Money Notes Defeasance 

Date, and (ii) 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 Notes in accordance with the terms hereof and of the Transaction Documents, as 

determined by the Purchase Money Notes 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 81 
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 immediately preceding sentence, 

(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 . 

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 Transaction Documents, the consummation of the transactions contemplated 

by Section 2 .J hereof and the performance ofits 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 Defau~t, 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 aQditional 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 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 privitege, preclude any other or further exercise thereof or the exercise of any other 

right, power or privilege. 

(b) Notwithstanding anything to contrary contained elsewhere in this 

Agreement (including without limitation the foregoing Section 13.5(a)} or in any other 

Transaction Document, and in addition to any restructuring rights of the FDIC under Section 2.8 

of the Custodial and Paying Agency Agreement or other Transaction Documents but subject to 

the restrictions in Section 8.4 of the Contribution Agreement and Section 2.8 of the Custodial 

and Paying Agency Agreement, as applicable, in order to facilitate the any restructuring of or 

sale of the Purchase Money Notes (or any reissuance, restructuring or sale of any such Purchase 

Money Notes to be issued pursuant to Section 2.8 of the Custodial and Paying Agency 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 82 
Agreement), 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 (1 00%) of any Class of Purchase Money 

Notes or beneficial interest therein cause the Company to replace or reissue such Purchase 

Money Notes 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 ofthe Contribution Agreement and Section 2.8 ofthe Custodial and Paying Agency 

Agreement, as the case may be; provided, however, that such changes, amendments or 

modifications shall not adversely affect in any material respect the rights or interests of any 

Noteholder of any other Purchase Money Notes or any owner of any interest therein; provided, 

further, that no such change, amendment or modification shall adversely affect (i) the amount or 

timing of distributions on the LLC Interests to the Private Owner or any permitted successor or 

assign pursuant to the Priority of Payments, or (ii) any rights or obligations of, or the need for 

any direct 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 (x) in 

the determination of the Purchase Money Notes Guarantor, adversely affect in any material 

respect the rights or interest of any holder of any other Purchase Money Notes or any owner of 

any interest therein. 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 cooperate in good faith with th~ FDIC in effectuating all such changes, amendments and 

modifications, and will cause legal counsel for the Company ·to issue such legal opinions as may 

reasonably be requested or required in connection with such replacement or reissuance and sale 

of the ·Purchase Money Notes. For avoidance of doubt, any applicable fees of the Custodian in 

connection with additional reporting requested or required by the Initial Member or the Purchase 

Money Notes Guarantor in connection with the replacement, reissuance or sale. of the Purchase 

Money Note(s) shall constitute Reimbursable Company Administrative Expenses. For the 

avoidance· of doubt, no legal fees or expenses associated with changes, clarifications or 

amendments to documents requested by the Private O~ner shall ~onstitute Reimbursable 

Company Adm~nistrative Expenses. 

(c) Notwithstanding anything to contrary contained elsewhere in this 

Agreement (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 Membp- 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 its LLC Interest, or a Disposition by the Initial Member of its entire LLC 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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 83 
amendments to this Agreement or any Transaction Documents requested or required by the 

Initial Member or the Purchase Money Notes Guarantor in connection with the replacement or 

reissuance or sale of the Purchase Money Notes 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: 

South CRE Venture 2010-2, LLC 


c/o Hudson Realty Capital LLC 


250 Park A venue South 


Third Floor 


New York, NY I 0003 


Attention: Andrew J. Bloom 


Director & General Counsel 

E-mail: 

with a copy to: 

Hudson Realty Capital LLC 

250 Park A venue South 

Third Floor 

New York, NY 10003 

Attention: Renee Lewis 

E-mail 

. If to the Initial Member, to: 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 84 
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 Pcivate Owner (including in its role as Manager and/or Tax Matters 

Member), to: 

HRC SVC SOUTH 2010 LLC 

c/o Hudson Realty Capital LLC 

250 Park A venue South 

Third Floor 

New York, NY 1 0003 

Attention: Andrew J. Bloom 

Director & General Counsel 

E-mail: 

with a copy to: 

Hudson Realty Capital LLC 

250 Park A venue South 

Third Floor 

New York, NY 10003 

Attention: Renee Lewis 

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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 85 
(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 a Member, shall continue to bind such Person in relation to the period during which it 

was a 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 ofits 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; (iitwithout 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 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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating AgreemeRt 

EXECUTION VERSION 86 
13.10 Power ofAttorney. 

(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's LLC 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 Agreement 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 Agreement shall require any unlawful action or inaction by 

any Person. 

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 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 87 
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 

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 

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 ofDelaware; 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 ofits Affiliates against the Initial Member 

arising out of, relating to, or in connection with this Agreement or any 

Transaction Document 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 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 

South C'RE Venture 2010-2. LLC' 

Amended and Restated Operating Agreement 

EXECUTION VERSION 88 
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 ofthe 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 agrees that any final 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 :taw; 

(d) Nothing in this Section·l3 .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(a)(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] 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 89 
----------------------------

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by 

their respective officers or agents thereunto duly authorized on the date first above written. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAP A CITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

VARIOUS FAILED FINANCIAL 

INSTITUTIONS LISTED ON SCHEDULE I 

Title: Attorney-in-Fact 

SOUTH CRE 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 failed financial institutions listed on 

Schedule I hereto 

By: 

HRC SVC SOUTH 2010 LLC 

By: -----------------------------­

Name: 

Title: 

South CRE Venture 2010-2, LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION 
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by 

their respective officers or agents thereunto duly authorized on the date flrst above written. 

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 


SOUTH CRE VENTURE 2010-2, LLC 

By: 	Federal Deposit Insurance Corporation, in its 

separate capacities as receiver with respect to 

the separate receiverships for each ofthe 

various failed financial institutions listed on 

Schedule I hereto 

By: 	-----------------------------­ Name: Heidi Silverberg 


Title: Attorney-in-Fact 


South CRE Venture 2010..2, LLC 

Amended and Restated Operating Agreement 

EXECUTlON VERSION 
Annex I 

Member Schedule 

Member Percentage Interests Capital 

Contributions to 

Other Capital 

Contributions1 

Working Capital 

Reserve Account 

Initial Member 60% $600,000 $5,497' 120.50 

Private Owner 40% $400,000 $3,664,747.00 

1 The amounts listed in this column do not include capital contributions made to the Working Capital Reserve 

Account. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION I-1 
EXHIBIT A 

FORM OF 

CERTIFICATE OF FORMATION 


OF 


SOUTH CRE 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 South CRE Venture 2010-2, LLC 

(the "Company"). 

SECOND, the address of the registered office of the Company in the State ofDelaware is 

Corporation Service Company, 2711 Centerville, in the City of Wilmington, County of New 

Castle. The name ofthe registered agent at such address is The Corporation Service Company. 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation of 

the Company on this 1st day of December, 2010. 

By: Is/ Heidi Silverberg 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTJON VERSJON A-1 
EXHIBIT B 


INFORMATION; FORM OF MONTHLY REPORT 


[See Attached] 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION B-1 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Working Capital Reserve Account 


Monthly Roll Forward 


For Due Period Ending [insert date] 


Balance after activity for previous Due Period 

(+) Interest and earnings on Working Capital Reserve Acs;s>u11t - ----~-- -­

Transfers to Collection Account during the Due Period: 

(-) Payment of Working Capital Expenses 

Release of excess funds pursuant to Section 3.4 of the 

Custodial and Paying Agency Agreement 

Balance, as of the Determination Date 

1-) 

Settlements for Due Period, paid after month-end: 

(-) Required advance to pay Working Capital Expenses for this Due Period 

(+/-) Replenishment (release) of Working Capital Reserve Account funds 

from/(to) Collection Account, based on Determination Date 

Balance after activity for this Due Period 

Working Capital Reserve Floor 

Working Capital Reserve Cap 

$ -

-

-

-

( 1) 

$ 

-

-

-

$ 

$ 

1,000,000.00 

2,500,000.00 

(2) 

(3) 

(1) Working Capital Expenses means any Servicing Expenses, Interim Servicing Expenses, 

Pre-Approved Charges, Funding Draws, Management Fee, Interim Management Fee, Interim 

Servicing Fee, or fees of the Custodial and Paying Agency Agreement. 

(2) The minimum amount to be maintained in the Working Capital Reserve Account at any point in time, 

except that the minimum amount can be reduced below the Floor when advances from the 

Working_ Capital Reserve Account 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, 

which is the lesser of $2,500,000 or 3.00% of the UPB of the Assets as of the Determination Date. 

Calculation of Workina Capital Reserve CaP 

UPB of the Assets as of the Determination Date (last day of Due Period) 


Times 3.00% 


UPB Limitation on Cap 


Working Capital Reserve Cap, before limitation 


Working Capital Reserve Cap - Lesser of [A] or [B] 


[A] 

[B] 

$ ­

3.00% 

$ ­

$ ­

$ ­
Multibank Transaction 


South CRE Venture 2010-2, LLC 


I 

Calculation of Reauired Workin~:~ Capital Reserve Account Replenishment (Releasel 

Working Capital Reserve Account Cap I $ 

Working Capital Reserve Account Balance prior to replenishment (release) 

Required Working Capital Reserve Account replenishment 

I !(release) $ 

-

-

-
Multibank Transaction 


South CRE Venture 2010-2, LLC 


EXHIBIT 8 - FORM OF MONTHLY REPORT 

Cashflow and Distribution Report 

For Due Period Ending [insert date] 

COLLECTIONS 

(+) Principal collections 

(+) Interest collections 

{+) Loan sale proceeds, including short sales 

{+) Mortgage insurance claim proceeds 

(+) REO liquidation proceeds 

(+) Servicing Expenses and Interim Servicing Expenses Recovered 

{+) Other Loan Proceeds (including late fees and penalties) 

{+) Any payments made pursuant to Article VI of the Reimbursement 

and Security Agreement 

{+} Indemnity Payments made under Custodial Agreement 

{+) Interest and earnings from Collection Account 

GROSS COLLECTIONS 

Other de(;losits to Collection Account 

{+) Transferred from Working Capital Reserve Account 

{+) Excess Working Capital Advances made by Manager 

{+) Discretionary Funding Advances made by Manager 

GROSS FUNDS AVAILABLE 

Less authorized disbursements from Collection Account 

{-) Repayment of Discretionary Funding Advances made by Manager 

(-) Servicing Expenses paid 

{-) Pre-Approved Charges 

(-) Funding Draws 

NET FUNDS AVAILABLE 

{+) Required release from Working Capital Reserve Account, calculated as of 

the Determination Date 

FUNDS DUE TO DISTRIBUTION ACCOUNT 

Distributions pursuant to Priority ofPayments In the Custodial Agreement 

Custodian and Paying Agent Fees and Expenses {and any indemnity 

payments under the Custodial Agreement) 

Interim Servicing Fee to Initial Member 

Interim Management Fee to Manager 

Management Fee to Manager 

Repayment of Excess Working Capital Advances to Manager 

Replenishment of Working Capital Reserve Account 

Reimbursement due Note Guarantor 

Deposit to Defeasance Account (until Purchase Money Notes Defeasance 

Date) 

TOTAL DISTRIBUTIONS DUE 

NET DISTRIBUTABLE CASH TO MEMBERS (if positive) 

TOTAL 

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

{1) 

-

-

-

-

-

-

-

-

- {2) 

- {3) 

- {4) 

-

-

-

-

-

$ -
Multibank Transaction 


South CRE Venture 2010-2, LLC 


DISTRIBUTION TO MEMBERS 

Distribution to Initial Member (pro rata at respective LLC interest) 

Distribution to Private Owner (pro rata at respective LLC interest) 

TOTAL DISTRIBUTIONS TO MEMBERS 

Calculation ofamounts ea'i.able eursuant to Priority_ ofPalf.ments In 

Custodial Agreement 

(+) 

(+) 

INTERIM SERVICING 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 interim servicing fee rate 


Times number of days in Due Period/360 


Portion ofInterim servicing fee with respect to Loans 

Acauired Prooertv 


Net Fair Value, beginning of Due Period (with respect to 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 UPS, 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 

Acauired Prooertv 


Net Fair Value, beginning of Due Period (with respect to 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 


Portion of interim management fee with respect to Acquired Property 


TOTAL INTERIM MANAGEMENT FEE DUE TO MANAGER 


MANAGEMENT FEE CALCULATION 

Loans 

Adjusted UPS, 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) 

$ ­

-
 $ ­

$ ­

0.25% 

-
 $ ­

$ ­

0.25% 

-
 $ ­

$ ­

-
 $ ­

$ ­

0.25% 

-
 $ ­

$ ­

0.25% 

-
 $ ­

$ ­

-
 $ ­

$ ­

(3) 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


(+) 

(1) 

(2) 

(3) 

(4) 

(5) 

Times Management Fee rate 

Times number of days in Due Period/360 

Portion of management fee with respect to Loans 

Acquired Propeffit 

Net Fair Value, beginning of Due Period (with respect to Acquired Property 

in any Group of Assets for which Servicing Transfer Date has occurred as of 

first day in Due Period) 

Times Management Fee rate 

Times number of days in Due Period/360 

Portion of management fee with respect to Acquired Property 

Portion of management fee with respect to Loans 

Portion of management fee with respect to Acquired Property 

TOTAL MANAGEMENT FEE DUE TO MANAGER 

0.50% 

- $ -

$ -

0.50% 

- $ - (5) 

$ -

- $ -

Repayment only to the extent of Asset Proceeds from the Asset with respect to which the Advance was made. 

Applicable only to the Interim Servicing Period with respect to a Group of Assets, commencing on the 

day immediately following the Cutoff Date. 

Applicable only to the Interim Servicing Period with respect to a Group of Assets, commencing on the Closing Date. 

Applicable to Due Periods following the Interim Servicing Period with respect to a Group of Assets. 

With respect to any Acquired Property, the Management Fee is payable for a maximum of three years 

after title has passed to the Company, or three years from the Closing Date if title had transferred 

by the Receivership prior to the Closinq Date. 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


loan & REO Rollforward Report 

For Due Period Ending [insert date] 

LOANS 

Unpaid principal balance, [insert date] 

(-) 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, [insert date] 

For the Period from 

(Insert Date Range] 

#ASSETS AMOUNT 

- $ 

-

-

-

-

- $ 

-

-

-

-

-

-

-

-

-

-

ACQUIRED PROPERTY (REO) #ASSETS AMOUNT (1)

UPB of REO properties, [insert date] - $ - (+) UPB on REO transfers in - - ( +/-) Adjustments to Net Fair Value 

(+) Capitalized post-acquisition costs - (-) Net liquidation proceeds - - (+/-) Realized Gain (Losses) - - UPB of REO properties, [insert date] - $ -

TOTAL ASSETS, end of Due Period - $ ­

The Unpaid Principal Balance of Acquired Property shall be the Net Fair Value of such 

Acquired Property (the expected fair value received at sale [except for the sale of a single 

family residence], less the direct sales costs). 

(1) 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Recoverable Servicing Expenses (Advances) 

Monthly Rollforward For Due Period Ending [insert date] 

Balance, [insert date] $ 

Tax and 

Insurance 

Advances 

-

(+) 

(-) 

! t-Jayments/Aavances 

Advance Recoveries 

-

-

- Balance, [insert date] $ 

(2) 

-

Other 

Recoverable 

Servicing 

Advances 

$ ­

-


-


-
 $ ­ (2) 


(1) 

Total 

Recoverable 

Servicing 

Advances 

$ ­

-


-


-
 $ ­

Servicing Expenses, as defined in the Agreement of Common Definitions, are authorized t 

be paid by withdrawal of funds from the Collection Account. For reporting purposes, Servi( 

Expenses recoverable from borrowers under the loan documents may be broken out into c: 

and/or different fields at the discretion of the Manager. 

(1) 

Loan servicing system should include fields to capture and report balances in each catego 

and the category totals should agree to asset-level detail tapes provided by the Manager 

as of each month-end. 

(2) 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Non-Recoverable 

Expenses Paid 

-

ing 

~ditional 

~. 

Total 

Servicing 

Expenses Paid 

$ -

--­
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Working Capital Reserve Account 

Monthly Roll Forward 

For Due Period Ending [insert date] 

Balance after activity for previous Due Period $ -

(+) Interest and earnings on Working Capital Reserve Account 

Transfers to Collection Account during the Due Period: 

(-) Payment of Working Capital Expenses 

(-} Release of excess funds pursuant to Section 3.4 of the 

Custodial and Paying Agency Agreement 

Balance, as of the Determination Date 

-

-

-

( 1) 

Settlements for Due Period, paid after month-end: 

(-) Required advance to pay Working Capital Expenses for this Due Period 

(+/-) Replenishment (release) of Working Capital Reserve Account funds 

from/(to) Collection Account, based on Determination Date 

-

-

Balance after activity for this Due Period $ -

Working Capital Reserve Floor $ 1,000,000.00 (2) 

Working Capital Reserve Cap $ 2,500,000.00 (3) 

( 1) Working Capital Expenses means any Servicing Expenses, Interim Servicing Expenses, 

Pre-Approved Charges, Funding Draws, Management Fee, Interim Management Fee, Interim 

Servicing Fee, or fees of the Custodial and Paying Agency Agreement. 

(2) The minimum amount to be maintained in the Working Capital Reserve Account at any point in time, 

except that the minimum amount can be reduced below the Floor when advances from the 

Working Capital Reserve Account 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 a_ny p()illt in time, 

which is the lesser of $2,500,000 or 3.00% of the UPS of the Assets as of the Determination Date. 

-Calculation of Workina Capital Reserve Cap 

UPS of the Assets as of the Determination Date (last day of Due Period) $ - Times 3.00% 3.00% 

UPS Limitation on Cap [A] $ -

Working Capital Reserve Cap, before limitation [B] $ -

Working Capital Reserve Cap - Lesser of [A] or [B] $ -
Multibank Transaction 


South CRE Venture 2010-2, LLC 


I 

Calculation of Reauired WorkinQ Capital Reserve Account RePlenishment (Release) 

Working Capital Reserve Account Cap I $ 

Working Capital Reserve Account Balance prior to replenishment (release) 

Required Working Capital Reserve Account replenishment 

I(release) I $ 

-

-

-
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Excess Working Capital Advances 

Monthly Roll Forward 

For Due Period Ending [insert date] 

Balance, beginning of Due Period $ -

Advanced by Manager to Collection Account for 

payments of : 

(+) Working Capital Expenses (other than Funding 

Draws) -

Advanced by Manager to Defeasance Account for 

payments: 

(+) As required to cure a Purchase Money Notes 

Trigger Event -

(-) Reimbursements from Cash Flow -

Balance, end of Due Period $ -

Discretionary Funding Advances 

Monthly Roll Forward 

For Due Period Ending [insert date] 

Total- Detail Advances bl£ Asset Number 

All Advances Asset A Asset 8 

Balance, beginninQ of Due Period $ - $ - $ -

(+) Funding Draws Advanced by Manager to Collection 

Account - - - I(+) Interest Due (30-day LIBOR + 3.00%, actual/360) - - - (-) Reimbursements from Asset Proceeds (1) - - -

Balance, end of Due Period $ - $ - $ -

(1) Repa}'ment onl}' to the extent of Asset Proceeds from the Asset with respect to which 

the Advance was made. 

Private Owner Pledged Account 

Monthly Roll Forward 

For Due Period Ending [insert date] 

Balance, beginning of Due Period $ -

(+) Proceeds from draw on Letter of Credit - and/or) 

(+) Quali!}ting Cash Collateral deeosit 

1(-) Payment of expenses in connection with Event 

of Default -

Balance, end of Due Period $ -

Funding Draws 

Monthly Report 

For Due Period Ending [insert date] 

Amount of Current Unfunded 

Loan Number I Puroose of Fundino Draw Fundina Draw UPB Commitment 

$ -

-

-

Total FundinQ Draws, month ended [insert date) $ -

Amount funded 

bv Discretionary 

Fundina Advance 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Purchase Money Notes and Defeasance Account 

Monthly Roll Forward 

For Due Period Ending [insert date] 

(+) 


(-) 

(+) 


(+) 


(-) 

(+) 


(+) 

(-) 

Purchase Mone~ Notes Monthl~ Roll 

Original Aggregate Principal Amount 

Payment from Defeasance Account 

Purchase Money Notes balance, end of Due Period 

Defeasance Account Monthl~ Roll 

Balance after deposit for previous Due Period 

Additions from Cash Flow for this Due Period 

Investment Income 

Release to Purchase Money Notes 

Defeasance Account balance after deposit for this 

Due Period 

Note Guarantor Pavments 

Balance, beginning of Due Period 

Draws, current month 

Interest Due, current month 

Repayments from cash flow for this Due Period 

Balance after repayment for this Due Period 

Purchase Monev Note Triaaer Event 

Total 

$ ­

-


$ ­

$ ­

-


-


-


$ ­

$ ­

-


-


$ ­

Class A-1 

Maturi~ 

$ ­

-


$ ­

Class A-2 

Maturi~ 

$ ­

-


$ ­

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 Notes Guarantor, divided by 

(b) the original aggregate principal amount of the Purchase Money Notes as of the Closing Date, is less than: 

- 4th anniversary of the Closing Date, or any time before the 5th anniversary_ of the Closing Date: 

- 5th anniversary of the Closing Date, or any time before the 6th anniversary of the Closing Date: 

- 6th anniversary of the Closing Date, or any time before the 7th anniversary of the Closing Date: 

- 7th anniversary of the Closing Date: 

50% 

67% 

83% 

100% 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Incentive Threshold Tracking Report 

For Due Period Ending [insert date] 

(+) 

Aggregate Cash Distributions to Private Owner, as of preceding Distribution Date 

Current month distribution to Private Owner pursuant to Priority of Payments 

$ -

-

Aggregate Cash Distributions to Private Owner, as of the current Distribution Date $ -

Incentive Threshold Base Amount 

Transferred LLC Interest Sale Price 

Amount funded into Working Capital Reserve Account by Private Owner at Closing 

$ 

-

-

-

INCENTIVE THRESHOLD EVENT 

Occurs as of a Distribution Date if: 

(a) the aggregate distributions made to the Private Owner pursuant to the Priority of 

Payments are equal to or greater than 2 times the Incentive Threshold Base Amount and 

(b) the Incentive Threshold as of such Distribution Date is equal to zero. 

Aggregate cash distributions to Private Owner 

Incentive Threshold Base Amount* 2 

$ -

-

Distributions Remaining to Incentive Threshold Event $ -

(+) 

(-) 

Incentive Threshold, as of the preceding Distribution Date 

Threshold Increase Amount (1.8769%) 

Current distributions to Private Owner pursuant to the Priority of Payments 

Incentive Threshold, as of the current Distribution Date 

$ 

$ 

-

-

-

-

Incentive Threshold Event met? Y/N 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Additional Security Report 


For Due Period Ending [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 $2,500,000? 	 YIN 

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. § 1831o (b)(1), or applicable replacement 


legislation: 


B. Is such Issuing Bank a Qualified Issuer? 	 YIN 

(1) 	 A Qualified Issuer must be "well capitalized" as defined in the regulations 


referenced above. 

Multibank Transaction 


South CRE Venture 2010-2, LLC 


Other Reports 


For Due Period Ending [insert date] 


Withdrawals (rom 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 Amended and Restated Limited 

Liability Company Operating Agreement and the Custodial Agreement: Y IN 

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 book 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 

Judgment Report 

Listing ofJudgments obtained, to include borrower name, Judgment amount, current month and 

cumulative payments received, remaining balance 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Significant Litigation Report 

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 ofthe 

dollar amount naming: (i) any 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 andActivity Report 

PROVIDE A MONTHLY LOAN-LEVEL REPORT 

IN EXCEL WITH THE FOLLOWING FIELDS: 

Current Loan Number 

Prior Servicer Loan Number 

P&l Constant 

Note Rate 

Next Due or Paid-Thru Date 

Payoff Date (if applicable) 

Principal Balance, end of prior month 

Principal collections - regular 

Principal collections - payoffs 

Principal proceeds - loan 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 - regular 

Interest collections - payoffs 

Interest collections - loan sales 

Non-Cash Interest Adjustment 
Multibank Transaction 


South CRE Venture 2010-2, LLC 


Late Charges 

Pre-Payment Penalty Paid 

Other Fee Income 

Servicing System Data Download- To Initial Member 

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 linlc 

http://www.fdic.gov/bank/individual/failed/lossshare/index LLC v1.0.html 

SEMIANNUAL REPORT- TO INITIAL MEMBER (in January and July ofeach year) 

Projected Cash Flows 

Excel model of projected cash flows by month, as ofJune 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. 

ANNUAL REPORT- TO INITIAL MEMBER 

Business Plan 

Updated Consolidated Business Plan and individual Borrower-Business Relationship Business Plans for 

15 largest Assets as required pursuant to Section 7. 7 of the LLC Operating Agreement. 

ASAVAILABLE- TO INITIAL MEMBER 

Custodial Report or an updated Loan Schedule and Exception List (in each case as defined in the 

Custodial Agreement) from the Custodian/Paying Agent, as provided to the Company. 
EXHIBITC 

FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT 

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is 

made and entered into as of , 20_ by and between [ a Delaware 

limited liability company ("Transferor"), and a 

_________ ("Transferee"). 

RECITALS 

WHEREAS, the Transferor, is the owner of a limited liability company membership. 

interest (the "LLC Interest") in South CRE Venture 2010-2, LLC, a Delaware limited liability 

company (the "Company"); 

WHEREAS, the LLC Interest represents a percent L_%) "Percentage 

Interest" in the Company (as defined in that certain Amended and Restated Limited Liability 

Company Operating Agreement, effective as of December_, 2010, by and among the Federal 

Deposit Insurance Corporation, in its capacity as receiver for the Failed Banks defined therein 

(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 under 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 

one (1) or more counterparts have been signed by each of the parties and delivered (including by 

telecopy) to the other party. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION C-1 
3. No Third Partv Beneficiaries. This Agreement 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 oflaws ofthe State ofDelaware or any other jurisdiction. 

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement 

effective as ofthe date first above written. 

TRANSFEROR: 

By: 

Name: 

Title: 

TRANSFEREE: 

By: 

Name: 

Title: 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION C-2 
----

----

-----

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 Deals 

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: 

RE: Irrevocable Transferable Letter ofCredit No. for 

U.S.$ , Dated _________ 

Gentlemen: 

We hereby issue our irrevocable transferable Letter of Credit No. ------~­

(this "Letter of Credit") in favor of Federal Deposit Insurance Corporation (in any capacity, 

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 [ (the "Private Owner"). 

This Letter of Credit is issued pursuant to the Amended and Restated Limited Liability 

Company Operating Agreement dated as of December [_], 2010, (as amended or otherwise 

modified from time to time, the "LLC Operating Agreement"), by and among [ 

----~ 

(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. 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION D-1 
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 [ , Attention: [ , [or (ii) by telecopier (at telecopier 

number [ ], Attention: [ without further need of documentation. Each 

such drawing should be accompanied by contemporaneous telephonic notification to the 

Attention of the [ . Presentation having been so made at or before 12:00 noon 

([ time) 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 ([ 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 5:00p.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 upori 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 Jetter 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 ofthe 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, 

the FDIC, in any capacity is to remain as the beneficiary of the Letter of Credit) shall be 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION D-2 
------------------------

-----------------------

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 oflaws. 

All ofthe 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: 

Name: --------------------~ Title: 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION D-3 
ATTACHMENT I TO LEITER OF CREDIT 

REQUEST FOR TRANSFER 

[Insert Bank Name and Address] 

RE: Irrevocable Transferable Letter of Credit No. [ _____, for 

U.S.$[ , Dated [ _________, 

Gentlemen: 

Reference IS made to that certain irrevocable transferable Letter of Credit No. 

_________., dated (the "Letter of Credit"), issued by you in favor of 

_____, (the "Transferor"), for the account of [ (the "Private Owner"). 

The Transferor has transferred and assigned (and hereby confirms to you said transfer and 

assignment) a11 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 ofCredit. 

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 

a11 other respects identical to the Letter ofCredit. 

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: , Email: [ ], Fax: [ , Tel: [ ____, 

[NAME OF TRANSFEROR] 

By____________~--~ 

[Name and Title ofAuthorized 


Represe~tative ofTransferor] 


[NAME OF TRANSFEREE] 

By__________________ 


[Name and Title of Authorized 


Representative ofTransferee 


South CRE Venture 2010-2, LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION D-4 
SCHEDULE I 

List ofVarious Failed Financiallnstitutions 

South CRE Venture 2010-2 

Bank Name em: State Fund 

10120 

Closin2 Date 

Irwin Union Bank & Trust Company Columbus IN 9118/2009

Hillcrest Bank of Florida Naples FL 10131 10/23/2009 

Republic Federal Bank, N.A. Miami FL 10158 12111/2009 

Rockbridge Commercial Bank Atlanta GA 10164 12118/2009 

Florida Community Bank Immokalee FL 10181 1/29/2010 

Broadway Bank Chicago IL 10219 4/23/2010 

The Bank ofBonifay Bonifay FL 10234 5/07/2010 

South CRE Venture 2010-2. LLC 

Amended and Restated Operating Agreement 

EXECUTION VERSION S-I