Corus Transaction 

EXECUTION VERSION
 

AMENDED AND RESTATED 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT
 

CORUS CONSTRUCTION VENTURE, LLC
 

Dated as of October 16,2009
 

Doell lJSI :57656:i~vll 
TABLE OF CONTENTS
 

Page 

ARTICLE I Certain Definitions......................................................................................................2
 

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

ARTICLE II Organization of 
 the Company.................................................................................... 2


2.1 Formation; Continuation and Admission of Members......................................... 2
 

2.2 Name .................................................................................................................... 3
 

2.3 Organizational Contributions and Related Actions.............................................. 3
 

2.4 Registered Office; Chief Executive Offce .......................................................... 3
 

2.5 Purpose; Duration.................................................................................................4
 

2.6 Single Purpose Entity; Limitations on Company's Activities ............................. 4
 

2.7 Ratification of Certain Actions ............................................................................ 6
 

the Company......................................................... 6
 ARTICLE II Management and Operations of 


6
 3.1 Management of the Company's Affairs............................................................... 


3.2 Removal of 
 the Managing Member as the Manager ............................................ 8


3.3 Employees and Services .................. ...... .................................... ....... .................... 9
 

3.4 Restrictions on Managing Member ...................................................................... 9
 

3.5 Related Party Ai:rreements..... ...... ..................... .................... .......... ....... ............. i 1
 

3.6 Real Property. ........ ......... ..................................................... ......... ....... ............... i 1
 

3.7 Custodian and Paying Agent ..............................................................................11
 

3.8 Relationships with Borrowers, etc. .................................................................... 12
 

3.9 No Conflicting Obligations................................................................................ 12
 

3.10 Compliance with Law ........................................................................................ 12
 

3.11 No Bankruptcy Filing......................................................................................... 12
 

3.12 No Liens.............................................................................................................12
 

3.13 Power of Attorney .............................................................................................. 13
 

Default; Security Interest ..................................... 13
 

14
 

3.14 Remedies Upon an Event of 


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


ARTICLE IV Membership Interests; Rights and Duties of, and Restrictions on, Members ........ 14
 

4.1 General ............................................................................................................... 14
 

4.2 Interests .... ..... ..................................................................................................... 14
 

4.3 Filings; Duty of Members to Cooperate............................................................. 15
 

4.4 Certain Restrictions and Requirements .............................................................. 15
 

4.5 Liability of Initial Member................................................................................. 15
 

4.6 Indemnification. ................................................................................................. 16
 

ARTICLE V Capital Contributions; Working Capital Advances .................................................19
 

5.1 Capital Contributions; Excess Working Capital Advances................................ 19
 

Payments; Distributions ..................... 19
 ARTICLE VI Capital Accounts; Allocations; Priority of 


6.1 Capital Accounts .......................................... ............... ....................................... 19
 

6.2 Allocations to Capital Accounts......................................................................... 20
 

6.3 Tax Allocations ..................................................................................................22
 

Doell lJSI.57656:1R, II 
TABLE OF CONTENTS
 

(Continued) 

Page 

6.4 Determinations by Managing Member ..............................................................22
 

6.5 Priority of Payments ........................................................................................... 23
 

6.6 Distributions ....... ......... ............ ................ .......... .......... ..... .................................. 23
 

ARTICLE VII Accounting, Reporting and Taxation.................................................................... 25
 

7.1 Fiscal year..........................................................................................................25
 

7.2 Maintenance of Books and Records................................................................... 25
 

7.3 Financial Statements .......................................................................................... 26
 

7.4 Additional Reporting and Notice Requirements ................................................ 26
 

7.5 Designation of Tax Matters Member ................................................................. 28
 

7.6 Tax Infonnation..................................................................................................29
 

ARTICLE VII Restrictions on Disposition of Interests............................................................... 29
 

8.1 Limitations on Disposition of Interests .............................................................. 29
 

8.2 Change of Control .............................................................................................. 29
 

8.3 Additional Provisions Relating to Permitted Dispositions................................. 30
 

8.4 Effect of Permitted Dispositions ........................................................................ 30
 

8.5 Effect of Prohibited Dispositions ....................................................................... 31
 

8.6 Distributions After Disposition .......................................................................... 31
 

8.7 Transfers By Initial Member ..............................................................................31
 

8.8 Resignation; Dissolution .................................................................................... 32
 

8.9 Applicable Law Withdrawal ..............................................................................32
 

ARTICLE IX Dissolution and Winding-Up of 
 the Company....................................................... 33


9.1 Dissolution ......................................................................................................... 33
 

9.2 Winding-Up Procedures ..................................................................................... 33
 

ARTICLE X Qualified Transferees .............................................................................................. 34
 

10.1 Qualified Transferees ......................................................................................... 34
 

ARTICLE Xi Managing Member Liability .................................................................................. 38
 

11.1 Liability of Managing Member .......................................................................... 38
 

............ 39
 ARTICLE XII Servicing of Loans.................................................................................... 


12.1 Servicing........... ..................... ...................................... .......................................39
 

12.2 Servicing Standard ............................................................................................. 41
 

12.3 Servicing of Loans ............................................................................................. 43
 

12.4 Removal of Servicer ........................................................................................... 46
 

12.5 Management Fee ................................................................................................ 48
 

12.6 Servicing Expenses. .................................................... ....................................... 48
 

12.7 Use of 
 Loan Proceeds.........................................................................................48


12.8 Collection Account.............................................................................................49
 

12.9 Distribution Account ................................................ .................... ................ ...... 50
 

11
 

Doell liS 157h5ó:l~\' II
 
TABLE OF CONTENTS 

(Continued) 

Page 

12.10 Defeasance Account.. .................... .... ....................... .......... ....... ........ ................. 50
 

12.11 Certain Servicing and Loan Administration Decisions ......................................50
 

12.12 Management and Disposition ofCollateral...................................................... 50
 

12.13 Acquisition of Collateral.................................................................................... 51
 

12.14 Releases of Collateral.........................................................................................51
 

12.15 Clean-Up Call Rights ......................................................................................... 51
 

ARTICLE XiII Miscellaneous......................................................................................................52
 

13.1 

13.2 

13.3 

13.4 

13.5 

13.6 

13.7 

13.8 

13.9 

13.10 

13.11 

13.12 

13.13 

13.14 

ANNEX i
 

Waiver of Rights of Partition and Dissolution ................................................... 52
 

Entire Agreement; Other Agreements ................................................................52
 

Governing Law; Jurisdiction ..... ................................................................... ...... 53
 

Third Party Beneficiaries ...................................................................................53
 

Expenses.............................................................................................................53
 

Waivers and Amendments ................................................................................. 53
 

Notices................................................................................................................54
 

Counterparts; Facsimile Signatures.................................................................... 56
 

Suecessors and Assigns......................................................................................56
 

Construction .......................................................................................................56
 

Compliance With Law; Severability.................................................................. 57
 

Power of Attorney .............................................................................................. 58
 

Jurisdietion; Venue and Service......................................................................... 58
 

Waiver of Jury Trial........................................................................................... 60
 

Ccrtain Definitions ............................................................................................ I-i
 

Member Schedulc............................................................................................. II-I
 

Ccitificate of Fonnation ................................................................................... A-I
 

Information, Form of Monthly Report ............................................................. B-1

11 

ANNEX Ii
 

EXHIBIT A
 

EXHIBIT B
 

Doc# liS I :57656'~d I
 
CORUS CONSTRUCTION VENTURE, LLC
 

AMENDED AND RESTATED
 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT
 

THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING 

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

the terms hereof, this "Agreement"), is made and effective as of October L~ 2009 (the "Closing 

Date"), by and among the Federal Dcposit Insurance Corporation ("FDIC"), in its capacity as 

reeeiver for Corus Bank, N.A. ("Failed Bank"), CCV Managing Member, LLC, a Delaware 

limited liability company (the "Private Owner"), and Corus Construction Venture, LLC, a 

Delaware limited liability company (thc "Company"). For purposcs of this Agreement, Failed references to the "Receiver" shall be a reference to the FDIC, in its capacity as receiver of 


Bank; references to the "Initial Member" shall be a refercnce to thc Rcceivcr, in its capaeity as 

a Member of the Company and as thc secured party under Section 3.14 hereof, together with any 

successor of the Receiver or any transferee of the Interest held by the Receiver); and referenees 

to the "Managing Member" shall be a refercnce to Private Owner (or permitted successor 

Member) in its capacity as the manager of the Company. 

WHEREAS, on September 11,2009, the FDIC was appointed Rcceivcr for Failcd Bank; 

WHEREAS, on October 12, 2009, Receiver fonned the Company as a Delaware limited 

liability company and was admittcd as thc "Initial Member" of the Company and received an 

Interest in the Company represcnting a onc hundred pereent (100%) equity interest in the 

Company pursuant to the terms of that certain Limited Liability Company Operating Ai:Tfeement 

dated as of October 13,2009 by and between Receiver and the Company (the "Original LLC 

Operating AgrcemenC); 

WHEREAS, the FDlC and the Company entered into a Loan Contribution and Sale 

Agreement dated of even date hereof (the "Contribution Agreement") pursuant to which 

(i) Receiver sold in part and contributed in part, to the Company, and the Company purchased 

from Receiver, all of the Receiver's right title and interest in and to the Loans and assumed the 

Obligations (as defined in the Contribution Agrcement), (ii) the Company executed and 

delivered to the Recciver thosc ccrtain Purchasc Money Notes for the benefit of Receiver and 

dated the date hereof (the "Purchase Money "otes"); and (iii) the FDIC, in its corporate 

capacity (the "Purchase Money Note Guarantor") guarantccd paymcnt of principal on the 

Purchase Money Notes pursuant to the tcrms of a Guaranty Agreement dated the date hercof 

between the FDIC. in its corporate capacity, and the Receiver (thc "Purchase Money Notes 

Guaranty"), and obtaincd a security interest in the Loans and Collatcral undcr the 

Reimbursement, Security and Guaranty Ai:Tfccment; 

WHEREAS, the FDIC has agrced to pwvidc additional financing to the Company to 

enable it to fund unfunded commitments and ccrtain other advances in eonnection with the 

Loans, which funding shall bc provided pursuant to, and in accordance with the tcnns of. the 

Credit Agreement dated the date hereof betwcen thc FDIC and the Company (thc "Advance 

Facilty"), with the rcpayment obligations unùer the Advance Facility being secured by the
 

assets of 
 the Company pursuant to the Reimbursement, Security and Guaranty Agreement;

Doell IISI576,6'~vI I
 
WHEREAS, following closing of the transactions contemplated by the Contribution 

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

pursuant to the tcrms of that eertain Limited Liability Company Interest Sale and Assignment 

Agreement dated of even date herewith (the "LLC Interest Sale Agreement"), to sell to Private 

Owner, effeetive as of the Closing Date, an Interest representing a forty percent (40%) equity 

interest in the Company; 

WHEREAS, after giving effect to the transactions contemplated by the LLC Interest Sale 

Agreement, as of the Closing Date the Initial Member and Private Owner will own all the issued 

and outstanding Interests in the Company; 

WHEREAS, upon the oceurrenee of a Return Threshold Event, the Private Owner wil 

own an Interest representing a thirty percent (30%) equity interest in the Company and the Initial 

Member will own an Interest representing a seventy percent (70%) equity interest in the 

Company; 

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

Operating Agreement in its entirety in order to rcflcct thc admission of Private Owncr 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 premiscs and the other covenants and 

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

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

ARTICLE I
 

Certain Definitions
 

1.1 Definitions. Initially capitalized terms used and not
 

defined hercin shall have the meanings assigned to them in Annex I hereto, which is hereby 

incorporatcd into this Agreement as if set forth in full herein. 

ARTICLE II
 

Organization of the Company
 

2.1 Fonnation; Continuation and Admission of Members.
 

(a) On October 12, 2009, the Receiver caused the Certificate of Formation of
 

thc Company, in the form attached as Exhibit A hcreto (the "Certificate"), to be filed in the offce 

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

change the registercd agcnt or offce of thc Company. 

(b) The Company shall continuc as a limitcd liability company under the Act this Agreement. and in accordance with the further tenns and provisions of 


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

to be, and is, admittcd as a Member of the Company such that, as of thc Closing Date, the Initial 

2 

Doell IJSI57656:1~,'11
 
Member and the Private Owner are the sole Members of the Company. Until the Company is 

dissolved pursuant to Section 9.1, the Company shall at all times have two Members. 

2.2 Name.
 

the Company shall be "Corus Construction Venture, LLC". (a) The name of 


(b) The Business shall bc eonducted only under the name of the Company or
 

such other name or names that comply with applicable Law as the Members may select from time 

to time. 

2.3 Organizational Contributions and Rclated 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 fonn of ccrtain
 

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

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

from Initial Member, Loans (other than that portion of thc Loans eomprising the 

Initial Member Capital Contribution) and assumcd the Obligations in exchange 

for the Purchase Money Notes. 

(b) Contemporaneously with the cxecution of this Agrecment, pursuant to thc 

the LLC Interest Sale Agrecment, the Private Owner is acquiring from the Initial Mcmber 

an Interest reprcsenting a forty perccnt (40%) equity intercst for the Purchase Price in accordance 

with the terms thereof. 

terms of 


(c) Upon the consummation of the transaetions contemplated in 

Sections ì .3(a) and .i and prior to the occurrence of a Return Threshold Event as described in the issued and outstanding Section 6.6(b)(iv), the Private Owner shall own forty percent (40%) of 


Interests and the Initial Member shall own sixty percent (60%) of such Interests. Following the 

occurrcnce of a Return Threshold Evcnt, the Private Owner shall own thirty percent (30%) of the 

issued and outstanding Interests and the Initial Member shall own scventy pcrcent (70%) of such 

Interests. 

2.4 Registered Offcc: Chief Executive Officc. Thc Company
 

shall maintain a registered offce and registercd agcnt in Delaware to the extent required by the 

Act, which office and agent shall be as determined by the Managing Member from time to time 

and which shall be set forth in the Certificate. Initially (and until otherwisc dctcrmined by the 

Managing Member), the registered offcc in Dclaware shall be, and the name and address of the 

Company's registered agent in Delaware shall be, as specified in the Certificate as originally 

filed, which may be amended by the Managing Mcmber from timc to time as necessary to 

correctly reflect the name and address of the Company's registered agent. The chief executive 

offce of the Company shall be located at 591 West Putnam Avenue, Greenwich, CT 06830, or 

such other place as shall be determined by the Managing Membcr from timc to time. 

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Doell I!S157656:1~vll
 
2.5 Purpose; Duration.
 

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

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

Persons. Without limiting the foregoing, the Company shall not form or have any Subsidiaries 

other than Ownership Entities as or as otherwise authorized in or pursuant to this Agreement. The 

Company shall have all powers necessary, desirable or convenient, or which the Managing 

Member deems necessary, desirable or eonvenient, and may engage in any and all activities 

necessary, desirablc or convcnient, or which the Managing Member deems necessar, desirable or 

the Company or consistent with the furtherance thereof. convenient, to accomplish the purposes of 


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

perpetually. 

2.6 Single Purpose Entity: Limitations on Company's
 

Activities. Except to the extent expressly permitted by this Agreement or the 

Ancillary Documents, the following shall govern for so long as the Company is in existenee: 

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

eause 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 Managing Membcr also shall cause the 

Company to: 

(i) maintain financial statements separate from any Affliate;
 

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

financial statements of thc Company; and provided, further, that the assets, 

liabilities and results of operations of the Company may bc 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 requircd to be paid under applicable Law; 

(iv) except as contemplated hereby or by the Ancillary Documcnts,
 

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

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

organizational formalities to maintain its separate legal existence; 

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


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

terms that arc commercially reasonable and that are no less favorable to the 

Company than could be obtained in a comparable ann's length transaction with an 

unrelated Pcrson;
 

4 

Doell lJSI57656:1~\'1 i 
(viii) subject at all times to Section 3.3, pay the salares of its own 

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

employees, if any, in light of its contemplated business operations; 

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

overhead for shared offce space; 

(x) use separate stationery, invoices and checks;
 

(xi) correct any known misunderstanding regarding its separate 

identity; and 

(xii) maintain adcquate capital in light of its contcmplated business
 

purpose, transactions and liabilities, if any. 

(b) The Managing Member shall not causc or permit a Dissolution Event or an 

Insolvency Event to occur with respect to the Company to which the lnitial Member has not 

provided its written consent, and thc Managing Member shall not, without the written consent of 

the Initial Member, cause or permit thc Company to: 

(i) exccpt as contemplated hereby or by the Ancillary Documents,
 

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

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


the Debts of any othcr Person, including any Affiliate; 

(ii) except as contemplated hereby or by the Ancillary Documents
 

(including the Purchase Money Notes (and any promissory note reissued in 

respect thereof pursuant to Section 2.8 of the Collateral and Paying Agcncy 

Agreement), the Purchase Money Notes Guaranty, the Advance Facility 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 Loans, the Collateral, or the 

proceeds thererrom; provided that the Company may invest its funds in interest 

bearing accounts held by any bank that is not its Affiliate and make advances in 

accordance with Article XII; 

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

Business; 

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

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

of the Collateral and Paying Agency Agreement), any Excess Working Capital 

Advance or pursuant to thc Advance Facility or as otherwise expressly pennitted 

hereby or by the Ancillary Documents; 

(v) makc or permit to remain outstanding any Joan 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 

5 

Doell: liS I :5765ó:lRvl i 
the Ancilary Documents and may make any advance required or expressly 

permitted to be made pursuant to any provisions of Article XII or the Ancilary 

Documents and permit the same to remain outstanding in accordance with such 

provisions; 

(vi) cause or permit the Company to consolidate or merge with or into
 

any other Person, convert into any other type of Person or conveyor transfer its 

properties and assets substantially as an entirety to any entity, transfer its 

ownership interests, or engage in any dissolution or liquidation, except in eaeh 

case to the extent such activities are expressly permitted pursuant to any provision 

of this Agreement or the Ancillary Documents (and subject to obtaining any 

approvals required hereunder or thereunder, as applicable); 

(vii) 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 Owncrship Entity or form any trust for the 

the Company; or purpse of holding Loans for the benefit of 


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

agreements contained in any of the Ancillary Documents. 

(c) The failure of the Company, the Members, or the Managing Member on
 

behalf of the Company, to comply with any of the foregoing covcnants or any other covenants 

contained in this Ai:Tfeement shall not affect the status of the Company as a separate legal entity or 

the limited liability of the Mcmbers. 

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

thc Company previously approved (a) each of the Ancillary Documents, (b) the issuance of the 

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

including without limitation thc cxecution and performance of this Agreement and the Ancilary 

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 eonfinned in their entirety by each Member and the Managing Member is 

hereby authorized and dirccted to execute and deliver, for and on behalf of the Company, any 

and all doeuments as may now or hereafter be reasonably required in order to effect the 

Previously Approved Matters. 

ARTICLE III 

Management and Operations of the Companv 

3.1 ManaLement ofthc Companv's Affairs.
 

(a) The management of the Company shall he vested exclusively in the 

Person appointed from time-to-time hereunder as thc "managcr" ofthc Company (the "Managing 

Member"). Effective as of the Closing Date. the Private Owner is hereby appointed as Managing 

Member. Subject to the terms and conditions of this Agreement, the Managing Membcr shall 

have full and exclusivc powcr and discretion to, and shall, manage the business and affairs of the 

6 

Doell IlSI.5765h1Kvll 
Company in accordance with this Agreement. The Managing Mcmber shall not resign as 

manager, may not assign or delegate its responsibilities as manager to any other Person, and shall 

serve as manager until such time as (i) the Private Owner's Interest is Disposed of in accordance 

with the terms of this Agreement and the transferee is admittcd as a Member and successor to the 

Private Owner, in which case the transferee Member (or its designee) shall, effective upon such 

Disposition, be appointed as the "Managing Member" of the Company, (ii) the Private Owner is 

removcd as manager by the Initial Member and replaced in accordance with Section 3.2 below; or 

(iii) the Company is dissolved in accordance with the terms of this Agrecment. In the event that a 

successor manager is appointed in accordance with the terms of this Agreement, all references in 

this Agreement to the Managing Member, in its capacity as manager of the Company, shall be 

deemed to be references to thc successor manager so appointed. The Managing Member shall 

devote such time to the affairs of the Company as is necessary to manage the Company as set 

forth in this Agreement. Private Owner (and any successor or transferee of Private Owner) hereby 

expressly acknowledges that, as it relates to its role as the Managing Membcr, this Agreement 

constitutes a personal services contract betwecn Private Owncr and the Company. Nothing in this 

Seetion 3.1 e1iminatcs, limits or otherwise modifies any of the exprcss tern1S of this Agreement or 

any liability, obligation or covenant of any Person hereunder. 

(b) Except as otherwisc specifically providcd in this Agrccment and without
 

limitation of the powers expressly granted to the Managing Membcr under any other provision of 

this Agreement, the authority, duties (including fiduciary duties) and functions of the Managing 

Membcr shall be identical to the authority, duties (including fiduciary duties) and functions of the 

board of directors and the officers of a eorporation organized under the Delaware General
 

Corporation Law (and not electing to be governed by subchaptcr XiV thereof). The Managing 

Member shall havc no authority to take or authorize the taking of any action in contravention of 

any express term of 
 this Agreement.

(c) No Pcrson dealing with the Company or the Managing Mcmber shall be
 

required to determinc, and any such Person may conclusively assumc and rely upon, the authority 

of the Managing Mcmber to execute any instrumcnt or make any undertaking on behalf of thc 

Company. No Person dealing with the Company or the Managing Member shall be required to 

detennine any facts or circumstanccs bearing upon the existcnce of such authority. Without
 

limitation of thc foregoing, any Person dcaling with the Company or the Managing Member is 

entitled to rcly upon a certificate signcd by the Managing Membcr as to: 

Members; (i) the identity of 


(ii) the cxistcnec or non-existcncc of any fact or facts that constitutc a
 

condition precedcnt to acts by the Managing Member or arc in any other manncr 

gcnnane to the affairs of the Company; 

(iii) the identity of Persons who arc authorized to cxecute and delivcr
 

any instrument or document of or on behal f of the Company; or 

(iv) any act or failure to act by thc Company or any other mattcr
 

whatsoever involving the Company or the Membcrs. 

7 

Docrl IlSIQó-'6"\X,1 I 
(d) Notwithstanding anything to the contrary contained in this Agreemcnt, thc
 

parties hereto aeknowledge and agree that: 

(i) nothing eontained in this Agreement ercates any fiduciary duty on
 

behalf ofthc Initial Member; 

(ii) the Private Owner and the Company hereby expressly waive any
 

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

to the Private Owner or the Company; and 

(iii) the Initial Member shan be entitled to act and exercisc any iight of
 

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

absolute discretion, without regard to and against the intcrcsts of the Private 

Owner or the Company. 

(e) Unless and to the extent reimbursement is due hereunder or pursuant to a
 

Related Party Agreement or any Ancillary Documcnt, the Company shall not be liable for, and the 

Managing Member shan not seck reimbursement from the Company or any Member for any 

expenses or costs incurred aftcr thc formation of the Company by the Managing Membcr and/or 

the Company. its Affiliates on behalf of or for thc bencfit of 


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

Member consent set forth elsewhere in this Agreement, including without limitation in 

Sections 2.6,3.2, 3.4, 3.7, U, 8.2, 8.8(a), 2:, 12.3(c), 12.7(b) and 13.6 and in the definition of
 

Permitted Invcstments. Any purported action by the Company or the Managing Member 

requiring the consent of the Initial Membcr under this Agreement shan be null and void ah initio 

unless and until thc Initial Member's consent is obtaincd. 

3.2 Removal of the Managing Member as the Manager. Upon
 

an Event of Default, Initial Member may remove Private Owner as the manager and appoint a 

suecessor manager in the sole discrction of thc Initial Member, whereupon, such suceessor 

manager shall immediately succeed to all, or such portion as the Initial Member and successor 

manager ai:Tfee, of the rights and obligations of the Managing Member as a manager of the 

Company hereunder and the prcdccessor manager shan promptly take such actions as may be 

reasonably requested by the Initial Member to faeilitate the transition to such successor managcr. 

In the event that Private Owner is so removed as a manager of the Company and a successor 

managcr is appointed, (a) an references in this Agreement to the Managing Member, in its 

capacity as manager of the Company, shall be deemed to be references to the succcssor manager 

so appointed by the Initial Member, (b) the successor manager appointcd by the Initial Mcmber 

shall be cntitlcd to be paid the Management Fee (or such portion thereof as the Initial Member 

and the successor manager agree) in aecordance with the ternis of this Agreemcnt and thc 

Custodial Agreemcnt, and (c) the removal of thc Private Owner as thc manager shall not relieve 

thc Privatc Owner of any obligations or liabilities under this Agreemcnt or any Ancillary 

Document arising, relating to, occurring or required to have been paid or perfonncd by the 

Piivate Owncr in its capacity as manager. 

8 

Doell liS i .5765" 1~," I i 
3.3 Employees and Services. After the Closing Date, the
 

Managing Mcmber shall eause 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 Managing Member and for the day-to-day operation of the 

Business, including the Managing Member's employees, facilities and support services. If 

neeessary to meet the foregoing requirements, the Managing Member shall enter into eontractual 

arrangements to secure employees, facilities and support services from third parties (including its 

Affiliates); provided, however, that the Managing Member shall at all times providc for the 

servieing of the Loans through a Servicer under contract with the Managing Member in 

aecordanee with Article XII and the safekeeping of the Notes and other Loan 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, no employees of 

the Managing Member or any third party (including any Affiliate) shall be deemed to bc 

employees of 
 the Company, any contractual relationships entered into by thc Managing Member

to provide employees, facilities or support serviccs to the Company shall be relationships 

between the third parties (or Affiliates) and the Managing Member (and not the Company) and 

shall not relieve the Managing Member of its obligations or any liability hereunder, and no 

expenses incurred to secure or maintain cmployces, facilitics or support services shall be an 

the Company unless the same is expressly reimbursable by the Company pursuant to 

the provisions of Article XII below or is otherwise expressly sct forth in this Agreement or in the 

expense of 


the Company. Ancillary Documents to be an expcnse of 


3.4 Restrictions on Managing Member. Notwithstanding the
 

delegation of authority to the Managing Member, the Managing Member shall in no event do any 

act or takc any action in contravention of any Law, nor shall it take any of thc following actions 

on behalf of, or with respect to, the Company, without the prior written approval of the Initial 

Member. which approval may be withheld or conditioned in the Initial Member's sole and 

absolute discretion except that for purposes of clauses (v), (vi), (ix), (x), (xi), (xiii) or (xiv) of 

this Section 3.4 shall be considcrcd to have been obtained if sueh act or action has been 

described in all material respects in any Approved Business Plan, which approval may be 

withheld or conditioned in the Initial Member's sole and absolute discretion: 

(i) admitting additional or substitutc Members. except in accordance
 

with Article VIIi; 

(ii) changing thc legal form of the Company to othcr than a limited
 

liability company; 

(iii) taking any action that would cause the Company to be treated as
 

othcr than a partnership for fcdcral tax purposcs; 

(iv) taking any action that would make it impossible to carryon the
 

ordinary business of the Company; 

(v) taking any action to conduct a Bulk Sale during thc 36 month
 

this Agreement; pcriod commcncing on the date of 


9 

()('I'/f \iSI :qfi)6~~vl i 
(vi) incurrng any liability on behalf of the Company (other than
 

liabilities in the ordinary course of Business and such other liabilities as may be 

permitted by this Agreement or any Ancilary Document); 

(vii) possessing or transferrng 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 transferrng any Loan, Collateral or Acquired
 

Collateral (or any portion thereof) to any Affliate of the Managing Member, any 

Servicer or any Subservicer, or any Affiliate of any Servicer or any Subservieer; 

(x) financing the sale or other transfer of any Loan, Collateral or
 

Acquired Collateral (or any portion thereof); 

(xi) selling any Loan, Collateral or Acquired Collateral (or any portion
 

thereof) in a transaction that provides for any recourse against the Company or the 

FDIC, in any capacity, or against the Interest held by the Initial Member or any 

share of the Loan Proceeds allocable to thc Initial Member; provided, however, 

that this clause (xi) shall not prohibit the Company from selling any Project (as 

defined in the Advance Facility Agreement) (in whole but not in part) with 

reasonable and customary representations and warranties (but in no event shall 

any representation or warranty survive beyond the dissolution of the Company) 

for the type of Project sold; 

(xii) disbursing funds from the Collection Account or aecounts ereated
 

under the Advance Facility or any Servicing Agreement other than in aecordance 

with the provisions of this Agrcement, the Advance Facility, any Servicing 

Agreement and the Custodial and Paying Agency Agreemcnt and the 

Reimbursement Security and Guaranty Agreement; 

(xiii) advancing additional funds that would increase the Unpaid
 

Principal Balance of any Loan other than with funds provided by the Term Loans 

under the Advance Facility or Excess Working Capital Advanecs, in each case 

used for the purposcs for which the proceeds of Term Loans may be used under 

the Advance Facility or Servicing Expenses to the extent that capitalizing sueh 

Servicing Expenses is or would havc bccn, prior to the conversion of Loan to the 

Acquired Collateral, permitted undcr the applicable Loan Documents; 

(xiv) reimbursing the Managing Member for any expense or cost
 

incurrcd (or paid) to any Affliate of 
 the Company, the Managing Mcmber or any

Affliate of 
 the Scrviecr or any Subservicer;

(xv) taking any action or omitting to take any action that causes the
 

Company to breach any reprcscntation, warranty, covcnant or other ai:Tfeement 

contained herein or in any Ancillary Document; or 

10 

noe# lJSlj76j6,Rvll 
the Members is required by (xvi) doing any act for which the eonsent of 


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 agrccment to sell Company Property, incur any Debt the or become bound by any Guarantee of any obligations) with or pay any fee to any Affliate of 


Company or of the Private Owner or the Managing Member (a "Related Party Agreement"), 

except (i) for property management agreements related to Acquired Collateral, provided, that the 

terms and conditions of any sueh property management agreement (including the amount of the 

fees thereunder) are ann's length terms and conditions that are not less favorable to the Company 

or the applicable Ownership Entity than the terms and conditions of property management 

agreements with unrelated third parties would be and such property management arrangement 

was eontemplated by an Approved Business Plan, (ii) as may othcrwise be expressly provided 

herein or in any Ancillary Document, or (iii) for the Purchase Money Notes or any promissory 

note reissued in respect thereof in accordanee with Section 2.8 of the Custodial and Paying 

Agency Agreement. 

3.6 Real Propcrty. The Company shall not take title in its own 

name to any Acquired Collateral consisting of real property, and any ownership of any such 

Acquired Collateral shall be govern 
 cd by Section 12.13 and the relevant terms of the Servicing

Agrccment. 

3.7 Custodian and Paying Agent. The Managing Member shall
 

cause the Company to rctain and enter into and, at all times, bc a party to writtcn custodial 

agreement with a document custodian (the "Custodian") that is a Qualified Custodian and 

approved by the Initial Member, and such Custodian shall at all times have custody and 

possession of the Notes and other Custodial Documents. The Managing Member shall also 

eause the Company to retain and enter into and, at all times, be a party to written paying agency 

agrcement with a paying agent selected by the Company (the "Paying Agent"), which Paying 

Agent shall receive and distribute Loan Procecds in accordance with the applicable Custodial 

and Paying Agency Ahrreement. Except as contemplated by Section 13.6(b) below, the 

Custodian and thc Paying Agent shall be the same, and the custodial and paying agency
 

functions shall be performed on the tenns set forth in a Custodial and Paying Agency Ai:rreement 

that is acceptable to the Initial Member. At no time shall the Managing Member permit the 

Company to havc more than one Custodian or one Paying Agent. The fees and expenses paid to 

the Custodian and Paying Agent shall be no more than market ratcs and thc Custodian and 

Paying Agent shall be tenninable by thc Company upon no morc than thirty (30) days notice 

provided by either, without cause under the Custodial and Paying Agency Agreement. In the 

event that the Managing Mcmber removes, or causes the Company (or any Servicer) to remove, 

any Notcs 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 thc liability of thc 

Managing Member (who, along with the relevant Scrvicer(s), shall be responsible for 

safeguarding such Notes and Custodial Documents), and (ii) such Notes shall be returned to thc 

Custodian within the time provided under the applicable Uniform Commercial Code to maintain 

II
 

1)(",11: liS 15i656'~\' I i 
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 or restructuring of a 

Loan, the modified or restructured Notes and othcr Custodial Documents removed in connection 

therewith shall be returned to the Custodian as soon as possible following the completion of the 

restrueturing or modifieation (and, in any event, in accordance with clause (ii) of the 

immediately preeeding sentenee). The Managing Member shall ensure that the Initial Member 

receives a copy of each demand, notice or other communication given under the Custodial and 

Paying Agency Agreement at the time that such notice or other communication is given 

thereunder. 

3.8 Relationships with Borrowers, etc. Exeept as othcrwise
 

consented to by the Initial Member, neither the Managing Member nor the Private Owner shall, 

at any timc, (a) be an Affliate of or a partner or joint venturer with any Borrower, (b) be an
 

agent of any Borrower, or allow any Borrower to be an agent of the Managing Membcr or the 

Company, or (c) except as is otherwise contcmplated by the Company's ownership of the Loans 

and its right to hold Acquired Collateral, have any interest whatsoever in any Borrower,
 

the CollateraL.
 Guarantor or other obligor with rcspcct to any Loan or any of 


3.9 No Conflicting Obligations. The Managing Member shall
 

cause the Company to comply with the Ancillary Documents in accordance with their terms and 

shall not, at any time, entcr into or become a party to any agreement that would conflict with the 

terms of this Agreement. 

3.10 Compliance with Law. The Managing Member shall, and
 

shall cause the Company to, at all times, comply with applicable Law in connection with the 

performance of 
 the obligations under this Agrccmcnt.

3.11 No Bankruptcy Filing. The Managing Member shall not 

cause or permit thc Company to: (a) file a voluntary petition for bankruptcy, (b) file a pctition 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, conscnt 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 

clause (a) through (d), or (ii) any order adjudging it a bankrpt 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 Licns. The Managing Member shall not cause or
 

pennit the Company to place, or voluntarily permit any Lien to be placed, on any of the Loans, 

Collateral, (i) as thc Collateral, the Loan Documents, or the Loan Proceeds, except, in the ease of 


pennitted under the Loan Documents where the applicable Borrowcr is not in default thereunder 

and (ii) as permitted by the terms of the Advance Facility or the Reimbursement, Security and 

Guaranty Agreement, and shall not take any action to interfere with the Collatcral Agents (as 

dcfincd in the Reimbursement, Security and Guaranty Agreement) rights as a secured party with 

rcspect to Loans, the Collateral and thc Loan Proceeds. 

12
 

D"o# us I 57656,~d I
 
3.13 Power of Attorney. In the event the Company fails to 

promptly satisfy its obligations under Seetion 3.1 or Section 3.2 of the Contribution Agreement 

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

relevant matter set forth therein, the Company hereby grants a limited power of attorney to the 

Initial Member for the purposes of executing, fiing and recording all relevant Transfer 

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

recording obligations of the Company under Section 3.1 and Seetion 3.2 of the Contribution 

Agreement. Managing Member agrees to cause the Company to comply with its obligations 

under the Contribution Agreement with respect to preparing and furnishing special warranty 

deeds for the Initial Member's approval and execution in order to convey the real property 

subjeet to any such contract to the Company. All such title curative work, if required, shall be at 

the Managing Member's sole cost and expense. The Managing Member shall indemnify and 

hold harmless the Initial Mcmber from and against the claims (including any counterclaim or 

defensive claim), demands, causes of action, judgmcnts or legal proceedings and other remedies

with respect to which Initial Member was rei 
 cased in accordance with Section 4.16 of the

Contribution Agreement. 

3.14 Remedics Upon an Event of Default; Security Interest. 

Upon the occurrenec of an Event of Default, in addition to all other remedies available hercundcr 

(including pursuant to Sections 3.2 and 12.4 of this Agrcement) or under the Ancillary 

Documents upon such an Event of Dcfault, the Initial Member shall be entitled to (i) remove the 

Private Owncr as a Member, (ii) foreclose on the Interest held by the Private Owner and transfer 

sueh Interest to a third party and (iii) designate itself or the transfcrce Member as the Managing 

Member hereunder. The removal of the Private Owner as manager or Member shall be subject 

to Sections 3.2 and 8.4, respectively. This Ai:rreement shall constitutc a security ai:rreement under
 

applicable Law for thc benefit of the Initial Mcmbcr and, in furtherance thcreof, the Private 

Owner and the Company shall be deemed to have granted, and each does hcrcby i:rrant, to the 

Initial Member a valid and continuing first priority lien on and security interest in all of the 

Private Owner"s and the Company's right, title and interest in. to and under. the Secured Assets, 

whether now owned or existing, or hereafter aequired and arising in, to and under the Secured 

Assets and all of the proceeds of the foregoing for the benefit of Initial Member and its assignees 

as security for the Private Owner's and the Managing Member's obligations undcr this 

Agreement. For purposes of this Agrcement, the term "'Secured Assets" shall mcan (i) the

Interest held by Private Owner, and (ii) all 
 rights to distributions thereon or other income in

respect thereof. For thc avoidance of doubt, in the cvent that the Initial Mcmbcr dctermines to 

forcclose on the Interest held by the Managing Membcr as contemplated by clause (ii) above, it 

shall deduct from the proceeds of such foreclosure sale any Losscs arising out of or resulting 

from such Evcnt of Default incurred by the Indemnified Parties, togcther with all costs and 

expcnses of such foreclosure salc and shall rcmit thc remaining proceeds, if any, to the Private 

Owner; provided, that nonc of the Private Owner, the Managing Member or any of their 

Affliatcs shall participate in any sale of the Privatc Owner's Intcrest without thc writtcn consent 

of the Initial Member.

Thc Privatc Owner hereby authorizes the filing by Initial Member and its assignces of such 

financing or continuation statements in such jurisdictions as Initial Member and its assignees 

decm appropriate (in its sole and absolute discretion) to perfect and continuc their first priority 

13 

Do,' IJ\¡ :576'~'X, I i 
lien and security interest with respect to the Secured Assets. The Private Owner shall deliver to 

Initial Member an assignment and assumption agreement with respect to the Interest held by it, 

in form and substance satisfactory to the Initial Member, endorsed in blank, and executed by the 

Private Owner. Initial Member may use the assignment and assumption agreement to effeet the 

assignment of the Interest held by the Private Owner at any time if an Event of Default occurs 

and is continuing. Initial Member's election to exercise any remedy under this Section 3.14 shall 

in no way limit Initial Member's rights under any Ancillary Document. 

3.1S No ERISA Plan Assets. The Managing Member shall use 

it reasonable best efforts to ensurc that the Company's assets are not deemed to be "plan assets" 

within the meaning of 
 Section 3(42) ofER1SA 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 li (the Member Schedule), and such
 

substituted Members as may be admitted to the Company pursuant to Article VIII. The 

Managing Member shall cause the Annex II (the Member Schedule) to be amended from time to 

time to reflect the admission of any additional Members, Capital Contributions of the Members, 

the issuance of additional Interests, transfers of Interests, repurchases, redemptions or
 

eancellations of Interests, the cessation or withdrawal of a Mcmber for any reason or the receipt 

by the Company of notice of any change of name or add,ress of a Member. 

4.2 Interests. 

(a) Creation and Issuance. Subject to thc tcrms of this Agreement, the
 

Company is only authorized to issue the Interests, which shall constitute common equity interests 

in the Company. The Company's membership interest shall be unccrtificated. The Intcrests shall 

have the relative rights, powcrs and duties specified in this Section 4.2. As of the Closing Date, 

Interests are owned by the Initial Member and the Private Owner, as set forth in the Annex II 

(Member Schedule). Other than as set forth in this Agreement, cach Interest shall be identical in 

all respects to each other outstanding Interest. 

(b) Distributions. Subjcct to Sections 6.6, distributions to the holders of
 

Interests shall be made as provided in Section 6.6(b) and Section 9.2. 

(c) No Retirement Fund or Conversion. The 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 Interests. 

(d) Voting Rights. Exccpt to thc extent otherwise required by the Act or
 

expressly provided in this Agreement. the holders of Interests shall be entitled to vote on all 

matters upon which 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 without limitation
 

Section 3. I and Section 3.4), the voting rights of each holder of Intercsts shall be based on such 

holder's Percentage Intercst. 

14 

Iloc# lISIS7h'h1~vll 
4.3 Filings; Duty of Members to Cooperate. The Managing
 

Member shall promptly eause to be executed, delivered, fied, recorded or published, as 

appropriate, and the Members wil, as requested by the Managing Member from time to time but 

at the sole expense of the Managing Member, execute and deliver, (a) all certificates, documents 

and other instrumcnts that the Managing Member 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 aceordanee with the terms hereof, (c) all eertifieates, documents and other 

instruments (including conveyances and a certificate of cancellation) that the Managing Member 

deems necessary or appropriate to reflcct the dissolution and liquidation of the Company 

pursuant to the terms of this Agrcement, and (d) such other certificates, documents and othcr 

instruments as are required by Law or by any Governmental Authority to be executed by them in 

connection with the Business as eonducted or proposed to be conducted by the Company from 

time to time. In addition, as soon as reasonably practical after the date hereof, thc Managing 

Member shall, at its own expense, cause thc Company to apply for, and thereafter use its 

reasonable best efforts to obtain and maintain, all such licenses as are required to conduct the 

Business, including qualifications to conduct business in jurisdictions othcr than Delaware and 

licenses to purchase, own or managc thc Loans, 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 borrowcrs under the Loans), or materially adversely affect the Company or 

the Company's ability to foreclose on the Collateral securing or otherwise realize the lull value 

of any Loan or Acquired CollateraL. 

4.4 Certain Restrictions and Requirements.
 

(a) No Member may use or possess Company Propel1y other than for a 

Company purpose, except as provided under liccnse or other contractual arrangements. No 

Member shall have authority to bind, or otherwise to act on behalf of, thc Company except 

pursuant to authority expressly granted herein or pursuant to authority granted by the Managing 

Member in accordance with the terms hereof. 

(b) From and after the Closing Date, no Person mayor shall be admitted as a
 

Member in the Company except pursuant to and in accordance with Article Vli hcrcof. 

(c) Each Member, other than the Initial Member, shall at all times mcct the 

qualifications of a Qualified Transferee. 

4.5 Liability of Initial Member. Neither the Initial Member nor
 

any of its Affliates, any of1cer, director, stockholder, member, managcr, employee, agent or 

the Initial Member or any of its Aflliates (collectively. the "Related Persons"). shall 

be liable, rcsponsible or accountablc, whether directly or indirectly, in contract or tort or 

assign of 


otherwise, to the Company or any othcr Person in which the Company has a direct or indirect 

interest or any Member (or any Affliate thcrcof) for any Damages asserted against, suffered or 

i 5 

Doc" \ISI57"61Xvll
 
ineurred by the Company or any Person in which the Company has a direct or indirect interest or 

their respective Affiliates) arising out of, relating to or in eonneetion with 

any act or failure to act pursuant to this Agreement or otherwise with respect to: 

any Member (or any of 


(a) the management or conduct of the business and affairs of the Company or
 

any Person in which the Company has a direct or indirect interest or any of their respective 

Affiliates (including, without limitation, actions taken or not taken by any Related Person as an 

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

Affliates of such Person); 

(b) the offer and sale of Interests in the Company or the issuance of Purchase 

Money Notes; and 

(c) the management or conduct of the husiness and affairs of any Related
 

Person insofar as such business or affairs relate to the Company or any Person in which thc 

Company has a direct or indirect interest or to any Member in its capaeity as such, including, 

without limitation, all: 

the Business, and (i) activities in the conduct of 


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

them) which might involve a eonflict of interest vis-à-vis the Company or any 

Person in which the Company has a direct or indirect interest or any Member (or 

any of their rcspective Affiiates) or in which any Related Person realizes a profit 

or has an interest, in cach case to the cxtent not permitted by this Agreement or 

the Ancillary Documents; 

except, in each case, Damages resulting from acts or omissions of such Relatcd Person which 

were taken or omitted which constitutcd fraud, gross negligenee, willful misconduct, or an 

intentional material breaeh of 
 this Agreement or any Ancillary Document.

4.6 Indemnification.
 

(a) The Managing Member shall indemnify and hold harmless the Initial 

Member and the Initial Member's Affliates, and their rcspective offcers, directors, employees, 

partners. principals, agents and contractors (the "Indemnified Parties"'), from and against any 

losses, Damages. liabilitics, costs and expenses (including reasonable attorneys' fees and litigation 

and similar costs, and other out-of-pocket expcnses incurred in investigating, defending, asserting 

or preparing the defense or asscrtion of any of thc foregoing), deficiencies, claims, interest, 

awards, judgments, penalties and fines (collectively, "Losses"), arising out of or resulting from 

any breach after the Closing Date, by the Company the Managing Memher or any of its Affiliates 

or any of thcir respective officers, directors, employees, partners, principals, agents or contractors 

of any of the Company's or thc Managing Member's obligations under or covenants or 

agreements contained in this Agreement or any Ancillary Document (including Losscs rclating to 

thc Managing Member's obligations with rcspect to litigation referred to in Section 4.5 of the 

Contribution Ai:rreement to thc extent provided therein and any claim assertcd by the Initial 

Member against the Company or the Managing Member to enforce its rights hereunder or by any 

16 

Doell I;S 1576561Xv II 
third party), or any third-party allcgation or claim based upon faets alleged that, if true, would 

constitute such a breach, or any gross negligence, bad faith or willful misconduct (including any 

act or omission constituting theft, embezzlemcnt, breach of trust or violation of any Law). Such 

indemnity shall survive the termination of 
 this Agreement. In order for an Indemnified Pary to be

entitled to any indemnification provided for under this Agreement in rcspeet of, arsing out of or 

involving a Loss or a claim or demand made by any Person against the Indemnified Party (a 

"Third Party Claim"), such Indemnified Party shall deliver notice thereof to the Managing 

Member promptly after receipt by sueh Indemnified Party of written notiee of the Third Party 

Claim, deseribing in reasonable detail the facts giving rise to any claim for indemnifieation
 

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 Managing Member may reasonably request. The 

failure or delay to provide sueh notice, however, shall not release thc Managing Member from any 

of its obligations undcr this Section 4.6 except to the extent that it is materially prejudiced by such 

failurc or delay. 

(b) If for any reason the indemnification provided for herein is unavailable or
 

insuffcient to hold harmlcss the Indemnified Partics, the Managing Mcmber shall contribute to 

the amount paid or payable by the Indemnified Parties as a result of the Losses of the Indemnified 

Parties in such proportion as is appropriate to reflect the relativc fault of the Indemnified Parties, 

on the one hand, and the Managing Member (including any Servicer or Subservicer), on the other 

hand in connection with the matters that are thc subject of such Losses. 

(c) If the Managing Member confirms in writing to the Indemnified Party
 

within fifteen (is) days aftcr rcccipt of a Third Party Claim the Managing Member's 

responsibility to indemnify and hold hannless the Indemnified Party therefor, the Managing 

Mcmbcr may eleet to assume control ovcr thc compromise or defense of such Third Party Claim 

at the Managing Member's own expense and by the Managing Membcr's own counsel, which 

counscl must be reasonably satisfactory to the Indcmnified Party, provided that (i) the Indemnified 

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

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

Managing Mcmber shall keep the Indemnified Party advised of all material events with respect to 

any Third Party Claim; (iii) the Managing Member shall obtain the prior written approval of the 

Indemnified Party bcfore eeasing to defcnd against any Third Party Claim or entering into any 

settlement, adjustment or compromise of such Third Party Claim involving injunctivc or similar 

equitable relief bcing imposed upon the Indemnificd Party or any of its Affiiates; and (iv) the 

Managing Mcmber will not, without the prior written consent of the Indemnified Party, settle or 

compromise or consent to thc cntry of any judgment in any pending or thrcatened action in respect 

of which indemnification may be sought hereunder (whether or not any such Indemnificd Party is 

a party to such action), unless such scttlemcnt, compromise or eonsent by its terms obligates the 

Company to satisfy the full amount of the liability in connection with such Third Party Claim and 

includes an unconditional release of such Indemnified Party from all liability arising out of such 

Third Party Claim. 

(d) Notwithstanding anything contained hcrein to the contrary, the Managing
 

Membcr shall not be entitlcd to control (and if the Indemnified Party so desires, it shall have sole 

control over) the defense, settlement, adjustment or compromise of (but the Managing Member 

shall nevcrthelcss be required to pay all Losses incurred by the Indemnified Party in connection 

17 

OOC" liS 1: 76'(':I~\' II 
with such defense, scttlement or compromise): (i) any Third Party Claim that seeks an order, 

injunction or other equitable relief against the Indemnified Party or any of its Affiliates; (ii) any 

action in which both the Managing Membcr (or any Affiliate) and the Indemnified Party are 

named as parties and either the Managing Member (or such Affliate) or the Indemnified Party 

determines with advice of counsel that there may be one or more legal defenses available to it that 

are different from or additional to those available to the other party or that a conflict of interest 

between such parties may exist in respect of such aetion; and (iii) any matter that raises or the FDIC under any Law. If the implicates any issue relating to any power, right or obligation of 


Managing Member 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 Managing Member shall nevertheless be required to pay all Losses ineurred 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 Managing Member or the Indemnified 

Party), all of the parties hercto shall, and shall cause their respective Affliates to, cooperate in the 

to in good faith retain and furnish such records, information 

and testimony, and attcnd such conferences, discovery proceedings, hearings, trials and appeals, 

as may be rcasonably requested by a party hereto in conncction therewith. 

defense or prosecution thcreof and 


(e) In the cvent thc Company is reimbursed for or uscs funds drawn under the
 

Advance Facility to pay costs or expenses of the type referred to in clause (iv) or (v) of the 

definition of Servicing Expenses and it is subsequently determined that the Company was not 

entitled to reimburscmcnt for (or to use Advance Facility funds to pay) all or any portion of such 

costs and expenses because thc Company did not satisfy the requircments of Section 4.6(e) or 

clause (iv) of the definition of Servicing Expenses (such costs and expenses, the 

"UnreimbursabIe Expenses"), thc Managing Member shall, in addition to any other Losses for 

whieh the Managing Member may be liable with respect to the claim to which such costs and 

expenses relate, reimburse the cost of such Unreimbursable Expenses to cach Member based on 

such Member's Percentagc Interest, as follows: within ten (i 0) Business Days aftcr written 

demand therefor from cither Member, the Managing Member shall pay each Member by wire 

transfer of immediately available funds to an account specified by each Member an amount equal 

such dcmand or (y) the date to such Member's Percentage Interest (as ofthc later of (x) the datc of 


of such paymcnt) multiplied by the amount of all such Unreimbursable Expenses. 

(D The Company shall indemnify and hold harmless cach Member and their 

respective officers, directors, employees and members (each a "Covered Person") lor aiiy Losses 

incurred by such Covered Person by reason of a Third Party Claim relating to any act or omission 

by or of such Covered Person in connection with the exercise or perforn1ance of the rights, 

powers, responsibilities and obligations of such Covered Pcrson regarding thc Company except (i) 

in eaeh case, Losses resulting from fraud, bTfOSS negligence, willful misconduct or an intentional
 

this Agreemcnt or any Ancillary Document by such Covered Person, and (ii) in the case 

of the Managing Membcr, any Third Party Claim that is in whole or in part covered by or subject 

to an indemnification obligation of the Managing Member under any provision of this Agreement 

or any Ancillary Document, including the foregoing provisions of Section 4.6(a). 

breach of 


1 ~ 

Doc~. tlSI :S7(;(,1~, II 
(g) Offsets. Without limiting any other rights of the Initial Member
 

hereunder, in the event the Initial Member excreises any rights or remedies as a result of or in 

connection with a breach hereunder or the occurrenee of an Event of Default (including relating to 

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 against any payment or distribution otherwise payable to the Private Owner 

(including the Management Fee), whether in its capaeity as a Member or as Managing Member. 

a breaeh of 


ARTICLE V
 

Capital Contributions; Working Capital Advances 

5.1 Capital Contributions: Excess Working Capital Advances.
 

(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 LLC Interest Sale Agreement, Private 

Owner acquired from the Initial Member an lnterest representing a forty pcrecnt (40%) equity 

interest in the Company in exchange for thc Purchase Price. After giving effeet to the foregoing 

transactions, the respective Capital Accounts of the Initial Member and the Private Owner as of 

the Closing Date are as set forth in the Annex II (the Member Schedule). 

(b) From and after the Closing Date, the Members shall have no obligation to 

make any additional Capital Contributions to the Company. 

(c) The Managing Member may, in its discretion, make Excess Working 

Capital Advances to the Company to the extent pern1itted by the Advance Facility and thc other' 

Áncilary Documents. No Excess Working Capital Advance shall accrue any interest thereon. If 

and to the extent any portion of an Excess Working Capital Advance is used to fund amounts that 

are reimbursable to the Managing Member hereundcr or under the Custodial and Paying Agency 

Agreement, the reimbursable portion of such Excess Working Capital Advance shall be repaid, in 

aecordanee with the Custodial and Paying Agency Ai:Tfeement, prior to the Company making any 

other distributions to Members with rcspect to their Interests pursuant to Section 6.6. All Excess 

Working Capital Advances, togethcr with a detailed statement of the sources and uses thereof 

(which shall be broken out by the reimbursable and unreimbursable portions thereof), shall be 

reflccted in the Monthly Report with respect to the calendar month during which the relevant 

Excess Working Capital Advanec was made. 

ARTICLE Vi 

Capital Accounts; Allocations; Priority of Payments; Distributions 

6.1 Capital Accounts. A Capital Account shall be establishcd
 

and maintained for each Mcmber 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 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 

19 

I)"CL! LISI57656-'~\"1 i 
that is attributable to the Intercst acquired by the Private Owner pursuant to the 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 thc 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 

advcrsely affect the manner in which distributions are to be made to the Members under 

Section 6.6. 

6.2 Alloeations to Capital Accounts. Allocation of Nct Income
 

and Net Loss shall be made as provided in this Article VI. 

(a) Except as otherwise provided in this Agrcement, 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 

speeial allocations set forth in Section 6.2(b), the Capital Aceount balance of each Membcr, 

immcdiately after making such allocation, is, as nearly as possible, equal to (i) the distributions 

that would be made to such Member pursuant to Section 6.6 if the Company were dissolved, its 

affairs wound up and its assets sold for cash equal to their Book Value, all Company liabilities 

were satisfied (limited with respect to each nonrecourse liability to the tax bases 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 L. 704-2), computed immediately prior to 

the hypothetieal sale of assets. 

(b) Allocations in Speeial Circumstances. The following special allocations
 

shall be made in the following order: 

(i) Minimum Gain Chargeback. Notwithstanding any other provision
 

of this Article VI, if there is a net dccrcasc in minimum gain (as it corresponds to 

the definition of "partncrship 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 thc net decrease in minimum gain, determined in accordance 

with Treasury Regulations Section 1.704-2(1) and (g). This Scction 6.2(b)(i) is 

intended to comply with thc "minimum gain ehargcback" requirement in such 

section of the Treasury Regulations and shall be intcrprcted consistcntly 

therewith. 

(ii) Member Minimum Gaiii Chargehack. Notwithstanding any other there is a net decrease provision of this Articlc VI othcr than Section 6.2(b)(i), if 


in minimum gain attributable to a Member nonrecourse debt (as it con-csponds to 

the definition of "partnership nonrecourse deht minimum gain" in Treasury 

Regulations Section 1.704-2(i)) during any Fiscal Year, eaeh Membcr shall be 

specially allocated items of Company incomc and gain for such Fiscal Year (and, 

if necessary, subsequçnt Fiscal Years) in an amount equal to the portion of such 

20 

Doc" lJS1~7h~r,~~vll 
Member's share of the net decrease in such minimum gain attributable to such 

Member's nonrecourse debt, determined in accordance with Treasury Regulations 

Seetion 1.704-2(i). This Section 6.2(b)(ii) is intended to comply with the "partner 

minimum gain ehargebaek" requirement in such section of the Treasury 

Regulations and shall be interpreted consistently therewith. 

(iii) Qualifed Income Offet. In the event any Member, for any reason,
 

whether expected or not, has an Adjusted Capital Account Defieit, items of 

Company income and gain shall be specially allocated to each sueh Member in an 

amount and manner suffeient to eliminate, to the extent required by the Treasury 

Regulations, such Adjusted Capital Account Defieit 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 Agrccment. This 

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

(b)(2)(ii)(d) and shall bc 

interpreted consistently therewith. 

provisions in Treasury Regulations Section 1.704-1 


(iv) Nonrecourse Deductions. Any nonrecourse deductions attributablc
 

to a Member nonrecourse debt (as deseribed in Treasury Regulations 

Seetion 1.704-2(i)) shall be allocated to the Member who bcars the economic risk 

of loss with respeet to such nonrecourse debt. Otherwise, nonrecourse deductions 

shall be allocable in accordance with the Members' respective Percentage
 

Interests. 

(v) ross Allocatio/l Limitation. No allocation ofNct Loss (or any item
 

thcrcof) shall be made to any Member to the extent that such allocation would 

create or increasc a Member's Adjusted Capital Account Deficit. If, in the 

allocation of Net Loss (or any item thereof), less than all Members would havc 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 pennissible Net Loss to cach Member undcr Trcasury 

Regulation Section 1.704-I(b)(2)(ii)(d). 

(vi) Curutii'e Allocations. The allocation provisions of this 

Section 6.2(b) are intended to comply with ecrtain requirements of thc Trcasury 

Regulations. Notwithstanding any other provisions of this Article VI, any 

allocation effected pursuant to this Section 6.2(b) shall bc taken into account in 

allocating Net Ineomc and Nct Loss among the Members such that the cumulative 

effect of all such allocations achieves the fundamental purpose of Sections 6.2(a), 

so that the Capital Aecount balances correspond to the amounts distributablc to 

thc Members. 

(c) Transfer of or Changc in Intcrests. The Managing Member is authorized
 

to adopt any convcntion or combination of conventions likely to bc upheld for fedcral income tax 

21 

Doell US I57M61R\' 11
 
purposes regarding the allocation of items of Company income, gain, loss, deduction and expense 

with respeet to a transferred Interest. A transferee of an Interest in the Company shall succeed to 

the Capital Account of the transferor Member to the extent it relates to the transferred Interest. 

6.3 Tax Allocations.
 

(a) General Rules. Except as otherwise provided in Section 6.3(b), for eaeh
 

Fiscal Year, items of Company ineome, 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 

Ineome (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 adjusted basis of such property to the Company for federal 

incomc tax purposes and its Fair Markct 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 manncr and utilizing such 

permissible tax elcctions as detennined in good faith by the Managing Mcmber, following 

consultation with the Initial Member. In thc cvcnt of a revaluation of Property pursuant to the 

definition of Book Value, subsequent allocations of income, gains, losses or deductions with 

respect to such Property shall take account of any variation between the Book Value and Fair 

Market Value of such Property, as so determined from time to time, in accordance with
 

Section 704(c) of the Code and thc Treasury Regulations promulgated thereunder. Such 

allocations shall be made in such manner and utilizing such permissible tax elections as 

detennined in good faith by the Managing Member, 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 bc taken into 

aeeount in computing, any Member's Capital Account or allocable share of Net Income (or items 

thereof) or Net Loss (or items thereof). 

(d) Tax Allocations Binding. The Members acknowledge that they are aware
 

of the tax consequenees of the allocations made by this Scction 6.3 and hereby agree to be bound 

by thc provisions of this Scetion 6.3 in reporting their respective shares of items of Company 

income, gain, loss, deduction and expense. 

6.4 Determinations by Managing Member. All matters
 

conccrning the computation of Capital Accounts, the allocation of itcms 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 deteimined by the Managing Member in 

good faith, following consultation with the Initial Member. Following such consultation, such 

determinations shall be final and conclusivc 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 Mcmbcr or by the Company is 

22 

Doc II: iis 1 .57656:1~\' 11 
recharaeterized, the Managing Membcr may, in good faith following consultation with the Initial 

Member, specially allocate items of Company income, gain, loss, deduction or expense and/or the Members in a manner so that the net make correlative adjustments to the Capital Accounts of 


amount of income, gain, loss, deduction and expense realized by each relevant pary (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 Sections 6.2(a), such that the Capital Account balances 

correspond to the amounts distributable to the Members, as if such recharactcrization 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 distributcd 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 thcir respective Intercsts (such available amounts, the "Distributable 

Cash"), such Distributable Cash shall be distributed to the Members in accordance with 

Section 6.6 below. 

6.6 Distributions. 

(a) No Right to Withdraw. No Member shall have the right to withdraw 

capital or demand or receive distributions or other returns of any amount in its Capital Account, 

except as expressly provided in this Ai:rreement. 

(b) Ordinary Distributions.
 

(i) 'lming. Distributable Cash, if any, shall be distributed to the
 

Members on a monthly basis by the Paying Agent out of the Distribution Account 

in the manner set forth in the Custodial and Paying Agency Agreement; provided, 

however, that the Managing Member shall instruct the Paying Agent as to how 

such distributions are to be alloeatcd as between thc Initial Member and thc 

Private Owncr based on Section 6.6(b)(ii) below (which instructions shall be 

included in onc or more reports to be provided to Paying Agcnt in accordance
 

with Section 7.4(b)). 

(ii) Distrihutions (~r Distribiaahle Cash. Each distribution of
 

Distributable Cash shall be made to the Members as follows: 

(A) first, 60 percent to thc Initial Membcr and 40 percent to the 

Piivate Owncr, until the timc at which the Return Thrcshold Event occurs; 

and 

(B) thereafter, 70 percent to the Initial Member and 30 percent
 

to the Private Owner. 

(iii) Return Threshold E,'enl. The "Return Threshold Event" shall
 

occur as of a Distribution Date if (A) the aggregatc distributions made to thc
 

ì'"--' 

Doell lISI576'fi'Kvl i 
Private Owner pursuant to Seetion 6.6(b)(ii)(A) as of such Distribution Date is 

equal to or greater than the product of two (2) and thc Purchase Price, and (B) the 

Return Threshold as of sueh Distribution Date is equal to zero. 

(iv)
 Return Threshold. The "Return Threshold" shall be determined

as follows:
 

(A) as of the Closing Date, thc Return Threshold shall be equal 

to the Purchase Price; and 

(B) as of any Distribution Date, thc Return Threshold shall be
 

an amount equal to (I) the sum of (i) the Return Threshold as of the 

preceding Distribution Date (or, in the casc of the first Distribution Date, 

the Closing Date), and (ii) the Threshold Increase Amount, minus (2) the 

aggregatc distributions made to the Private Owner pursuant to 

Section 6.6(b)(ii)(A) as of such Distribution Date; providcd, that, if, as of 

any Distribution Date, the amount refcrred to in clause (B)(2) of
 

Scetion 6.6(bHiv) is i:rreater than the amount referred to in clausc (B)(1) of 

Section 6.6(b)(iv), then the Return Threshold shall be dccmed to be zero 

for such Distribution Date and all subsequent Distribution Dates. 

(c) Restrictions on Distributions. Thc forcgoing provisions of this Article VI
 

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

any contract or agreement to which the Company is then a party or any Law or directive of any 

Governmental Authority then applicable to thc Company. 

this Agreement, the (d) Withholding. Notwithstanding any other provision of 


Managing Member is authorized to take any action that it determines to be neeessary 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 trcated as 

distributions to the applicable Membcrs under thc applicable provisions of this Agreemcnt. If any 

such withholding requirement with respect to any Mcmbcr 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 Interest 

hereby agrees to indemnify and hold harmless the Managing Mcmber and the Company for such 

excess amount or such withholding rcquircment, as the case may be. 

(e) Record Holders. Any distribution of 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 lntcrests on the date determined by the Managing 

Member as of which thc Members arc entitled to any such distribution. 

(f) Final Distribution. Thc final distribution following dissolution of the
 

Company (the "Final Distribution") shall be made in accordance with the provisions of 

Section 9.2. 

24 

fl"eN "SU76~6:1~'.11 
ARTICLE VII 

Accounting, Reporting and Taxation 

7.1 Fiseal Year. The books and records of the Company shall
 

be kept on an aeerual basis and the fiseal year of 
 the Company shall commcnce on January I and

end on December 31 (the "Fiscal Year"). 

7.2 Maintenance of 
 Books and Records.

(a) Maintenanee of Books and Records. At all times during the continuance
 

of the Company, the Managing Member shall cause to be kept and maintained (including by the 

Servieer and any Ownership Entity and including records transferred by Reeeiver to the Company 

in eonneetion with its conveyance of the Loans to the Company under the Contribution
 

Agreement), at all times, at the Company's chief executive offce referred to in Section 2.4, a 

completc and accurate set of files, books and records regarding the Loans and the Collateral, and 

the Company's and the relevant sceured parties' interests in the Loans and the Collateral, 

including records relating to the Collection Account, the Eserow Accounts, accounts created under 

the Advance Facility, any liquidity reserve account (if permitted), the Defeasance Account, and 

the disbursement of all Loan Proceeds. This obligation to maintain a complete and accurate set of 

records shall encompass all fies in the Managing Member's or Company's custody, possession or 

control pertaining to the Loans 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 Loans and the Collateral, all documentation relating to items of 

income and expense pertaining to the Loans and the CollateraL. and all of the Managing Member's 

(and each Servicer's and Subservicer's) internal memoranda pertaining to the Loans and the 

CollateraL. The books of account shall be maintaincd in a manner that provides sufficient 

assurance that: (a) transactions of the Company are exccuted in accordance with the general or 

specific authorization of the Managing Member 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 rcturns and information rcturns in the Company's accordance with this Ai:rreemcnt and as required by Law; (ii) permit preparation of 


financial statements in accordance with GAAP and as otherwisc set forth hercin and the 

provisions of the reports rcquired to be provided hereunder; and (iii) maintain aceountability for 

thc Company's assets. 

(b) Retention of Books and Records. The Managing Member shall cause all
 

such books and reeords to be maintained and retained until thc date that is the later of ten (I 0) 

years after the Closing Datc 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 or its representativcs (including any Governmental Authority) and agents at the 

Company's chief executive offce 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 sueh 

other location as is provided by notice to the Initial Member), in each instance upon two 

(2) Busincss Days' prior notice to the Managing Membcr. Upon request by Initial Mcmber, the the Initial Membcr, shall promptly send copies Managing Member, at thc solc cost and expense of 


(the number of copies of which shall be reasonable) of such books and records to the Initial 

Member or its designee. The Managing Member shall provide the Initial Membcr with reasonable 

25 

lloc~ US! 57hSCi'X,,1 I 
advance notice of the Managing Member's intention to destroy or dispose of any documents or the Initial Member, shall allow Initial Member, fies relating to the Loans and, upon the request of 


at its own expense, to reeover the same (or copies thereof) from the Company. The Managing 

Member shall also maintain complete and accurate records reflecting the status of taxes, ground 

leases or other recurrng charges whieh could become a Lien on any CollateraL. 

7.3 Finaneial Statements.
 

(a) Annual Finaneial Statements. As soon as practicable following, but no
 

later than ninety (90) days immediately after the end of each Fiscal Year, the Managing Member the Company shall prepare and deliver to Initial Member an audited consolidated balance sheet of 


and the Ownership Entities as at the end of such Fiscal Year, and audited consolidated statcments 

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 thirty (30) days immediately after, the end of cach quarter of caeh Fiseal Y ear (other 

than thc last quarter of such Fiscal Year), the Managing Member shall prepare and deliver to 

Initial Member unaudited consolidated balance shect of the Company and the Ownership Entities 

as at the end of such calendar quarter, and unaudited consolidated statements of operations and 

cash flow of the Company and the Ownership Entities for such calendar quarter, each prepared in 

accordance with GAAP. 

7.4 Additional Rcporting and Notice Requirements.
 

(a) Managing Member's Dutv to Initial Member and Secured Partics; 

Delivcry of Certain Notices. In addition to such other reports and access to books, reeords and 

reports as arc required to be provided under this Agreement, the Managing Member shall causc to 

be delivercd to the Initial Mcmber, the Purchase Money Note Guarantor and the Lender such 

information as is specified in Exhibit B (in addition to the Monthly Report) and such other 

information relating to the Loans, the Collateral, the Company, the Servieers and any Subservicers 

as Initial Member, the Purchase Money Note Guarantor or the Lendcr may reasonably request 

from time to time and, in any case, shall cnsure that Initial Member, the Purchase Money Note 

Guarantor and the Lender are promptly advised, in writing, of any mattcr of which the Managing 

Member, any Servicer or any Subservicer becomes aware relating to the Loans, the CollateraL. the 

Collection Account, the Escrow Accounts, any accounts created under the Advancc Facility, the 

Defeasance Account, or any Borrower or Guarantor that materially and adversely affects the 

interests of Initial Mcmber hereunder or of any secured party under the Reimbursement, Security the foregoing, the Managing Member and Guaranty Agreement. Without limiting thc generality of 


shall cause to be delivered to Initial Member information indicating any possible Environmental 

Hazards with respect to any CollateraL. To the extent that the Initial Mcmber requests information 

which is dependent upon obtaining such infonnation from a Borrower, Guarantor or other third 

party, the Managing Member shall cause to be made commercially reasonable efforts to obtain 

such information but it shall not be a brcaeh by the Managing Member of this Agreement if the 

Managing Member fails to cause such inforniation to be provided to Initial Member because a 

26 

Doctf us i 576\6 '~d I 
Borrower, Guarantor or other Person has failed to provide sueh information after such efforts have 

been made. 

(b) Monthly Reports. On or prior to the fi fteenth (15th) day of each month (or 

if the fifteenth (lSth) day is not a Business Day, then thc first Business Day thereafter), 

commeneing on the fifteenth (lSth) day of the first month following the calendar month in which 

the Closing Date occurs, the Managing Member shall provide to the Paying Agent, the Initial 

Member, the Purchase Money Note Guarantor and the Lender (i) the Monthly Report with respeet 

to the relevant Due Period, and (ii) the related Distrbution Date Report with respect to such Due 

Period, which report shall specify the amounts and recipients of all funds to be distributed by the 

Paying Agent on the relevant Distribution Date. Following receipt by the Paying Agent of the 

Monthly Report and the Distribution Date Report with respect to a given Due Period, the Paying 

Agent shall prepare and deliver the Custodian and Paying Agent Report with respect to such Due 

Period in accordance with the terms of the Custodial and Paying Agency Agrccment. Eaeh of the 

Monthly Report and the Distribution Date Report shall be certified by the chief financial officer 

(or an equivalent offcer) of the Managing Member. The Monthly Report shall also include a 

certification of the Managing Member that all withdrawals by the Managing Member from the 

Collection Account during such Due Period were made in accordanee with the terms of this 

Agreement and the Custodial and Paying Agcney Agreement. 

(c) Annual Compliance Certificates. The Managing Member shall, and shall
 

cause each Servicer and Subservicer to, deli 
 vcr to Initial Member, the Purchase Money Note

Guarantor and the Lender, on or before March is of each year, commencing in the year 20 I 0, an 

offcer's certificate stating, as to the signer thereof, that (i) a review of such party's activities 

during the preceding calendar year (or portion thereof) and of its pcrformance under this
 

Agreement (or, as applicable, the Servicing Ai:rreeinent or any Subservicing Ai:rreement) has been 

made under such offcer's supervision, and (ii) to the best of such offccr's knowledge and belief, 

hased on such review, such party 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 portion thercof or, if there has been a failure to fulfill any such obligation 

in any material respect, specifying each such failure and the nature and status thereof. In the event 

a Servicer or any Subservicer was tenl1inated, rcsigned or otherwise performed in such capacity 

for only part of a year, such party shall provide an offcer's certificate pursuant to this 

the year.
 Section 7.4(c) with respect to such portion of 


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

commencing in the year 20 10, thc Managing Member shall cause each Servicer and Subservicer, 

each at its own expense or at the expense of the Managing Mcmber, to providc a report prepared 

by a nationally recognized firm of independent eertificd public accountants to the effect that, with 

rcspect to the most recently ended Fiscal Y car, such firm has examined ccrtain records and 

documents relating to compliance with the servicing rcquircments in this Agreement and that, on 

the basis of such examination conducted substantially in compliancc with either the Uniform 

Single Attestation Program for Mortgage Bankers or Item 1122 of Regulation AB, such firm is of 

the opinion that the Managing Memher's or its Servicers' or Subservicers' activities have been 

eonducted in compliance with this Agreement (including, to the extent applicable, Regulation 

AB), or that such examination has disclosed no material items of noncompliance except for
 

27 

()oc~: USI :S7(,5ó:l~v11 
(i) such exceptions as such firm believes to be immaterial, and (ii) such other exceptions as are set 

forth in the report.
 

(e) Audits. Until the later of the date that is ten (10) years after the Closing 

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

and shall cause each Servicer and Subservicer to, (i) provide any representative of 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 Loans or any 

Collateral, the Servicing Obligations, the Collection Account, the Escrow Accounts, any account 

created under the Advance Facility or 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 hereundcr or under the 

Aiicillary Documents; (ii) permit such representativcs to make copies of and extracts from the 

same, (iii) allow Initial Member to cause such books to be audited by accountants selected by 

Initial Member, and (iv) allow Initial Member's representatives to discuss the Company's,
 

Managing Member's and any Servicer's and any Subservieer" s affairs, finances and accounts, as 

they relate to the Loans, the Collateral, the Servicing Obligations, the Collection Account, the 

Escrow Accounts, any account created under the Advance Facility, the Defeasance Account, or 

any other matters relating to this Agreement, the Ancillary Documents, or the rights or obligations 

Iii:rcunder and thereunder, with its officcrs, directors, employees, accountants (and by this 

provision the Company and Managing Member hereby authorizes such accountants to discuss 

such affairs, finances and accounts with such representatives), Servicers and Subservieers, and 

attorneys. Any expense incurred by Initial Member and any reasonable out-of-pocket expense 

incurred by the Company in connection with the exercise by 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 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 Managing 

Member. 

(D In addition to the foregoing, the Managing Member shall provide or cause 

to be provided to the Initial Member, all reports, infonnation (finaneial or otherwise), certificates 

and other documents required to be provided by the Company pursuant to the Advance Facility 

and the Reimbursement, Security and Guaranty Agreement and the Servicer under the Servicing 

Agreement. 

7.5 Designation of Tax Matters Member. Thc Private Owner is 

hereby designated as the '"Tax Matters Member" under Section 623 I (a)(7) of the Code and 

under othcr similar Laws of other relevant jurisdictioiis, to manage, in consultation with the 

Initial Member, administrative tax proceedings conducted at the Company level by the Internal 

Rcvenue Service or other tax authonties with respect to Company matters. Each Member 

expressly consents to such designation and abrrees that, upon the request of the Tax Matters 

Member, it will execute, acknowledge, deliver, file and record at the appropriate public offces 

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 discrction 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 

28 

Iloc# I Is 1:7h56:1~, II 
the Code, Treasury Regulations or other Laws. The Tax Mattcrs 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 Seetion 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)(l)(B), each Member consents to the Company's electing to be treatcd as a 

parncrship to which the provisions of Code Section 6221 et. scq. apply (thereby electing to have 

Code Section 6231 (a)( I )(B)(i) not apply). The Initial Member may, at any time following an 

Event of Default, removc the Private Owner as the Tax Matters Member and serve in such 

capacity. 

7.6 Tax Information. Within ninety (90) days after the end of 

each Fiscal Year, the Managing Member shall send, or cause to be sent to, eaeh Person who was 

a Member at any time during the Fiscal Y car then ended a Schedule K-l and such Company tax 

information as the Managing Member reasonably bclicves shall be necessary for the preparation 

by such Person of its United States federal, state and local tax returns in accordance with any 

Law. Such information shall include a statement showing such Person's share of distributions, 

income, gain, loss, deduetions and expenses and other relevant items of the Company for such 

Fiscal Year. Promptly upon the request of any Membcr (or any former Member, for tax years 

during which such Person was a Membcr), the Managing Member will furnish to such Member 

(or former Member): 

(a) United States federal, state and local income tax returns or information
 

rctu11s, if any, which the Company is requircd to file; and 

(b) at the sole cost and expensc of the requesting Memher, such other
 

information as such Membcr may reasonably request for the purpose of applying for refunds of 

withholding taxes. 

ARTICLE VIII 

Restrictions on Disposition of Interests 

8.1 Limitations on Disposition of Interests. Except as
 

otherwise provided in this Article Vlll, the Private Owner shall not, directly or indirectly, 

Dispose of or permit to be Disposed of, all or any part of its Intcrest or any of its rights or 

interests under this Agreement unless (a) (i) the transferee is a Qualified Transferee and (ii) it 

first obtains the prior written consent of the Initial Member, or (b) such Disposition is done by or 

at the direction of the Initial Member pursuant to Section 3.14. In addition, thc Private Owncr 

shall not Dispose of less than all of its Interest. Transfcrs satisfying the foregoing critcria are 

hereinafter referred to as "Permitted Dispositions," 

8.2 Change of Control. Except as otherwise provided in this 

Articlc VII, the Privatc Owncr will not pcrmit any Change of Control to occur unless (i) it first 

obtains the prior written consent of the Initial Member, and (ii) following such Change of 

Control, the Mcmber or successor Mcmbcr, as applicable, would bc a Qualified Transfcree. 

29 

Doell. I:S 157656 ,~, i i 
8.3 Additional Provisions Relating to Permittcd Dispositions.
 

Except as otherwise expressly provided in this Section 8.3, the following provisions shall apply 

to each Permitted Disposition under this Article VII: .
 

(a) The Private Owner shall not take, or cause the Company to take, any
 

action that involves any material risk (other than any risk attributable to the faet that such action 

might lead to eonsummation of the proposed Permitted Disposition) of resulting in a material the Company. In the adverse effect on the business, financial condition, properties or prospects of 


event the Private Owner proposes to make a Permitted Disposition, the Private Owner shall be 

required to pay any and all filing and rccording 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 becomc a party to and be bound by 

this Agreement as the "Private Owner," agree to be appointed as the "Managing Member," and 

without limitation of the generality of the forcgoing, agree to be bound by the other terms of 

Section 8.4 hereof, (ii) assume and agree to pcrfonn whcn due all of the obligations of the Private 

Owner and Managing Member under this Ai:rreement, and (iii) represent and warrant that it 

complies with the requirements set forth in Articlc X. 

(c) In conncction with each Permitted Disposition, the Private Owner and the
 

transferee shall deliver to the Company, and the Initial Mcmber such other doeumcnts and 

instruments as the Initial Member reasonably may request and which are required to cffcet the 

Permitted Disposition and substitute the transferec as a Member. 

8.4 Effect of Permitted Dispositions.
 

(a) Upon consummation of any Permittcd Disposition:
 

(i) thc transferee shall be admitted as a Mcmber in the Company and
 

be deemed to bc a party to this Agreement as the "Private Owner" and shall be 

appointed as the Managing Member; 

(ii) thc transferrcò Interest shall continuc to be subject to all thc
 

provisions of this Agreement, and the transfcree Member shall havc the same 

status as the Private Owner had at the time of consummation of such Permitted 

Disposition and, without limiting the generality of thc foregoing, any outstanding 

brcach, misrepresentation, violation or default (with respect to this Agreement or 

any Ancillary Document) by any direct or indirect prcdeeessor to thc transferee as 

the Member, or by any Affliatc of any such predecessor Member, shall be
 

dcemed to constitute an outstanding breach, misrepresentation, violation or 

dcfault as the case may be, by thc transfcrcc Member; 

(iii) subjcct to Section 8.4(b) and the last scntcncc of Section 13.9, the
 

transferor Privatc Owner shall cease to be a Membcr of the Company (and 

30 

llocH liS IS7656~~'" I 
accordingly, except as expressly otherwise provided in Section 8.4(b) or the last 

sentence of Section 13.9), shall cease to be responsible for the payment or 

performance of any of the obligations or liabilities under this Agreement of the 

Private Owner, in any eapacity hereunder). 

(b) No Permitted Disposition (and no resulting withdrawal or resignation of 

the transferor Member from the Company) shall: 

(i) relieve the Private Owncr of any of the obligations or liabilities of
 

the Private Owner, in any capacity, under this Agreement or any Ancillary 

Document required to have been paid or performed prior to thc eonsummation of 

such Permitted Disposition (or of any liability it may have arising out of any 

breach, misrepresentation, violation or default by the Private Owner prior to such 

consummation); 

(ii) result in the termination of, relieve the Private Owner (or any of its
 

Affliates) of, or otherwise affect, any of the obligations or liabilitics of the 

Private Owner, in any capacity, or its Affliates undcr, any Related Party 

Agreement (such Related Party Agreements to continue in effect in aecordance 

with their respective terms), except to the extent expressly providcd in such 

Related Party Agreement; or 

(iii) dissolve the Company.
 

8.5 Effect of Prohibited Dispositions. No actual or purported
 

Disposition of any Interest (or any portion thercof) owned by the Private Owner, or of any other 

right or interest of the Private Owner under this Agreement, whether voluntary or involuntary, in 

violation of any provision of this Agreement shall be valid or effective. To thc extent Private 

Owner Disposes or purports to Dispose of its Interest (or any portion thereof) in violation of any 

provision of this Agreement, until sueh Disposition or purported Disposition shall be rescinded, 

Private Owner shall not be entitled to, and hereby spccifieally waives any right to, receive 

Company distributions from and after the date of such Disposition or purported Disposition or 

failure to comply, as the case may be. Notwithstanding the foregoing, to the extent that the 

Private Owncr would have been entitled to Company distributions but for thc preceding 

provisions of this Section 8.5 ("Omitted Distributions""), if and when such Disposition or 

purported Disposition shall be rescinded, the Private Owner shall be entitled to receivc all such 

Omitted Dispositions (but no interest shall be paid thereon with respect to the period between the 

date such Omitted Dispositions would have been made but for this Section 8.5 and the date they 

an; actually made). 

8.6 Distribytions After Disposition. Distributions with respect
 

to an Interest made on or after the effective date of the Pennitted Disposition of such Interest 

shall be made to the transfcrce Member with rcspeet to such Intercst, regardless of when such 

distributions accrued on the books of the Company. 

8.7 Transfcrs By Initial Member. Notwithstanding anything to
 

the contrary contained in this Agreement, cxecpt as provided by applicable Law, there shall be 

31 

II"rll IISIS7656'Rvll 
no restriction on the Initial Member's ability to Dispose of the Interest held by it, directly or 

indirectly, to any Person as long as such Disposal would not (i) require the Company to register 

under any federal or state seeurities laws; (ii) cause the Company to become an investment 

company under the Investment Company Act of 1940; or (iii) eause the Company to become a 

"publicly-traded partnership" (as such term is defined in Section 7704 of the Code), and the 

Private Owner shall havc no right to purchase or right-of-first-refusal in connection with any 

such sale; provided, that, the Initial Member may not assign the consent and voting rights 

associated with its Interest in the Company to more than one Person (for the avoidance of doubt, 

except as expressly provided above, the foregoing restriction shall not otherwise limit the Initial 

Mcmber's right to Dispose of any interest associated with its Interest in the Company); and 

provided, further, that in the event the Initial Member determines to sell the Interest held by it 

through an auction proccss, the Private Owner shall be entitled to participate in such auction on 

the same terms that apply generally to other paricipants in the auction. 

8.8 Resignation; Dissolution.
 

(a) Private Owncr may not withdraw or resign from the Company, except
 

(i) in connection with a Permitted Disposition made in accordance with the applicable provisions the Initial Member. of this Article VII or (ii) with the prior written eonscnt of 

(b) The Private Owner covenants that it shall not allow a Dissolution Event to 

oecur with respect to itself. 

(c) Section 18-304 ofthc 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 exprcssly provided in this Agreement, no Mcmber
 the Act. shall be entitled to receive any payment pursuant to Scction 18-604 of 


8.9 Applicable Law WithdrawaL. If, as a result of applicable 

Law, the ownership of an Interest by a Member becomcs illegal or is likely to become ilegal or 

thc applicable Law morc likely than not requires divestiture of such Member's Interest, or the 

applicable Law would require the Company to register as an investmcnt company under the 

Investment Company Act, then the Managing Mcmber and the Member shall use their respeetive 

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 

Interest to a third party upon terms reasonably satisfactory to the Membcr in a transaction that 

complies with Articles VII and X; (ii) making any appropriate applications to the relevant 

Governmental Authority, (iii) prohibiting such Mcmber from making further Capital 

Contributions, and converting its Interest into a spccial interest with no voting or similar rights 

but with only an economic right (identical to its prior rights as a Mcmber). or (iv) permitting the 

Mcmber to withdraw from the Company for a "payment" to such Member equal to the value of 

its Intcrcst at the timc of withdrawal. such value to be determined by a third party appraiscr 

mutually agreeable to the Managing Member and all Members. Thc aforesaid "payment" shall 

be made in cash unless the Managing Member determines that the payment in cash would be 

cconomically detrimental to the Company, in which case such payment may be made in kind, 

32 

Ixd liSI :5765(¡'~vll
 
subject to the applicable Law. The timing of any such withdrawal must be mutually agreeable to 

the Member and the Managing Member taking proper account of the effcctive 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 Managing Member for a reasonable period of time to find a 

solution to thc illegality or requirement for divestiture. Such illegality or registration 

requirement must be established by (x) an opinion of counsel (which counsel shall be reasonably 

satisfactory to the Managing Membcr and the Initial Member) substantially to the effect that the 

ownership of the Interest more likely than not wil result in sueh 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 Companv 

9.1 Dissolution. A dissolution of the Company shall take place
 

upon the first to occur of 
 the following:

(a) the ai:rreemcnt by all Membcrs to dissolve the Company;
 

(b) the sale of all or substantially all of the Company Property (other than
 

cash and cash equivalent instruments), including as an entirety or substantially as an entirety; or 

(e) in the sole discrction of thc Initial Member, a Dissolution Event or an
 

Insolvency Event occurs with respect to thc Managing Member or a Pcrson that Controls the 

Managing Member; or 

the Clean-Up Call in accordance with Scction 12.IS. (d) exercise of 


9.2 Winding-Up Procedures. If a dissolution of the Company 

pursuant to Scction 9.1 occurs, subject to the Company's compliance with its obligation under 

thc other agreements to which it is a party, the other terms and conditions of this Agreement or 

the Ancillary Documents, thc Managing Member shall proceed as promptly as praeticable to 

wind up the affairs of the Company in an orderly and businesslike manner. A final accounting 

shall be made by Managing Membcr. As part of the winding up of the affairs of the Company, 

the following steps will be taken: 

(a) The assets of the Company shall be sold except to the extent that some or
 

all of the assets of the Company are retaincd by the Company for distribution to the Members as 

hereinafter provided. 

the Act. (b) The Company shall comply with Section 18-804(b) of 


(c) Distributions of the assets of the Company after a dissolution of the
 

Company shall bc conducted as follows: 

(i) first, to creditors, but cxcluding Members who are creditors, other
 

than the Initial Memher (to the extent it continues to hold thc Purchase Money 

Notcs or is a lender undcr the Advance Facility), to the extcnt otherwise permitted 

by Law (and, to the extcnt pennitted, in accordance with the Priority of 

33 

Doe" LISI :576S6'~v11
 
Payments), in satisfaction of liabilities of the Company (whether by payment or 

the making of reasonable provision for payment thereof); 

(ii) seeond, to Members or former Members who are creditors, to the 

extent otherwise permitted by Law, in satisfaetion 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 distrbutions to Mcmbers and former Members under 

Section 18-601 of the Act~ 

(iii) third, to Membcrs and former Members in satisfaetion of liabilities 

(if any) for distributions under Section 18-60 i of the Act; and 

(iv) finally, to the Members in the manner set foi1h in Section 6.6(b).
 

(d) Upon dissolution, the Managing Member, 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 dcterine the Fair
 

Market Value of such asscts, 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 datc of distribution and, after giving effect to any such adjustment, distribute said assets in 

the manner sct forth in Section 9.2(c), provided that the Managing Member shall in good faith 

attempt to liquidate suffcient Company assets to satisfy in cash the debts and liabilities described 

in Section 9.2. If a Member shall, upon the advicc of counsel, detennine 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 Managing Mcmber shall each use its best efforts to make 

alternative arrangements for the sale or transfer into an escrow account of any such distribution on 

mutually agreeable tenns. 

ARTICLE X
 

Qualified Transferees 

10.1 Qualified Transferecs. Each Member, other than the Initial 

Member (including, for the avoidance of doubt, its successors and transferees), shall at all times 

bc in compliance with thc following (and any proposed transferee of any Interest in compliance 

with the following shall be deemed a "Qualified Transferee'"): 

(a) Organization; Good Standing; Liecnses. Such Mcmber (i) is a Single
 

Purpose Entity duly organized, validly existing and in good standing under thc 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 naturc of its activities makes such 

qualification necessary and in which failurc to so qualify would have a matcrial adverse effect 

upon such Member or its ability to perfonn its obligations hereunder, (iii) has full power to own 

its property, to carryon its business as presently conducted, and to enter into and perform its 

obligations under this Agreement, (iv) has all licenses or other governmental approvals nccessary 

34 

I k,,~ lJS 1576~6'~\" II 
to perform its obligations hereunder; and (v) has a net worth calculated in accordance with GAAP 

of not less than $5,000,000 excluding the Interest of such Member. 

(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 transaetions herein contemplated, nor eompliance with 

the provisions hereof, will conflict with or result in a breach of, or eonstitute a default under,
 

(i) any of the provisions of any Law binding on such Member or its properties, (ii) the constituent 

documents of such Member, or (iii) any of the provisions of any indenture, mortgage, contract or 

other instrument to which such Member is a party or by whieh it is bound or result in the creation 

or imposition of any Lien upon any of its property pursuant to the terms of any such indenture, 

mortgage, contract or other instrument. 

(e) Governmental Approvals. All actions, approvals, consents, waivers, 

exemptions, variances, franchises, orders, pcrmits, authorizations, rights and lieenses required to 

be taken, given or obtained, as the case may be, by or from any Governmcntal Authority or 

ageney that are necessary in connection with thc cxecution and delivery by such Member of this 

the transactions contemplated hereby and the perforn1ance of 

its obligations hereunder, have becn duly takcn, given or obtained, as the case may be, are in full 

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

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. 

Agreement and thc consummation of 


(d) No Litigation. On the datc such Member becomes a party to this 

Agrccment, there is no action, suit, proceeding or investigation pending or threatened against such 

Member before any Governmental Authority. 

(e) No Violation of Orders, Deerees, etc. Such Member is not in default with
 

respect to any order or decree of any court or any Law. 

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

stockholders, creditors, lessors or other nongovernmental persons are required to be obtained by 

such Member in connection with thc execution and delivcry of this Agreemcnt and the 

consummation .of all the transactions herein contemplated and the performance of its obligations 

hcreunder. 

(g) Owners Accredited Investors. All of the equity owncrs of such Member
 

are "accredited investors," as that tenn is delined in Rule 50 i under the Securities Act. 

(h) Knowledge and Expericnee. Such Member, either by itself or through its 

adviscrs and principals, has, in each case as determined by the Initial Mcmber in its sole 

discretion, such knowledge and experience in the origination, servicing, sale and/or purchase of 

performing and non-pcrforniing or distresscd loans, including construetion loans and loans 

secured by residcntial and commercial properties, as well as financial and business matters, as to 

enable such Mcmber to utilize thc information made availablc to it with respect to the Interest 

35 

Doc" US! '~7(i~61X\'ll 
acquired by it and the Loans to evaluate the merits and risks of a purchase of the Interest acquired 

by it and, indirectly, the Loans, and to make an informed decision with respect thereto. 

(i) Eeonomic Risks. Such Member acknowledges, understands and
 

represents that it is able to bcar the economic risks assoeiated with the acquisition and ownership 

of the Interest acquired by it and, indirectly, the Loans, including thc risk of a total loss of its 

investment in the Company and, indireetly, the Loans and/or the risk that it may be required to time. hold the Interest and, indirectly, the Loans for an indefinite period of 


U) No Reprcsentations. Such Member hereby acknowledges that, except as is 

otherwise expressly provided in this Agreement, the LLC Interest Sale Agreement, or the 

Contribution Agreement, none of the Initial Member or any Affliate of Initial Member, or any of 

their respeetive officers, directors, employees, agents or contractors makes or has made any 

representation or warranty regarding thc Company, the Interest or the Loans 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 Interest or thc Loans and whether or not it chooses 

to review any information that is or was made available to it regarding the Interest or the Loans, 

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 Interest and the 

Loans and the economic, credit or other risks involved in an acquisition of the Intcrest and, 

indirectly, the Loans. Except as is othcrwise expressly provided in this Agreement, none of the 

Initial Mcmber any Affliate of Initial Member, or any of their respectivc offcers, directors, 

employees, agents or eontraetors makes and representation or warranty as to the completcncss or 

aecuraey of any information provided.
 

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

offer nor the sale of the Interest (and, indirectly, the Loans) is intended to constitute an offer or 

sale of a "security"' within the meaning of the Securities Act or any applicable federal or state 

seeurities Laws, (ii) no inference that any of the Interest or the Loans is a "security" under such 

federal or state securities Laws shall be drawn from any of the certifications, represcntations or 

warranties made by any Person in this Agreement, (iii) it is not contcmplated 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 Interest or the Loans is a security, such may not be 

resold or otherwise transfcrred by such Mcmber except in accordance with any and all applicable 

securities and Blue Sky Laws. 

(m) Rcsales. Such Member is acqulTng the Interest (and, indirectly, the 

Loans) for its own account and not with a view toward rcsale in a distribution within thc meaning 

of the Securities Act.

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

sell or othcrwise dispose of the Interest (or any intercst therein) or any Loan (or any intcrest 

therein or evidence thereof) to, or (ii) solicit any offer to buy or accept a transfer, pledge or other 

disposition of the Interest (or any interest therein) or any Loan (or any interest therein or evidence 

thereof) from, or (iii) otherwise approach or negotiate with respect to thc Interest (or any interest 

36 

Doell: I:SI :57656'X\'1 I 
therein) or any Loan (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 VII, or (B) render the 

transfer to such Member of the Interest or any interest in any Loan a violation of any Law relating 

to the issuance, regulation, registration or disposition of seeurities, nor wil it so act, nor will it 

authorize any person or entity to so act, in any manner with respect to the lntercst (or any interest 

therein) or any Loan (or interest therein or evidence thereof). 

(0) Acquisition in Compliance with Law. Such Member's acquisition of the
 

Interest and the resulting investment in the Loans will comply with all applicable Laws, including the Interest and the Loans by federal and any and all Laws and/or restrictions imposed on resale of 


state securities or Blue Sky Laws. 

(p) Independent Evaluation. Such Membcr has made an independent
 

evaluation of the Company and its assets (including the Loans and related Loan files and/or any 

electronic data made available to it pertaining to the Loans 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 Membcr 

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 Interest and the nature, validity, 

enforceability, eollectibility and value of the Loans and all othcr facts material to their ownership, 

including to the legal mattcrs and risks relating to the collection and enforcement, and the 

performance of any obligations under any of the Loans in any jurisdiction. Such Member further 

acknowledges that no employcc or representative of the Initial Member or any of its Affiiatcs or 

offcers, directors, employees, agents or contractors has becn authorized to makc any statements 

or representations other than thosc speeifieally contained in this Agreement or the Contribution 

Agreemcnt. 

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

(a) no consideration that such Member or any of its Affliates contributes hereunder or under the 

Ancillary Documents in connection with any transaction regarding any asscts will havc been 

derived from or related to any activity that is deemcd criminal under United States law; (ii) neither 

it nor any of its Affliates or Dircct 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 CFR 594.101, et seq.), any Embargoed Person; and (iv) if and to the extent 

such Member or any of its Affliates are required by law to maintain an anti-money laundering 

compliance proi:rram under applicablc anti-money laundering laws and regulations, including 

without limitation, the Uniting and Strengthening America by Providing Appropriate Tools 

Required to Intercept and Obstruct Terrorism Act of 200 I (Public Law 107-56)) such compliance 

programs are currently being maintained. For purposes of thc forcgoing certifications, 

represcntations and warranties, such certifications, representations and wan-anties shall be based 

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

whether any of the same with respect to indirect owncrship 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 of 

1940, as amended) or the ownership of assets by a collective investment fund that holds assets for 

employce benefit plans or retirement arrangements. 

37 

¡¡ocH LISI :\7656"~vi I 
(r) 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 the 

Employee Retirement Income Security Act of 1974 (as amended) ("ERISA")) and the "plan
 

asset" regulations set forth in 29 C.F.R. Section 2510.3-101 as promulgated under ERISA, 

ERISA (the "Plan Asset Regulation"). modified to the extent applicable by Section 3(42) of 


ARTICLE XI 

Managing Member Liabilty 

II.I Liability of Managing Member.
 

(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 

owcd to the Company and Initial Mcmber by the Managing Member shall be as provided in 

Section 3.1(b) hereof. 

(b) The Managing Member may rely, and shall be protected in acting or 

rcfraining from acting, upon any resolution, certifìcate, statement, instrument, opinion, report, 

notice, request, consent, ordcr, bond, debenture or other paper or document reasonably believcd 

by it to be genuine and to have been signed or presented by thc proper party or parties. 

(c) The Managing Member may consult with legal counsel, accountants, 

appraisers, management consultants, investment bankers and other consultants and advisers 

selccted by it, and any act taken or omitted to be taken in reliance upon the opinion of sueh 

Persons as to matters that the Managing Mcmber rcasonably believes to be within such Person's 

professional or cxpert competenee shall be conclusively presumed to have been done or omittcd in 

good faith and in aceordancc with such opinion. 

(d) The Managing Member shall not bc liablc to the Company or the 

Mcmbers for its good faith reliance on the provisions of this Agreement. 

(e) The limitations and exculpation afforded by each provision of this 

Section 11.1 arc cumulative and not exclusive. Nothing in this Section 11.1 is intended, or shall 

it conduct that would otherwisc constitute misappropriation of a trade secret of 

the Company undcr applicable Law or conduct that, even disregarding the tenns hereof otherwise 

would be actionable by the Company or the Members. 

be deemed, to penn 


(f) The provisions of this Section 11.1 arc for the benefit of thc Managing
 

Member, in its capacity as manager of the Company. This Section 11.1 may be amended, 

modificd or repealed in the manner set forth elsewhere in this Agreement, but any amendmcnt, 

modification or repeal of this Section I i. i or any provision hcreof (including as a result of any 

the Act) shall (unless the Managing Member shall expressly 

have consented to such amendment, modification or repeal) be prospective only and shall (unless 

the Managing Member shall expressly have consented to such amendment, modification or repeal) 

not in any way affect the limitations on liability under this Scction i l. as in effcct immcdiately 

prior to such amendment, modifìcation or rcpeal with respect to claims arising from or relating to 

amendment, modification or repeal of 


38 

Doell liS Iqh,6'~\ i I 
matters occurrng, in whole or in par, prior to such amendment, modification or repeal, regardless 

of when such claims may be asserted.

ARTICLE XII
 

Servicing of Loans
 

12.1 Servicing. 

(a) Appointment and Acceptance as Servieer. Effective as of the Closing
 

Date, but subject to Section 4.1 of thc Contribution Agreemcnt (with which the Managing 

Member agrees to comply), and Section 12.4 of this Agreement, until such time as the Company 

is dissolved and liquidated pursuant to Article ix, the Managing Member shall be responsible for 

(and hereby assumes responsibility for) servieing, administering, managing and disposing of the 

Loans 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 XLI, including the provisions of cd through one or more Qualified Servicers). Scetion 12.3 (which require that servicing be perform 


Without in any way limiting the foregoing, but subject to Section 4.1 of the Contribution 

Agreement, the Managing Member shall cause the Loans (including, for all purposes under this 

Article XII, thc rclated Collatcral) to be serviced as follows: (a) such Loan shall, except as 

provided in thc immediately following subsection (b), be serviccd by the Servieer() appointed in 

accordance with Section 12.3 below, and (b) following the replacement of Servicer as a result of 

an Event of Default, the Loans shall be serviced by the Serviccr appointed by the Initial Member 

in accordance with Section 12.4 below. All servicing of Loans following the Closing Date shall the Contribution Agreement and this Article XiI. be perfonncd in accordance with the terms of 


(b) Scrvicing and Subservieing Agreemcnt Requirements. Except as is
 

otherwise agreed in writing by Initial Member, each Servicing Agreement (and any Subscrvicing 

Agreement with any Subservicer) shall, among other things, 

(i) provide for the servicing of the Loans and management of the
 

Collateral by the Servieer (or Subservicer) in accordance with the Servicing
 

this Agreement; Standard and the othcr terms of 


(ii) be tenninablc upon no more than thirty (30) days prior notice if an 

Event of Default or any default under the Servicing Agreement (or Subservicing 

Agrecmcnt) has occurred; 

(iii) provide that thc Managing Member and the Initial Member (and, in
 

the case of any Subservicing Agreement, the Servicer) shall be entitled to exercisc 

termination rights undcr the relevant Scrvicing Agrccment or Subservicing
 

Agreement; 

(iv) provide that the Serviccr (or any Subscrvieer) and the Managing
 

Member acknowledge that the Servicing Abrreement (or Subservicing Agreemcnt) 

constitutes a personal services agreement between the Managing Member and the 

Servicer (or betwecn the Servicer and the Subservicer, as applicable); 

. 

39 

Doct:.lISl.\76\6:1Xvll 
(v) provide that (A) the Company, the Purchase Money Note
 

Guarantor and thc Lender under the Advance Facility are third party beneficiaries 

thereunder to the extent of any rights expressly granted to such Person under the 

Servicing Agreement or Subservicing Agrecment and is entitled to enforce the 

Scrvicing Agreement or Subservicing Agreement, as applicablc, with respeet to 

such rights; and (B) the Initial Member and, in the case of any Subservicing 

Agreement, the Managing Member is a third party beneficiary thereunder; 

(vi) upon the removal of thc Managing Member following an Event of
 

Default or the occurrence of an Event of Default under clause (e) of the definition the rights of
 the Managing Member hereof, the Initial Member may excreise all of 


thercunder and cause the tennination or assignment of the same to any other
 

Person, without penalty or payment of any fee; 

(vii) provide that the Initial Member, the Managing Member, the 

Purchase Money Note Guarantor, the Lender under the Advance Facility and their 

respective representatives shall have aeeess to and the right to review, copy and 

audit the books and records of caeh ServIcer and any Subservicers and that all 

Servicers and all Subservicers shall makc available their respcetive offcers, 

directors, employees, aceountants and attorneys to answer Initial Member's, the 

Managing Member's, the Purchase Moncy Note Guarantor's, the Lender under 

the Advance Facility's and their respcctive representatives' questions or to discuss 

any matter relating to the Servicer's or Subservicer's affairs, finances and
 

accounts, as they relatc to the Loans, thc Collateral, the Collection Account or any 

other accounts established or maintained pursuant to this Agrecment, the Advance 

Facility or the Scrvicing A 
 i:rreement or any Subservicing Agreement, or any 

matters relating to the Servicing Agrecment or the rights or obligations
 

thercunder; 

(viii) provide that all Loan Proceeds are to bc dcposited into the
 

Collection Account on a daily basis (without reduction or sctoff within two 

Business Days of rcccipt and that under no circumstances are funds, other than 

Loan Proceeds and interest and carnings thereon and the proceeds of Working 

Capital Loans pursuant to the terms of the Advance Facility, to bc commingled in 

the Collection Account; 

(ix) provide that the Servieer or Subserviccr shall not selL transfer or
 

assign its rights undcr the Servicing Agreement or Subservieing Agrecment, as 

applicable, other than Serviccr's rights to delegate to Subscrviccrs certain
 

responsibilities thereunder as and to the extent permitted by this Agreement, and 

that any prohibited transfer shall be void ah initio; 

(x) provide that (A) the Servicer or Subservicer consents to the
 

immediate termination of the Servicer or Subservicer, as applicable. upon the 

oceurrencc of a tern1Ination event under the Servicing or Subservicing
 

Agrecment, as applicable, and upon the occurrence of any Insolvency Evcnt with 

rcspect to the Servicer or Subserviccr or any of their respective Related Parties, as 

40 

Docl' lISI:7b56lRvii 
applicable, and (B) the occurrence of any Insolvency Event with respect to the 

Servicer or Subservicer or any Related Party thereof constitutes a default under 

the Servicing or Subservicing Agreement, as applicable; 

(xi) in the case of a Subservicing Ai:rreement, provide that there shall
 

be no right of setoff on the part of the Subservieer; 

(xii) provide for such other matters as are necessary or appropriate to
 

ensure that the Servieer or Subservicer is obligatcd to comply with the Servicing 

Obligations of 
 the Managing Member hereunder;

(xiii) provide a full release and discharge of the Initial Member, the 

Company, the FDIC, the Failed Bank and any predecessor-in-interest thereof, any 

Ownership Entities existing as of the Closing Date, and all of their respective 

offcers, dircctors, employees, agents, attorneys, contractors and representatives,
 

and all of their respective successors, assigns and Affiliates (but excluding, in all 

cases, the Managing Member) (any such Person, a "Prior Servicer" and 

collectively, the "Prior Servicers"), from any and all claims (including any 

counterclaim or dcfensive claim), demands, causes of action, judi:rrents or legal 

proceedings and remedies of whatever kind or nature that the Servieer had, has or 

might have in the futurc, whether known or unknown, which are related in any 

manner whatsoever to the scrvicing of the Loans by the Prior Servicers prior to 

the Closing Date (other than duc to gross negligence, violation of law, or willful 

misconduct of such Prior Servicer); and 

(xiv) not cont1ict with thc Servicing Standard or any other terms or
 

provisions of this Agreement or the Ancillary Documents insofar as such other 

terms or provisions hereof or thereof arc required to be imposed by the Managing 

Member on the Servieer in the Servicing Agreemcnts. Nothing contained in any 

Servieing Agrcement or any Subscrvicing Agrecment shall alter any obligation of 

the Managing Member under this Agreement and, in the event of any 

inconsistency betwecn the Servicing Agreement (or any Subservieing Agreement) 

this Agreement, among the Parties to this Agreement thc terms of 

this Agreement shall control. 

and the terms of 


12.2 Servicing Standard. The Managing Member shall perform
 

(or cause a Serviccr to perform) thc Scrvieing Obligations: (i) in the best interests and for the 

benefit of the Initial Member and thc Company, (ii) in accordance with the terms of the Loans this Ai:rrcement and the other (and related Loan Documents), (iii) in accordance with the ternis of 


Ancillary Documents, (iv) in accordanec 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 scrvieer would manage and administer similar 

properties for its own portfolio or for other Persons, whichever standard is higher, but using no 

kss carc and diligencc than would be customarily employcd by a prudcnt serviccr following 

customary and usual standards of practice of prudent mortgage lcnders, loan servicers and asset 

managers servicing, managing and administering similar loans and properties on an arms' length 

basis. The Managing Member shall cause its Servicing Obligations with respect to the Loans 

41 

Ilor# lIS157M6:18vll
 
and the Collateral to be performed without regard to (w) any relationship that thc Company, the 

their respective Affliates may have Managing Member, or any Serviccr or Subservieer, or any of 


to any Borrower, Guarantor or other obligor, or any of their respective Affliates, including any 

other banking or lending relationship, (x) the Company's, the Managing Member's, or any 

Servicer's or Subservicer's, obligation to make disbursements and advances with respect to the 

Loans and Collateral, (y) any relationship that the Servicer or any Subservicer may have to each 

other or to the Company, the Managing Member or any of their respcctive Affliates, or any 

relationship that any of their respeetive Affliates may have to the Company, the Managing 

their respective Affliates (other than the contractual relationship evidenced by 

this Agreement or the Servicing Agreement or any Subservicing Agreement), and (z) the 

Managing Me'mber's, or any Serviecr's or Subservicer's, right to receive compensation 

(including the Management Fee) for its serviees under this Agreement, the Servicing Agreement 

or any Subservicing Agreement. Without limiting the generality of the foregoing, the Managing 

Member's Servicing Obligations hereunder shall include the following: 

Member or any of 


(a) discharging in a timcly manner each and cvcry obligation which the Loan
 

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 REO Property, which thc Loan 

Documents that were applicable to the Collateral before it became REO Property provided werc to 

be performed by the borrower thereunder in respect of such Collateral (not including payment of 

debt scrvice under the applicable Loan Documents, and except as contemplated in the Approved 

Business Plan for such REO Property), together with such additional obligations as are required of 

thc Company under the Advance Facility and the Servicing Agreemcnt in respect of such REO 

Property; 

(b) incurrng costs (including Servicing Expenses and Pre-Approved
 

Changes) in accordance with the provisions of the Loan Documents, and in the case of REO 

Property, in accordance with the Loan Documents that were applicable to the REO Property 

before it became and REO Property (not including payment of debt service under the applicable 

Loan Documents, and except as eontemplated in the Approved Business Plan for such REO 

Property and otherwise in accordance with the Advancc Facility and the Security A¡"Tfcement in
 

respect of such REO Property; 

(c) causing to bc maintaincd for the Collateral (including any Acquired
 

Collateral) with respect to each Loan with respect to which an Ownership Entity or the Borrower 

has failed to maintain rcquired insurance, with extcnded coverage as is customary in thc arca in 

which the Collatcral is located and in such amounts and with such dcductiblcs as the Managing 

Member may, in the cxercise of its rcasonable discretion, determine arc prudent and as rcquircd 

under the Advancc Facility and thc Security Agreemcnt; 

(d) cnsuring compliance with thc terms and conditions of each insurer under
 

any hazard policy and preparing and prescnting claims under any policy in a timely fashion in 

accordance with thc terms ofthc policy; 

(e) supervising and coordinating the construction, ownership, managemcnt,
 

Icasing and prescrvation of thc Acquired Collateral as well as all other matters involved in the 

administration, preservation and ultimate disposition of the Acquired Collateral as would be takcn 

42 

Doell us 1,765t,'R, II 
by a prudent asset manager managing properties similar to the Acquired Collateral and as required 

of the Company under this Agreement, the Advance Facility and the Security Agreement; 

(f) administering the making of advanees to Borrowers under Loans pursuant
 

to and in aceordance with the Advance Facility; 

(g) to the extent consistent with the foregoing, seeking to maximize the timely
 

and complete recovery of principal and interest on the Loans and otherwise to maximize the value 

of the Loans and the Collateral; 

(h) except as otherwise set forth in this Ai:Tfeement, making decisions under,
 

and enforcing and performing in accordance with, the Loan Documents all loan administration, 

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

and management of 
 the Loans and the Collateral;

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

remain up to date and in force, including Uniform Commereial Code financing statemcnts; and 

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

applicable Ownership Entity) is diligently performing all applicable construction work using all 

commercially reasonable cfforts in accordance with the requirements of the applicable Loan
 

Document (in the case of REO Property) and the Advance Facility; and 

(k) providing the Servicers and Subservicers with copics of such Ancillary
 

Documents (or portions thereof) as are necessary for the Servicers or Subservicers to be familiar 

with in order to pcrform thcir respective obligations provided for in this Ai:rreement, the Scrvicing 

Agreements or the Subservicing Agreements, as applicable. 

12.3 Servicing of Loans.
 

(a) Appointment of Servicers. The Managing Member has cntercd into one or
 

more Scrvicing Agreements dated the date hereof to provide for the servicing and administration 

and management of the Loans and Collateral by one or more Qualified Servicers named thcrcin 

(each, together with other Qualified Servieers, a "Servicer"). Each Servicer, at all times during 

which it acts as Serviccr, shall continue to satisfy the definition of Qualificd Servicer. Each Loan 

shall at all times be serviced (and any Collateral managed) by or through at least one Servicer 

(including any subscrvicers engaged by the Servicer ("Subserviccrs") as permitted hcrcundcr) 

and the perfonnance of all day-to-day Servicing Obligations of the Managing Membcr shall be 

conducted by or through one or more Servicers (including any Subservicers permitted hereunder). 

Subject to the other tcnns and conditions of this Agreement, any Serviccr may be an Affliate of 

the Managing Member. Each Servicer may cngage or rctain one or more Subservicers, including 

Affliates of thc Managing Member, to perfonn certain of its duties under the Scrvicing 

Agrecment, as it may dccm necessary and appropriate, by entering into a subservicing agrcement 

with each such Subservicer ("Subscrvicing Agreement"), provided that any Subservicer meets
 

(and at all times continues to meet) the requirements set foi1h in the definition of Qualified 

Scrvicer and the terms of the applicable Subservicing Agreement comply with the tern1S of this 

Agreement and the applicable Servicing Agreement. The costs and fces of thc Servicers (and any 

43 

Doell: lJSi576'("~v11 
Subservieers) shaH be borne exclusively by the Managing Member (it being understood that the 

Managing Member wil receive the Managcment Fee in accordance with Section 12.5 hereof). 

Under no circumstances shall the Managing Member transfer, or permit to be transferred, to any 

Servicer or any other Person any ownership interest in the servicing to the Loans or any right to 

transfer or sell the servicing to the Loans (other than in conneetion with the sale of any Loan), and 

no Servicer shall be permitted to assign, pledge or otherwise transfer to any Subservicer or other 

Person or purport to assign, pledge or othcrwise transfer any interest in the servicing to the Loans 

(other than in conncction with the sale of any Loan), and any purported assignment, pledge or 

other transfer in violation of this provision shall be void ab initio and of no effect. 

(b) Managing Member Liable for Serviccr and Subservicers. Notwithstanding 

anything to the contrary contained hcrcin, the use of any Servicer (or any Subservieer) shall not 

release the Managing Member from any of its Servicing Obligations or other obligations under 

this Agreement, and the Managing Membcr shall remain responsible and liable for all acts and 

omissions of each Scrvicer (and each Subservicer of each Servicer) as fully as if such acts and 

the Managing Member. All actions of each Servicer (or any Subserviccr) omissions were those of 


performed pursuant to thc Servicing Agreemcnt (or any Subservicing Agrecment) shall be
 

the Managing Member (or, in the case ofSubservicers, the Servicer). performed as an agent of 


(c) Copies of Servicing and Subservicing AL1feements. Copies of all fully
 

executed Servicing Agreements and Subservieing Agreements, including all supplements and 

amendments thereto, shall be provided to the Initial Member, the Purchase Money Note Guarantor 

and the Lender under the Advance Facility. 

(d) Regulation AB Requircments. The Managing Member shall use
 finn, wherc applicable, that each Scrvicer (and any commcrcially reasonable efforts to con 


Subserviccr) (a) has in place policies and proccdures to comply with the provisions of 

Section i I 22(d)( I )(i), (ii) and (iv) of Regulation AB, and provide to the Managing Membcr at the 

Servicer's expense the annual reports (including the independent accountant report) required 

under Section 1122 of Regulation AB (regardless of whether any such requircments apply, by 

their terms, only to companies registered or required to file reports with thc Securities and 

Exchange Commission) and (b) complies with Section 1122(d)(2)(i) through (vii), Regulation AB. Section 1122(d)(3)(i) through (iv) and Section 1122(d)(4)(i) through (xiv) of 


(e) Servicer and Subscrvicer Fees. No Scrviccr or Subscrvicer shall be paid
 

any fees or indemnified out of any Loan Procceds, it being understood that all fees and rclated 

costs of liabilities of thc Scrvicers and Subscrviccrs shall bc the sole responsibility of the 

Managing Member.
 

(f) Fidelity Bond; E&O Insurance. The Scrviecr and each Subscrviccr shall
 

maintain each of 
 the following types of insurance coverage having such limits as described below:

(i) Enors & Omissions Liability with limits of not less than 

$10,000,000 per claim and S i 0,000.000 in the aggregate. The Managing Member 

shall be notified immcdiately upon the reduction of or potential reduction of 50% 

of the limits. The Managing Member may require that Servicer and each 

Subserviccr purchase additional limits to provide back to thc rcquired limits as 

44 

I)(K"II USI576j6",,1 I 
stated above. "Potential reduction of 50%" shall mean any knowledgc by the 

Servicer or Subservicer, as applicable, that a claim or the sum of all claims, 

current or initiated aftcr effective date of policy whieh would reduce the limits by 

50%. 

(ii) Directors & Offcers Liability with limits of not less than
 

$ i 0,000,000 each claim and $10,000,000 in thc aggregate. 

(iii) Crime Insurance or a Fidelity Bond in an amount of not less than
 

$10,000,000 eovering employee theft, forgery & alteration, wire/funds transfer, 

computer fraud, client coverage. Such coverage shall insure all employecs or any 

other persons authorized by Servicer to handle any funds, money, doeuments and 

papers relating to any Loan, and shall protect the Servieer or Subservicer, as 

theft, embczzlement, fraud, misplacement, applieable, against losses arising out of 


and other similar eauscs. The Managing Member shall be named as loss payee 

with respect to claims arising out of assets handled under this 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 Managing 

Member shall be named as additional insurcd. Policy shall include a Waiver of 

the Managing Member. Subrogation in favor of 


(v) Auto Liability with a combined single limit of not less than 

$~ ,000,000 to provide coverage for any owned, hired, or non-owned vehicles. 

(vi) Workers Compensation in such amount as required by the states in 

which the Servicer or Subservicer, as applicable, operates, including coverage for 

Employer's Liability in an amount not less than, $1.000,000. Policy shall include 

a Waiver of Subrogation in favorofPCCP, LLC.

(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 carrers having a minimum insurer rating of A- VII 

from A.M. Best and A from Standard & Poor's. All such policies shall have a minimum 

noticc of eancellation of thirty (30) days, cxcept for non-paymcnt of premium whereby a ten 

(10) day notice of cancellation is acceptable. Within ten (i 0) days of execution of this 

Agrccment, and annually upon the renewal of each policy when rcqucsted by the Managing 

Member, the Servicer and each Subscrviccr shall delivcr to the Managing Member copies of 

certificates cvidencing all such policies. In addition, within ninety (90) days of cxecution of 

this Agreement, and thereafter when requcstcd by the Managing Member, Servicer shall 

deliver to the Managing Member complete copies of such policies. Certificatcs shall show 

the Managing Member as Certificate Holder, or as othcrwise designated by thc languagc in 

clauses (iHvii) above.
 

45 

r~'C11 lisi :57~561Rvll 
12.4 Removal of Servicer.
 

(a) Removal of Serviccr. Upon the oceurrence of an Event of Default, in
 

addition to any othcr rights it may have pursuant to this Agreement, any Ancillary Document or 

applieable Law (including the Uniform Commereial Code), whether at law or in equity and 

whcther pursuant to statute or regulation or otherwise, the Initial Member shall have the right to the following actions: (i) upon notice in take, at the Managing Member's expense, one or more of 


writing to the Managing Member (effcetive at such time as is specified in such notice), to act on 

behalf of the Managing Member to terminate the existing Servicer (and any Subservieers) and to 

eause the Managing Member to enter into a new Servicing Agreement with a servieer (a 

"successor Servicer") selected by Initial Member (in its sole and absolute discretion), and 

(ii) upon notice in writing to the Managing Membcr (effective at such time as is specified in such 

notice), to terminate the Managing Member"s rights as servicer pursuant to this Agrcement and, in 

such case, (A) to terminate the Servicer and selcct (in its sole and absolute discretion), and enter 

into a Servicing Agreement with, a successor Scrvicer, such Servicing Agreement to be between 

Initial Member and the successor Scrvicer chosen by Initial Mcmber, or (B) to retain the existing 

Serviccr and to enter into a new Scrvicing Agreement between Initial Member and the Servicer 

(or to effeet an assignment of the existing Servicing Agreement from the Managing Member to 

Initial Member). Initial Member shall havc no obligation to assume any obligations or liabilities 

of the Managing Member under or in conncction with any Servicing Agreement. Managing 

Member hercby consents to the immediate tcnnination of the Servieer upon the occurrence of any 

Event of Default. For the avoidancc 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 and 3.14. 

(b) Appointment of Successor Strvicer. If Initial Member cxercises its right 

to act on behalf of thc Managing Member to appoint a successor Servicer, the costs and expenses 

associated with such succcssor Serviccr (including any servicing fees) shall be borne by the 

Managing Member (and not the Company or the Initial Member), and no tennination or other fec 

shall be due to the Managing Member or the Servicer or any Subservicer in connection with or as 

a result of any such action. 

(c) Termination of Managing Membcr's Rights as Servicer. If the Initial 

Member excrcises its iight pursuant to this Section 12.4 to terminate the Managing Mcmber's 

rights as servicer under this Agreement, all authority and power of the Managing Membcr to act 

as servieer under this Agreement shall pass to and be vested in the Initial Mcmber under this 

Section 12.4 and, without limitation, the Initial Member is hereby authorized and empowered, as 

attorney-in-faet or otherwise, to executc and deliver, on behalf of and at the expense of the 

Managing Member, any and all documents and other instruments and to do or take any and all acts 

nccessary or appropriate to effect the termination and replacemcnt of the Servicer and, in the event 

the Initial Membcr decides to retain a new Servicer, to enter into a new Servicing Agrccment 

betwcen the Initial Member and thc Servicer or to effect an assignment of the existing Scrvicing 

Agreement from the Managing Member to the Initial Member. 

(d) Cooperation To Facilitate Transfer. In the event a Servicer or Subservicer
 

is terminated pursuant to the provisions of this Article Xli, the Managing Membcr shan, and shall 

cause any Servicer (and any Subservicer) to, provide the Initial Mcmber and any successor 

46 

ll"cll.lJSI576561~"ll 
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 Servicer to enable it and any 

successor Servicer to assume the responsibilities as servicer under this Agreement, and to 

cooperate with the Initial Member in effecting the termination of any Servicer (or Subservicer) or 

the Managing Mcmber's rights as servieer under this Agreement, including (x) the transfer within 

one (I) Business Day 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 Loans or Acquired 

Collateral, and (y) the transfer of all lockbox accounts with respect to which payments or other 

amounts with respect to the Loans arc directed or the redirection of all such payments and other 

amounts to such account as the Initial Member may specify, and (z) thc assignment to the Initial 

Member of the right to access all such lockbox accounts, the Collection Account, any Defeasance 

Account, and any other aceount into which Loan Proceeds or Borrower escrow payments are 

deposited or held. The Managing Member shall bc liable for all costs and expenses incurred by the 

Initial Member (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 eorrect errors 

or insufficiencies in thc scrvicing data to enable thc Initial Member and any successor Servicer 

(and Subservicers) to service the Loans and Acquired Collateral properly and effectively, and 

(z) to retain and maintain the services of a successor Servicer (and any Subservicers). Within a 

reasonable time after receipt of a written request of the Managing Member for the same, the Initial 

Member shall provide reasonable documentation evidencing such costs and expenses. 

(e) Power of Attorney. The Company hereby irrevocably constitutes and 

appoints the Initial Member and any offcer or agent thereof, with full power of substitution, as its 

true and lawful attorney-in-fact for the purposes of this Ai:rreement and allowing the Initial 

Member to pertcet, prcserve the validity, perfection and priority ot~ and enforce any Lien grantcd 

by this Agreement and, after the occurrcnec and during thc continuance of any Event of Default, 

to exercise its rights, rcmcdies and powers and privileges under this Agreement. This appointment 

as attorney-in-fact is irrcvocablc and coupled with an interest until this Agreement is tenninated 

and the security intcrests 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, 

Seeurity and Guaranty Agreement, thc Initial Member shall be cntitled 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, receivc and give receipt and discharge for amounts due and to become 

due undcr and in respect of any or all of the Loans; (ii) file any claims or takc any action or 

proceeding in any court of law or equity that the Initial Member may reasonably deem necessary 

or advisable for the collection or other enforcement of all or any part of the Loans, defcnd any 

suit, action or proceeding brought against thc Company with respect to any Loan, and settle, 

compromise or adjust any such suit, action or proceeding; (iii) execute, in connection with any 

sale or disposition of the Loans, any endorsements, assignments, bills of sale or other instruments 

of conveyance or transfer with respect to all or any part of the Loans; (iv) enforce the rights of the 

Company under any provision of any Servicing Agreement to the cxtent pennitted thcreunder and 

under the tenns of this Agreement; (v) payor discharge taxes and Liens levied or placed on the 

Loans; (vi) generally, sell, transfer, pledge and makc any agreement with rcspect to or otheywise 

deal with any of the Loans as fully and completcly as though the Initial Member wcre the absolute 

owner thereof for all purposcs; 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 Loans and thc Initial Member"s security 

47
 

DocN l.S I.) 76S(lUh 11 
interests in any Secured Assets and to effeet 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 Seetion 12.4(e) unless an Evcnt of Default shall have occurred and be 

continuing. 

12.5 Management Fee. During the Servicing Support Period (as 

defined in Section 4.1 of the Contribution Agreement), the Company shall pay to the Initial 

the Management Fee and the Managing Member an amount 

equal to 50% of the Management Fee with respect to such period. Following the end of the the Management Fee to the Managing 

Member an amount equal to 50% of 


Servieing Support Period, the Company shall pay 100% of 


Member. In thc event the Managing Member is removed and replaced by the Initial Member in 

aecordance with Section 3.2 above, the Management Fee shall thereafter be payable to the Initial 

Member or successor Managing Member. 

12.6 Servicing Expenses. From and after the Closing Date, 

(a) the Company shall pay all amounts due as Servicing Expenscs in a timely manner and (b) all 

Servicing Expenses shall be funded or reimbursed in accordance with the Custodial and Paying 

Agency Agreement. 

i 2.7 Use of Loan Proceeds.
 

(a) Permitted Payments. Subjcct to Section 12.7(b), each month the Loan
 

Proceeds shall be utilized and distributed in thc manner set forth in thc Custodial and Paying 

Agency Agreemcnt following receipt by the Paying Agent from the Managing Member of thc 

Distribution Date Report requircd 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 Ancillary Document, without the prior written consent of the 

Initial Member (which may be withheld in the Initial Mcmber's sole and absolute discretion), in 

no event may the Managing Mcmber deduct, from the Loan Proceeds, or otherwise use Loan 

Proceeds to reimburse itself or any Servicer or Subservicer or pay for, any of the following (all of 

which shall be borne by the Managing Member) (collectively, the "Excluded Expenses"): 

(i) any expenses or costs that are in excess of the relevant amounts
 

provided for in, an Approved Business Plan (assuming that the applicable 

category of fees, costs or expenses arc included in the applicable Approved 

Business Plan) or that are not pcrmitted to be incurred by the Company or the 

Managing Membcr (or any Serviccr or Subscrvieer thereof) under the Advance 

Facility; 

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

Servicing Standard; 

(iii) any expcnses or costs that are paid to any Affliate of the
 

Managing Member, or any Affiliate of any Servicer or any Subscrvicer, except 

that Excluded Expenses shall not include (x) any fees paid to any Affliate of the 

48 

I )"o/! IISI57(,56~Rvll 
Managing Member, the Company, the Servicer or any Subservicer that is a 

property managcr of an REO Property, provided, that the terms and conditions of 

any such property management agreement pursuant to which such fees are 

payable (including the amount ofthc fces thereunder) are arm's length terms and 

conditions that are not less favorable to the applicable Ownership Entity than the 

terms and conditions of property managcment agreements with unrelated third 

paries would be and such property management arrangement was contemplated 

by an Approved Business Plan, or (y) any other payments to such Affliates as 

may otherwise be exprcssly provided herein; 

(iv) any fees or other compensation to or expenses of finaneial
 

advisers, except to the extent the same are incurred as brokerage fees or sales 

commissions incurred (x) to market or sell thc Loans or any Acquired Collateral 

in a Bulk Sale, the terms of which Bulk Sale (including the financial adviser's or 

broker's fees) are approved in advance by the Initial Member); and (y) in 

connection with the markcting or sale of any Acquired Collateral (including any 

REO Property) or any portion thereof on an individual basis; 

(v) any fine, tax or other penalty, late fee, service charge, interest or 

similar charge, costs to release Liens or any othcr costs or expenses (including 

legal fees and cxpenses) incurred by or on behalf of the Company or the 

Managing Member as a result of the Company's or the Managing Member's or 

the Servicer's or any Subservicer's failure to service any Loan or Collateral 

properly in accordance with the applicable Loan Documents, this Agreement, the 

Servicing Agreemcnt, any Subservicing Agreement or otherwise, or failure to 

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

manner; 

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

Servicing Expenses or Pre-Approved Charges; 

(vii) any overhcad or administrative costs incurred by the Company, the
 

Managing Member or any other Person (including any expenses incurred by the 

Managing Mcmber, the Company or any Scrviecr or Subservicer to comply with 

Section 4.3, Section 7.2, Section 7.3 and Section 7.4); or 

(viii) any servicing, management or similar fees paid to the Servicer, any 

Subservicer or any other Person, other than any fees paid to any property
 

managers of any REO Properties as otherwise expressly permittcd. 

12.8 Collection Account. On the Closing Date, the Managing
 

Member 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 subjcet to the security interest granted under the 

Reimbursement. Security and Guaranty Agreement and to thc Account Control Agreement under 

thc Custodial and Paying Agency Agreement. 

49 

Doeii liS 15?6S6.~~v11 
12.9 Distribution Account. On the Closing Date, the Managing
 

Membcr shall cause the Company to establish the Distrbution Account with the Paying Agent in 

aecordance 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 Managing
 

Member shall cause the Company to establish the Defeasance Account with the Paying Agent in 

aecordance with the Custodial and Paying Agency Agreement. The Defeasance Account (and all 

funds thercin) shall be subject to the security interest granted under the Reimbursement, Security 

and Guaranty Agrecment 

12.11 Certain Servicing and Loan Administration Decisions. Thc 

Managing Member shall have full power and authority, acting alone or through any Servicer or 

Subserviccr, to cause to bc done any and all things in conneetion with the servicing and 

administration of the Loans that the Managing Member may deem necessary or desirable, and 

eause to bc madc all servicing decisions in its reasonable discretion, subjeet to its obligation to 

comply with the Scrvicing Standards, provided, that, the Managing Membcr shall not and shall 

not cause any Servicer or any Subservicer to take any action that is inconsistent with the terms of 

the Advance Facility or any applicable Approved Business Plans, without first obtaining the 

the Purchase Money Note Guarantor and the Administrative Agent under the Advance 

Facility. Upon the occurrence of an evcnt of default under any of the Loan Documents, but 

subject to thc other terms and conditions of this Agreement (including the Servicing Standard), 

the Managing Member shall cause to be deteimined the rcsponse to such default and eourse of 

consent of 


action with respect to such dcfault, 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 Loan and the Collateral, (ii) the declaration and recording of a notice of such 

default and thc accelcration of thc maturity of the Loan, (iii) the institution of proceedings to 

foreclose the Loan Documents securing the Loan pursuant to the power of sale eontained therein 

or through a judicial action, (iv) the institution of proceedings against any Guarantor, (v) the 

aeceptance of a decd in lieu of foreclosure, (vi) the purchase of the real property Collatcral at a

foreclosure sale or trustee's sale or the purchase of 
 the personal property Collateral at a Uniform

Commercial Codc sale, and (vii) thc institution or continuation of proceedings to obtain a 

deficiency jud¡"'1nent against such Borrower or any Guarantor. Notwithstanding any provision to 

the contrary herein, thc Managing Member shall not, and shall not cause any Scrvicer or 

Subscrvicer to, takc any action that is inconsistent with or prohibited by the tenns of the 

Advancc Facility or the Reimburscment, Security and Guaranty Agreemcnt without the prior 

written consent of 
 the Initial Mcmbcr and the Lcndcr.

12.12 Management and Disposition of Collatcral. Subject to the 

other terms and conditions of this Agrecment (including the Servicing Standard), thc Advance 

Facility and the Rcimburscment, Security and Guaranty Agreement, the Managing Member shall 

havc full power and authority, acting alone or through any Servicer and any Subservicer, to 

cause to be done any and all things in connection with the Managing Member's management of 

50 

\)oell lIS1:snS61~\11 
any Collateral or Acquired Collateral, that the Managing Member may deem neeessary or 

desirable, and cause to be made all asset management decisions in its reasonable discretion. 

12.13 Acquisition of CollateraL. 

(a) If title to any Collateral that constitutes real property is to be acquired by
 

foreclosure, by deed in lieu of foreclosure, by power of sale or by sale pursuant to the Uniform 

Commercial Code, or otherwise, title to such Acquired Collatcral shall be taken and held in the 

name of an Ownership Entity; provided, however, that for any Collateral with respect to which 

there exists any Environmental Hazard, the Ownership Entity that holds such Collateral may hold 

title only to the relevant Collateral with respect to which the Environmental Hazard exists. 

(b) Nothing in this Article XII or anything else in this Agreement shall bc
 

deemed to affrmatively require the Managing Member to cause the Company to acquire all or any 

portion of any Collateral with respect to which there exists any Environmental Hazard. Prior to 

acquisition of title to any Collateral (whether by foreclosure, deed in lieu of foreclosure, by power 

of salc or by sale pursuant to the Uniform Commercial Code, or otherwise), the Managing
 

Mcmber shall cause to be commissioned with respect to sueh Collateral either (i) a Transaetion 

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

(ii) such other sitc inspections and assessments by a Person who regularly conducts environmental 

audits using customary industry standards as would customarily be undcrtaken or obtained by a 

prudent lender in order to ascertain whether thcre are any aetual or threatened Environmental
 

Hazards (a "Site Assessmenf'), and the cost of such Site Assessment shall be deemed to be a 

Scrvicing Expense as long as the costs for such Sitc Assessment were not paid to any Affiliate of 

the Serviccr or any Subservicer. thc Managing Member, or any Affiliate of 


(c) The Company shall be the sole member of any Ownership Entity. The 

purposes of each Ownership Entity shall bc to hold the Acquired Collateral pending sale, to 

complete construction of such Collateral and to operate the Collateral as effciently as possible in 

order to minimize financial loss to the Company, the Lcnder undcr the Advance Facility and the 

Purchase Money Note Guarantor and to scll the Acquired Collateral as promptly as practicable in 

a way designed to minimize financial loss to the Company, the Lendcr under the Advance Facility 

and the Note Guarantor. 

12.14 Releases of CollateraL. Managing Member is authorized to
 

cause the release or assignment of any Lien granted to or held by the Company on any Collateral 

upon payment of any Loan in full and satisfaction in full of all of the securcd obligations with 

rcspect to a Loan, upon receipt of a discounted payoff as paymcnt in full of a Loan, or upon a 

sale of the Loan to any Person, in each casc as and to the extent pemiitted hereunder and under 

the Advance Facility and the Reimbursemcnt, Security and Guaranty Agrccmcnt. 

12. i 5 Clean-Up Call Rights. 

(a) If, and only if, all amounts owing under the Purchase Money Notcs and
 

the Advance Facility have paid in full, and all reimburscment and other obligations to the FDIC 

undcr the Rcimbursement, Security and Guaranty Agreement and the Advance Facility have been 

satisfied in full, the Initial Membcr shall have the right, exercisable in its sole and absolute 

51 

r-x'eN i IS 1:5 76'6 '~\'11 
discretion, to requirc the liquidation and sale, for cash consideration, of any remaining Loans and 

Acquircd Collateral held by the Company or any Ownership Entity (the "Clean-Up Call") at any 

time aftcr the tenth (loth) anniversary of the Closing Datc. 

(b) In order to exercise its rights undcr this Section 12.15, Initial Member
 

shall give notice in writing to thc Managing Member, setting forth the date by which the 

remaining Loans and Acquired Collatcral arc to be liquidated by the Company, which date shall 

be no less than 150 calendar days after the date of such notice. 

(c) The Managing Member shall proceed expeditiously to cause to be 

commenced the liquidation of the remaining Loans and Acquired Collateral by means of sealcd 

bid sales to Persons other than Affliates 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 Loans and Acquired 

Collateral pursuant to this Section 12. i 5 shall be subject to the prior approval of Initial Member, 

such approval not to be unreasonably withheld, delayed or conditioned as long as the fees to be 

charged by such financial adviscr or othcr Person, broker or sales agent are reasonable and such 

Person is not an Affliate of the Managing Member or any Servicer or Subservieer. In the event 

the remaining Loans and Aequired Collateral are not liquidated by the date specified in the notice 

provided by Initial Member pursuant to Section 12. I 5(b ), Initial Member shall be entitled to 

liquidate the remaining Loans and Acquired Collateral in its discretion and Managing Member 

shall, and shall cause the Company to, cooperate and assist with such liquidation to the extent 

reasonably requested by Initial Member. In the event the Managing Member or any Affiliate 

thereof desires to bid to acquire the remaining Loans and Acquired Collateral, then Initial Member 

shall be entitled to liquidate the remaining Loans and Acquired Collateral in its discretion. In the 

event Initial Member undertakes to liquidate the remaining Loans and Acquired Collateral 

pursuant to this Section i 2.15(c), all costs and expenses incurred by it shall be deducted from the 

Loan Proceeds and retained by Initial Member and the remaining Loan Proceeds shall be 

distributed in accordance with Section 9.2. 

ARTICLE XIII
 

Miscellaneous
 

13.1 Waiver of Rights of Partition and Dissolution. Each 

Member.(other than the Initial Member) hcreby irrevocably waives all rights it may have at any 

timc to maintain any action for division or sale of the Company Propei1y as now or hereafter 

pennitted under any applicable Law. Each Member (other than the Initial Member) hereby 

waives and rcnounces its rights to seek a court decree of dissolution or to seek the appointment 

of a court receiver for the Company as now or hereafter permitted under any applicable Law. 

13.2 Entire Agreement; Other Agreements.
 

(a) This Ab1feement, together with the Annexes and Exhibits hereto and the
 

Ancillary Documents (and any other agrecments 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 Affliates or 

any of them and the Company with respect to the subject matter hereof; provided that, the 

52 

Doell lJSI57656)~vll 
Confidentiality Agreement, dated August 27, 2009, between the FDIC and the Affiliates of the 

Private Owner named therein (including by way of joindcr) 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 

sueh Confidentiality Agreement. The Members aeknowledgc that certain agreements or other 

instruments are being (or were) executed by the Company, the Members and/or Affliates of the 

Members simultaneously or otherwise in connection with the execution of this Agrcement and 

that notwithstanding anything to the contrary contained in the foregoing sentence of this 

Seetion 13.2, such agreements shall be effeetive and binding on the parties thereto in accordance 

with the terms thcreof. 

(b) By executing this Agrecment, the Managing Member agrees to be bound
 

by the terms of thc Ancillar Documcnts pursuant to which the Managing Mcmber is expressly 

required to take or omit from taking certain actions, as in each case, with the same effect as if the 

Managing Member were a party to such Aneillary Document. 

13.3 Governing Law; Jurisdiction. THIS AGREEMENT IS
 

GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF 

THE STATE OF DELAWARE, EXCLUorNG ANY CONFLICT-OF-LAWS RULE OR
 

PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF 

THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event of a direct 

this Agreement and any mandatory, non-waivablc 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 rcquire any unlawful action or inaction by any Person. 

conflict between the provisions of 


13.4 Third Party Beneficiaries. For so long as any obligations 

remain outstanding under the Purchase Money Note Guaranty or the Advance Facility, each of 

the Purehase Money Note Guarantor and thc Lender, as applicable, is hereby constituted an 

express third party beneficiary of this Agreement. Subject to Section 11.1 and to thc 

immediately preceding sentence, (i) this Agreement is for the bcnefit solely of, and shall inure 

solely to the benefit of, the Membcrs and the Company, and (ii) this Ai:Tfeement is not 

cnforceable by any Person (including any creditor of the Company or of any Member) other than 

the Members and the Company. 

13.5 Expenses. Except as may otherwise bc cxpressly provided
 

herein or in any Ancillary Documcnt, each Member shall pay its own expenscs (including legal, 

accounting investment banker, broker or finders fees) incident to the negotiation and execution 

of this Agrccment and the Ancillary Documents, the consummation of the transactions 

contemplatcd by Section 2.3 hereof and the performance of its obligations hereunder. 

13.6 Waivers and Amendmcnts.
 

(a) This Agreement may be amended or modified, and thc tenns hereof may
 

be waived, only by a written instrumcnt signed by all Membcrs, provided, that, following an 

Evcnt of Dcfault, this Agreement may bc amcnded, modificd and the tcrms hereof may be waived 

by a writtcn instrument signed only by the Initial Member as long as such amendment, 

modification or waiver would not (i) advcrsely affcct the Private Owner's or the Company's 

53 

DocU US! j76S61~d I 
limited liability status; (ii) adversely affect the Privatc Owner's share of the Company's 

distributions, income, gains or losscs; (iii) impose on the Private Owner any additional obligations 

or (iv) amend Section 3.14 or this Section 13.16. Except where a specific period for action or 

inaetion is provided herein, no failure on the part of the Members to exercise, and no delay on the 

part of the Members in exercising, any right, power or privilege hereunder shall opcrate as a 

waiver thereof; nor shall any waiver on the part of the Members of any such right, power or 

privilege, or any single or parial exercise of any such right, power or privilege, precludc any other 

or further exercise thereof or the exercise of any other right, power or privilege. 

(b) Notwithstanding anything to contrary eontained elsewhere in this
 

Agreement (including without limitation the foregoing Section 13.6(a)) or in any Ancillary 

Document, but subject to the restrictions in Section 9 .4(b) of the Contribution Agrecment, in order 

to facilitate the possible restructuring and sale of thc Purchase Money Notes, thc FDIC, without 

the consent of the Private Owner or the Company, may at any time cause the Company to rcplaee 

or reissue the Purchase Money Notes (or any promissory notc reissued in respect thereof) pursuant 

to Section 2.8 of 
 the Custodial and Paying Agency Agreement.

13.7 Notices. All notices, requests, demands, and other
 

communications requircd or permitted to be given or delivered under or by rcason of the
 

provisions of this Agreement shall be in writing and shall be mailed or delivcred to the
 

applieable address or electronic mail address of the parties specified below for such Pcrson or to 

such other address or electronic mail address as shall be designatcd by such party in a notice to 

the other parties. All such notices and other communications shall be deemed to be givcn or 

made upon the earlier to occur of (i) actual receipt (or rcfusal thereof) by the relevant party 

hereto and (ii) (A) if delivercd by hand or by nationally recognized courier service, when signcd 

(or rcfused) for by or on behalf of the relevant party hereto; (B) if delivered by mail, four (4) 

Business Days after deposit in thc mails, postage prepaid; and (C) if delivered by electronic mail 

(whieh form of delivery is subject to thc provisions of this paragraph), when delivered. In no 

event shall a voice 
 mail message be effective as a notice, communication or confirmation

hereunder. 

I f to the Company, to: 

Corus Construction Venture, LLC 

591 West Putnam Avenue 

Greenwich, CT 06830
 

Attention: John McCarthy
 

Facsimile: (203) 422-7825
 

With a copy to: 

Rinaldi, Finkelstein & Franklin, LLC 

591 West Putnam Avcnue 

Grccnwich, CT 06830 

Attention: Ellis Rinaldi
 

Email Address:Rinaldi~Starwood.com
 

54 

rxx.;J: usl :576C,6~X,,11 
If to the Initial Member, to:

Scnior Capital Market Specialist 

e/o Federal Deposit Insurance Corporation 

550 17th Street, NW 

Room F-7026 

Washington, D.C. 20429-0002 

Attention: Timothy A. Krse 

Email Address: TKrse~fdic.gov 

With a copy to: 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 I ih Strect, NW 

Room F-7036 

Washington, D.C. 20429 

Attention: Robert W. MeComis 

Email Address: RMcommis(£fdie.gov 

With a copy to: 

Manager, Capital Markets & Resolutions 

c/o Fedcral Deposit Insurance Corporation 

550 17th Street, NW 

Room F-7008 

Washington, D.C. 20429-0002 

Attcntion: George C. Alexander 

Email Address: GAlcxander~fdie.gov 

With a copy to: 

Scnior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Seetion 

Special Issues Unit 

3501 Fairfax Drive 

Room E-7056
 

Arlington, VA 21226
 

Attention: David Gcarin
 

Email Address: DGcarin(£fdie.gov 

With a email copy to: 

Thomas Raburn 

Federal Deposit Insurance Corporation 

Email: TRaburn(£i;fdic.gov
 

55 

Doell. lJSU7~56'R,,11 
If to the Private Owner, to:

CCV Managing Member, LLC
 

591 West Putnam Avenue
 

Greenwich, CT 06830
 

Attention: John McCarthy
 

Facsimile: (203) 422-7825
 

13.8 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 neccssary for any counterpart to bear the signature of all parties hereto. 

(b) This Agreement and any amendments hereto, to the extent signed and
 

delivered by facsimile or other electronic means, shall be treated in all manner and respects as an 

original agreement and shall be considered to have the same binding legal effect as if it were the 

original signcd version thereof delivered in person. No signatory to this Agreement shall raise the 

use of a fàesimile machine or other electronic mcans to deliver a signature or the fact that any 

signature or ai:rreement was transmitted or communicated through the use of a facsimile machinc 

or other electronic means as a defense to the forniation or enforceability of a eontract and eaeh 

such Person forevcr waives any sueh defense. 

13.9 Successors and Assigns. Except as otherwise specifically
 

provided in this Agreement (including in Article VII), 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 effcct on the date that any 

particular Person shall ecase to be Member, shall continue to bind such Person in rclation to the 

period during which it was Member. 

13.10 Construction. 

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

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

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

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

(b) References. to Persons Exclusivc. Referenecs to "Affliates" or
 

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

time constitute "Affliates" 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, "Affliates." or "Subsidiaries." as the case may be. of such specified Person, except to the 

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

Pcrson, in and of itself, does not, and shall not be deemed to, refcr to or include any othcr Person 

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

mcmber of or partner in Membcr, or other Person). 

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

56 

IlnCR liS i 57r,'h'~v11 
(d) Refercnces to Laws. A reference in this Agreement to a Law includes any
 

amendment, modification or replacemcnt to such Law. 

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

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

which they refer. 

(t) References to Documents. References to any document, instrument or
 

agrcement (i) shall be deemed to include all appendiees, 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 givcn time. 

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


and "hereunder" and words of similar import when used in this Agreement shall refer to this this Agreement. Agreement as a whole and not to any particular provision of 


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

similar import when uscd 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 mcan commencing at the beginnìng of such period 

and continuing until the cnd of such period. 

13.11 Compliance With Law; Severability. 

(a) Compliance With Law. Except as otherwise specifically provided hcrcin, 

each party to this Agreemcnt shall obey and comply with all applicable Laws, as they may pertain 

its obligations hereunder. to such party's performance of 


(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 circumstanees, such
 

provision shall be ineffective, but only in such jurisdiction and only with respect to such particular 

Person or Persons and/or undcr such particular circumstance or circumstances, as the case may bc; 

(ii) without limitation of clause (i), such provision shall in any evcnt be ineffective only as to such 

jurisdiction and only to the extent of such prohibition or unenforceability, and such prohibition or 

unenforecability in such jurisdiction shall not invalidate or render uncnforceable such provision in 

any other jurisdiction; and (iii) without limitation of clauses (i) or (ii), such incffectiveness shall 

not invalidate any of the remaining provisions of this Agreement. Without limitation of the 

prcceding sentcnce, it is the intent of the parties to this Ahrrccment that in thc event that in any 

court proceeding, such court detennines 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 

57 

Ooff IISI :5765h:lRvll
 
sueh provision (including without limitation, to the extent applicable, by limiting the duration or 

scope of such provision and/or the Pcrsons against whom, and/or the eircumstances 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 

proeeeding and (y) enforce such provision, as so modified pursuant to clause (x), in such 

proeeeding. Nothing in this Section 13.11 (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 13.3. 

13.12 Power of Attorney. 

(a) Each Member does hereby eonstitute and appoint the Managing Member
 

as its true and lawful rcpresentative and attorney-in-fact, in its name, place and stead to make, 

executc, sign, acknowledge, deliver or file any certificate, document or other instrument that 

Member is required to execute and deliver pursuant to clause (a), (b), (c) or (d) of Section 4.3 

hereof. The foregoing notwithstanding, the Managing Member shall not have any right, power 

or authority to amend or modify this Agrcement. The power of attorney grantcd hereby is 

eoupled with an intercst and shall (i) survive and not be affected by the subsequent death,
 

incapacity, disability, dissolution, tcrmination or hankruptey of Member granting the samc or the 

transfcr of atl or any portion of Member's Interest and (ii) extend to Member's Successors, 

assigns and legal representatives. 

(b) The Company hcreby grants to the Managing Member a limited power of 

attorncy to exeeutc all documents on its behal f in accordance with the Servicing Standard set forth 

above and as may be necessary to cffectuate the Managing Member's obligations under 

Article XII until such time as the Company revokes said limited power of attorney. Rcvocation of 

the limited power of attorney shall take effect upon (i) the reeeipt by the Managing Membcr of 

written notice thereof from the Initial Member, or (ii) removal of the Managing Mcmber in 

accordance with the terms of this Agreement; provided, however, in the event of such removal, 

the power of attorncy granted hereunder shall thereafter automatically be vested in the succcssor 

or replacement Managing Member appointed in accordancc with this Agreement. 

13.13 hirisdiction: Venue and Service. 

(a) Each of the Managing Member, the Private Owner and the Company, on
 

behal f of itsel f and its Affiliates, hereby irrevocably and unconditionally: 

(i) conscnts to the jurisdiction of the United States District Court for
 

thc Southern District of New York and to the jurisdietion of the United States 

District Court for the District of Columbia for any suit, action or procceding 

against it or any of its Affliates commenccd by the Initial Membcr arising out of, 

relating to, or in connection with this Agreement or any Ancillary Document, and 

waives any right to: 

(A) remove or transfer such suit, action or procceding to any 

other court or dispute-resolution forum (other than the
 

58 

Doell LISI.'7656'~\'11
 
Court in which the Initial Member files the action, suit or 

the Initial Mcmber; proceeding) without the consent of 


(8) assert that venue is improper in either the United States
 

District Court for the Southern District of Ncw York or the 

Columbia; or United States District Court for the District of 


(C) assert that the United States District Court for the Southern 

Distriet 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 or any of its Affiliates 

commeneed by the Initial Member arising out of, relating to, or in connection 

with this Ai:rreement or any Ancillary Document, and waives any right to: 

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

other court or dispute-resolution forum without thc consent 

of the Initial Member; 

(B) assert that venue is improper in thc Chancery Court of the
 

Statc of Dclaware; or 

(C) assert that the Chanccry Court of the State of Delaware is
 

an inconvenient forum; 

(iii) agrces to bring any suit, action or procecding by thc Managing
 

ncr, the Company, or its Affliates against the Initial Member, the Private Ow 


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

Ancillary Document in only the United States District Court for the Southern 

District of New York or the United States District Court for thc District of 

Columbia, and waives any right to removc 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 thereaftcr to transfer of the suit, action 

or proeeeding to either the Unitcd States District Court for the Southern District 

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

the option of the Initial Member; and 

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


of New York and the Unitcd States District Court for thc District of Columbia 

both lack jurisdiction to hear a suit, action or procceding falling within
 

Section 13.13(a)(iii), to bring that suit, action or proceeding in only the Chanccry 

Court of thc State of Delaware, and waives any right to rcmove or transfer such 

suit, action or procecding to any othcr court or dispute-rcsolution forum without 

the consent of the Initial Membcr. 

(b) Each of the Managing Mcmber, thc Private Owner and the Company, on
 

behalf of itself and its Affliates, hereby irrevocably and unconditionally agrecs that any final 

59 

Ih,1I lIS157656'8vll
 
judgment entered against it in any suit, action or proceeding falling within Seetion I 3.13(a) may 

be enforced in any court of competent jurisdiction; 

(c) Subjeet to the provisions of Section 13.13(d), each of the Managing
 

Member, the Private Owner and the Company, on behalf of itself and its Affliates, and the Initial 

Member hereby irrevocably and uneonditionally agrees that serviee of all writs, process and 13(b) may summonses in any suit, action or proceeding pursuant to Seetion 13.13(a) or Section 13. 


oreertifiedmail, postage prepaid, to it at of copies thercofbyregistered be effected by the mailing 

its address for notices pursuant to Section 13.7 (with copies to such other Persons as specified 

therein); provided, however, that nothing contained in this Section 13.13(c) shall affect the right 

of any party to scrve process in any other manner permitted by Law; 

(d) Nothing in this Section 13.13 shall constitute consent to jurisdiction in any court by the FDIC, other than as expressly provided in Section 13.13(a)(iii) and 

Section 13.13(a)(iv), or in any way limit thc FDIC's right to remove, transfer, seek to dismiss, or 

otherwisc respond to any suit, action, or proceeding against it in any forum 

13.14 Waiver of Jury TriaL. EACH OF THE MEMBERS AND 

THE COMPANY, FOR ITSELF AND ITS AFFILIATES, 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 

ANCILLARY DOCUMENTS AND AGREES THAT ANY SUCH DISPUTE SHALL BE 

TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 

(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
 

60 

Dnc# LISI '57656'RvI i 
IN WITNESS WHEREOF, the paries have eaused this Agreement to be executed by 

their respective offcers or agents thereunto duly authorized on the date first above wrtten. 

FEDERA DEPOSIT INSURACE 

CORPORA TION, as Receiver for Corus 

Banlc, N .A.
 B

Name: imothy A. se
 

Title: Senior Capital Markets Specialist
 

CCV MANAGING MEMBER, LLC 

(As Member and Managing Member) 

By: 

Name: 

Title: 

CORUS CONSTRUCTION VENTURE, LLC 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, as Receiver for Corus Bank, 

N.A., as the Initial Member B

Title: Senior Capital Markets Specialist 

Coni- Amended and Restated LLC Agrment 
IN WITNESS WHEREOF, the paries have caused this Agreement to be executed by 

their respective offcers or agents thereunto duly authorized on the date first above wrtten. 

FEDERAL DEPOSIT INSURACE 

CORPORATION, as Receiver for Corus 

Bank,N.A. 

By: 

Name: Timothy A. Krse 

Title: Senior Capital Markets Specialist
 

CCV MANAGING MEMBER, LLC 

(As Member and Managing Member) B

Title: ""l\..:"" Go - P","S ."de...
 

CORUS CONSTRUCTION VENTURE, LLC 

FEDERA DEPOSIT INSURACE 

CORPORATION, as Receiver for Corus Bank, 

N.A., as the Initial Member 

By: 

Name: Timothy A. Krse 

Title: Senior Capital Markets Specialist 

CONS' Amened and Restate Ll AS"ement
 
Annex I
 

Certain Definitions
 

As used in the Agreement, the following terms have the following meanings
 

(terms defined in the singular to include the plural and vice versa and references in this Annex I 

to seetions constitute references to sections of the Agreement unless otherwise expressly 

indicated): 

"Acceptable Investment Rating" shall mean any of the top three rating 

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

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

for construction loan servicers by Standard and Poor's Ratings Service, a division of The 

MeGraw-Hill Companies, Inc., (ii) a rating of "Acceptable" for construction loan servicers by 

Fitch, Inc., or (iii) a rating of "Approved" for construction loan servicers by Moody's Investors 

Service. 

"Account Control Agreement" shall have the meaning given in the Custodial 

and Paying Agency Agreemcnt. 

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

Company. 

"Acquired Collateral" shall mean (i) Collatcral to which title is acquired by or 

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

foreclosure, by deed in lieu of foreclosure, by powcr of sale or by sale pursuant to the Uniform 

Commcrcial Code; (ii) the equity intercsts in the Ownership Entities and (iii) the assets held 

directly or indirectly by the Ownership Entities. 

"Act" shall mean the Delaware Limitcd Liability Company Act, 6 DeL. C. §§ 18­

101 et~.
 

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

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

Year, after giving effect to the following adjustments: 

(A) Crcdit to such Capital Account any amounts that such Mcmber is
 

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

Regulations Scctions 1.704-2(g)( i) and 1.704-2(i)(5); and 

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

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

foregoing definition of Adjusted Capital Account Deficit is intcnded with the provisions 

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

therewith. 

"Advance Facilty" shall have the meaning given in the preamble. 

1- I 

I)oell IJS1.5765(',~\'11 
"Affliate" shall mean, with rcspect to any specificd Person, (i) any other Person
 

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

Person, (ii) any Person owning or Controlling ten percent (l0%) or more of the outstanding 

voting securities, voting equity interests, or beneficial intcrests of thc Person specified, (iii) any the Person offcer, direetor, general partner, managing member, trustee, employee or promoter of 


specified or any Immediate Family Member of such offcer, director, general partner, managing 

member, trustee, cmployee or promoter, (iv) any corporation, partnership, limited liability 

company or trust for which any Person referred to in clause (ii) or (iii) acts in that capacity, or 

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

of ten percent (I 0%) or more of the outstanding voting securities, voting equity interests or 

beneficial interests of any Person described in clauscs (i) through (iv); provided, however, that 

for purposes of this Agreement, none of the Initial Member, the Purchase Money Note 

Guarantor, the initial Lender under the Advance Facility, the administrative agent under the 

Advance Facility or the collateral agent under the Reimbursemcnt, Security and Guaranty the Company. the Company or any Affiliate of
 Agreement shall be deemed to bc Affliatcs of 


"Agreement" shall have thc mcaning given in the preamble. 

"Ancilary Documents" shall mean the Contribution Agreemcnt, the Servicing 

Agreement, the Custodial and Paying Agency Agreement, onc or more Account Control 

Agreements, the LLC Intcrcst Sale Agreement, the Purchase Money Notes (and any promissory 

note reissued in respect thereof pursuant to Section 2.8 of thc Custodial and Paying Agency 

Agreement), the Advance Facility and the Reimbursement, Security and Guaranty Agreement, in 

caeh ease onee cxccuted and delivered, and any and all other agreemcnts and instruments
 

cxecuted and delivered in connection with the Closing or the transactions contemplated thereby. 

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

Facility. 

"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 fcderal income tax purposes; provided, howevcr, that the Book Values of 

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

with the rules set forth in Section l.704-I(b)(2)(iv)(f) of the Trcasury Rcgulations, exccpt as 

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

Intcrest 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 conncction with the the actual liquidation of the all or part of such Member's Intcrcst; or (c) the date of
 redemption of 


Company within the meaning of Section L. 704-1 (b )(2)(ii)(g) of the Treasury Rcgulations; and 

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

Managing Member reasonably determines, after consultation with the Initial Member, that such 

adjustments are necessary or appropriate to reflect the relative economic intcrests of the 

Members. The Book Value of any Company Property distributed to any Member shall be such date. adjusted immediately prior to such distribution to equal its Fair Market Value as of 


"Borrower" shall mean any borrower or othcr obligor with respcct to any Loan. 

1-2 

Dorff liS U 76,6~~vll 
"Bulk Sale" shall mean the sale or other disposition, in a single transaction or a 

series of related transactions, of (i) Loans having an aggregate Unpaid Principal Balancc of 

$100,000,000 or more as of the time of such sale or disposition or (ii) Collateral or Acquired 

Collateral (including REO Property), or any portion thereof, having an aggregate value of 

$100,000,000 or more (based on the most recent appraisal price or broker opinion) as of the timc 

of such sale or disposition. 

"Business" shall mean the acquisition of the Loans pursuant to the Contribution 

Agreement and the ownership, servicing, administration, management and liquidation of the 

Loans. 

"Business Day" shall mean any day except a Saturday, Sunday or other day on 

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

required or authorized by Law to close. 

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

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

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

Interests, as provided in greater detail in Section 6.2and elsewhere in this Agreement. 

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

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

Contribution Agrccment, or this Agreement. 

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

"Change of Control" shall mcan, except as otherwisc agreed to in writing by the 

Initial Member: 

(i) the failurc of VIIICB Co-Invest, L.L.c. (including any successor
 

thereto, the "Starwood Member") and its Perniitted Transferecs to own at least 

50.1 % of the equity intcrests of NI held by the Starwood Member immediately 

following the Closing; 

(ii) the failure of TPG VI SD ll, L.P., TPG V SD, L.P. and TPG
 

Opportunity Fund II, L.P., (including any sueccssor to either, collectively, the 

"TPG Member") and its Permitted Transferees to own at Icast 50.1 % ofthc equity 

intcrests ofNI held by the TPG Member immediately following the Closing; 

(iii) thc acquisition or ownership by any Person and its Afìliatcs, other
 

than the Starwood Member or the TPG Member or their respective Permitted 

Transferees, of common or other voting equity interests of Nl in execss of the 

lesser of (i) an amount representing more than 25% of the total outstanding 

common or other voting equity interests of NI, (ii) for so long as the TPG 

Membcr is, or is entitled to become a, co-managing membcr of the Managing 

Member, the lesser of the amounts of common equity interests of NI held by 

either the Starwood Member or the TPG Member and their respectivc Pcrmitted 

1-3 

Do:/1 IISI ,76'6'~\'11 
Transferecs or (iii) in the event the TPG Member no longer has such right, the 

greater of the amounts of eommon or other voting equity interests of NI held by 

either the StaTWood Member or the TPG Member and their respective Permittcd 

Transferees; 

(iv) any amendment or modification to, or waiver (express or implied) 

of, (A) Section 4.1 (e) of the NI Operating Agreement relating to the resolution of 

disputes between the NI managing member and the NI co-managing member as 

contemplated thereby (or any succcssor provision) or (B) the provisos contained 

in Section 4.1 
 i the NI Operating Agreement (or any (b)(ii)(2), (5), (11) or (12) of 

suceessor provision); 

(v) the failure of NI to own 100% of the equity interests of CCV
 

Managing Member LLC; or 

(vi) the failure of the FDIC to consent to thc appointment of any
 the StaTWood successor managing membcr of NI ifboth the applicable Affiliate of 


Member and the applicable Affiiate of thc TPG Member are eithcr removed or 

resign as Nl managing mcmbcr or NI co-managing member, respectively. 

"Clean-up Call" shall have the meaning set forth in Section 12.15. 

"Closing" shall mean the consummation of the transactions contemplated in the 

LLC Interest Sale Agreemcnt. 

"Closing Date" shall have thc meaning given in the preamble. 

"Code" shall mean the United States Internal Revenue Code of 1986, as amended. 

"Collaterar' shall mcan any and all real or pcrsonal property, whether tangible or 

intangible, securing or pledged to secure a Loan, including any account, equipment, guarantce or 

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

and, as the contcxt rcquircs, includes Acquired Collatcral, whcther or not exprcssly so specificd. 

"Collateral Document" shall mean any pledge agreement sccurity agreement, 

personal, corporate or other guaranty, decd of trust, deed, trust deed, deed to secure debt, 

mortgage, eontract for the sale of real property, assignment, collateral agreement, stock power or 

other agreement or document of any kind, whether an original or a copy, whether similar to or 

different from those cnumeratcd, (i) securing in any manner the performance or payment by any 

Borrower of its obligations or the obligations of any other Borrower undcr any of the Loans or 

the Notcs evidencing the Loans, or (ii) evidencing ownership of any Acquircd CollateraL. 

"Collection Account" shall mean a segregated trust or custodial account 

established and maintained at a branch of the Paying Agent in accordance with, and for the 

purposes set forth in, the Custodial and Paying Agency Ai:rreement. 

"Companv" shall have thc meaning given in thc preamble 

1-4 

llocH liS 157656 ~Rv 11 
"Company Property" shall mean all property, whether real or personal, tangible 

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

Member pursuant to the Contribution Agreement. 

"Contribution Agreement" shall have the meaning given in the recitals. 

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

with") when used with respect to any specified Person shall mean the possession, direct or 

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

voting securities or interests, by eontract or otherwise. Person, whether through the ownership of 


"Covered Person" shall have the meaning given in Section 4.6. 

"Custodial and Paving Agencv Agreement" shall mean, initially, the Custodial 

and Paying Agent Ai:rreement dated as of October 16, 2009, by and between the Company and 

Wells Fargo Bank, N.A., and thereafter any replaecment agreemcnt entered into with a 

Custodian pursuant to Section 3.7. 

"Custodial Documents" shall havc the meanIng given In the Custodial and 

Paying Agcney Agrccment. 

"Custodian') shall have the mcaning given in the Custodial and Paying Agency 

Agreement. 

"Custodian and Paying Agent Report" shall have the mcaning given In thc 

Custodial and Paying Ageney Agreement. 

"Cut-Off Date" shall have the meaning given in the Contribution Agreement. 

"Damages" shall mean any and all damagcs, disburscments, suits, claims, 

liabilities, obligations, judgments, fines, penalties, charges, amounts paid in settlement, costs and 

expenses (including, without limitation, attorncys' fees and expenses) arising out of or related to 

litigation and interest on any ofthc forcgoing. 

"Debt" of any Person shall mean (i) all indebtedness of such Person for borrowed 

moncy, (ii) all obligations of such Person for thc defcrred purchase price of property or services 

(excluding trade payables arising in thc ordinary course of business), (iii) all obligations of such 

Person evidenced by notes, bonds, debcntures or other similar instrumcnts, (iv) all indebtcdness 

created or arising under any conditional sale or other titlc retention agreement with rcspeet to 

propcrty acquired by such Person (even though the rights and remedies of the seller or lendcr 

under such agreement in the event of default are limited to rcposscssion or salc of such property), 

(v) all obligations of such Pcrson as Icssee under leases that have been or should be, in 

accordance with GAAP, recorded as capital leascs, or (vi) all indebtedness or obligations of 

others of the kinds refcrred to in clauses (i) through (v) abovc in respect of which such Person 

has entered into or issucd any Guarantee. 

1-5 

lXx:#: lISIS¡6%:I~v11 
"Determination Date" shall have the meaning given in the Custodial and Paying 

Agency Agreement. 

"Defeasance Account" shall have the meanings given in Custodial and Paying 

Agency Agreement
 

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

has any direct ownership interest in such Person. 

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

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

attempted disposition whatsoever, whether voluntary or involuntary. 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. " 

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

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

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

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

corporation, the fiing of a certificate of dissolution, or its cquivalent, for the corporation or the 

revocation of its ehartcr and the expiration of 90 days after the date of notice to the corporation 

of revocation without a reinstatement of its charter. For the avoidance of doubt, it is undcrstood 

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. 

"Distribution Account" shall mean a segregated trust or custodial account 

established and maintained under the Custodial and Paying Agency Agreement at a branch of the 

Paying Agent for the sole purposc of holding and distributing Loan Proeeeds in accordancc with 

the Custodial and Paying Agency Agreement. 

"Distribution Date" shall mean the 25th day of each calendar month during thc
 

tcrm of the Company. 

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

Paying Agency AI:'Teement, which report shall be prepared and distributed by the Managing 

Member to the Paying Agent in accordancc with Section 7.4(b). 

"Due Period" shall havc the meaning given in the Custodial and Paying Agency 

Agreement. 

"Embargoed Person" shall mean any person subject to tradc rcstrictions under 

Unitcd States law, including, without limitation, the International Emergency Economic Powers 

Act, 50 U .S.c. §§ i 70 i, et seq., The Trading with the Enemy Act, 50 U.sc. s* App. i, et seq., 

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

1-6 

Doc# liS! 5765¡'~~v11
 
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 rcspeet to 

any Assets (including, without limitation, any investment in any structured transaction), whether 

directly or indirectly, is prohibited by or in violation oflaw. 

"Environmental Hazard" shall havc thc meaning given in the Reimbursement, 

Security and Guaranty Agreement. 

"ERISA" shall have the meaning givcn in Section 10.I(r). 

-'Escrow Account" shall have the meaning given in the Contribution Agreement. 

"Escrow Advance" shall mean any advance made to pay taxes or insurance 

premiums or any other cost or expense that. but for a shortfall in the Borrower's Escrow 

Account, is payable using funds in the Borrower's Escrow Account. 

"Events of Default" shall mean anyone of thc following evcnts (whatcvcr the 

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

by opcration of law or pursuant to any judgment, decree or order of any court or any order, rule 

or regulation of any administrative or governmental body): 

notice from either the administrative (a) thc rcceipt by thc Company of 


agent under the Advance Facility that an Evcnt of Default under and as defined in the Advance 

Facility has occurred or thc collateral agent unùer thc Reimbursement, Security and Guaranty 

Agreement that an Event of Dcfault under and as defined in the Reimbursement, Sccurity and 

Guaranty Agreement has 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) with respect to (i) the 

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

(c) any failure of the Company to pay any Servicing Expense when
 

due. respectivcly, of this Agreemcnt, which failure continues unremedied for a period of thirty 

(30) days after the date on which writtcn notice of such failurc rcquiring the same to be remedied 

shall have been given to the Company; or 

the Company or thc Managing Member to comply in (d) thc failure of 


any material respect with anù enforce thc provisions of this Agreement, which continues
 

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

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

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

any material respect its obligations under thc Servicing Agrccment, which continues unremedied 

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

1-7 

Doell- liS! :57li:,h~K\' i 1 
same to be remedied shall have been given by the Managing Member or the Initial Member to 

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

occurrence of either an Event of Default undcr the Reimbursement, Security and Guaranty
 

Agreement as a result of the Servicer's acts or omissions or a material breaeh 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 thc date on which written notiee of such failure 

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

(f) the failure of the Managing Member to eomply in any material
 

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

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

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

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

requiring the same to be remcdied shall have becn given to thc Managing Mcmbcr or the 

Company, as applicable; or 

(g) there shall be a change in thc Privatc Owner or the Managing
 

Member or there shall occur a Changc of Control with respect to the Private Owner or the 

Managing Mcmber other than as peimitted under Section 8.2; or 

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

Loan Procccds to the Paying Agent as and when required. 

'"Excess Working Capital Advance" shall have the meaning givcn In the 

Custodial and Paying Agency Agreement. 

"Excluded Expenses" shall have the mcaning givcn in Section 12. 7(h ). 

"Failed Bank" shall have the meaning givcn in the preamble. 

"Fair Market Value" shall mean, with respect to any asset on a givcn date. the 

gross fair market value of such assct, unreduced by any liability, on such date as detennined in 

good faith by thc Managing Member after consultation with the Initial Member; provided, 

howevcr, that the parties hereto acknowlcdge and agree that, as of thc Closing Date, thc Fair 

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

Purchase Price, as set forth in the LLC Interest Sale Agreement, and such Fair Market Value 

shall be utilized for detennil1ing the initial Capital Accounts of the Membcrs as of the Closing 

Date. 

"Fannie Mae" shall mcan the Federal National Mortgagc Association of the 

Unitcd States, or any successor thereto. 

"FDIC' shall have thc meaning given in the preamble. 

"Final Distribution" shall have the meaning given in Section 6.6(0.
 

"Fiscal Year" shall have the meaning givcn in Section 7.1. 

1-8 

Doell. lISI57ó56'K"i I 
"Foreign Assets Control Regulations" has the meaning given in Section 10.1 (q). 

"GAAP" shall mean United States generally accepted aecounting principles as in 

effect from time to time. 

"Governmental Authority" shall mean any United States or non-United States 

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

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

or judicial or arbitral body. 

"Guarantee" shall mean, with respect to any particular indebtedness or other 

obligation, (i) any direct or indirect guarantee thereof by a Person other than the obligor with 

respect to such indebtedness or other obligation or any transaction or arangemcnt intended to 

have the cffect of directly or indirectly guaranteeing such indebtedness or other obligation, 

including without limitation any agreement by a Person other than the obligor with respect to 

such indebtedness or other obligation (A) to payor purchase such indebtedness or other 

obligation or to advanee or supply funds for the payment or purchase of such indebtedness or 

other obligation, (B) to purchase, scll or lease (as lessee or lessor) property of, to purchase or sell 

services from or to, to supply funds to or in any other manner invest in, the obligor with respect 

to such indebtedness or other obligation (including any agreement to pay for property or services 

of the obligor irrespective of whether such property is received or such services are rendcrcd), 

primarily for the purpose of enabling the obligor to make paymcnt of such indebtedness or other 

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

against loss, or (C) otherwise to assure the obligee of such indebtedness or other obligation 

against loss with respect thereto, or (ii) any grant (or agrcement in favor of the obligee of such 

indebtedness or other obligation to grant such obligee, under any circumstances) by a Pcrson 

other than the obligor with respect to such indebtedness or other obligation of a security interest 

in, or other lien on, any property or other intercst of such Person, whether or not such other 

Pcrson has not assumed or become liable for the payment of such indebtcdness or other 

obligation. 

"Guarantor" shall mean any guarantor of all or any portion of any Loan or all or 

any of any Borrower's obligations set forth and describcd in the Loan Documents, and shall 

indudc the guarantor under any complction guaranty or similar document. 

"Immediate Family Member" shall mcan, with respect to any individuaL, his or 

her spouse, parents, parents-in-law, grandparents, descendants, nephews, nicces, brothcrs, sisters, 

brothers-in-law, sisters-in-law, childrcn (whether natural or adoptcd), children-in-Iaw,
 

stepchildren, grandchildren and brrandchildren-in-law. 

"Indemnifed Parties" shall have the meaning give in Section 4.6(a). 

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

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

Section 2.3(a)(i). 

1-9 

D"ell. tlSI57fi56,K\'11 
"Insolvency Event" shall mean, with respect to any speeified Person, the 

occurrence of any of the following events: 

I. the specified Person makes an assignmcnt for the benefit of ereditors;
 

2. the specified Person files a voluntary petition for relief in any Insolvcney
 

Proceeding; 

3. the specified Person is adjudged bankrupt or insolvent or there is entered
 

against the specified Person an order for relief in any Insolvency
 

Proceeding; 

4. the specified Person files a petition or answer seeking for the specified
 

Person any reorganization, arrangement, composition, readjustment, 

under any Law; liquidation, dissolution, or similar relief 


5. the specified Person secks, consents to, or acquiesces in the appointment
 

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

substantial part of 
 the specified Person's properties;

6. the specified Person files an answer or other pleading admitting or failing
 

to contest thc material allegations of a petition filed against the specified
 

Person in any proeeeding described in clauses (l) through (5); 

7. the specified Person becomes unable to pay its obligations (other than,
 

with rcspect to the Company, the Purchase Money Notes unless a 

Purchase Money Note Trigger Event (as defined in the Reimbursement, 

Guaranty and Sccurity Agreement) has occurred and is continuing and is 

not cured within ten (10) Business Days) as they becomc due; or 

8. at least sixty (60) days have passed following the commencement of any
 

proeeeding against the specified Person sceking reorganization, 

arrangement, composition, readjustment, liquidation, dissolution or similar 

relief under any Law and such proceeding has not been dismissed, or at 

least sixty (60) days have passed following the appointment of a trustee, 

receiver or liquidator for the spccified Person or all or any substantial part 

of the specified Person's properties without the specified Person"s
 

agreement or acquiescence, and such appointment has not been vacated or 

stayed, or if such appointment has been stayed, at least sixty (60) days 

have passed following the expiration of the stay if the appointment has not 

been vacated. 

"Insolvencv Proceeding'" shall mcan any proceeding under Title i i of the United 

Statcs Codc (II U.S.c. ~§ 101, et seq.) or any proceeding under thc Law of any jurisdiction 

involving any reorganization, arrangement, composition, readjustment, liquidation. dissolution, 

or similar relicf. 

I-i 0 

DocN: USI :S76Só:l~'" I 
"Interest" shall mean, with respect to any particular Member, the entire limited 

liability company interest (as such term is dcfined in the Act) of such Member, including (i) sueh 

Member's rights to share in the income, gain, loss, deductions and credits of, and the right to 

receive distributions from, the Company, (ii) all other rights, benefits and privileges enjoyed by 

such Member (under the Act, this Agreemcnt or otherwise) in its capaeity as a Member, 

including rights to vote, eonsent and approve, and (iii) all obligations, duties and liabilities 

imposed on such Member (under the Act, this Agreement or otherwise) in its capacity as a 

Member. 

"Investment Company Act" shall mean the Investment Company Act of 1940, 

as amended from time to time. 

"Law" shall mean any applicable statute, law, ordinance, regulation, rule, code, 

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

Authority. 

"Lender" shall mean a lender under the Advance Facility. 

"Lien" shall mean any mortgagc, deed of trust, pledge, deed to secured debt, trust 

decd, security intcrest, charge, restriction on or condition to transfer, voting or exercise or 

enjoyment of any right or beneficial interest, option, right of first refusal, easement, covenant, 

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

"LLC Interest Sale Agreement' shall mean that certain Limited Liability 

Company Interest Sale and Assignment Agreemcnt dated the date hereof betwcen the Initial 

Member and the Private Owner. 

"Loan" shall mean any loan, Participated Loan (as defined in the Contribution 

Agreement), Ownership Entity (including any cash and cash equivalents held directly or 

indirectly by such Ownership Entities (excluding security deposits, deposits made by prospeetive 

purchasers of eondominium or cooperative units or other portions of the interest in the Aequired 

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

corresponding liability to a third party) or Acquircd Collateral listed on the Loan Schedule, and 

any loan into which any listcd loan or Participated Loan is refinanccd or modified, and includes 

with respcct to each such loan, Participated Loan, Ownership Entity, Acquired Collateral or other 

related asset or Related Agreemcnts: (i) any obligation evidenced by a Note; (ii) all rights, 

powers or Liens of thc Company or any Ownership Entity in or under the Collateral and 

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

REO Property held by any Owncrship Entity); (iii) all rights of the Company or any Ownership 

Entity under any leasc and the rclatcd leased property; (iv) all rights to causes of action, lawsuits, 

judgments, claims and demands of any nature available to or bcing pursucd by or for the benefit 

of the Company or any Ownership Entity with respect to thc Loans, the Collateral or the 

ownership, use, function, value of or other rights pcrtaining thereto, whethcr arising by way of 

counterclaim or otherwise, other than any claims rctained by the Initial Member pursuant to 

Section 2.6 of the Contribution Agrecmcnt; and (v) all guarantics, warranties, indemnities and the Loans; similar rights in favor of 
 the Company or any Ownership Entity with respect to any of


i-I i 

()oc~. lISI.576~6.i~,11 
and (vi) all rights of the Company or any Ownership Entity under thc Related Agreement (as 

defined in the Contribution Agreement). 

"Loan Documents" shall have the meaning given in the Contribution Agreement. 

"Loan File" shall have thc meaning given in the Contribution Agreement. 

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

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

Receiver was, or thc Company is, the lead or agent financial depository institution or otherwise 

managcd or held the credit or sold participations, or under which the Failed Bank or the Receiver 

was, or the Company is, a participating financial depository institution or purchased 

participations in a credit managed by another Person. 

"Loan Participation Agreement" shall mean an agreement under which the
 

Failed Bank or thc Receiver was, or the Company is, the lead or agent financial depository 

institution or otherwise managed or held a shared credit or sold participations, or under which the 

Failed Bank or the Recciver was, or the Company is, a participating financial depository 

institution or purchased participations in a credit managed by another Person. 

"Loan Proceeds" shall mean all of the following: (i) any and all proceeds (net of 

such procceds as are payable to others under any Loan Participation Agreement) with respect to 

any or all of the Loans and any or all of the Collateral, including principal, interest, default 

interest, prepayment fces, premiums and charges, extension and exit fees, late fees, assumption 

fces, othcr fees and charges, insurance proceeds and condemnation payments (or any portion 

thereof) that are not uscd and disbursed to repair, replace or restore the related Collateral in 

accordance with the terms of the Loan Documents and the Ancillary Documents, and, with 

respect to any Acquired Collateral, operating cash flow rcalized from such Acquired Collateral 

net of Servicing Expenses, whcther paid directly to the Company or distributed by an Ownership 

Entity; (ii) any and all procecds from sales or other dispositions or refinancings of any or all of 

the Loans (including Acquircd Collateral) nct of Servicing Expenses incurred in connection with 

such sale or othcr disposition or refinancing; (iii) any proeeeds from making a draw under any 

Ictter of credit or certificate of dcposit held with respect to any Loan, provided that such draw is 

permitted by the ternis of the Loan Documents; (iv) any recoveries from Borrowers or
 

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

forfcited by prospcctive purchasers or lessees of apartments, or other units for space at any 

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

describcd in the foregoing clauses (i) through (v) while held in thc Collection Account or any 

other account (other than the Defeasance Account or the Advance Lendcr Escrow Account). 

"Losses" shall have the mcaning givcn in Scction 4.6(a). 

"Management Fee" shall mean a fee, payablc on each Distribution Date pursuant 

to Section 5. i of the Custodial and Paying Agency Agrcement, (i) with respect to the initial 

Distribution Date, equal to 1.00 percent (1.00%) multiplied hv the Unpaid Principal Balance of 

thc Loans calculated as of the Closing Date multiplied hI! the number of days in the initial Due 

Period divided bv three hundred sixty (360), and (ii) with respect to each subsequent Distribution 

1-12 

Doell: lIS1j7656:1Rvll 
Date, equal to one-twelfth (l/12th) of 1.00 percent (1.00%) multiplied bvthe Unpaid Principal 

Balance of the Loans calculated as of the first day of the Due Period with respect to such 

Distrbution Date.
 

"Managing Member" shall mean, initially, the Private Owner, in its capacity as 

"manager" of the Company, and thereafter shall mean any successor manager appointed in 

aceordance with this Agreement. 

"Membcr" shall mean (i) prior to the Closing Date, the Initial Member, and 

(ii) following the Closing Date, each of the Initial Member and the Private Owner, in eaeh case 

including any successor or pcrn1Itted assign thereof. 

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

ineorporated in this Agrecment) as Annex II, as amended, restated, supplemented or otherwise 

modificd from time to time. 

"Monthlv Adjusted Annualized Yield" is equal to 1.8769 perccnt. The Monthly 

Adjusted Annualized Yield is derived as follows: (l + Annualized Yield Threshold)im - i or (1 

+ 0.25)1112_ i, where thc Annualized Yield Thrcshold is 25%. 

"Monthly Report" shall mean a report in electronic format in the fonn set forth 

in Exhibit B hereto, which report shall be prepared and distributed by the Managing Member in 

accordanee with Section 7 .4(b ). 

"Mortgage Assignment" shall have the meaning given In the Contribution 

Agrecmcnt. 

"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 thercof, dctermined in accordance 

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

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

allocated pursuant to this Agreement (including pursuant to Scctions 6.2(b)(i) through ful shall
 

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

Company that is cxempt from fedcral 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 bc calculated with 

refercnce to such Book Value; (d) upon an adjustmcnt 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 t()r federal income tax purposcs, the amount of depreciation, amortization or 

cost recovery deductions with respect to such asset for purposes of detennining Net Incomc or 

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

income tax depreciation. amortization or other cost recovery deductions bears to such adjusted 

tax basis (provided that if the fcderal income tax depreciation, amortization or other cost
 

recovery deduction is zero. thc Managing Member may use any reasonable method for purposes 

of detennining depreciation. amortization or other cost recovery deductions in calculating Net 

1-13 

Doell liS I :~7656.'R" II 
Income or Net Loss); and (f) except for items in (a) abovc, any expenditures of the Company not 

deduetible in computing taxable income or loss, not properly capitalizable and not otherwise 

taken into account in eomputing Net Income or Net Loss pursuant to this definition, shall be 

treated as deductible items. 

"NI" shall mean Northwest Investments, LLC, a Delawarc limited liability 

company, and any successor thereto. 

"NI LLC Agreement" shall mean the Amended and Restated Limited Liability 

Company Agreement of NI, dated October 16, 2009, among the Starwood Member, the TPG 

Member and thc other parties named therein, without giving effect to any amendment or 

modification thereto except as otherwise agreed to in writing by the Initial Membcr. 

"Note" shall have the meaning given in the Contribution Ai:'Teemcnt. 

"Omitted Distributions" shall have the meaning given in Section 8.5. 

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

recitals. 

"Ownership Entitv" shall mean a Single Purpose Entity that is a Subsidiary of 

the Company, whether contributed by the Initial Member on the Closing Date or fonned or 

acquired by the Company thereaftcr; provided, that, with respect to any entity transferred to the 

Company on the Closing Date pursuant to the Contribution Agrcement that is not a Single 

Purpose Entity as of such date, any such entity shall be dcemed to be an Ownership Entity; 

provided, further, that, thc Company and the Managing Member shall takc all necessary and 

appropriate actions to cause such entity to become a Single Purpose Entity as promptly as 

possible after the Closing. 

"Paying Agent" shall mcan have the meaning set forth in Section 3.7. 

"Percentage Interest" shall mean, with respect to the Interest held by the Initial 

Member prior to the Closing Datc, one hundred percent (i 00%) and, with respect to the Interests 

held by the Initial Member and Private Owner on and after the Closing Date, as set forth in 

Section 6.6(b)(ii). 

"Permitted Disposition" shall have the meaning given in Section H.I. 

"Permitted Investments" shall mean anyone or more of thc following 

ohligations or securities having at thc time of purchase, or at such other time as may be specified, 

thc required ratings, if any, provided for in this dcfinition: 

(a) dircct obligations of, or guaranteed as to timely paymcnt of principal and
 

intcrest by, the United States of Amcriea or any agency or instrumentality of the United 

States of Amcrica, the obligations of which are backed by the full faith and credit of the 

United Statcs of America (for the avoidancc of doubt this clause (a) shall include any 

debt guaranteed by the FDIC in its corporate capacity); 

1-14 

Do(.:ll!Sl)7656~x\'i I 
(b) demand and time deposits in or certificates of deposit of, or bankers' 

acceptances issued by, any bank or trust company, savings and loan association or 

savings bank, provided that, in the case of obligations that are not fully FDIC-insured 

deposits, the commercial paper and/or long-term unsecured debt obligations of sueh 

depository institution or trust company (or in the case of the principal depository 

institution in a holding company system, the commercial paper or long-term unseeured 

debt obligations of such holding company) have an Acceptable Investment Rating; 

(c) general obligations of or obligations guaranteed by any state of the United
 

States or the District of Columbia receiving ratings of not less than the highest rating of 

each Rating Agency rating such obligations; 

(d) mutual funds in which investments are limited to the obligations referred
 

to in clauses (a), (b) or (c) of 
 this definition; and

(c) with the prior written consent of the Initial Member, any other demand,
 

money market or time deposit or other obligation, security or investment. 

"Pcrmitted Transferee" shall have the meaning given in the NT LLC Ai:rreemcnt.
 

"Person" shall mean any individual, corporation, partnership (general or limited), 

limited liability company, limited liability partnership, finn, joint venture, association, jointstock company, trust, estate, unincorporated organization, governmental or regulatory body or 

other entity. 

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

"Pre-Approved Chargcs" shall have the meaning given in the Contribution 

Agreement. 

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

"Prior Serviccr" shall have the meaning given in Section 12.1 (b). 

"Priority of Payments" shall have the meaning givcn in the Custodial and Paying
 

Agency Agreement. 

"Private Owncr" shall have the meaning givcn in the preamble. 

"Propertv" shall mean any property contributed to, acquired by or otherwise 

owned by thc Company, including, without limitation, any real or personal, tangible or intangible 

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

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

"Purchase Monev Notes" shall have thc meaning given in the recitals. 

"Purchase Moncv Notes Guarantv" shall have thc meaning given in the recitals. 

1-15 

()oCll I is 1576~":I~v 11 
"Purchase Money Note Guarantor" shall have the meaning given in the recitals. 

"Purchase Pricc" shall have the meaning given in the LLC Interest Sale 

Agreement. 

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

title insurance company subject to supervision and examination by any federal or state regulatory 

authority, (ii) is experieneed in providing services of the type required to be performed by the 

Custodian under the Custodial and Paying Agency Agreement, (iii) is qualified and licensed to 

do business in cach sueh jurisdiction to the extent required unless and to the extent the failure to 

be so qualified or licensed wil not have a material adverse effect on the Custodian or the ability 

of the Custodian to perform its obligations under the Custodial and Paying Agency Agreement, 

(iv) is not prohibited from exercising custodial powers in any jurisdiction in which the Custodial 

Documents are or will be held, (v) has eombined capital and surplus of at least $50,000,000 as 

reported in its most recent report of condition, (vi) has the facilities to safeguard the Loan 

Documents and other Custodial Documents as required by the Custodial and Paying Agency 

Agreement, (vii) is not an Affliate of the Company or the Servicer, and (viii) is acceptable to 

and approved by the Initial Member (such approval not to be unreasonably withheld, delayed or 

conditioned). 

"Qualificd Scrvicer" shall mean any Person that (i) is properly licensed and 

qualified to conduct business in each jurisdiction in which such licenses and qualifications to 

eonduct business are necessary for the servicing of the Loans and management of the Collateral 

and the Acquired Collateral, (ii) has the management eapacity and experience to service Loans of 

the type held by the Company, especially performing and non-perfonning construction loans 

secured by multi-family residential properties or commercial properties, as applicable, including 

the number and types of loans serviced, and the ability to track, process and post payments, and 

to furnish tax reports to borrowers, to monitor construction and to approve and disburse 

construction draws and (iii) either (x) has an Acceptable Rating or (y) is aeeeptable to and 

approved by the Initial Member in its sole discretion. 

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

"Rating Agcncies" shall mean each of Moody's Investors Service, lnc., Standard 

& Poor's Rating Services. a division of The McGraw-Hill Companies, Inc., Fitch mCA, Inc. and 

such other rating agencies as arc nationally recognized. 

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

"Reimbursement, Security and Guaranty Agreement" shall mean that certain 

Reimbursement, Security and Guaranty Agrecment dated as of the date hereof by and between 

the Company, the Lender and the Purchase Money Note Guarantor. 

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

(other than the Note and Collateral Documents) relating to or evidencing any obligation to payor 

securing any Loan (including any equipment lease, letter of credit. bankers' acceptance, draft, 

system confinnation of transaction, loan history, affdavit, general collection information, and 

1-16 

!locI' lISI5765ó.i~vi I 
eorrespondence and comments relating to any obligation), (ii) any agrecment relating to the 

ownership, operation, management, sale or leasing of real property or rights in or to any real 

property (including leases, property or asset management agreements, brokerage agreements, 

servicer contracts, and eonccssion agreements, license agreements or other agreements granting 

rights of oecupancy or use) related speeifically only to the Collatcral or Acquired Collateral or 

any of them and (iii) any collection or contingency fee, and tax and other service agreements 

(including those referred to in Section 4.2 of the Loan Contribution Agreement) that are specific

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

"Related Party" shall mean with respect to any Person, any party related to such 

Person in the manner delineated in 26 U.S.C.A. § 267(b) and the regulations promulgated
 

thereunder, as such law and regulations may bc amendcd from time to time. 

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

"Related Persons" shall have the meaning given in Section 4.5. 

"REO Property" shall have the meaning given in the Contribution Agreement. 

"Return Threshold" shall have the meaning given in Seetion 6.6(b)(iv). 

"Return Threshold Event" shall have the meaning given in Section 6.6(bHiii). 

"Secured Assets" shall have thc meaning given in Section 3.14. 

"Securities Act" shall mean Securities Act of 1933. as amcnded. 

"Servicer" shall mean have the meaning given in Section 12.3(a). 

"Servicing Agreement" shall mean, initially, thc Servicing Agreement dated as 

of the datc hercof, by and between the Managing Member and TriMont Real Estate Advisors, 

Inc. and thereafter any replacement ai:rreement cntered into bctween the Managing Member and 

the Person designated as the Scrvicer therein, which servicing agrccment shall satisfy thc 

requirements of Section 12. i (b) and shall be acceptable to the Initial Member in all respects. 

"Servicing Expenses" shall mean all customary and reasonable out-of-pocket 

fees, costs, cxpenses and indemnified amounts incurred in conncction with scrvicing the Loans 

and the Acquired Collateral, including (i) any and all out-of-pocket fecs, costs, expenses and 

indemnified amounts which a Borrower is obligated to pay to any Pcrson or to reimburse to the 

lendcr, in either case, pursuant to the applicable Note or any other Loan Documents, including 

Escrow Advances, (ii) any and all rcasonable out-of-pocket expenses nccessary to protect or 

preserve the valuc of the Collateral or the priority of the Liens and security intercsts created by 

the Loan Documents relating thereto, including taxes, insurance premiums (including forced 

place insurance premiums), payment of ground rcnt, the costs of prevention of waste, repairs and 

maintenance, forcclosurc expenses and legal fecs and expenses relating to forcclosure or othcr 

litigation with respect to the Loans, (iii) any and all direct expenses related to the preservation, 

operation, management, leasing, and sale of the Aequired Collateral (including real estate 

1-17 

Doell t!si57~'61~\'11 
brokerage fees), (iv) subject to Section 4.6, to the extent not covercd by any of clauses 

(i) through (iii), legal fees and expenses (including judgments, settlements and reasonablc 

attorneys fees) incurred by the Company in its defense of claims asserted against the Company 

that relate to one or more Loans or the conduct of the Business in accordance with this
 

Agreemcnt and the Ancillary Documents, and allege, as the basis for such claims, any act or 

omission of the Company (or the Managing Member or the Servieer) but only if (x) such claims 

are decided and there are final non appealable orders or judgments (unless the Initial Member 

has agreed in writing that no appeal needs to bc taken) in favor of the Company (or the 

Managing Member or thc Servicer) or if decided against the Company (or the Managing Member 

or the Servicer) without any finding of bad faith, gross negligence or willful misconduct on the 

part of any of the foregoing or (y) there is entered into a final settlement of any such claim with 

the prior written consent of the Initial Mcmber, (v) subject to Section 4.6 of this Agreement, 

(x) expenses incurrcd in accordance with Section 4.5(e) of the Contribution Agreement and 

(y) expenses incurred in connection with any litigation (including any bankruptcy action) 

included in the Obligations and assumed pursuant to Section 4.5(a) or í. or Section 4.6 of the 

Contribution Ai:rrccment, and (vi) the costs of preparing, ncgotiating and recording any REO 

Mortgage (as defined in the Reimbursement, Security and Guaranty Agreement, including
 

mortgage recording taxes) and the costs associated with the additional documentation required 

pursuant to Scction 8.1 I of the Reimburscment, Security and Guaranty Agreement, in each case 

pursuant to Section 8.11 of the Reimburscment, Security and Guaranty Agreemcnt; provided, 

however, that Servicing Expenscs shall not include any (A) Excluded Expenses or (B) costs of 

eonstruction or any other eosts or expenses to be funded using the proceeds of Tenn Loans undcr 

the Advancc Facility. 

"Servicing Obligations" shall mean have the meaning given in Section 12.1. 

"Servicing Standard" shall have the mcaning given in Section i 2. i . 

"Single Purpose Entity" shall mean: 

(A) with respect to an Owncrship Entity, a corporation or limited liability 

company that (i) is organizcd under the laws of any state of thc United States or the District of 

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

Acquired Collateral, (iv) is not cngaged in any business operations except in connection with the 

Acquired Collatcral and conducted pursuant to terms of this Agreement and the Ancilary 

Documcnts, (v) does or causcs to be done all things nccessary to prcserve and kcep in full forcc 

and effect its existence, rights (chartcr and statutory) and franchises, (vi) at all timcs holds itself 

out to the public as a legal entity separate from any other Person (including any Affiliatc), 

(vii) except as expressly contemplated by this Agreement, or the Ancillary Documents, does not 

commingle its assets with assets of any othcr Person, (viii) conducts its business in its own name 

and strictly complies with all organizational formalities to maintain its separate cxistence, (ix) 

maintains an amls length relationship with any Affliate upon terms that are commcrcially 

reasonable and on terms no less favorable to it than could be obtained in a comparable anils 

length transaction with an unrclated Person, (x) has no Debt other than as expressly pennitted by 

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

Member, is a pass-through entity for tax purposes; 

1-18 

Doell: US 15765bi~v11 
(B) with respect to the Company, a limited liability company that (i) is 

organized under the laws of Delaware, (ii) the equity of which is uncertificated, (iii) has no 

material assets other than the Loans, including Collateral and Ownership Entities, and its rights, 

title and interest in, to, and under this Agreement and the Ancillar Documents, (iv) is not 

engaged in any signifieant business operations except in connection with the Loans, including 

the Collateral and Ownership Entities and conducted in accordance with the terms of this 

Agreement and the Ancilary Documents, (v) does or causes to be done all things necessary to 

preserve and keep in full force and effect its existence, rights (charter and statutory) and 

franchises, (vi) at all times holds itself out to the public as a legal entity separate from any other 

Person (including any Affiiate), (vii) except as expressly contemplated by this Agreement or by 

any other Aneillary Documents, does not commingle its assets with assets of any other Person, 

(viii) eonducts its business in its own name and strictly complies with all organizational 

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

any Affiliatc upon terms that are commercially reasonable and on tenns no less favorable to it 

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

than as expressly provided by this Agreement and the Ancillary Documents, (x) has no Debt 

other than as provided in this A 
 !:rreement and the Ancillary Documents and (xi) except as

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

purposes; and
 

(C) with respect to the Managing \1cmber (or any Qualified Transferee
 

thereof), a eorporation or limited liability company that (i) is organized under the laws of any 

state of the United States or the District of Columbia, (ii) the equity of which is uncertificated, 

(iii) has no material assets other than its rights, title and interest in, to, and under this Agreement 

and the Ancillary Doeuments, (iv) is not engaged in any significant business operations except in 

connection with the performance of its obligations under this Agreement and the Ancillary 

Documents, (v) does or causes to be done all things necessary to preserve and keep in full force 

and effect its existence, rights (charter and statutory) and franchises, (vi) at all times holds itself 

out to the public as a legal entity separate from any other Person (including any Affliate), 

(vii) except as expressly contemplated by this Agreement or thc Ancillary Documents, does not 

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

and strictly complies with all organizational formalities to maintain its separate existence, (ix) 

maintains an arm's length relationship with any Affiliate upon terms that are commercially
 

reasonable and on terms no less favorable to it than could be obtained in a comparable arnls 

length transaction with an unrelated Person other than as otherwise expressly provided by this 

Agreement and the Ancillary Documents, (x) has no Debt and (xi) exccpt as otherwise consented 

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

"Starwood Member" shall have the meaning given in the definition of "Change 

olControl". 

"Subservicers" shall have the meaning givcn in Section I Î .3(a). 

"Subservicing Agreement' shall have the meaning given in Section 12.3(a). 

"Subsidiarv" shall mean, with respect to any specificd Person, each of (i) any 

other Person not Jess than a majority of the overall economic equity in which is owned, directly 

1-19 

1.kx.:f: 1 is !57ti~tl,ll'\ II 
or indirectly through one of more intermediaries, by such specified Pcrson, and (ii) without 

limitation of clause (i), any other Person who or which, directly or indirectly through one or 

more intermediaries, is Controlled by such specified Person (it being understood that with 

respeet to each of clauses (i) and (ii) that a pledge for collateral seeurity purposes of an equity 

interest in a Person shall not be deemed to affect the ownership of sueh equity interest by the 

pledgor or the Control of such Person so long as sueh pledgor continues to be entitled, in all 

material respects, to all the voting powcr and all the ineome with respect to such equity interest). 

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

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

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

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

consolidation or otherwise) of the Interest of such former Member and (iii) with respect to Initial 

Member, any Person that is a direct or indirect transferee (whether by Disposition, merger, 

consolidation or otherwise) of any of Initial Membcr's rights or interests under this Agreement or 

any other Ancillary Document. 

"Tax" shall mean any fcderal, state, eounty, local, or foreign tax, charge, fcc, 

levy, duty, or other assessment, including any income, gross receipts, transfer, recording, capital, 

withholding, property, ad valorem, or other tax or governmental fee of any kind whatsoever, 

imposed or required to he withheld by any governmental authority having jurisdiction over the 

assessment, determination, collection, or other imposition of any Tax, including any interest, 

penalties and additions imposed thereon or with respcct thereto. 

"Tax Matters Member" shall havc thc meaning given in Section 7.5. 

"Term Loan"' shall havc the meaning given in the Advance Facility. 

'Third Party Claim" shall havc the meaning given in Section 4.6(a) 

"Threshold Increase Amount" as of any Distribution Date shall bc equal to the 

product of (a) the Return Threshold as of the preceding Distribution Date (or, in thc case of the 

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

"TPG Member" shall havc thc meaning given in thc definition of "Change of 

Control"'. 

'Transfer Documents" shall have thc meanIng givcn in the Contribution 

Agreemcnt. 

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

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

amended, and all references to sections of thc Treasury Regulations shall include any 

corresponding provision or provisions of succeeding, substitute, proposed or final Treasury 

Regulations. 

1-20 

Dor/IIISI 57656,~vll
 
"Unpaid Principal Balance" shall mean, at any time, (a) when used in 

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

balancc of such Loans, and (b) whcn used with rcspect to a single Loan, an amount equal to the 

then outstanding principal balance of such Loan; provided, however, that: 

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

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

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

Agreement; 

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

on the Closing Date, the Unpaid Principal Balance of such Acquired Collateral shall initially bc 

the amount set forth on the Cut-Off Date Loan Schedule (as defined in the LLC Interest Sale 

Agreement), adjusted as of the Closing Date to its Adjusted Unpaid Principal Balance, and
 

thereafter determined in the same manner as all othcr Acquired Collateral; 

(iii) in the case of a Loan for which some or all of the related Collateral has
 

been converted to Acquired Collateral (including REO Property), until such time as the Acquired 

Collatcral (or any portion thereof) is liquidated, the unpaid principal balanec of sueh Loan shall 

be dcemed to equal the amount of the unpaid principal balanee of such Loan (adjusted pro rata 

for debt forgiveness or retained indebtedness) at the time at which such Loan was converted to the Acquired Collateral Acquired Collateral, less thc net proceeds of any sales of any portions of
 cffective aftcr such conversion. . 

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

be incrcased by the amount of (A) any Term Loan applied with respect thereto in accordancc 

with the Advance Facility, (B) any Servicing Expenses capitalized thereto in accordance with 

applicable Law to the extent that capitalizing such Scrvieing Expenses would have becn 

pcnnitted under the applicable Loan Doeuments prior to the conversion of the Loan to the 

Acquired Collateral and (C) Excess Working Capital Advances used for the purposes for which 

the proeceds of 
 Term Loans may be used under the Advance Facility.

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

"USA PATRIOT Ace has the meaning given in Section 10.l(q). 

"Working Capital Loans" has the meaning given in thc Advance Facility. 

the United States of America. "1" shall mean lawful currency of 


1-21 

Docli IISI5765ó.'8vl i 
Annex II 

Member Schedule 

Member Percentage Interests 

Federal Deposit Insurance Corporation 60% 

CCV Managing Member, LLC 40% 

II-I 

Docff liS 1.576S(, 1Rv I i 
EXHIBIT A
 

CERTIFICATE OF FORMATION 

OF
 

CORUS CONSTRUCTION VENTURE, 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, thc name of the limited liability company is Corus Construction Venture, 

LLC (the "Company"). 

SECOND, the address of the registcred office of the Company in the Statc of 

Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of 

New Castle. The name of the registered agent at such address is The Corporation Trust 

Company. 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of 

October, 2009. FOnTation of the Company on this _ day of 


By: 

Name: 

Title: Authorized Person
 

A-I 

Ilor#: us 157656:1~v II 
EXHIBIT B
 

INFORMATION; FORM OF MONTHLY REPORT 

(Attached) 

B-1
 

(loCN. liS 1:7M6:18v I i
 
gjUI CoIlat.,.1 

~ ISQ_elo)
 lied Sals Pric l c/ Uns Unli Sod 

Si isqar. -gel 

l c/ Uns Coiracl Pnce 

Unis C..ed 

Sile (_.foot)

Net Procds r of Uni 

Rem.inin, Con.ler.
 

St,le (SQuar. '0012) 

Cun-nt Business pt.n 

I' of Unils 

THIS REPORT OR SIMILAR REPORT TO BE 

PROVIDED FOR EACH AsseT MONTHLY.
 

ASSET DETAILS AND DOLLAR 

AMOUNTS SHOWN ARE FOR 

ILLUSTRATIVE PURPOSES ONLY 

b~ 

r- I 

r- i 0 

0 

S :1

.. 11 

Summay XXXXXXXX


Exoeed Nel Procees 

Cono CIsigs
 

Buk Sa'" 

Construction 

Summar XXXXXXXX 

't Comelo c""e.pa'dil Reiaoge Balance 10 Com %a colele Cha!! Orders
 I!""Budl

ACQuisilion cos 

Hard Cosls Budge! 

Son Cos.. Budl : . . -I. I - ... .
 

Toiai Bu 01 . . 
CUSTODIAN AND PA YING AGENT REPORT 

DISTRIBUTION REPORT 

Net Funds Available before Working Capital Advances 

+ Current period Working Capitl Advances
 

TOTAL FUNDS FOR DISTRIBUTION
 

Distributions: 

To Custodian and Payment Agent: 

Custodian and Paying Agent Fee 

To Verification Contractor 

Verification Contractor Fee 

To Advance Facility Agent 

Indemnification/reimbursement amounts due 

To Collateral Agent 

Indemnification/reimbursement amounts due 

To Advance Lender. 

Principal on Working Capital Loans 

Interest on Working Capital Loans 

Total on Working Capital Loans 

Principal on Term Loans 

Interest on Term Loans
 

Total on Term Loans
 

To Note Guarantor:
 

Indemnification/reimbursement amounts due
 

Reimbursement of Guarantee Payments 

Interest (only if Purchase Money Trigger Event has 

occurred) 

Total to Note Guarantor 

To Defeasance Account 

To Advance Lender 

Balance due to Advance Lender Escrow Account 

To Managing Member: 

Reimbursement of Excess Working Capital Advances 

Management Fee 

Distribution on Equity 

Total to Managing Member 

To Initial Member:
 

Management Fee
 

Indemnification/reimbursement amounts due
 

Distribution on Equity
 

Total to Initial Member
 

TOTAL DISTRIBUTIONS 
Cashflow and Distribution Report­

/MOfthJ 

MANAGEMENT FEE CAlCULATION 

UPB. bennng of Du Peri 

Times Managemt Fee rate 

Divided by 12 

Manement Fee . gross 

Less inniriclioreimbrsnl paymnts due 10: 

Initil Memb 

Puse Moy Nole Guarnlor 

Advance F acil~y Agen 

Coaler Agnt 

Total payablelrom Management Fee 

Manamenl Fee due 10 Managing Memb 

1.00 12 

COLLECTION ACCOUNT 

Prncipal Coftdio 

Loan Sale Procees (inchJdin Excess Prods, if any) 

REO LiQuidalion Proees (including Excess Prds) 

Inleres Colecions (gross) 

Serlcng Expenses Recovered 

Other Col~ctns (fee inco. net rental income, etc.) 

less: Servicin Expenses Patd 

Less: Pre.Aproved Charges Paid 

Net Collection Accnt Proceds 

Tolal 

Interesl 

Proceeds 

CALCULATION OF REqUIRED WORKING CAPITAL 

ADVANCE 

Net Collectn Acount Procs 

less fees payable: 

Custodian and Payin Agent Fees 

VeriICtion Contractor Fees 

Managel Fee 

Funds Available a1l8f fees payable 

Wor1/ng Capita' Advance (ioia' abov., jf negolive) 

ALLOCATIN OF PROCEEDS 

C.'Cu'.,ion 0' amount piy.b/e for items in Section 5.1 ­

Custodial lind Piying Agency AqrHment Tol'l Alloction 

Interest 

Proceeds 

Net Proeeds from Collection Acnt 

Worki"9 Capital Advance 

Total Funds Availabe 

Part l ~ ttem5 payable first from Interest Proceeds then 

511a) 'ro Principal Proceeds 

(i) Custodian and Paying Agnt Fees 

(ii) Verift(abon Contractor Fees 

(iii) Managemønl Fee (see alltion offee at lop of page) 

(iv) Advance Fadity Interest Payments 

Sublolal. Secion 5.1(aXi). (iv) 

Remaining Proceeds 

51(b) Part n Allce,lion 

(ii) Principal pymt-WOrKing Capital Loans under Adv Faclity 

(iii) Pricial payment on Ter loans under Advance Fac~ily 

(iii) Reimbursement amls due Purchase Moey Note Guarantor 

(v) Deposil10 Defeasance Accounts 

(vi) Reimbursemenl.Excess Working Capital Advances 

(vii) Deposit to Advanc Lender Escrow Accounl 

Subiolal. lIem. 51(b)(.i. 5 1Ib)(lIi) 

Available for Distribution to Members 

Distribution 10 Initial Member (60%/70%) 

Distribution 10 Managing Member (40%/30'..) 

Total Distribution '0 Members 

lot Magement Fee for th 

molh. aliocte pr rata in 

1 "sum of thee amnts exceeds
 propion to amls due

Principal 

Proceeds 

1 These Items payable 1st from 

J Interest Proceeds. then Principal 

Principal
 

Proceeds.
 

Excluding Excess Excess
 

Proceeds Proceeds
 

; These items payable first
 

from In'erest Proceeds, then 

from Princpal Proceeds 

incuding Excess Proeeds 

as neeed. 

Apply Excess Procees '0 Advance 

Facility ONL Y if Defeasance Ace. 

are fully funded 

Cashflow Mcction 

US_US 1 _5789595_2XLS 
Advance Faciltty 

Monthly Roll F_ord 

¡Mo!hI ~~~'L-::~~~~~:I'~J-~~:...~ ~'l~~~~..--~_.---.r::"'~' --..--~ _-:_....-~~'. IL.__.._~__.. ..~
 ...1.. _ .. '''.. In ... Interim Tenn lo-ns Aulh Ovenii Adane: (1) TOlI Commitment Adane rodl'", Molhly Roll 0.00 0.00 ~1I Cum..ti. Drws. being 01 moth 0.00

Aulhed Draw QJrrnt moth .~Dn'_il-~':I --­ 0.00 

Cumuli. R.payments. beginni of moth 0.00 

Recavmenis. aJenl monh 0.00 ;O:.I-~ ~;~l1~ L.~' "O1IJ';Ii'.~ '..~I.tl.J,. 0.00 Ic:~aøii~i!~:; -~ 250.000.00.00 150.00.00000 12\ Maximum Authorized Advance 

L1BOR Delel"natio Dale 12 Bus Days prior to beg of calendar moth)
 

'.Mo. L1BDR
 300"¡' Margin in Interim 1erm Loans
 

Imerest rate tor month
 

Interest Cak:ut.lion: 

loan Balace 

Interest rate
 

Numbe of Days
 

Interest Payment Due
 s 

(1) Working Capitl Advances may be requied to pay (a) the Asset Management Fee. (b) the Custodian/Paying Agent fees and expanses. (c) the 

Veriication Contractor fees and expense&., (d) Servicing Expenses and (e) Pre-Approved Charges (coUeetively the LtC Expenses.) 

(2) Pror 10 business plan approval $350.00,000. Atter busiess plan approvat th aggregate amount set for in the business plans 
Purchase Money Notes and Defeasance Accounts 

Monthly Roll Forward 

(Month) Payment Note Balance Note Balance Paymet from from Note End Beginning Defeasance

Guarantor of Month 

Purchase Money Note Monthly Roll ~ ~ 

Ter A Purchase Money Note
 

Term B Purchase Money Note
 

Term C Purchase Moey Note 

,i~L~t." 

..:,WrT~tåi;i~~i(~1'~lilí;nr,;, ¡'~:'l:L~.. "~~¡';d:,;\; q,. '?'t.c~W.i;' 

Defeasance Account Monthly Rollforward 

(+) Balance. beinning of month
 

(+) Add~ios from Cash Flow
 

(+) Investment Income
 

(_) Release to Purchase Money Nole
 

Defeanè-:CCunt båfanc~iend.of mòntl~;.;.~; .":"'~":': ..;,' .~:. '~ ..r;i, ~?c~.':',:'=~:~. c ~:':tílJ;;~~;~.:~.!.tr:~'~f'~:r~'i.:~~~.:l;~-',':' ::)?,:+r,.'~~"it$:t.;~.~~.,~j~. 

Note Guarantor Payments 

(+) Balance. beinning of moth
 

(+) Draws, current month
 

(_) Re ments, current month
 '.:~ . 'M ';"
 ..:"-;,.:..i:.'¿, .:. ,.,.. ..;;..".1 .' ',.iG:,¡'!",_ .'...:r... ":"~' .~.~..H' .f" )~;;:.~~. i.~ :~. ,__-,'-1:;:~*~;~~:;T~ì :: Balance 'em 'of month.: ,;'.: '. 

Cumulative Payments to reimburse Note Guarantor
 

Cumulative Payments. beginning of month
 

(+) Payments. current month . . , .~. . ..:.' ¡Cumti Pa! en,of mont. '. ,. ... . 

. .'.. .~.. . ..)..:".;- ;\.' .-'. ..~~~~.. i- .....,. -:'.-i\ Note Trier Evet'.. IPurem Mon 


A Purchase Money Note Trigger Event will be deemed to have occurred if. as of any of the dates defined below. (a) the lotal amounts 

deposited into the Defeasance Acconts and any amounts paid to the Note Guarantor to reimburse draws under the FDIC Guarantee 

divided by (b) the oriinal aggregate principal amount of the Purchase Money Notes as of the LLC Closing Date is less than: 

. 5 Years from the LLC Closing Date: 25%

.6 Years from the LLC Closing Date:
 40%

_ 7 Years from the LLC Closing Date: 60%

_ 6 Years from the LLC Closing Date: 75%

_ 9 Years from the LLC Closing Date: 90%
Monthly Loan & REO Rollforward Report 

(Month) 

# ASSETS AMOUNT 

o 

o 

o 

o 

o 

o 

o 

. ....,. ;': ': :t'.: . ~.: ;.~::;':iit~.~:;::~~.~..!~f~.~;:: ,.:~:.!~.'.~:,~ :,..~.:= ~-~';"'. ''::. :':, "F~.:"~ ~.~~"; 
Advance and Escrow Accounts ­

Monthly Roll Forward 

(Month) 

Borrower Borrower Total (1 ) 

T&I Escrow Construction Escrow Servicer 

Account Escrow Acct Accounts Advances 

Balance, beginning of month 

Borrower deposits 

Payments/Advances 

Advance Recoveries 

Interest paid to borrowers 

':J~-.;~,~.~.~;':;t::t?r~~~'i;-¥Zl~~~; ~~tjr.~~L~S~~8 ;-~..:~ i.( t_~: ..:1:.::.: ".-.-f:', .'. '/",:': .:~ Bälãhcè1::èi:d:'ôf.rr\)i;th"':'~~'~''''(J . 

(2) (2) (2) 

(1) These may be broken out into additional fields at the discretion of the Managing Member/Servicer, 

such as breaking out the Corporate (Protective) Advances from other types of advances such as 

foreclosure costs. 

(2) Loan servicing system should include fields to capture and report balances in each category 

and the totals shown above should agree to the asset-level detail tapes provided by the Managing 

Member/Servicer as of each month-end. 
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Return Threshold Tracking Report ­

(Month) 

PART A - Aggregate Distributions Test
 

Cumulative Equity Distributions to Managing Member, beginning of month 

+ Current month distributions to Managing Member 

- Asset management Fees
 

_ Repayments of Excess Working capital Advances
 

= Cumulative Equity distributions to Managing Member, end of month 

CAH CONSIDERATION PAID BY MANAGING MEMBER TO INITIAL MEMBER *2 

Amount Remaining to Return Threshold Event (Part A) 

PART B - Calculation of IRR Return Threshold 

IRR Return Threshold as of the preceding Distribution Date
 

+ IRR Threshold Increase Amount (2.5324% per month) 

_ Current month distribution to Managing Member * 

=IRR Return Threshold as of the current Distribution Date 

. The IRR Return Threshold can never be less than zero. 

The Return Threshold Event shall occur if the results of Part A and Part B are both zero. 
Loan Datfields (highlighted fields are not necessary for LLC's)
 

Instructions to be provided to LLC If submiUing text files. excel files are preferred
 

:?t) WIOO;.'. 

~r.:::::: ::::::::::::::~~'mt:~: 

~t~:~:~:~:t~:~:~. ~*(: ~:~: ~:~:~: ~: ~: ~:~ :~:~: ~: ~: ~: ~: ~: ~:~: ~:~:~: ~:~:~: ~:~:~: ~: ~ :~: r~:~: ~ :?~:~: ~:~ :~: ~:~: ~:~: ~:~:~:~: ~:~: ~:~:~:~: ~ :~: ~ :~: ~ .~ :.:.:..:.:..:.:~: Af 3 

Primary key identifier for the borrowing cnmy. This is the number used to uniquely identify the i Boower ID 

borrower. which may be the ~me a~ ihe elF numbe. This rtekl must bt nnnui.itd. 3 BusincsSC \J!òC Al Obh!oJ's abbrcviated name.
 Indiv)uab in order oriast name. first MlIT. middle initial.

truciicd name. This firld must M nonulaitd. 4
 

2 Short Name 

For busincs..cs. usc full AiN Obliror', fulllcgal name. hirml ../b first name. muh.lc initlal and last name. 3 Long N.mc 

leeral name. Thk ftrld musl bf nnniil.lrd. Al 4 

4 Addres hoe I Roower street address Al ~ 

Borower ~retl Dddre;~ 

6 'IV Citv in which the: nrimarv oorwwer has It!' in;iin or head officc. IV 7 Staie Al 

5 Address hnc 2 Al 4 

Posl Offce 51'lc code in which ihe nrimarv holTo\l~r rus it!' m.iin or he;id (iffice 

8 iiCodo Zio code ror ihe rMmarv bonower'!, main or head office Al 4 

9 Addres!õ line I Pro;;nv .ddres!' where cnll3taaJ IS loc31ed Al 4 

lroncrtv ..ddre!'~ where eollaieral is locaicd 10 Addr~!' hnc:: A1N 4 

Ci", in which the coJlalcralis loc~ted 

12 Siale Al II Cirv AIN Po!'t Office ~I.:ie eude in which collali:ral i!' locaied 

13 Z, ('ode Zin code in which Ihe cOIl31i:rall~ hx.i1Ic: AIN Indl\'I(.Iu"l!õ use social security nuinhcr Nlne-dli!lt cooc i~~ucd h\' ihr: US Govemmcni (TIN). Thc b'fnup fUme iS :isSltCiaicò wiih .: unique 14 TaxnavC', II) A'N 4 

Rebtionshifl Name Unil.ue ideniifyinr naim: assocl3lini; rellied horruwcni 15 1)(\ nut enter en: nuinm."f!' here rnuo 10 or ,c1aiiunshio numhcr. 3 

16 Relalion:Jin 10 Uníoue ID used 10 ideniify.. t!wun or relalcl! horrowcr!:. IV L 

17 N01e number Prnnarv kC" identifier for eaeh note N 1 (1219' 

AIN 

This field must bt nnnuliiit", 

Thc iotal amouni ,)f the coinml11ncn1 i~ Total Coimniimeni N ! 9(1~).99 .I'hb firad must he pupulated, iti run' ¡'wml("',f 19 Balance oui!'iandii~ CUrTenl ouislDmJinr princip.'l h:il:incc ofihe note. 

M"m'n' ,hi' (.II.\/t'"II,. hu~ (lI'"JUllc/ ,hi. "otl" lIllllht' hiiiik I.\: (iin,'ing 1I O"(,i/it bulani (' II iliü .r'clJ, yrll 

niil" I"'r,or, ,ht' I1l1mbl". tJ\ ii w'gtJIIl'l' /tii/ane i' \\11h II mm", sign In ,i",.(irsi c-lwruI./l'" plI.nfmn", IJw /rll 

Fii,. m..lmUT. .1 en'dii luilmur "i II 'Jig.I1I'(' 1.301 5fi '1.~ ,irhoii/d hi' rCfH,rrc'c/ 11." . af ,hr hir'lIt'~.I.mi/('r dig" 

.14.1695 N i. 9( I ~).'1 

20 Undishur:æd C'iiininilinen Reprt ihe unu!'cd p''ltJun!' iir ctlinmitini:nts HI make tir pu,ch;i~ eXICTsinn!' of eredil in ilk' fuon 01 InchiJe In.'!n proceed!" the b:ink loan!'. riarliciri1110OS. ka!'c finam.:inr rl"CL'I\'ahlcs tlr simihir tr;insactions.
 

i!õ ubli~a'L'd i( advance. stich as loon draws. (Ul\struciiiin prugrcss p;iymcnt~, si;;isun:il advances umlcr
 

availabiliiy 

Indudc the unusc-d proced" preilTT;in~cd lines of cred,t, rC\'tll\'lli; ,:,ei.it facilille:s or :.imilar tranS3i:lluns. 

of ciniinilincnf~ for ""hid) thc bank !iõls ch;irrl.'L1 .. i.oinIOltmi:nt k"' :I' olhcT"'ISC hils 01 Ic¡!ally bindinr 

eommilinc:nt. TIm; will lJaliy litne'!i Ì'' Ihe unused por1IHfl IIf hiles 01 nctlit. or thl. unfundl,-d bal.ioec un.1 _.". 3.. ..". Il YYYYMM 

21 

22 

2~ 

Oricin;iiiun Dillc 

La~ reewal ibtc 

Miruritv 031C 

Date ihe l~in "'..~ ()ri~in¡iicd 

"Inc daie ihe noie wac; l:i!"i rcnewct 

Inc d~lC' when filII navincni (\0 ihi" nute IS L'ooirai:iuallv due 

J) 

f) 

Il 

YYYYMM 

YYYYMM 

YYYYMM 

24 LaSi C"ILTl~lon dAle The date Ihe nOlc'~ m."liuriIV was J;i..1 exlendC'd N 99' 

25 Numher of rcnrw"¡,, The numhCT '11' IImC's ihe nolC' ha!" heen renewcd. N 9' 

26 Numher of cxtt."fsiin~ The number oftlmC!" ihe 1\Oic 's inaluTlI\, (btl. has heen extended AlN 41 

27 

~~ 

Noto nuro", 

COll31eral Code 

Oennhun of \l'hat ihe nroceed... \l'llI lx' u!'d for 

The C(tdc aS~Ii\led with the' coll;ih...,;il fyJl te g. wmmC"rcl;i1 rcõll L"'I,'lc. I. 4 tiunily murt!=õires, tK.-C AlN \( 

filin!!!'. mOlrkctahlc !Cccuritic:' (.1c.I N 0.9'9'9 

29 

30 

31 

Inlerest Rate 

Inierest R.ilc Index 

IntC'r~t R:iiC Spread 

The conuaetual raIl. of inlercst currenilv ;im'llicd 1(1 Ihi~ nole 

Inleresl rilte haSt index \IseLi whcn the TK'ltc'~ mit. \',ulcs wiili:in indcx. A/N 

The inlcrc!'1 raic \,;in;inec: from ihe index ralc ch.1.rgcd un this no'c. Fxprcs!' in It:mis of ;1 J'rc(''1IOlgc FOf N 

example the preiniull ,"Or a oiiIe wrillen .a Prim,' i ::.25~~ woull he exprC's~ed;i\ 1Jn:!:!~u 1111I('mIN('.~1 

2 

9.Q99' 

rciic' u ,It'IL'/"mmnl hy ./nlIIl'mg JHml ihe milC'. (I,t.., fllimi' mmlL" !!Y',,). IJlln If'i,uri ,he xpn'liJ In "Il~ 

fieltlm /I'.t:tUI\'l nil ("11/1.kll of 1111. del,"'''1 !/(m, .\houJi á,/1l1' /11' u\paC'' or II :l'ni II ihi\ fiddn 

3~ Inieres:t carned niil 

"1,0;1;1'( 0,.0,"~i11\'." 'ii diii.' ""' An l'.\dni ,lc' ~,.I/!i hi', (CJ50 

lotil oiiTKiunl or inlen:sl al.'crucd and n,l( ~Cl reCC1Vc.'l! iin a noie/credit (¡,cihl)' In ,IIr ("l.~i' lItp"",l'oul N i. t)(J::).QQ 

collected ,",('"1.\1 (loO,.rliii'r hm' IKwl /JIlt'l/h. n'fH~'" fJii' ./0111 II ilii.\..tìdd wlrJi u minll,\ sign ,,, ihi' ¡¡,.51 dlCl'ill Ii'" 

H,üiimi iiliI/(, kli "' ,hi' JIJ~JiI"q.ol"/l'r digii I'úr Ul.\tann.. II prf'-/I,Jid ,"oliin¡"t I~I $3,015" \/5 .\Jiiiild lIe' 

F(' ,,,rlt'd cJ'ò ".U.Hi '15 N i. i:n'w 

J.\ Chan'c otf :im"unl Amouniiif nrincin:l d'lar1!cò ullihi" noii. N i. ~( 1::)9~ 

34 Specific l(r..crvc Ami"-nl of s(lCllii' rC!'t"r\'C lor lu:.n Itr.sc!' un ihis 1i0lc, Whidi IS nol ;i\"ailahlc 10 "llsl.t lti~se.. on any 

3~ Guaranlor 

other loan 

Namc of Ihe.' entllvfocr.on IhOlI ctlar.nic~~ ihe "ole '....iih multi 'lIe ciiar.ninrs. l'1\'t: the nriii:irv IInc AN 

N 

4 agi 36 D:y!" P;ISt I )uc The numbcr (If d;iy~ the nole I:. flI!i1 duc 011 th~ uaie ihis repon i~ pwduccd. IJ r/lt. cli\'lom('r Jiil:~ /,¡I/IL 

i'¡u'od ~,1t1111l hi",t ..\ ....'.,\ti,m n..:I1cI/.\ ,hi.\ C1 II 'llJ.tlt,n' J~(l./ citic in ihn -'idil n'IHn1 ill,, ,lata 1f rIii.' lidd 

,",11,11 "'''IIS ."'.I!" Iillhl'.fjnr ('hOnWii'r Im.\lul/ til ,hi' IiJIIiJ lilt III.tiiol-linkl ,h.clf Fltrll.HrJl,n' " 

"olc' ,hof .... naid aii"tld .W t/i/I',\ \1'Oilti J, rc' 'tort,.1 rn - ll IJ YYYYMM 

37 InlC'e~1 n3ld.IO date The date l(l which J1tcrcst n;ivinents an;: i'urrcnl. Lu'ii: 1 YIN 

:lH 

W 

Nnnaccruil 

Tvix 

Indieawr if ihe nole.' hOls hecn nl:iced on nonilccni;il 

The rv iif lO;U1;i!' defined h.. the: vcndor Of u~::r. I'm eX:lJn 'lie Cumin'!. J(. ('Rr i.t. RC .."N 

A'N 

2( 

I PiS 

40 I'articip:lli(in Indic;iiOT IndlGlinr iftlie. In..n wois pun:hilsci.ll ~(lid. l:nicr :i 'I" if ii W:l~ Jlllchil..t.:d, 'S" if ;,11 or ii r~l.njim IS ~old. 

'" 1.91I~l.Qa 

41 Amouni Sold The ciinenl h"l:incc ollhe: amuunl sold N i. 'I1~\ Qa 

4~ PanielTatl()n Sold rhc oncin;iI.:IT)Unl of!tm niile.' Ih;11 wa:. s(lld A'N ~I 

4' Collateral dt.!"CTintH)n Inc naTTatm.: dcscnntion ol"tht. c(,!Iaicnll 
Loan Oat.lields (highlighted fields are not necessary lor LLC's)
 

Instrutions to be provided to LLC if submitting lexl files. excel fies are prelerred
 

~:::::: Mi:':' 

~ir:::;:: .:..:.:.:..:.:.:. .~:::::::::::::::::.	 :~m~t: :.:.:.:.:..:.:.: .....:.:......~:.:.:.:.:.:.:.:.:4: ::::::;~~:((:)~:~:~:~:~:~:)~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:)~:~:~:~:~:~ ..........
 For delinaueniloanl'. ihi!' will be In .he oa~. D YYYYMM

44 Next due date	 The daie ihe next navmef. nnnciDôI or inter6t. 1:- due A! Il moihlv. uU3ierlv. annuallv. hullei. etc. \ 45 Pivmi fr~uen~	 How often 03ymnU arc coniraciuallv renuired l.ic I YIN Varible Riie Indicalor ¡fnote"!" ¡nterl rale l~ ad-usiahlc. noatlOl:. Of vaniblc 46	 N 0.99'1 47 Perodic intemt Rate ell The maximum chanL"e allowed 10 the inicre,,' r:llc.n each rc-nricin i onnnunil:.	 For N 'I 48 Iniest Rale Reset The lime between periodic resi: dalC!i for vaoOlhle (IT adjustable rate loans cXfMes..cd in days.
 

Interl instance. a note ihai adjusts weekly would hölw íl "7" 10 this field. varìÐble-rate noles adjustinl! monthly 3
 

"30" and!ô on
 N 0._ 49 Lifelimc Interest Rale	 The maximum rate the nole can reach m"cr ¡t!l cùntrõlciu;il Icn Ltll,e I YIN 

50 Troubled Deb! Indicilor ir the noie i~ cun:iiden:d 10 he a twuhlcd debt rcslrue1ure Resctud Lo~ic 1 YIN lndiçahlf i-huuld ht 3n "N" ror ntll"" ",-hert: p.'1ymnu h.wc
 

amonizinl! staNS
 

51 Amolziniion-	 Indicate if ihe nuie is ¡imonizins. with a . Y'. 

heen surondcd. N I- '9(I~i9Q Amount or re 'ulilrlv schcdukd n:vment ~2 Pavmnl amount l) YYYYMM Daie the laSI navmeni wa:i made. 53 Last Pavmenl Date N I oi\2.9' The :imount of inleresl added 10 Ihe noll:' s nrincinal halam:c 54 Caniialized Inlerest N W

55 Numlx of paymnts in llic conlracnJ¡i1 nuinhL'J uf payments required by ili~ nple contuL1 N I Q 1~199 The dollar ..:ilne the h:ink :i~crihc~ lU ;,11 coii.,leral Si"CUrinl.! this note 56 Collaterl Value 0 YYYYMM 

57 'oii.teral Valuiltionl Dale collateral was ¡:isI :ippr:iÎsediir \'ahied.	 Df) Aooaisal D::le I\N 2 The nnuniv hen held hv this h:ink Ie. '.. hilicn. ~nd hen, CiC.\ 5R Lien Slalu," in ''1( llH(' (If N I 'i( 1~)Qij 

50 l&1 E.\crow Aalancc:	 The itllVUni cum:nily hi:d In eserow lm J11~incnl Iii ihird p.:riies lùr 1axe:, ¡md HlSUranL"l".
 

/J "C'rtJli't. t'll"rm hiihmn', /"'/1(11" '11" dahl in tlri~ Jie''' "7th /J mmm ii~n In 1I'I'lirst d,m iw'i'r I'u\iiioii
 

w ",i' id, i~r ihi' 1iîgJw\".UI"/"" illJ.j,
 1"111" ¡,awm c. ULL Cl4Tfl14 of iJ nt'tllUl'C' S3,45/" v_~ .\/ltluld he I'Cl'lirl£'(! 

u.t .3015n V_~ N I- 'I i 2 )9'1 

60 Borower Com:truelion The ainount cUTTently hdd in I.SCTlW h)f i:orislructiOI\ l:(lSli; EM-TO.. N i. '112)99 ~I Sericer Advances	 The ilmounl pmd h~ the seryu:er fnr pwli'etlVI. õid..;ill:ci; th:ii ólrc icimhursablc hy ihe borrower ur
 

cuarantor
 A/N 4( 

62 Co.m;:kcrUoinl-inaker	 -The Mme ufth( c(Hna~l"(~) ur ltiinl m;ikaisi wh(l~c sirn:uun:ts) apreari; on ihl. rrol1l,"SO~' noli" I\f 1\):1n
 

Olt!fL"Cinent.Idenlif\' fir..linic wherc ihere arc imil'¡olc ct-m;kcrs
 N i. IQ(\~\'I lin i:id. l..ic cffirl!c!l currenit.. due and 6:' Late Char 'es 
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