SFR 2010-1
 

AMENDED AND RESTATED
 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT
 

MULTIBANK 2010-1 SFR VENTURE, LLC
 

Dated as of April 1, 2010
 

FDIC SFR 2010-1
 

Amended and Restated Limited Liability Company Operating Agreement
 

Pool Nos. 24020 and 24021
 
TABLE OF CONTENTS
 

Page

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

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

1.2 Construction........................................................................................................13
 

ARTICLE II Organization of the Company.................................................................................14
 

2.1 Formation; Continuation and Admission of Members. ......................................14
 

2.2 Name...................................................................................................................14
 

2.3 Organizational Contributions and Related Actions. ...........................................14
 

2.4 Registered Office; Chief Executive Office. ........................................................15
 

2.5 Purpose; Duration. ..............................................................................................15
 

2.6 Single Purpose Entity; Limitations on Company’s Activities............................15
 

2.7 Ratification of Certain Actions...........................................................................18
 

ARTICLE III Management and Operations of the Company......................................................18
 

3.1 Management of the Company’s Affairs..............................................................18
 

3.2 Removal of the Manager.....................................................................................20
 

3.3 Employees and Services .....................................................................................20
 

3.4 Restrictions on Manager and Private Owner ......................................................21
 

3.5 Related Party Agreements...................................................................................22
 

3.6 Real Property ......................................................................................................22
 

3.7 Custodian and Paying Agent...............................................................................22
 

3.8 Relationships with Borrowers, etc ......................................................................23
 

3.9 No Conflicting Obligations.................................................................................23
 

3.10 Compliance with Law.........................................................................................23
 

3.11 No Bankruptcy Filing .........................................................................................24
 

3.12 No Liens..............................................................................................................24
 

3.13 Remedies Upon an Event of Default; Security Interest......................................24
 

3.14 Purchase Right of the Initial Member.................................................................28
 

3.15 No ERISA Plan Assets........................................................................................30
 

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

Members .............................................................................................................30
 

4.1 General................................................................................................................30
 

4.2 LLC Interests. .....................................................................................................30
 

4.3 Filings; Duty of Members to Cooperate .............................................................31
 

4.4 Certain Restrictions and Requirements...............................................................31
 

4.5 Liability of the Initial Member ...........................................................................31
 

4.6 Indemnification...................................................................................................32
 

ARTICLE V Capital Contributions; Liquidity Account; Special Reserve Account;
 

Excess Liquidity Advance ..................................................................................36
 

5.1 Capital Contributions..........................................................................................36
 

5.2 Liquidity Account ...............................................................................................36
 

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Amended and Restated Limited Liability Company Operating Agreement
 

Pool Nos. 24020 and 24021
 

FDIC SFR 2010-1
 
TABLE OF CONTENTS
 

(Continued)
 

Page
 

5.3 Special Reserve Account. ...................................................................................36
 

5.4 Excess Liquidity Advances.................................................................................37
 

ARTICLE VI Capital Accounts; Allocations; Priority of Payments; Distributions ....................37
 

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

6.2 Allocations to Capital Accounts .........................................................................38
 

6.3 Tax Allocations...................................................................................................39
 

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

6.5 Priority of Payments ...........................................................................................41
 

6.6 Distributions........................................................................................................41
 

ARTICLE VII Accounting, Reporting and Taxation...................................................................42
 

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

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

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

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

7.5 Designation of Tax Matters Member..................................................................47
 

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

7.7 Business Plan ......................................................................................................48
 

ARTICLE VIII Restrictions on Disposition of LLC Interests.....................................................49
 

8.1 Limitations on Disposition of LLC Interests......................................................49
 

8.2 Change of Control...............................................................................................49
 

8.3 Additional Provisions Relating to Permitted Dispositions.................................50
 

8.4 Effect of Permitted Dispositions.........................................................................50
 

8.5 Effect of Prohibited Dispositions........................................................................51
 

8.6 Distributions After Disposition...........................................................................51
 

8.7 Transfers By The Initial Member .......................................................................51
 

8.8 Resignation; Dissolution.....................................................................................52
 

8.9 Applicable Law Withdrawal...............................................................................52
 

ARTICLE IX Dissolution and Winding-Up of the Company......................................................53
 

9.1 Dissolution ..........................................................................................................53
 

9.2 Winding-Up Procedures......................................................................................53
 

9.3 Termination of the Company. .............................................................................54
 

ARTICLE X Qualified Transferees..............................................................................................54
 

10.1 Qualified Transferees..........................................................................................54
 

ARTICLE XI Manager Liability..................................................................................................58
 

11.1 Liability of the Manager. ....................................................................................58
 

ARTICLE XII Servicing of Mortgage Loans ..............................................................................59
 

12.1 Servicing. ............................................................................................................59
 

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Amended and Restated Limited Liability Company Operating Agreement
 

Pool Nos. 24020 and 24021
 

FDIC SFR 2010-1
 
TABLE OF CONTENTS
 

(Continued)
 

Page
 

12.2 Servicing Standard..............................................................................................62
 

12.3 Servicing of Mortgage Loans..............................................................................64
 

12.4 Removal of Servicer. ..........................................................................................68
 

12.5 Interim Management Fee and Interim Servicing Fee; Management Fee............72
 

12.6 Servicing Expenses.............................................................................................72
 

12.7 Use of Mortgage Loan Proceeds.........................................................................73
 

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

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

12.10 [Reserved]...........................................................................................................74
 

12.11 Liquidity Account. ..............................................................................................75
 

12.12 Certain Servicing and Mortgage Loan Administration Decisions......................75
 

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

12.14 Acquisition of Underlying Collateral..................................................................76
 

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

12.16 Releases of Underlying Collateral ......................................................................79
 

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

12.18 Certain Transfer Obligations...............................................................................80
 

ARTICLE XIII Miscellaneous.....................................................................................................80
 

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

13.2 Entire Agreement; Other Agreements. ...............................................................80
 

13.3 Third Party Beneficiaries....................................................................................81
 

13.4 Expenses .............................................................................................................81
 

13.5 Waivers and Amendments. .................................................................................81
 

13.6 Notices ................................................................................................................83
 

13.7 Counterparts; Facsimile Signatures. ...................................................................84
 

13.8 Successors and Assigns.......................................................................................85
 

13.9 Compliance With Law; Severability...................................................................85
 

13.10 Power of Attorney...............................................................................................85
 

13.11 Governing Law ...................................................................................................86
 

13.12 Jurisdiction; Venue and Service..........................................................................86
 

13.13 Waiver of Jury Trial............................................................................................88
 

ANNEX I Member Schedule ..............................................................................................I-1
 

EXHIBIT A Certificate of Formation................................................................................... A-1
 

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

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

EXHIBIT D Form of Letter of Credit................................................................................... D-1
 

iii
 FDIC SFR 2010-1
 

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
MULTIBANK 2010-1 SFR 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 entered into as of the 1st day of April, 2010

(the “Closing Date”), by and among the Federal Deposit Insurance Corporation (in any capacity,

the “FDIC”), as the Receiver defined below (including its successors and assigns hereto, the

“Initial Member”), RoundPoint Ventures I, LLC, a Florida limited liability company (the

“Private Owner”), and Multibank 2010-1 SFR Venture, LLC, a Delaware limited liability

company (the “Company”).

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

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

WHEREAS, on March 17, 2010, the Initial Member formed the Company as a Delaware

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

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

Company have entered into that certain Limited Liability Company Operating Agreement dated

as of March 17, 2010 (the “Original LLC Operating Agreement”) as the initial “limited

liability company agreement” (as such term is defined in the Act) of the Company;

WHEREAS, the Initial Member and the Company have entered into a Mortgage Loan

Contribution and Sale Agreement dated as of the Closing Date (the “Contribution Agreement”)

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

Company at the time) contributed in part to the Company, and the Company purchased from the

Initial Member, all of the Initial Member’s right, title and interest in and to the Mortgage Loans,

and assumed the Obligations (as defined in the Contribution Agreement), (ii) the Company

executed and delivered to the Initial Member the Purchase Money Note for the benefit of the

Initial Member and dated the date hereof (the “Purchase Money Note”); and (iii) the FDIC, in

its corporate capacity (the “Purchase Money Note Guarantor”) guaranteed payment of

principal on the Purchase Money Note pursuant to the terms of a Purchase Money Note Guaranty

Agreement dated the date hereof between the FDIC, in its corporate capacity, and the Initial

Member (the “Purchase Money Note Guaranty”), and obtained a security interest in the

Mortgage Loans and Underlying Collateral under the Reimbursement and Security Agreement;

WHEREAS, the Initial Member and the Company have entered into a Mortgage Loan

Contribution Agreement dated as of the Closing Date (the “Contribution Agreement”) pursuant

to which the Initial Member has, as the sole member of the Company at the time, contributed to

the Company all of the Initial Member’s right, title and interest in and to the Mortgage Loans,

and the Company has assumed the Obligations (as defined in the Contribution Agreement);

WHEREAS, the Manager has agreed to cause the Company to establish the Liquidity

Account to provide the Company with capital to fund Operating Expenses;

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
WHEREAS, the Manager has agreed to cause the Company to establish the Special

Reserve Account which shall be pledged to the Initial Member as a guarantee of the Manager’s

obligations arising out of this Agreement;

WHEREAS, following closing of the transactions contemplated by the Contribution

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

agreed, pursuant to the terms of that certain Limited Liability Company Interest Sale and

Assignment Agreement dated of even date herewith (the “Transferred LLC Interest Sale

Agreement”), to sell to the Private Owner, effective as of the Closing Date an LLC Interest

representing a fifty percent (50)% equity interest in the Company;

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

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

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

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

will own an LLC Interest representing a forty percent (40%) equity interest in the Company and

the Initial Member will own an LLC Interest representing a sixty percent (60%) equity interest in

the Company;

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

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

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

and operated;

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

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

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

ARTICLE I
 

Certain Definitions
 

1.1 Definitions. This Agreement constitutes the “limited liability company

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

certain terms used in this Agreement shall have the meaning and definitions set forth in that

certain Agreement of Common Definitions dated as of the Closing Date. In addition, for

purposes of this Agreement, the following terms shall have the meanings and definitions

hereinafter respectively set forth.

“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 residential loan servicers by Standard and Poor’s Ratings Service, a division of The McGrawHill Companies, Inc., (ii) a rating of “Acceptable” for residential loan servicers by Fitch, Inc., or

(iii) a rating of “Approved” for residential loan servicers by Moody’s Investors Service.

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
“Accountants” shall mean the independent certified public accountants of the

Company.

“Acquired Property” shall mean (i) Underlying Collateral to which title is

acquired by or on behalf of the Company or any Ownership Entity, any Failed Bank or the

Receiver by foreclosure, by deed in lieu of foreclosure, by power of sale or by sale pursuant to

the Uniform Commercial Code; (ii) the equity interests in the Ownership Entities and (iii) the

assets held directly or indirectly by the Ownership Entities.

“Act” shall mean the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-

101 et seq.

“Additional Security” shall have the meaning given in Section 3.13(d).

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

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

Year, after giving effect to the following adjustments:

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

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

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

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

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

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

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

consistently therewith.

“Affiliate” shall mean, with respect to any specified Person, (i) any other Person

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

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

voting securities, voting equity interests, or beneficial interests of the Person specified, (iii) any

officer, director, general partner, managing member, trustee, employee or promoter of the Person

specified or any Immediate Family Member of such officer, director, general partner, managing

member, trustee, employee or promoter, (iv) any corporation, partnership, limited liability

company or trust for which any Person referred to in clause (ii) or (iii) acts in that capacity, or

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

of ten percent (10%) or more of the outstanding voting securities, voting equity interests or

beneficial interests of any Person described in clauses (i) through (iv); provided, however, that

none of neither the Initial Member, the Purchase Money Note Guarantor, the Collateral Agent or

nor any Affiliate (for this purpose determined disregarding clauses (ii), (iii) and (iv) of this

definition (including in the context of clause (v) of this definition) and disregarding the Company

and any Person Controlled by the Company) of any of the foregoing thereof shall be deemed to

be an “Affiliate” of the Company or of any Person Controlled by the Company.

“Agreement” shall have the meaning given in the preamble.

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
“Book Value” shall mean, (i) with respect to contributed property, the initial Fair

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Business” shall mean the acquisition of the Mortgage Loans pursuant to the

Contribution Agreement and the ownership, servicing, administration, management and

liquidation of the Mortgage Loans.

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

“Buy-Out Closing Date” shall have the meaning given in Section 3.14(b).

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

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

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

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

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

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

“Capital Contribution” shall mean a contribution to the capital of the Company

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

Contribution Agreement, or this Agreement.

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

“Clean-up Call” shall have the meaning set forth in Section 12.17.

“Closing” shall mean the consummation of the transactions contemplated in the

Transferred LLC Interest Sale Agreement.

“Company” shall have the meaning given in the preamble.

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
“Company Property” shall mean all property, whether real or personal, tangible

or intangible, owned by the Company, including the Mortgage Loans contributed or sold by the

Initial Member pursuant to the Contribution Agreement.

“Contract for Deed” shall mean an executory contract with a third party to

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

performance of any other obligations described therein, including any installment land contract.

“Contribution Agreement” shall have the meaning given in the preamble.

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

“Custodial and Paying Agency Agreement” shall mean, initially, the Custodial

and Paying Agency Agreement dated as of April 1, 2010, by and between the Company, the

Purchase Money Note Guarantor and the initial Custodian, and thereafter any replacement

agreement entered into with a Custodian pursuant to Section 3.7.

“Damages” shall mean any and all damages, disbursements, suits, claims,

liabilities, obligations, judgments, fines, penalties, charges, amounts paid in settlement, costs and

expenses (including, without limitation, attorneys’ fees and expenses) arising out of or related to

litigation and interest on any of the foregoing.

“Debt” of any Person shall mean (i) all indebtedness of such Person for borrowed

money, (ii) all obligations of such Person for the deferred purchase price of property or services

(excluding trade payables arising in the ordinary course of business), (iii) all obligations of such

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

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

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

under such agreement in the event of default are limited to repossession or sale of such property),

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

accordance with GAAP, recorded as capital leases, or (vi) all indebtedness or obligations of

others of the kinds referred to in clauses (i) through (v) above in respect of which such Person

has entered into or issued any Guarantee.

“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,

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

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

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

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

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

“Dispose” shall mean to make or consummate a “Disposition.”

“Dispute Resolution Procedure” shall mean the following procedure solely for

the purpose of determining a particular amount:

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Each Member shall submit to the other, within five Business Days of referral to

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

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

proposals is not greater than 110% of the lower proposal, then the amount shall be the average of

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

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

select a nationally recognized investment banking firm which shall, within 15 days of its

appointment, select the proposed amount previously submitted by the Members pursuant to this

procedure that in its opinion more closely reflects the amount being determined as described in

the Agreement, and the proposal thus selected shall be considered the amount for purposes of the

Agreement. If the Members fail to agree on such investment banking firm within such seven-day

period, then each Member shall nominate, within such seven-day period, a nationally recognized

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

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

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

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

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

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

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

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

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

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

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

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

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

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

revocation of its charter and the expiration of 90 days after the date of notice to the corporation

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

entity, the termination of such entity. For the avoidance of doubt, it is understood and agreed

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

“Dissolution Event.”

“Embargoed Person” shall mean any person subject to trade restrictions under

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

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

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

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

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

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

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

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

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

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

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
“Events of Default” shall mean any one of the following events (whatever the

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

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

or regulation of any administrative or governmental body):

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

that an Event of Default under and as defined in the Reimbursement and Security Agreement has

occurred and is continuing beyond any applicable notice and cure periods; 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) (i) with respect to any

of the Company, the Private Owner, the Manager or any of their Affiliates; or (ii) with respect to

any Servicer or any Subservicer or any Affiliate of the foregoing; provided, that such Insolvency

Event under this clause (ii) (that is not otherwise an Insolvency Event under clause (i) hereof)

shall not be an Event of Default hereunder (but shall in all events be a default under the

applicable Servicing Agreement or Subservicing Agreement) so long as the Manager shall have

fully replaced (or caused the replacement of) such affected Servicer or Subservicer within thirty

(30) days after the occurrence of such Insolvency Event; or

(c) any failure of the Company to pay any Servicing Expense when

due in accordance with Section 12.6 of this Agreement, which failure continues unremedied for a

period of thirty (30) days; or

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

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

respect with or enforce the provisions of this Agreement or the Servicing Agreement; or

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

any material respect its obligations under the Servicing Agreement or (ii) a failure by the

Manager (in its individual capacity) to replace the Servicer upon the occurrence of either an

Event of Default under the Reimbursement and Security Agreement as a result of the Servicer’s

acts or omissions or a material breach of or event of default under the Servicing Agreement by

the Servicer; or

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

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

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

(including any failure to pay fees or expenses due thereunder; or

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

there shall occur a Change of Control with respect to the Private Owner, the Manager (other than

as expressly permitted pursuant to Section 8.2) or any Restricted Servicer Change of Control;

provided, that, any such Restricted Servicer Change of Control shall not be an Event of Default

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

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

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

of Control; or

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
(h) the failure of the Company to remit or cause to be remitted all

Mortgage Loan Proceeds to the Paying Agent as and when required or the failure of the

Company to make any other payments required hereunder at the time required; or

(j) any failure by an Issuing Bank to comply with any terms,

agreements or conditions of any Qualifying Letter of Credit; or

(k) any payments by the Secured Parties of the Loan Parity Obligation.

“Fair Market Value” shall mean, with respect to any asset on a given date, the

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

good faith by the Manager after consultation with the Initial Member; provided, however, that

the parties hereto acknowledge and agree that, as of the Closing Date, the Fair Market Value of

the Capital Contribution made by the Initial Member shall be based on the Transferred LLC

Interest Sale Price, as set forth in the Transferred LLC Interest Sale Agreement, and such Fair

Market Value shall be utilized for determining the initial Capital Accounts of the Members as of

the Closing Date.

“Fiscal Year” shall have the meaning given in Section 7.1.

“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 arrangement intended to

have the effect of directly or indirectly guaranteeing such indebtedness or other obligation,

including without limitation any agreement by a Person other than the obligor with respect to

such indebtedness or other obligation (A) to pay or purchase such indebtedness or other

obligation or to advance or supply funds for the payment or purchase of such indebtedness or

other obligation, (B) to purchase, sell or lease (as lessee or lessor) property of, to purchase or sell

services from or to, to supply funds to or in any other manner invest in, the obligor with respect

to such indebtedness or other obligation (including any agreement to pay for property or services

of the obligor irrespective of whether such property is received or such services are rendered),

primarily for the purpose of enabling the obligor to make payment of such indebtedness or other

obligation or to assure the holder or other obligee of such indebtedness or other obligation

against loss, or (C) otherwise to assure the obligee of such indebtedness or other obligation

against loss with respect thereto, or (ii) any grant (or agreement in favor of the obligee of such

indebtedness or other obligation to grant such obligee, under any circumstances) by a Person

other than the obligor with respect to such indebtedness or other obligation of a security interest

in, or other Lien on, any property or other interest of such Person, whether or not such other

Person has not assumed or become liable for the payment of such indebtedness or other

obligation.

“Incentive Threshold” shall have the meaning given in Section 6.6(b)(iv).

“Incentive Threshold Base Amount” shall have the meaning given in

Section 6.6(b).

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

8

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
“Indemnified Parties” shall have the meaning give in Section 4.6(a).

“Initial Member” shall have the meaning given in the preamble.

“Initial Member Capital Contribution” shall have the meaning given in

Section 2.3(a)(i).

“Issuing Bank” shall mean, with respect to any Qualifying Letter of Credit, the

applicable issuing bank.

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

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

any failure of such Qualifying Letter of Credit to be automatically renewed (for an additional

year) at least sixty (60) days prior to the then-scheduled expiration of such Qualifying Letter of

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

of Credit will not be automatically renewed (for such additional one year period), in each case

unless, within ten (10) days of the occurrence of such failure or the Initial Member’s receipt of

such notice, as the case may be, the Private Owner shall have fully replaced such Qualifying

Letter of Credit with a new Qualifying Letter of Credit issued by a Qualified Issuer (conforming

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

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

Qualifying Letter of Credit.

“LLC Interest” means, with respect to any particular Member, (i) the entire

limited liability company interest in the Company of such Member, including such Member’s

rights to share in the income, gain, loss, deductions and credits of, and the right to receive

distributions from, the Company, (ii) all other rights, benefits and privileges enjoyed by such

Member (under the Act, this Agreement or otherwise) in its capacity as a Member, including

rights to vote, consent and approve, and (iii) all other rights, benefits, privileges and claims

(whether known or unknown) of such Member under, or arising under, this Agreement. For

purposes of clarification, references in this Agreement to the term “limited liability company

interest” shall mean a “limited liability company interest” as such term is defined in the Act.

“Losses” shall have the meaning given in Section 4.6(a).

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

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

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

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

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

“member” as such term is defined in the Act.

“Member Schedule” shall mean the schedule attached hereto (and hereby

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

modified from time to time.

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
“Monthly Adjusted Annualized Yield” is equal to 1.8769 percent. The Monthly

Adjusted Annualized Yield is derived as follows: (1 + Annualized Yield Threshold)1/12 – 1 or (1

+ 0.25)1/12 – 1, where the Annualized Yield Threshold is 25%.

“Monthly Report” shall mean a report in electronic format in the form set forth

in Exhibit B hereto, which report shall be prepared and distributed by the Manager in accordance

with Section 7.4(b).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

definition, shall be treated as deductible items.

“Original LLC Operating Agreement” shall have the meaning given in the

preamble.

“Permitted Disposition” shall have the meaning given in Section 8.1.

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

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

“Private Owner” shall have the meaning given in the preamble.

“Private Owner Obligations” shall have the meaning given in Section 3.13(c).

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
“Property” shall mean any property contributed to, acquired by or otherwise

owned by the Company, including, without limitation, any real or personal, tangible or intangible

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

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

“Purchaser Eligibility Certification” means, (i) with respect to the Private

Owner, any purchaser eligibility certification delivered by the Private Owner (or its Affiliates) to

the Receiver in connection with the transactions contemplated in this Agreement and the

Ancillary Documents including the purchaser eligibility certifications delivered by the Private

Owner to the Receiver, and, (ii) with respect to any Permitted Disposition (and the applicable

transferee in connection therewith), a purchaser eligibility certification in substantially the form

of the purchaser eligibility certification referenced in item (i), with such changes as the Initial

Member may require based on changes to such form of Purchaser Eligibility Certification as

maintained by the FDIC.

“Qualified Custodian” means any Person that (i) is a bank, trust company or title

insurance company subject to supervision and examination by any federal or state regulatory

authority, (ii) is experienced in providing services of the type required to be performed by the

Custodian under the Custodial and Paying Agency Agreement, (iii) is qualified and licensed to

do business in each such jurisdiction to the extent required unless and to the extent the failure to

be so qualified or licensed will not have a material adverse effect on the Custodian or 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 combined capital and surplus of at least $50,000,000 as

reported in its most recent report of condition, (vi) has the facilities to safeguard the Mortgage

Loan Documents and other Custodial Documents as required by the Custodial and Paying

Agency Agreement, (vii) is not an Affiliate 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).

“Qualified Issuer” means any FDIC-insured depository institution that is “well

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

credit and maintains offices in either or both of New York City, NY and Washington, DC, where

presentation and drawings on such letters of credit can be duly made.

“Qualifying Cash Collateral” shall have the meaning given in Section 3.13(d).

“Qualified Transferee” shall have the meaning given in Section 10.1.

“Qualifying Letter of Credit” means an irrevocable standby letter of credit, in an

amount at least equal to the Required Special Reserve Amount, substantially in the form of

Exhibit D hereto (or in such other form as may be acceptable to, and approved in writing by, the

Initial Member), duly issued by an Issuing Bank that is, as of the date of issuance thereof, a

Qualified Issuer and delivered to the Initial Member, drawable at such Issuing Bank’s offices in

New York City, NY or Washington, DC, and having an initial term of one year with automatic

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

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
an additional year) until the Initial Member has delivered written notice to the Issuing Bank to

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

“Receiver” has the meaning given in the recitals.

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

“Secured Assets” shall have the meaning given in Section 3.13.

“Servicing Agreement” shall mean, initially, the Servicing Agreement dated as

of the date hereof, by and between the Manager (in its individual capacity) and the Servicer, (in

its individual capacity), and thereafter any replacement agreement entered into between the

Manager (in its individual capacity) and the Person designated as the Servicer therein, which

servicing agreement shall satisfy the requirements of Section 12.1(b) and shall be acceptable to

the Initial Member in all respects.

“Site Assessment” shall have the meaning given in Section 12.14(b).

“Subsidiary” shall mean, with respect to any specified Person, each of (i) any

other Person not less than a majority of the overall economic equity in which is owned, directly

or indirectly through one of more intermediaries, by such specified Person, and (ii) without

limitation of clause (i), any other Person who or which, directly or indirectly through one or

more intermediaries, is Controlled by such specified Person (it being understood with respect to

clause (i) that a pledge for collateral security purposes of an equity interest in a Person shall not

be deemed to affect the ownership of such equity interest by the pledgor so long as such pledgor

continues to be entitled, in all material respects, to all the income with respect to such equity

interest).

“Successor” shall mean, (i) with respect to a Member, any future Member which

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

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

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

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

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

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

under this Agreement or any other Ancillary Document.

“Tax” shall mean any federal, state, county, local, or foreign tax, charge, fee,

levy, duty, or other assessment, including any income, gross receipts, transfer, recording, capital,

withholding, property, ad valorem, or other tax or governmental fee of any kind whatsoever,

imposed or required to be withheld by any governmental authority having jurisdiction over the

assessment, determination, collection, or other imposition of any Tax, including any interest,

penalties and additions imposed thereon or with respect thereto.

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

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

12

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
“Threshold Increase Amount” as of any Distribution Date shall be equal to the

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

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

“Treasury Regulations” shall mean the regulations promulgated by the United

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

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

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

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

“$” shall mean lawful currency of the United States of America.

1.2 Construction.

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

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

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

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

(b) References to Persons Exclusive. References to “Affiliates” or

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

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

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

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

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

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

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

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

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

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

amendment, modification or replacement to such Law.

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

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

which they refer.

(f) References to Documents. References to any document, instrument or

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

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

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

modified and supplemented from time to time in accordance with its terms and as the same is in

effect at any given time.

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
(g) Use of “Herein.” Unless otherwise specified, the words “hereof,” “herein”

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

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

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

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

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

(i) Use of “During.” The word “during” when used in this Agreement with

respect to a period of time shall be construed to mean commencing at the beginning of such period

and continuing until the end of such period.

ARTICLE II
 

Organization of the Company
 

2.1 Formation; Continuation and Admission of Members.

(a) On March 16, 2010, the Receiver caused the Certificate of Formation of

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

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

change the registered agent or office of the Company.

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

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

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

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

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

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

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

2.2 Name.

(a) The name of the Company shall be Multibank 2010-1 SFR Venture, LLC.

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

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

to time.

2.3 Organizational Contributions and Related Actions.

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

Contribution Agreement, the Initial Member:

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

Mortgage Loans (the “Initial Member Capital Contribution”); and

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
(ii) sold and assigned to the Company, and the Company purchased

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

Loans comprising the Initial Member Capital Contribution) and assumed the

Obligations (as defined in the Contribution Agreement) in exchange for the

Purchase Money Note.

(b) [Reserved].

(c) Upon the consummation of the transactions contemplated in

Section 2.3(a) and prior to the occurrence of the Incentive Threshold Event as described in Section

6.6(b)(iii), the Private Owner shall own fifty percent (50%) of the issued and outstanding LLC

Interests and the Initial Member shall own fifty percent (50%) of such LLC Interests. Following

the occurrence of the Incentive Threshold Event, the Private Owner shall own forty percent (40%)

of the issued and outstanding LLC Interests and the Initial Member shall own sixty percent (60%)

of such LLC Interests.

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

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

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

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

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

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

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

Company’s registered agent. The chief executive office of the Company shall be located at 5032

Parkway Plaza Blvd., Charlotte, North Carolina 28217, or such other place as shall be

determined by the Manager from time to time.

2.5 Purpose; Duration.

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

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

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

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

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

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

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

Company or consistent with the furtherance thereof.

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

perpetually.

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

expressly permitted by this Agreement or the Ancillary Documents, the following shall govern

for so long as the Company is in existence:

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
(a) Subject to Section 9.1, the Manager shall cause the Company to do or

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

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

(i) maintain financial statements separate from any Affiliate;

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

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

liabilities and results of operations of the Company may be included in the

consolidated financial statements of its parent or ultimate parent in accordance

with GAAP;

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

from the Members and any other Person;

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

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

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

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

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

organizational formalities to maintain its separate legal existence;

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

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

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

Company than could be obtained in a comparable arm’s length transaction with an

unrelated Person;

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

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

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

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

overhead for shared office space;

(x) use separate stationery, invoices and checks;

(xi) correct any known misunderstanding regarding its separate

identity; and

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

purpose, transactions and liabilities, if any.

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

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

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

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Manager nor the Private Owner may, without the written consent of the Initial Member, cause or

permit the Company or any of its Subsidiaries to:

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

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

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

the Debts of any other Person, including any Affiliate;

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

(including the Purchase Money Note, the Purchase Money Note Guaranty, and the

Reimbursement and Security 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 Mortgage Loans, the Underlying Collateral,

or the proceeds therefrom; provided that the Company may invest its funds in

interest bearing accounts held by any bank that is not its Affiliate and otherwise in

accordance with the terms of this Agreement and the Paying Agency and

Custodial Agreement 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

Note, any Excess Liquidity Advance or as otherwise expressly permitted hereby

or by the Ancillary Documents to which the Initial Member is a party;

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

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

Entity), except that the Company may invest in those investments permitted under

the Ancillary Documents and may make any advance required or expressly

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

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

provisions;

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

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

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

under the laws of a jurisdiction other than the State of Delaware), transfer,

domesticate or continue the Company or any Subsidiary of the Company pursuant

to Section 18-213 of the Act, or take any other action for which the consent of

some or all of the members of a limited liability company is (unless otherwise

provided in the limited liability company agreement of such limited liability

company) required by the Act;

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

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

engage in any dissolution or liquidation, except in each case to the extent such

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
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);

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

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

hold any Subsidiary other than an Ownership Entity or form any trust for the

purpose of holding Mortgage Loans for the benefit of the Company; or

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

agreements contained in any of the Ancillary Documents.

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

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

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

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

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

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

without limitation the execution and performance of this Agreement and the Ancillary

Documents (the “Previously Approved Matters”). The Previously Approved Matters, and all

actions taken by the Company in furtherance of the Previously Approved Matters, are hereby

ratified, approved and confirmed in their entirety by each Member and the Manager is hereby

authorized and directed to execute and deliver, for and on behalf of the Company, any and all

documents as may now or hereafter be reasonably required in order to effect the Previously

Approved Matters.

ARTICLE III
 

Management and Operations of the Company
 

3.1 Management of the Company’s Affairs.

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

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

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

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

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

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

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

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

and shall serve as Manager until such time as (i) the Private Owner’s LLC Interest is Disposed of

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

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

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

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

Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4

below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
up, in accordance with the terms of this Agreement. The Manager shall devote such time to the

affairs of the Company as is necessary to manage the Company as set forth in this Agreement.

Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in

all respects as reasonably requested by the Tax Matters Member, from time to time, in connection

with the Tax Matters Member’s performance of its obligations under this Agreement. The Private

Owner (and any Successor to Private Owner) hereby expressly acknowledges that (x) as it relates

to its role as each of the Manager, this Agreement constitutes a personal services contract between

the Private Owner and the Company, and (y) except as may otherwise expressly specified herein,

it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other

compensation with respect to its service as Manager hereunder (including with respect to the

Manager’s Mortgage Loan servicing and management obligations under Article XII).

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

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

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

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

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

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

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

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

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

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

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

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

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

by the Manager as to:

(i) the identity of the Members;

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

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

the affairs of the Company;

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

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

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

whatsoever involving the Company or the Members.

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

parties hereto acknowledge and agree that:

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

behalf of the Initial Member;

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
(ii) the Private Owner and the Company each hereby expressly waives

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

Member to the Private Owner or the Company; and

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

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

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

Owner or the Company.

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

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

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

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

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

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

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

8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.15, 13.5 and 13.12. Any purported action by the

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

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

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

Owner is then the Manager), the Initial Member may remove the Private Owner as the Manager

and appoint a successor Manager in the sole and absolute discretion of the Initial Member in

accordance with Section 12.4, whereupon such successor Manager shall immediately succeed to

all, or such portion as the Initial Member and successor Manager agree, of the rights, powers,

duties and obligations of the “Manager” hereunder, and the predecessor Manager shall promptly

take such actions as may be reasonably requested by the Initial Member to facilitate the

transition to such successor Manager.

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

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

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

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

facilities and support services. If necessary to meet the foregoing requirements, the Manager

shall enter into contractual arrangements to secure employees, facilities and support services

from third parties (including its Affiliates); provided, however, that the Manager shall at all times

provide for the servicing of the Mortgage Loans through a Servicer under contract with the

Manager (in its individual capacity) in accordance with Article XII and the safekeeping of the

Notes and other Mortgage 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, (a) the Company shall not have any employees, (b) no employees

of the Manager or any third party (including any Affiliate) shall be deemed to be employees of

the Company, (c) any contractual relationships entered into by the Manager to provide

employees, facilities or support services to the Company shall be relationships between the third

parties (or Affiliates) and the Manager (and not the Company) and shall not relieve such

Manager of its obligations or any liability hereunder and (d) no expenses incurred to secure or

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
maintain employees, facilities or support services shall be an expense of the Company unless the

same is expressly reimbursable by the Company pursuant to the provisions of Article XII below

or is otherwise expressly set forth in this Agreement or in any Ancillary Documents to be an

expense of the Company.

3.4 Restrictions on Manager and Private Owner. Neither the Private Owner nor,

notwithstanding any delegation of authority to it hereunder, the Manager may or shall in any

event (x) do, or cause the Company to do, any act or take, or cause the Company to take, any

action in contravention of any Law, or (y) take any of the following actions on behalf of, or with

respect to, the Company, or otherwise cause the Company to take any of the following actions, in

the case of all of the foregoing without the prior written approval of the Initial Member and, until

occurrence of the Purchase Money Note Maturity Date, the Purchase Money Note Guarantor,

which approval may be withheld or conditioned in the Initial Member’s and the Purchase Money

Note Guarantor’s sole and absolute discretion except as otherwise provided in this Agreement

and the documentation executed in connection herewith:

(i) admitting additional or substitute members of the Company, except

in accordance with Article VIII;

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

liability company;

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

other than a partnership for federal tax purposes;

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

ordinary business of the Company;

(v) conducting a Bulk Sale;

(vi) incurring any liability on behalf of the Company (other than

liabilities to trade creditors in the ordinary course of the Business and such other

liabilities as may be permitted by this Agreement or any Ancillary Document);

(vii) possessing or transferring Company Property for other than

Company purposes;

(viii) taking any action that would require the Company to register as an

“investment company” (as defined in the Investment Company Act);

(ix) selling or otherwise transferring any Mortgage Loan, Underlying

Collateral or Acquired Property (or any portion thereof) to the Manager, the

Private Owner, any Servicer, any Subservicer, or any Affiliate of any of the

foregoing or of the Company;

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

Underlying Collateral or Acquired Property (or any portion thereof);

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
(xi) selling any Mortgage Loan, Underlying Collateral or Acquired

Property (or any portion thereof) in a transaction that provides for any recourse

against the Company, the Initial Member or the FDIC, in any capacity, or against

the LLC Interest held by the Initial Member or any share of the Mortgage Loan

Proceeds allocable to the Initial Member;

(xii) disbursing, or causing the disbursement of, funds from the

Collection Account, the Distribution Account, the Special Reserve Account, the

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

and Paying Agency Agreement or any Servicing Agreement other than in

accordance with (and without violation of any requirement contained in) the

provisions of this Agreement, the Custodial and Paying Agency Agreement, the

applicable Servicing Agreement and the Reimbursement and Security Agreement;

(xiii) advancing additional funds that would increase the Unpaid

Principal Balance of any Mortgage Loan except as required pursuant to the

Mortgage Loan Documents including, but not limited to Funding Draws;

(xiv) reimbursing the Manager for any expense or cost incurred (or paid)

to any Affiliate of any of the Company, the Private Owner of the Manager, the

Servicer or any Subservicer;

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

Company to breach any representation, warranty, covenant or other agreement

contained herein or in any Ancillary Document; or

(xvi) taking any action for which the consent of some or all of the

members of a limited liability company is (unless otherwise provided in the

limited liability company agreement of such limited liability company) required

by the Act.

3.5 Related Party Agreements. Neither the Company nor any of its Subsidiaries shall

enter into any current or future contract, agreement, commitment, arrangement or transaction

(including any agreement to sell Company Property, incur any Debt or become bound by any

Guarantee of any obligations) with or for the benefit of, or pay any fee to, the Private Owner or

any Affiliate of the Company or the Private Owner (a “Related Party Agreement”), except for

the Purchase Money Note or as may otherwise be expressly provided herein or in any Ancillary

Document to which the Initial Member is a party or as may be approved by both Members.

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

Property, and any ownership of any such REO Property shall be governed by Section 12.15 and

the relevant terms of the Servicing Agreement.

3.7 Custodian and Paying Agent. The Manager shall cause the Company to retain

and enter into and, at all times, be a party to a written custodial agreement with a document

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,

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Amended and Restated Limited Liability Company Operating Agreement

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unless released to the Servicer in accordance with the Servicing Agreement. The Manager shall

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

agency agreement with a paying agent selected by the Company, which Paying Agent shall

receive and distribute Mortgage Loan Proceeds in accordance with the applicable Custodial and

Paying Agency Agreement. Except as may be determined by the Initial Member in connection

with an exercise of its rights under Section 13.5 below, the Custodian and the Paying Agent shall

be the same; and the custodial and paying agency functions shall be performed on the terms set

forth in a Custodial and Paying Agency Agreement that is acceptable to the Initial Member. At

no time shall the Company have 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 rates and the

Custodian and Paying Agent shall be terminable by the Company upon no more than thirty (30)

days notice provided by either, without cause under the Custodial and Paying Agency

Agreement. In the event that the Manager removes, or causes the Company (or any Servicer) to

remove, any Notes or other Custodial Documents from the possession of the Custodian (which

shall be done only in accordance with the relevant Custodial and Paying Agency Agreement or

Servicing Agreement), (i) any loss or destruction of or damage to such Notes or Custodial

Documents shall be the personal liability of the Manager (who, along with the relevant

Servicer(s), shall be responsible for safeguarding such Notes and Custodial Documents), and

(ii) such Notes shall be returned to the Custodian within the time provided under the applicable

Uniform Commercial Code to maintain the perfection of the secured party’s security interest

therein by possession. If any Notes or other Custodial Documents are removed in connection

with the modification, restructuring or foreclosure of a Mortgage Loan, the modified or

restructured Notes and other Custodial Documents removed in connection therewith shall be

returned to the Custodian as soon as possible following the completion of the restructuring,

modification or foreclosure (and, in any event, in accordance with clause (ii) of the immediately

preceding sentence). Notwithstanding the foregoing if any Notes or other Custodial Documents

are retained by the applicable court, such Notes and other Custodial Documents shall be returned

to the Custodian as soon as possible after they are released by such court. The Manager shall

ensure that the Initial Member receives a copy of each demand, notice or other communication

given under the Custodial and Paying Agency Agreement at the time that such notice or other

communication is given thereunder.

3.8 Relationships with Borrowers, etc. Except as otherwise consented to by the Initial

Member, neither the Private Owner nor the Manager shall, at any time, (a) be an Affiliate 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 Manager or the Company, or (c) except as is otherwise

contemplated by the Company’s ownership of the Mortgage Loans and its right to hold Acquired

Property, have any interest whatsoever in any Borrower, Obligor or other obligor with respect to

any Mortgage Loan or any of the Underlying Collateral.

3.9 No Conflicting Obligations. The Manager shall cause the Company to comply

with the Ancillary Documents in accordance with their terms, and shall not, at any time, enter

into or become a party to any agreement that would conflict with the terms of this Agreement.

3.10 Compliance with Law. The Manager shall, and shall cause the Company to, at all

times, comply with applicable Law in connection with the performance or exercise of its rights,

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
powers, duties or obligations under this Agreement, be duly authorized and qualified to transact

any and all business to be conducted by it in any state in which a Mortgaged Property is located

and comply with the doing business laws of any such state, to the extent necessary to ensure its

ability to manage the Mortgage Loans in accordance with the terms of this Agreement and to

perform any of its other obligations under this Agreement in accordance with the terms hereof.

3.11 No Bankruptcy Filing. Neither the Manager nor the Private Owner may cause or

permit the Company to: (a) file a voluntary petition for bankruptcy, (b) file a petition or answer

seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or

similar relief under any Law, (c) make an assignment for the benefit of creditors, (d) seek,

consent or acquiesce in the appointment of a trustee, receiver or liquidator or of all or any

substantial part of its properties, (e) file an answer or other pleading admitting or failing to

contest the material allegations of (i) a petition filed against it in any proceeding described in

clause (a) through (d), or (ii) any order adjudging it a bankrupt or insolvent or for relief against it

in any bankruptcy or Insolvency Proceeding, or (f) allow itself to become unable to pay its

obligations as they become due.

3.12 No Liens. The Manager shall not cause the Company to place, or voluntarily

permit to be placed, any Lien on any of the Mortgage Loans, the Underlying Collateral, the

Mortgage Loan Documents, or the Mortgage Loan Proceeds, except, in the case of Underlying

Collateral, such Liens caused or permitted by the Manager (i) as permitted under the Mortgage

Loan Documents where the applicable Borrower is not in default thereunder and (ii) as permitted

by the terms of the Reimbursement and Security Agreement; and the Manager shall not take any

action to interfere with the Collateral Agent’s rights as a secured party with respect to Mortgage

Loans, the Underlying Collateral and the Mortgage Loan Proceeds.

3.13 Remedies Upon an Event of Default; Security Interest.

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

remedies available hereunder or under the Ancillary Documents upon such an Event of Default,

the Initial Member shall be entitled to:

(i) remove the Private Owner as the Manager pursuant to Sections 3.2

and 12.4;

(ii) remove the Private Owner as a Member;

(iii) purchase (or cause a designee to purchase) the LLC Interest of the

Private Owner pursuant to Section 3.14;

(iv) designate itself or any applicable transferee Member as the

Manager hereunder; and/or

(v) with or without notice to or demand upon the Private Owner

(except as may be required by law), exercise any or all rights and remedies with

respect to the Secured Assets (as defined below) and any Qualifying Letter of

Credit, specifically including the right (A) to foreclose on the LLC Interest held

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
by the Private Owner and transfer such LLC Interest to a third party; (B) to draw

upon any or all Qualifying Letters of Credit, by presenting to the applicable

Issuing Bank one or more drafts or demands and any other necessary documents,

and to receive (in a lump sum or in several sums from time to time at the sole and

absolute discretion of the Initial Member) any or all amounts available for

drawing under each such Qualifying Letter of Credit, and/or (C) to exercise any

rights under the Account Control Agreement related to the Special Reserve

Account (or otherwise) with respect to the Special Reserve Account, including the

right to assume exclusive control over the Special Reserve Account and to cause

the funds therein to be remitted (in a lump sum or in several sums from time to

time at the sole and absolute discretion of the Initial Member) to or at the

direction of the Initial Member. The removal of the Private Owner as Member

shall be subject to Section 8.4.

(b) For the avoidance of doubt, in the event that the Initial Member

determines to exercise its remedies against any Secured Assets or any Qualifying Letter of Credit,

it shall have the absolute right to deduct from the proceeds of such exercise of remedies (including

proceeds of any foreclosure sale with respect to the LLC Interests, any drawing on a Qualifying

Letter of Credit and any receipt of funds the Special Reserve Account), any Losses arising out of

or resulting from such Event of Default incurred by the Indemnified Parties, together with all costs

and expenses (including, without limitation, attorneys' fees and disbursements) incurred by the

Initial Member in connection with enforcing its rights and remedies hereunder and under the

Ancillary Documents; and any Private Owner Obligations (as defined below) then due and

payable (in each case in such order as the Initial Member may determine in its sole and absolute

discretion); provided that the Initial Member may, in its sole and absolute discretion, hold any

such proceeds as additional security for any existing or future Private Owner Obligations.

Without limitation of the foregoing, in no event shall the Initial Member have any obligation (but

it shall at all times have the right in its sole and absolute discretion) to use or apply any proceeds

of the Secured Assets toward payment of any Private Owner Obligations owing to the Company

(whether or not the same are due and payable), and the Private Owner shall remain fully obligated

to pay and perform all such Private Owner Obligations owing to the Company notwithstanding

any such election by the Initial Member to so refrain from applying such proceeds toward

payment of the same; and, in the event that, for any reason any such proceeds of the Secured

Assets are used for payment of any Private Owner Obligations owing to the Company, any and all

rights of the Private Owner to payments, reimbursements or distributions from the Company on

account of any such payment to the Company (including rights to any repayment of any deemed

Excess Liquidity Advances, to the extent any such proceeds are used to fund the same), shall be

considered as part of the Secured Assets and shall, to the extent paid or payable by the Company,

be paid directly to the Initial Member (and the Initial Member shall have the right to direct the

Paying Agent to so remit to the Initial Member any applicable distributions or payments by the

Paying Agent with respect thereto) to be held and applied by the Initial Member as part of the

proceeds of the Secured Assets (as collateral for the Private Owner Obligations). Any Secured

Assets or proceeds thereof as held by the Initial Member may be commingled with the Initial

Member’s own funds, without any need to pay interest or income thereon. Upon indefeasible

payment and performance in full of all of the Private Owner Obligations (following the

dissolution of the Company), any remaining unapplied proceeds (from an exercise of remedies by

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
the Initial Member against the rights of the Private Owner to the Secured Assets or any Qualifying

Letter of Credit) so held by the Initial Member, shall be released to the Private Owner (or such

other Person as may have applicable rights therein in accordance with applicable law). In any

event, the Private Owner shall remain liable for any deficiency in payment of the Private Owner

Obligations.

(c) This Agreement shall constitute a security agreement under applicable

Law for the benefit of the Initial Member and, in furtherance thereof, the Private Owner (in all of

its capacities) and the Company (as applicable) shall be deemed to have granted, and each does

hereby grant, to the Initial Member, for itself (and its assignees) and for the benefit of the

Company and the Indemnified Parties, a valid and continuing first priority lien on and security

interest in all of the Private Owner’s right, title and interest in, to and under, the Secured Assets,

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

Assets and all of the proceeds of the foregoing, as security for the payment and performance

(when due) by the Private Owner (including in its roles as Manager and Tax Matters Member) of

its duties, liabilities and obligations under this Agreement and the Ancillary Documents and the

compliance by the Private Owner (including as Manager and Tax Matters Member) with the terms

and conditions of this Agreement and the Ancillary Documents (collectively, the “Private Owner

Obligations”). For the avoidance of doubt, the parties acknowledge that the Secured Assets are

not, pursuant to the foregoing, collateral for the separate payment obligations of the Company

except to the extent that, pursuant to this Agreement or the Ancillary Documents, the Private

Owner, in any capacity, is required to pay (or advance applicable funds to pay) or otherwise bear

such obligations (an in such case, such Secured Assets secure such obligations of the Private

Owner to the Company and, if applicable, the Initial Member and the Indemnified Parties only,

and not any such separate obligations of the Company to any other Persons), such that the Secured

Assets do not secure the Company’s payment obligations under the Purchase Money Notes. For

purposes of this Agreement, the term “Secured Assets” shall mean (x) all right, title and interest

of the Private Owner in and to the Special Reserve Account (and all funds therein and related

rights thereto as more specifically described in the Account Control Agreement related to the

Special Reserve Account), (y) the LLC Interest held by Private Owner and all other rights of the

Private Owner (in any capacity) under this Agreement and the Ancillary Documents (including

rights to any distributions or payments on account of any Excess Liquidity Advances made by or

on behalf of the Private Owner), and (z) all proceeds of any of the foregoing at any time

(including distributions thereon or other income in respect thereof).

(d) The Private Owner shall deliver on the Closing Date and at all times

thereafter cause to be maintained additional collateral (the “Additional Security”) consisting of

undrawn (and available) amounts under one or more Qualifying Letters of Credit in an aggregate

amount at least equal to Two Million Dollars ($2,000,000). The Private Owner shall cause the

issuance and delivery to the Initial Member, on the Closing Date, of a single Qualifying Letter of

Credit in the full amount of such Additional Security. The Initial Member shall have the

unilateral right to draw on any such Qualifying Letter of Credit and to provide instructions to the

Paying Agent for the disposition of the Qualifying Cash Collateral in the Special Reserve

Account, in each case without any requirement for any further consent, confirmation or

instructions from the Private Owner; provided, however, that as between the Initial Member and

the Private Owner (and without creating any right or obligation of the Paying Agent or any Issuing

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Bank to refuse to honor, or inquire as to the accuracy or sufficiency of, any applicable instructions

from the Initial Member), the Initial Member agrees that (i) it shall not exercise such rights to so

draw on any such Qualifying Letter of Credit unless there shall have occurred an Event of Default

(whether or not relating to any Qualifying Letter of Credit) or an LC Reissuance/Extension Failure

(with respect to such Qualifying Letter of Credit), and (ii) it shall not exercise such rights to so

unilaterally direct the disposition of the Qualifying Cash Collateral from the Special Reserve

Account unless there shall have occurred an Event of Default.

(e) On the Closing Date, the Manager shall cause the Company to establish

the Special Reserve Account with the Paying Agent.

(f) Upon the occurrence of any LC Reissuance/Extension Failure, the Initial

Member shall have the right (but not the obligation) to draw on all or any part of the undrawn

amount of any Qualifying Letter of Credit subject to such LC Reissuance/Extension Failure; and

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

deposited in the Special Reserve Account and such LC Reissuance/Extension Failure shall not be

deemed an Event of Default hereunder, in each case only so long as (i) there shall not have

occurred any Event of Default (other than such LC Reissuance/Extension Failure) and (ii) upon

such deposit in the Special Reserve Account (of the funds received by the Initial Member from

such draw), the aggregate amount of the such deposit shall be in an amount not less than Required

Special Reserve Amount.

(g) The Private Owner hereby authorizes the filing by the Initial Member and

its assignees of such financing or continuation statements in such jurisdictions as the Initial

Member or its assignees deem appropriate (in their sole and absolute discretion) to perfect and

continue their first priority lien and security interest with respect to the Secured Assets. The

Private Owner shall deliver to the Initial Member an assignment and assumption agreement with

respect to the LLC Interest held by it, in the form attached hereto as Exhibit C, endorsed in blank,

and executed by the Private Owner. The Initial Member may use the assignment and assumption

agreement to effect the assignment of the LLC Interest held by the Private Owner at any time if an

Event of Default occurs and is continuing. The Initial Member’s election to exercise any remedy

under this Section 3.13 shall in no way limit Initial Member’s rights under any Ancillary

Document.

(h) After all of the obligations secured by the Secured Assets have been

indefeasibly paid and performed in full (following the dissolution of the Company), the Initial

Member shall, upon the request of Private Owner, release any then outstanding Qualifying Letter

of Credit and consent to the termination of the Special Reserve Account Control Agreement.

(i) The Initial Member's rights and remedies under this Agreement, any

Ancillary Document or otherwise are cumulative and may be exercised singularly (and in such

order as the Initial Member may determine in its sole and absolute discretion) or concurrently.

Neither any failure nor delay on the part of Initial Member to exercise any other right or remedy

shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy

preclude any other or further exercise thereof or of any other right or remedy howsoever arising.

In no event shall the Initial Member have any obligation to seek or exhaust any particular remedy

prior to exercising any other remedy, and the Private Owner hereby waives any and all right to

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
require the marshalling of assets in connection with any exercise by the Initial Member of its

remedies hereunder or under any Ancillary Document. Under no circumstances shall the Initial

Member be deemed or construed to have waived its right to draw upon any Qualifying Letter of

Credit, to proceed against the Special Reserve Account, to foreclose upon the LLC Interest of the

Private Owner or to exercise any of its other rights or remedies unless such waiver is in writing

and executed by a duly authorized representative of Initial Member. A waiver of any right or

remedy on any one occasion shall not operate as a waiver of such right or remedy on any future

occasion or as a waiver of any other right or remedy.

3.14 Purchase Right of the Initial Member. Without prejudice to the rights of the

Initial Member to foreclose on the LLC Interest of the Private Owner in accordance with Section

3.13:

(a) Upon the occurrence and during the continuance of an Event of Default,

the Initial Member may at any time, by notice (a “Buy-Out Notice”) to the Private Owner,

elect to purchase (or cause one or more designees to purchase) the Private Owner’s LLC Interest

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

(determined, if necessary, in accordance with Section 3.14(b)(iv)) as of a date (the “Buy-Out

Valuation Date”) selected by the Initial Member in its discretion between the date of the Buy-Out

Notice and the closing of such purchase (the “Buy-Out Closing”), less (y) any amounts owed by

the Private Owner pursuant Section 3.14(b)(v), and less (z) any distributions paid by the Company

to or for the account of the Private Owner between the date of the Buy-Out Valuation Date and the

Buy-Out Closing.

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

shall be consummated as follows:

(i) The Buy-Out Closing shall be held at the principal offices of the

Company on a day selected by the Initial Member, which day shall, subject to

Section 3.14(b)(iv), be no later than six months after the Buy-Out Notice was

delivered to the Private Owner or at such other place or on such other date as the

parties may agree (the “Buy-Out Closing Date”).

(ii) The Initial Member shall purchase (and/or cause one or more

designees to purchase in the aggregate) all but not less than all of the of the

Private Owner’s LLC Interest for the consideration set forth in Section 3.14(a),

and against delivery of such consideration, the Private Owner shall deliver all

such documents and instruments as are necessary to transfer to the Initial Member

(and/or its designee(s)), and in any event shall be deemed to have transferred, and

to have represented and warranted to the Initial Member (and/or its designee(s))

that it has transferred, to the Initial Member (and/or its designee(s)), good title to

(and, in any event, all right, title and interest of the Private Owner in and to) the

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

those created by this Agreement.

(iii) The Private Owner shall obtain all material consents, approvals or

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

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Governmental Authority or Person that may be required in connection with the

purchase and sale of the Private Owner’s LLC Interest (other than any such

consent, approval or waiver which has, if permitted by Law, been waived by the

Initial Member).

(iv) In the event of the delivery of a Buy-Out Notice, the Members

shall attempt to agree on the fair market value of the Private Owner’s LLC

Interest as of the Buy-Out Valuation Date. If the Members are unable to agree on

such value within 15 days after the date of delivery of the Buy-Out Notice (or, if

sooner, by the Buy-Out Closing Date), then such value shall be determined

immediately thereafter in accordance with the Dispute Resolution Procedure, and,

if applicable, the Buy-Out Closing Date shall be delayed until such date (after

completion of the applicable valuation) as may be selected by the Initial Member.

For the avoidance of doubt, in no event shall the right under this Section 3.14 or

any valuation resulting from a Dispute Resolution Procedure create any obligation

with respect to, or otherwise limit the rights of the Initial Member in connection

with, any concurrent or subsequent foreclosure (or sale) of the Private Owner’s

LLC Interest pursuant to Section 3.13 and/or exercise of relevant rights under the

Uniform Commercial Code or otherwise, and the Private Owner acknowledges

and agrees that any foreclosure and sale pursuant to Section 3.13 and relevant

rights under the Uniform Commercial Code or otherwise may result in a sale price

for the LLC Interest that is significantly lower than a Buy-Out Purchase Price

potentially (or having actually been) determined pursuant to this Section.

(v) All out-of-pocket costs and expenses incurred by the Initial

Member in connection with the exercise of its rights under this Section 3.14 and

the sale of the LLC Interest of the Private Owner (including fees of any

investment banking firm retained in connection with the Dispute Resolution

Procedure and legal fees and expenses incurred in connection with obtaining any

necessary consents, approvals or waivers (including expiration or termination of a

specified waiting period) of Governmental Authorities) shall be borne by the

Private Owner and may be deducted from the purchase price otherwise payable by

the Initial Member (or its designee(s)) for the Private Owner’s LLC Interest.

(c) The failure of the Initial Member to exercise its rights under this Section

3.14 in connection with any Event of Default shall in no way affect or limit the exercise of such

rights in connection with any other Event of Default by the Private Owner.

(d) At any time prior to the Buy-Out Closing, the Initial Member may elect

not to proceed with the Buy-Out Closing (without any liability or further obligation with respect

thereto), and the Private Owner shall remain responsible for amounts owed under Section

3.14(b)(v) notwithstanding any such election by the Initial Member.

(e) Any distributions payable by the Company to the Private Owner after the

Buy-Out Valuation Date shall, at the option of the Initial Member, be paid to and held by the

Initial Member (or, if permitted by the Paying Agent, held by the Paying Agent in the Distribution

Account) and, at the Buy-Out Closing or a reasonable time thereafter, be released by to the Private

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Owner less, without duplication, any amounts owed by the Private Owner pursuant to this

Agreement (including costs and expenses pursuant to Section 3.14(b)(v)). For the avoidance of

doubt, neither the Initial Member nor the Paying Agent shall have any obligation to segregate, or

pay interest or other income in respect of, any sums held pursuant to this Section 3.14(e).

3.15 No ERISA Plan Assets. The Manager shall use its reasonable best efforts to

ensure that the Company’s assets are not deemed to be “plan assets” within the meaning of

Section 3(42) of ERISA and the Plan Asset Regulation.

ARTICLE IV
 

Membership Interests; Rights and Duties of, and Restrictions on, Members
 

4.1 General. The membership of the Company shall consist of the Members listed

from time to time in the Annex I (the Member Schedule), and such substituted Members as may

be admitted to the Company pursuant to Article VIII. The Manager shall cause Annex I (the

Member Schedule) to be amended from time to time to reflect the admission of any additional

Members, Capital Contributions of the Members, the issuance of additional limited liability

company interests, transfers of LLC Interests, repurchases, redemptions or cancellations of LLC

Interests, the cessation or withdrawal of a Member for any reason or the receipt by the Company

of notice of any change of name or address of a Member.

4.2 LLC Interests.

(a) Creation and Issuance. The Company is only authorized to issue the LLC

Interests that exist as of the date hereof, and the Company may not hereafter create or issue any

limited liability company interest, provided that nothing in this sentence restricts the Disposition

of any outstanding LLC Interest by any Member (which matter is governed by Article VIII). The

Company’s LLC Interests shall be uncertificated. The LLC Interests shall have the relative rights,

powers, duties and obligations specified in this Section 4.2. As of the Closing Date, LLC Interests

are owned by the Initial Member and the Private Owner, as set forth in the Annex I (Member

Schedule). Other than as set forth in this Agreement, each LLC Interest shall be identical in all

respects to each other outstanding LLC Interest.

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

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

(c) No Retirement Fund or Conversion. The LLC Interests shall not be

subject to the operation of a retirement or sinking fund to be applied to the purchase or redemption

thereof for retirement and shall not be convertible into any other class of limited liability company

interests.

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

expressly provided in this Agreement, the holders of LLC 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 Section 3.1 and

Section 3.4), the voting rights of each holder of LLC Interests shall be based on such holder’s

Percentage Interest.

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
4.3 Filings; Duty of Members to Cooperate. The Manager shall promptly cause to be

executed, delivered, filed, recorded or published, as appropriate, and the Private Owner will, as

requested by the Manager from time to time but at the sole expense of the Manager, execute and

deliver, (a) all certificates, documents and other instruments that the Manager deems necessary

or appropriate to form, qualify or continue the existence or qualification of the Company as a

limited liability company in the State of Delaware or as a foreign limited liability company in all

other jurisdictions in which the Company may, or may desire to, conduct business or own

Company Property, (b) any amendment to the Certificate or any instrument described in clause

(a) required because of, or in order to effectuate, an amendment to this Agreement, or any

change in the membership of the Company, in accordance with the terms hereof, (c) all

certificates, documents and other instruments (including conveyances and a certificate of

cancellation) that the Manager deems necessary or appropriate to reflect the dissolution and

liquidation of the Company pursuant to the terms of this Agreement, and (d) such other

certificates, documents and other instruments as are required by Law or by any Governmental

Authority to be executed by them in connection with the Business as conducted or proposed to

be conducted by the Company from time to time. As soon as reasonably practical after the date

hereof, the Manager shall, at its own expense, cause the Company to apply for, and thereafter use

its reasonable best efforts to obtain, as quickly as possible, and maintain, all such licenses as are

required to conduct the Business, including qualifications to conduct business in jurisdictions

other than Delaware and licenses to purchase, own or manage the Mortgage 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 borrowers under the Mortgage

Loans), or materially adversely affect the Company or the Company’s ability to foreclose on the

Underlying Collateral securing or otherwise realize the full value of any Mortgage Loan or

Acquired Property.

4.4 Certain Restrictions and Requirements.

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

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

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

pursuant to authority expressly granted herein or pursuant to authority granted by the Manager in

accordance with the terms hereof.

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

member of the Company except pursuant to and in accordance with Article VIII hereof.

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

qualifications of a Qualified Transferee.

4.5 Liability of the Initial Member. Neither the Initial Member nor any of its

Affiliates, nor any officer, director, stockholder, member, manager, employee, agent or assign of

the Initial Member or any of its Affiliates (all of the foregoing, collectively, the “Related

Persons”), shall be liable, responsible or accountable, whether directly or indirectly, in contract

or tort or otherwise, to the Company, any other Person in which the Company has a direct or

indirect interest or any Member (or any Affiliate of any of the foregoing), for any Damages

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Amended and Restated Limited Liability Company Operating Agreement

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asserted against, suffered or incurred by the Company, any Person in which the Company has a

direct or indirect interest or any Member (or any Affiliate of any of the foregoing) arising out of,

relating to or in connection with any act or failure to act pursuant to this Agreement or otherwise

with respect to:

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

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

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

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

Affiliates of such Person);

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

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

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

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

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

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

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

Related Person which might involve a conflict of interest vis-à-vis the Company

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

Member (or any of their respective Affiliates) or in which any Related Person

realizes a profit or has an interest;

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

were taken or omitted which constituted fraud, gross negligence, willful misconduct, or an

intentional material breach of this Agreement or any Ancillary Document.

4.6 Indemnification.

(a) The Private Owner shall indemnify, defend and hold harmless the Initial

Member and the Initial Member’s Affiliates, and their respective officers, directors, stockholders,

members, managers, employees, partners, principals, agents, assigns and contractors (all of the

foregoing, collectively, the “Indemnified Parties”), from and against any losses, Damages,

liabilities, costs and expenses (including reasonable attorneys’ fees and litigation and similar

costs, and other out-of-pocket expenses incurred in investigating, defending, asserting or

preparing the defense or assertion of any of the foregoing), deficiencies, claims, interest, awards,

judgments, penalties and fines (collectively, “Losses”), arising out of or resulting from (i) any

breach after the Closing Date, by (x) the Company (during any period when the Private Owner is

the Manager, the Private Owner (in any capacity, including as Manager) or any of their respective

Affiliates or (y) any of the respective officers, directors, employees, partners, principals, agents or

contractors of any Person described in sub-clause (x), of the obligations of the Company or the

Private Owner (in any capacity, including as the Manager) under, or any other covenants,

agreements or other terms and conditions contained in, this Agreement or any Ancillary

Document (including Losses relating to (1) the Company’s obligations with respect to litigation

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
referred to in Section 4.5 of the Contribution Agreement to the extent provided therein, (2) the

Company’s obligations under Section 3.1 and 3.2 of the Contribution Agreement (including all

costs and expenses of the Initial Member in completing any applicable transfers pursuant to

exercise of rights under such section), and (3) any claim asserted by the Initial Member against the

Company or the Private Owner (in any capacity, including as the Manager) to enforce its rights

hereunder or by any third party), or any third-party allegation or claim based upon facts alleged

that, if true, would constitute such a breach; (ii) any gross negligence, bad faith or willful

misconduct (including any act or omission constituting theft, embezzlement, breach of trust or

violation of any Law) on the part of any Person described in sub-clause (i)(x) or (i)(y); or (iii) any

Losses with respect to which the Initial Member was released, or with respect to which the

Company should have obtained a release from the applicable Borrowers or other Obligors, in

accordance with Section 4.17(b) of the Contribution Agreement. Such indemnity shall survive the

termination of this Agreement. In order for an Indemnified Party to be entitled to any

indemnification provided for under this Agreement in respect of, arising out of or involving a Loss

or a claim or demand made by any Person against the Indemnified Party (a “Third Party

Claim”), such Indemnified Party shall deliver notice thereof to the Private Owner promptly after

receipt by such Indemnified Party of written notice of the Third Party Claim, describing in

reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount of

such claim (if known) and such other information with respect thereto as is available to the

Indemnified Party and as the Private Owner may reasonably request. The failure or delay to

provide such notice, however, shall not release the Private Owner from any of its obligations

under this Section 4.6 except to the extent that it is materially prejudiced by such failure or delay.

The Private Owner acknowledges and agrees that it shall have no recourse against the Company

for any amounts the Private Owner is required to pay pursuant to this Section 4.6. For the

purposes of this Section 4.6, the term “Initial Member” shall be deemed to include any Person at

any time constituting the “Initial Member” hereunder (other than for purposes of this Section 4.6)

and (without limitation of the foregoing) any Person at any time holding all or any portion of the

LLC Interest initially held by the Initial Member immediately after the Closing, in each case even

if such Person has since ceased to be a member of the Company or to hold any limited liability

company interest in the Company.

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

insufficient to hold harmless the Indemnified Parties, the Private Owner shall contribute to the

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

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

on the one hand, and the Private Owner (in any capacity, including as the Manager) (including any

Servicer or Subservicer), on the other hand, in connection with the matters that are the subject of

such Losses.

(c) If the Private Owner confirms in writing to the Indemnified Party within

fifteen (15) days after receipt of a Third Party Claim the Private Owner’s responsibility to

indemnify and hold harmless the Indemnified Party therefor, the Private Owner may elect to

assume control over the compromise or defense of such Third Party Claim at the Private Owner’s

own expense and by the Private Owner’s own counsel, which counsel must be reasonably

satisfactory to the Indemnified Party, provided that (i) the Indemnified Party may, if such

Indemnified Party so desires, employ counsel at such Indemnified Party’s own expense to assist in

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
the handling (but not control the defense) of any Third Party Claim; (ii) the Private Owner shall

keep the Indemnified Party advised of all material events with respect to any Third Party Claim;

(iii) the Private Owner shall obtain the prior written approval of the Indemnified Party before

ceasing to defend against any Third Party Claim or entering into any settlement, adjustment or

compromise of such Third Party Claim involving injunctive or similar equitable relief being

imposed upon the Indemnified Party or any of its Affiliates; and (iv) the Private Owner will not,

without the prior written consent of the Indemnified Party, settle or compromise or consent to the

entry of any judgment in any pending or threatened action in respect of which indemnification

may be sought hereunder (whether or not any such Indemnified Party is a party to such action),

unless such settlement, compromise or consent by its terms obligates the Private Owner to satisfy

the full amount of the liability in connection with such Third Party Claim and includes an

unconditional release of such Indemnified Party from all liability arising out of such Third Party

Claim.

(d) Notwithstanding anything contained herein to the contrary, the Private

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

control over) the defense, settlement, adjustment or compromise of (but the Private Owner shall

nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with

such defense, settlement or compromise): (i) any Third Party Claim that seeks an order, injunction

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

which both the Private Owner (in any capacity, including as the Manager) or any Affiliate of the

Private Owner, on one hand, and the Indemnified Party, on the other hand, are named as parties

and either the Private Owner (or such Affiliate) or the Indemnified Party determines with advice

of counsel that there may be one or more legal defenses available to it that are different from or

additional to those available to the other party or that a conflict of interest between such parties

may exist in respect of such action; and (iii) any matter that raises or implicates any issue relating

to any power, right or obligation of the FDIC under any Law. If the Private Owner elects not to

assume the compromise or defense against the asserted liability, fails to timely and properly notify

the Indemnified Party of its election as herein provided, or, at any time after assuming such

defense, fails to diligently defend against such Third Party Claim in good faith, the Indemnified

Party may pay, compromise or defend against such asserted liability (but the Private Owner shall

nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with

such defense, settlement or compromise). In connection with any defense of a Third Party Claim

(whether by the Private Owner or the Indemnified Party), all of the parties hereto shall, and shall

cause their respective Affiliates to, cooperate in the defense or prosecution thereof and to in good

faith retain and furnish such records, information and testimony, and attend such conferences,

discovery proceedings, hearings, trials and appeals, as may be reasonably requested by a party

hereto in connection therewith.

(e) In the event the Company is reimbursed for or uses the Liquidity Account

or Excess Liquidity Advances to pay costs or expenses of the type referred to in clause (v) or (vi)

of the definition of Servicing Expenses and it is subsequently determined that the Company was

not entitled to reimbursement for (or to use the Liquidity Account or Excess Liquidity Advances

to pay) all or any portion of such costs and expenses because the Company did not satisfy the

requirements of Section 4.6(c) or clause (v) of the definition of Servicing Expenses (such costs

and expenses, the “Unreimbursable Expenses”), the Manager shall, in addition to any other

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Losses for which the Manager may be liable with respect to the claim to which such costs and

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

such Member’s Percentage Interest as set forth below, except to the extent such Unreimbursable

Expenses were funded through Excess Liquidity Advances that remain outstanding (in which case

the portion of any such outstanding Excess Liquidity Advance that was so used for

Unreimbursable Expenses shall itself become unreimbursable and be deemed forgiven with no

further right of the Manager to collect or receive the same). Any such reimbursement by the

Manager pursuant to the foregoing shall be as follows: within ten (10) Business Days after

written demand therefor from either Member, the Manager shall pay each Member by wire

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

to such Member’s Percentage Interest (as of the later of (x) the date of such demand or (y) the date

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

(f) The Company shall indemnify, defend and hold harmless each Member

and each Member’s respective officers, directors, employees and members (all of the foregoing

collectively, the “Covered Persons”) for any Losses incurred by such Covered Person by reason

of a Third Party Claim relating to any act or omission by or of such Covered Person in connection

with the exercise or performance of the rights, powers, responsibilities and obligations of such

Covered Person (or, if such Covered Person is other than a Member, of the Member in respect of

which such Covered Person so constitutes a Covered Person) regarding the Company except for

(i) any Third Party Claim or Loss resulting from fraud, gross negligence, willful misconduct or an

intentional breach of this Agreement or any Ancillary Document by such Covered Person (or if

such Covered Person is other than a Member, by the Member in respect of which such Covered

Person so constitutes a Covered Person), and (ii) in the case of the Private Owner (in any capacity,

including as the Manager), (x) any claim or demand by any Servicer or Subservicer (or, for the

avoidance of doubt, any Loss arising out of or related to such claim or demand) and (y) any Third

Party Claim or Loss that is in whole or in part covered by or subject to an indemnification

obligation of the Private Owner (in any capacity, including as the Manager) under any provision

of this Agreement or any Ancillary Document, including the foregoing provisions of Section

4.6(a).

(g) Tax Liability of Ownership Entity. Notwithstanding anything to the

contrary contained herein, if any Ownership Entity is not a pass-through entity with no entitylevel income tax obligations, distributions to the Initial Member pursuant to Section 6.6 (including

for the purposes of Section 9.2(c)) shall be allocated before accrual or payment of any income tax

payable by such Ownership Entity, and the Private Owner (or its successors or assigns) shall

indemnify and hold harmless the Initial Member from and against any liability for any income

taxes payable by the Ownership Entity.

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

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

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

a breach of Section 4.6), all costs and expenses (including reasonable attorneys’ fees and litigation

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

or preparing the defense or assertion of any claim) incurred by the Initial Member with respect

thereto may be offset by the Initial Member against any payment or distribution otherwise payable

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
to the Private Owner (including the Management Fee), whether in its capacity as a Member or as

the Manager (in each case except to the extent such breach or Event of Default is attributable

exclusively to a Manager having been appointed by the Initial Member following removal of the

Private Owner in such capacity, or to any applicable Servicer (and its Subservicers) having been

engaged by the Initial Member, the Company or the applicable replacement Manager following

such removal of the Private Owner as Manager, in each case that is not an Affiliate of the Private

Owner).

ARTICLE V
 

Capital Contributions; Liquidity Account; Special Reserve Account; Excess Liquidity
 

Advance
 

5.1 Capital Contributions.

(a) Members’ Contribution. Pursuant to the Contribution Agreement, the

Initial Member made a Capital Contribution to the Company in an amount equal to the Initial

Member Capital Contribution. In connection with the Transferred LLC Interest Sale Agreement,

Private Owner acquired from the Initial Member the Transferred LLC Interest representing a fifty

percent (50)% equity interest in the Company in exchange for the Transferred LLC Interest Sale

Price. After giving effect to the foregoing transactions, the respective Capital Accounts of the

Initial Member and the Private Owner as of the Closing Date are as set forth in the Annex I (the

Member Schedule).

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

make any additional Capital Contributions to the Company.

5.2 Liquidity Account. The Manager may cause the Company to fund the Liquidity

Account in accordance with the provisions of Section 12.11 hereof.

5.3 Special Reserve Account.

(a) Establishment of the Special Reserve Account. On the Closing Date, the

Manager shall cause the Company to establish the Special Reserve Account with the Paying

Agent for the exclusive purpose of holding Qualifying Cash Collateral (including in the form of

any proceeds from a drawing on a Qualifying Letter of Credit at any time deposited in the Special

Reserve Account in accordance herewith). The Special Reserve Account (and all funds and

financial assets therein) shall be subject to the security interest granted herein pursuant to the

terms of this Agreement, the Custodial and Paying Agency Agreement and the related Account

Control Agreement.

(b) Funding the Special Reserve Account. The Manager shall post a Letter of

Credit upon which the Initial Member may draw to fund the Special Reserve Account upon the

occurrence of an Event of Default.

(c) Use of the Special Reserve Account. Upon the occurrence of an Event of

Default, the Initial Member may direct the Company to withdraw funds from the Special Reserve

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Account to pay for any Company expenses in connection with such Event of Default and as

otherwise determined in the sole and absolute discretion of the Initial Member.

(d) Permitted Investments. Funds on deposit in the Special Reserve Account

shall be invested in Permitted Investments in accordance with this Agreement and the Custodial

and Paying Agency Agreement; provided, that all such Permitted Investments shall remain in the

Special Reserve Account as Qualifying Cash Collateral, and in no event shall the Private Owner

have any right or authority to withdraw any funds from such Special Reserve Account.

5.4 Excess Liquidity Advances. In the event there are insufficient funds in the

Collection Account and also insufficient funds in the Liquidity Account to pay any Operating

Expenses other than the Management Fee, then the Manager shall, except as otherwise provided

in Section 12.6, make an advance to the Company (an “Excess Liquidity Advance”) to be used

by the Company for payment of such permitted (or required, as applicable) Operating Expenses.

No Excess Liquidity Advance shall accrue any interest thereon. Excess Liquidity Advances shall

be repaid in accordance with Section 5.1 of the Custodial and Paying Agency Agreement.

Excess Liquidity Advances shall be deposited into the Collection Account for disbursement

therefrom for the payment of permitted Operating Expenses for which such Excess Liquidity

Advance is being made. Furthermore, to the extent multiple Operating Expenses (payment of

which is permitted to be made using such Excess Liquidity Advance) are outstanding, any

funding or use by the Manager of Excess Liquidity Advances for payment of all or any of the

same shall follow the relevant priorities as set forth in the Priority of Payments and in Section 3.1

of the Custodial and Paying Agency Agreement, as applicable. All Excess Liquidity Advances,

together with a detailed statement of the sources and uses thereof (which shall be broken out by

the reimbursable and unreimbursable portions thereof), shall be reflected in the Monthly Report

with respect to the calendar month during which the relevant Excess Liquidity Advance was

made. The Manager may not assign, sell, transfer, participate, pledge, or hypothecate, in whole

or in part, its interest in any Excess Liquidity Advances without the prior written consent of the

Initial Member.

ARTICLE VI
 

Capital Accounts; Allocations; Priority of Payments; Distributions
 

6.1 Capital Accounts. A Capital Account shall be established and maintained for

each Member to which shall be credited the Capital Contributions made by such Member and

such Member’s allocable share of Net Income (and items thereof), and from which shall be

deducted distributions to such Member of cash or other Property and such Member’s allocable

share of Net Loss (and items thereof). As to the Private Owner, the initial Capital Account shall

correspond to that portion of the Capital Account of the Initial Member that is attributable to the

Transferred LLC Interest (as defined in the Transferred LLC Interest Sale Agreement) acquired

by the Private Owner pursuant to the Transferred LLC Interest Sale Agreement. A Member’s

Capital Account also shall be adjusted for items specially allocated to such Member under this

Article VI. The Capital Accounts of the Members generally shall be adjusted and maintained in

accordance with Treasury Regulations Section 1.704-1(b)(2)(iv); provided, however, that such

adjustments to, and maintenance of, the Capital Accounts shall not adversely affect the manner

in which distributions are to be made to the Members under Section 6.6.

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
6.2 Allocations to Capital Accounts. Allocation of Net Income and Net Loss shall be

made as provided in this Article VI.

(a) Except as otherwise provided in this Agreement, Net Income and Net Loss

(and, to the extent necessary, individual items of income, gain, loss, deduction or credit) of the

Company shall be allocated among the Members in a manner such that, after giving effect to the

special allocations set forth in Section 6.2(b), the Capital Account balance of each Member,

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

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

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

were satisfied (limited with respect to each nonrecourse liability to the Book Values of the assets

securing such liability), and the net assets of the Company were distributed, in accordance with

Section 9.2(c), to the Members immediately after making such allocation, minus (ii) such

Member’s share of “partnership minimum gain” and “partner nonrecourse debt minimum gain”

(as such terms are used in Treasury Regulations Section 1.704-2), computed immediately prior to

the hypothetical sale of assets.

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

shall be made in the following order:

(i) Minimum Gain Chargeback. Notwithstanding any other provision

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

the definition of “partnership minimum gain” in Treasury Regulations

Section 1.704-2(b)(2) and (d)) during any Fiscal Year, the Members shall be

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

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

Member’s share of the net decrease in minimum gain, determined in accordance

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

intended to comply with the “minimum gain chargeback” requirement in such

section of the Treasury Regulations and shall be interpreted consistently

therewith.

(ii) Member Minimum Gain Chargeback. Notwithstanding any other

provision of this Article VI other than 6.2(b)(i), if there is a net decrease in

minimum gain attributable to a Member nonrecourse debt (as it corresponds to the

definition of “partnership nonrecourse debt minimum gain” in Treasury

Regulations Section 1.704-2(i)) during any Fiscal Year, each Member shall be

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

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

Member’s share of the net decrease in such minimum gain attributable to such

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

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

minimum gain chargeback” requirement in such section of the Treasury

Regulations and shall be interpreted consistently therewith.

(iii) Qualified Income Offset. In the event any Member, for any reason,

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

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Company income and gain shall be specially allocated to each such Member in an

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

Regulations, such Adjusted Capital Account Deficit as quickly as possible,

provided that an allocation pursuant to this Section 6.2(b)(iii) shall be made only

if and to the extent that such Member would have such Adjusted Capital Account

Deficit after all other allocations provided for in Section 6.2 have been tentatively

made as if this Section 6.2(b)(iii) were not in this Agreement. This

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

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

interpreted consistently therewith.

(iv) Nonrecourse Deductions. Any nonrecourse deductions attributable

to a Member nonrecourse debt (as described in Treasury Regulations

Section 1.704-2(i)) shall be allocated to the Member who bears the economic risk

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

shall be allocable in accordance with the Members’ respective Percentage

Interests.

(v) Loss Allocation Limitation. No allocation of Net Loss (or any item

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

create or increase a Member’s Adjusted Capital Account Deficit. If, in the

allocation of Net Loss (or any item thereof), less than all Members would have an

Adjusted Capital Account Deficit as a result of such allocation, then any Net Loss

(or item thereof) not allocable to any such Member(s) as a result of such

limitation shall be allocated (subject to such limitation) to the other Member so as

to allocate the maximum permissible Net Loss to each Member under Treasury

Regulation Section 1.704-1(b)(2)(ii)(d).

(vi) Curative Allocations. The allocation provisions of this

Section 6.2(b) are intended to comply with certain requirements of the Treasury

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

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

allocating Net Income and Net Loss among the Members such that the cumulative

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

so that the Capital Account balances correspond to the amounts distributable to

the Members.

(c) Transfer of or Change in LLC Interests. The Tax Matters Member is

authorized to adopt any convention or combination of conventions likely to be upheld for federal

income tax purposes regarding the allocation of items of Company income, gain, loss, deduction

and expense with respect to a transferred LLC Interest. A transferee of an LLC Interest in the

Company shall succeed to the Capital Account of the transferor Member to the extent it relates to

the transferred LLC Interest.

6.3 Tax Allocations.

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Amended and Restated Limited Liability Company Operating Agreement

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

Fiscal Year, items of Company income, gain, loss, deduction and expense shall be allocated, for

federal, state and local income tax purposes among the Members in the same manner as the Net

Income (and items thereof) or Net Loss (and items thereof) of which such items are components

were allocated pursuant to Section 6.2.

(b) Section 704(c) of the Code. Income, gains, losses and deductions with

respect to any property (other than cash) contributed or deemed contributed to the capital of the

Company shall, solely for income tax purposes, be allocated among the Members so as to take

account of any variation between the adjusted basis of such property to the Company for federal

income tax purposes and its Fair Market Value at the time of the contribution or deemed

contribution in accordance with Section 704(c) of the Code and the Treasury Regulations

promulgated thereunder. Such allocations shall be made in such manner and utilizing such

permissible tax elections as determined in good faith by the Tax Matters Member, following

consultation with the Initial Member. In the event of a revaluation of 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 the Treasury Regulations promulgated thereunder. Such

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

determined in good faith by the Tax Matters Member, following consultation with the Initial

Member. For the avoidance of doubt, any losses recognized by the Company that are attributable

to property acquired by the Company pursuant to the Contribution Agreement and that are

deferred pursuant to Section 707(b)(1) or Section 267(a) of the Code shall, solely for income tax

purposes, be allocated to the Initial Member.

(c) Capital Accounts Not Affected. Allocations pursuant to this Section 6.3

are solely for federal, state and local tax purposes and shall not affect, or in any way be taken into

account in computing, any Member’s Capital Account or allocable share 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 consequences of the allocations made by this Section 6.3 and hereby agree to be bound

by the provisions of this Section 6.3 in reporting their respective shares of items of Company

income, gain, loss, deduction and expense.

6.4 Determinations by Tax Matters Member. All matters concerning the computation

of Capital Accounts, the allocation of items of Company income, gain, loss, deduction and

expense and the adoption of any accounting procedures not expressly provided for by the terms

of this Agreement shall be determined by the Tax Matters Member in good faith, following

consultation with the Initial Member. Following such consultation, such determinations shall be

final and conclusive as to all the Members. Without in any way limiting the scope of the

foregoing, if and to the extent that, for income tax purposes, any contribution to or distribution

by the Company or any payment by any Member or by the Company is recharacterized, the Tax

Matters Member may, in good faith following consultation with the Initial Member, specially

allocate items of Company income, gain, loss, deduction or expense and/or make correlative

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
adjustments to the Capital Accounts of the Members in a manner so that the net amount of

income, gain, loss, deduction and expense realized by each relevant party (after taking into

account such special allocations) and the net Capital Account balances of the Members (after

taking into account such special allocations and adjustments) shall, as nearly as possible, achieve

the fundamental purpose of Section 6.2(a), such that the Capital Account balances correspond to

the amounts distributable to the Members, as if such recharacterization had not occurred.

6.5 Priority of Payments. Each calendar month the amounts deposited in the

Distribution Account under the Custodial and Paying Agency Agreement shall be distributed by

the Paying Agent in the order of the Priority of Payments.

6.6 Distributions.

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

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

except as expressly provided in this Agreement.

(b) Ordinary Distributions.

(i) Timing. Amounts available for distribution to the Members with

respect to their respective LLC Interests, 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.

(ii) [Reserved]:

(iii) Incentive Threshold Event. The “Incentive Threshold Event”

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

Private Owner (including any amounts that were deposited into the Special

Reserve Account that would have otherwise been distributed to the Private

Owner) pursuant to the Priority of Payments as of such Distribution Date is equal

to or greater than the product of two and the Incentive Threshold Base Amount,

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

(iv) Incentive Threshold. The “Incentive Threshold” shall be

determined as follows:

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

equal to the Transferred LLC Interest Sale Price (the “Incentive

Threshold Base Amount”); and

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

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

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

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

aggregate distributions made to the Private Owner pursuant to the Priority

of Payments for such Distribution Date; provided, that, if, as of any

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Distribution Date, the amount referred to in clause (B)(2) of Section

6.6(b)(iv) is greater than the amount referred to in clause (B)(1) of Section

6.6(b)(iv), then the Incentive Threshold shall be deemed to be zero for

such Distribution Date and all subsequent Distribution Dates.

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

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

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

Governmental Authority then applicable to the Company.

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

Manager is authorized to take any action that it determines to be necessary or appropriate to cause

the Company to comply with any foreign or United States federal, state or local withholding

requirement with respect to any allocation, payment or distribution by the Company to any

Member or other Person. All amounts so withheld shall be treated as distributions to the

applicable Members under the applicable provisions of this Agreement. If any such withholding

requirement with respect to any Member exceeds the amount distributable to such Member under

the applicable provisions of this Agreement, or if any such withholding requirement was not

satisfied with respect to any amount previously allocated or distributed to such Member, such

Member and any successor or assignee with respect to such Member’s LLC Interest hereby agrees

to indemnify and hold harmless the Manager and the Company for such excess amount or such

withholding requirement, as the case may be.

(e) Record Holders. Any distribution 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 LLC Interests on the date determined by the Manager

as of which the Members are entitled to any such distribution.

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

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

Section 9.2.

ARTICLE VII
 

Accounting, Reporting and Taxation
 

7.1 Fiscal Year. The books and records of the Company shall be kept on an accrual

basis and the fiscal year of the Company shall commence on January 1 and end on December 31

(the “Fiscal Year”).

7.2 Maintenance of Books and Records.

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

of the Company, the Manager shall cause to be kept and maintained (including by the Servicer

and any Ownership Entity and including records transferred by the Receiver to the Company in

connection with its conveyance of the Mortgage Loans to the Company under the Contribution

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

complete and accurate set of files, books and records regarding the Mortgage Loans and the

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Underlying Collateral, and the Company’s and the relevant secured parties’ interests in the

Mortgage Loans and the Underlying Collateral, including records relating to the Collection

Account, the Escrow Accounts, the Liquidity Account, the Special Reserve Account and the

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

set of records shall encompass all files in the Manager’s or Company’s custody, possession or

control pertaining to the Mortgage Loans and the Underlying 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 Mortgage Loans and the Underlying Collateral,

all documentation relating to items of income and expense pertaining to the Mortgage Loans and

the Underlying Collateral, and all of the Manager’s (and each Servicer’s and Subservicer’s)

internal memoranda pertaining to the Mortgage Loans and the Underlying Collateral. The books

of account shall be maintained in a manner that provides sufficient assurance that: (a) transactions

of the Company are executed in accordance with the general or specific authorization of the

Manager consistent with the provisions of this Agreement; and (b) transactions of the Company

are recorded in such form and manner as will: (i) permit preparation of federal, state and local

income and franchise tax returns and information returns in accordance with this Agreement and

as required by Law; (ii) permit preparation of the Company’s financial statements in accordance

with GAAP and as otherwise set forth herein and the provisions of the reports required to be

provided hereunder; and (iii) maintain accountability for the Company’s assets.

(b) Retention of Books and Records. The Manager shall cause all such books

and records to be maintained and retained until the date that is the later of ten (10) years after the

Closing Date and three (3) years after the date on which the Final Distribution is made. All such

books and records shall be available during such period for inspection by the Initial Member, the

FDIC or any of their respective representatives (including any Governmental Authority) and

agents at the Company’s chief executive office referred to in Section 2.4 at all reasonable times

during business hours on any Business Day (or, in the case of any such inspection after the term

hereof, at such other location as is provided by notice to the Initial Member and the FDIC), in

each instance upon two (2) Business Days’ prior notice to the Manager. Upon request by the

Initial Member or the FDIC, the Manager shall promptly send copies (the number of copies of

which shall be reasonable) of such books and records to such requesting Person or its designee.

The Manager shall provide the Initial Member and the FDIC with reasonable advance notice of

the Manager’s intention to destroy or dispose of any documents or files relating to the Mortgage

Loans and, upon the request of the Initial Member or the FDIC, shall allow such requesting Person

to recover the same (or copies thereof) from the Company and in the case both the Initial Member

and the FDIC so request the same, the FDIC shall have the right to recover such documents or

files, but the Initial Member shall have the right to make copies of such applicable documents or

files so long as such copies are made while such documents files remain with the Manager or the

Company (and prior to recovery of the same by the FDIC). The Manager shall also maintain

complete and accurate records reflecting the status of taxes, ground leases or other recurring

charges which could become a Lien on any Underlying Collateral. Any expense incurred by the

Initial Member or the FDIC and any reasonable out-of-pocket expense incurred by the Company

in connection with the exercise by the Initial Member or the FDIC of its respective rights in this

Section 7.2(b) to recover or make (or otherwise receive) copies of books, records, documents or

files shall be borne by such Person so exercising such rights; provided, however, that any expense

incident to the exercise of such rights pursuant to this Section 7.2(b) as a result of or during the

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
continuance of an Event of Default shall in all cases be borne by the Private Owner (except to the

extent such Event of Default is attributable exclusively to a Manager having been appointed by

the Initial Member following removal of the Private Owner in such applicable capacity, or to any

applicable Servicer (and its Subservicers) having been engaged by the Initial Member, the

Company or the applicable replacement Manager following such removal of the Private Owner as

Manager, in each case that is not an Affiliate of the Private Owner).

7.3 Financial Statements.

(a) Annual Financial Statements. As soon as practicable following, but no

later than ninety (90) days immediately after, the end of each Fiscal Year (commencing with

respect to the 2010 Fiscal Year), the Manager shall prepare and deliver to the Initial Member an

audited consolidated balance sheet of the Company and the Ownership Entities as at the end of

such Fiscal Year, and audited consolidated statements of operations and cash flow of the

Company and the Ownership Entities for such Fiscal Year, each prepared in accordance with

GAAP and accompanied by the Accountants’ report thereon, which shall be certified in the

customary manner by the Accountants.

(b) Quarterly Financial Information. As soon as practicable following, but no

later than thirty (30) days immediately after, the end of each quarter of each Fiscal Year (other

than the last quarter of such Fiscal Year, and commencing with the calendar quarter ending on or

about June 30, 2010), the Manager shall prepare and deliver to the Initial Member an unaudited

consolidated balance sheet of the Company and the Ownership Entities as at the end of such

calendar quarter, and unaudited consolidated statements of operations and cash flow of the

Company and the Ownership Entities for such calendar quarter (and, for the first such report, also

covering the period from the Closing Date through the end of such calendar quarter), each

prepared in accordance with GAAP.

7.4 Additional Reporting and Notice Requirements.

(a) Manager’s Duty to the Initial Member and the Secured Parties; Delivery

of Certain Notices. In addition to such other reports and access to books, records and reports as

are required to be provided under this Agreement, the Manager shall cause to be delivered to the

Initial Member and the Purchase Money Note Guarantor such information as is specified in

Exhibit B (in addition to the Monthly Report) and such other information relating to the Mortgage

Loans, the Underlying Collateral, the Company, the Servicers and any Subservicers as Initial

Member or the Purchase Money Note Guarantor may reasonably request from time to time and, in

any case, shall ensure that Initial Member and the Purchase Money Note Guarantor are promptly

advised, in writing, of any matter of which the Manager, any Servicer or any Subservicer becomes

aware relating to the Mortgage Loans, the Underlying Collateral, the Collection Account, the

Escrow Accounts, the Liquidity Account, the Special Reserve Account or any Borrower or

Obligor that materially and adversely affects the interests of the Initial Member hereunder or of

any secured party under the Reimbursement and Security Agreement. Without limiting the

generality of the foregoing, the Manager shall cause to be delivered to the Initial Member

information indicating any possible Environmental Hazards with respect to any Underlying

Collateral. To the extent that the Initial Member requests information which is dependent upon

obtaining such information from a Borrower, Obligor or other third party, the Manager shall cause

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
to be made commercially reasonable efforts to obtain such information but it shall not be a breach

by the Manager of this Agreement if the Manager fails to cause such information to be provided to

the Initial Member because a Borrower, Obligor or other Person has failed to provide such

information after such efforts have been made.

(b) Monthly Reports. On or prior to the Distribution Date for each month,

commencing on the Distribution Date following the calendar month in which the Closing Date

occurs, the Company shall deliver or cause the Manager to deliver to the Paying Agent, the Initial

Member and the Purchase Money Notes Guarantor the Monthly Report with respect to the

relevant Due Period, which Monthly Report shall include the Distribution Date Report specifying

the amounts and recipients of all funds to be distributed by the Paying Agent on such Distribution

Date; provided, however, that (unless the Company and the Initial Member agree otherwise) the

Initial Member will prepare and deliver to the Paying Agent and the Purchase Money Note

Guarantor the Monthly Report (including the Distribution Date Report) on behalf of the Company

for all Due Periods ending on or before April 1, 2010. Following receipt by the Paying Agent of

the Monthly Report (including the Distribution Date Report) with respect to a given Due Period,

the Paying Agent shall prepare and deliver the Custodian and Paying Agent Report with respect to

such Due Period in accordance with the terms of the Custodial and Paying Agency Agreement.

Each Monthly Report (including the Distribution Date Report) prepared and delivered by the

Manager shall be certified by the chief financial officer (or an equivalent officer) of the Manager.

Each Monthly Report prepared and delivered by the Manager shall also include a certification of

the Manager that all withdrawals by the Manager from the Collection Account during such Due

Period were made in accordance with the terms of this Agreement and the Custodial and Paying

Agency Agreement.

(c) Annual Compliance Certificates. The Manager shall, and shall cause the

Servicer and each Subservicer to, deliver to the Initial Member and the Purchase Money Note

Guarantor, on or before March 15 of each year, commencing in the year 2011, an officer’s

certificate stating, as to the signer thereof, that (i) a review of such party’s activities (in the case of

the Manager, for the avoidance of doubt in any capacity under this Agreement) during the

preceding calendar year (or other applicable period as set forth below in this Section 7.4(c)) and of

its performance under this Agreement (or, as applicable, the Servicing Agreement or any

Subservicing Agreement) has been made under such officer’s supervision, and (ii) to the best of

such officer’s knowledge and belief, based on such review, such party (in the case of the Manager,

for the avoidance of doubt in any capacity under this Agreement) has fulfilled all of its obligations

under this Agreement (or, as applicable, the Servicing Agreement or Subservicing Agreement) in

all material respects throughout such year (or other applicable period as set forth below in this

Section 7.4(c)) or, if there has been a failure to fulfill any such obligation in any material respect,

specifying each such failure and the nature and status thereof. The first such officer’s certificate

shall, with respect to any Mortgage Loan, shall cover the period commencing on the Closing Date

(and with respect to each Mortgage Loan, including relevant information with respect thereto for

the period commencing on the Servicing Transfer Date for such Mortgage Loan) and continuing

through the end of the 2010 calendar year. In the event a Servicer or any Subservicer was

terminated, resigned or otherwise performed in such capacity for only part of a year (or other

applicable period, as the case may be, with respect to the period commencing, with respect to any

Mortgage Loan, on the applicable Servicing Transfer Date through the end of the 2010 calendar

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
year), such party shall provide an officer’s certificate pursuant to this Section 7.4(c) with respect

to such portion of the year (or other applicable period).

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

commencing in the year 2011, the Manager shall cause each Servicer and Subservicer, each at its

own expense or at the expense of the Manager, to provide to each of the Paying Agent, the Initial

Member and the Purchase Money Note Guarantor the annual reports (including the independent

accountant report) for the prior Fiscal Year (or other applicable period as set forth below) required

under Section 1122 of Regulation AB (regardless of whether any such requirements apply, by

their terms, only to companies registered or required to file reports with the Securities and

Exchange Commission) with respect to the relevant servicing criteria provisions of Section

1122(d)(1) of Regulation AB that are applicable to the servicing being conducted under this

Agreement (and the Servicing Agreement) pursuant to Section 12.3(d) below. The first such

reports shall cover the period commencing on the Closing Date (and for each Mortgage Loan,

covering the period from the applicable Servicing Transfer Date) and continuing through the end

of the 2010 Fiscal Year.

(e) Audits. Until the later of the date that is ten (10) years after the Closing

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

cause the Servicer and each Subservicer to, (i) provide any representative of the Initial Member

(including any Governmental Authority), during normal business hours and on reasonable notice,

with access to all of the books of account, reports and records relating to the Mortgage Loans or

any Underlying Collateral, the Servicing Obligations, the Collection Account, the Escrow

Accounts, the Liquidity Account, the Special Reserve Account, any account created under the

Servicing Agreement, disbursements under the Custodial and Paying Agency Agreement,

distributions hereunder or any other matters relating to this Agreement or the rights or obligations

hereunder or under the Ancillary Documents; (ii) permit such representatives to make copies of

and extracts from the same, (iii) allow Initial Member to cause such books to be audited by

accountants selected by the Initial Member, and (iv) allow Initial Member’s representatives to

discuss the Company’s, the Manager’s, any Servicer’s and any Subservicer’s affairs, finances and

accounts, as they relate to the Mortgage Loans, the Underlying Collateral, the Servicing

Obligations, the Collection Account, the Escrow Accounts, the Liquidity Account, the Special

Reserve Account or any other matters relating to this Agreement, the Ancillary Documents, or the

rights or obligations hereunder and thereunder, with its officers, directors, employees, accountants

(and by this provision the Company and the Manager hereby authorizes such accountants to

discuss such affairs, finances and accounts with such representatives), Servicers and Subservicers,

and attorneys. Any expense incurred by the Initial Member and any reasonable out-of-pocket

expense incurred by the Company in connection with the exercise by the Initial Member of its

rights in this Section 7.4(e) shall be borne by the Initial Member; provided, however, that any

expense incident to the exercise by the Initial Member of its rights pursuant to this Section 7.4(e)

as a result of or during the continuance of an Event of Default shall in all cases be borne by the

Private Owner (except to the extent such Event of Default is attributable exclusively to a Manager

having been appointed by the Initial Member following removal of the Private Owner in such

capacity, or to any applicable Servicer (and its Subservicers) having been engaged by the Initial

Member, the Company or the applicable replacement Manager following such removal of the

Private Owner as Manager, in each case that is not an Affiliate of the Private Owner).

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
(f) In addition to the foregoing, the Manager shall provide or cause to be

provided to the Initial Member, all reports, information (financial or otherwise), certificates and

other documents required to be provided by the Company pursuant to the Reimbursement and

Security Agreement, and by the Servicer under the Servicing Agreement.

(g) The rights afforded to the Members under this Section 7.4 are in addition

to, and not in limitation of, the rights of the Members under Section 18-305(a) of the Act. Section

18-305(c) of the Act shall not apply in relation to the Initial Member.

7.5 Designation of Tax Matters Member. The Private Owner is hereby designated as

the “Tax Matters Member” under Section 6231(a)(7) of the Code and under other similar Laws

of other relevant jurisdictions, to manage, in consultation with the Initial Member, administrative

tax proceedings conducted at the Company level by the Internal Revenue Service or other tax

authorities with respect to Company matters. Each Member expressly consents to such

designation and agrees that, upon the request of the Tax Matters Member, it will execute,

acknowledge, deliver, file and record at the appropriate public offices such documents as may be

necessary or appropriate to evidence such consent. The Tax Matters Member is specifically

directed and authorized to take whatever steps the Tax Matters Member in its sole and absolute

discretion deems necessary or desirable to perfect such designation, including, without

limitation, filing any forms or documents with the Internal Revenue Service (or other tax

authorities) and taking such other action as may from time to time be required under the Code,

Treasury Regulations or other Laws. The Tax Matters Member shall keep the other Members

fully informed as to any tax audits of the Company, including promptly providing the other

Members with copies of any correspondence from any taxing authority and permitting the other

Member to participate in any conferences or meetings with any taxing authority and in any

subsequent administrative or judicial proceedings. The Tax Matters Member shall have the

authority, following consultation with the Initial Member, to make any tax elections on behalf of

the Company permitted to be made, including the election pursuant to Section 754, under any

section of the Code or the Treasury Regulations promulgated thereunder or under other Laws. In

the event the Company may be deemed to be a “small partnership” as described in

Section 6231(a)(1)(B), each Member consents to the Company’s electing to be treated as a

partnership to which the provisions of Code Section 6221 et. seq. apply (thereby electing to have

Code Section 6231(a)(1)(B)(i) not apply). The Initial Member may, at any time following the

occurrence and during the continuation of an Event of Default, remove the Private Owner as the

Tax Matters Member, appoint itself (or any other willing Member at the time) as the Tax Matters

Member, and serve (or cause such other Member to so serve) in such capacity; provided that

such removal shall not relieve the Private Owner as Tax Matters Member of any obligations or

liabilities under this Agreement or any Ancillary Document arising, relating to, occurring, or

required to have been paid or performed by, the Private Owner as Tax Matters Member in its

capacity as such.

7.6 Tax Information.

(a) Within ninety (90) days after the end of each Fiscal Year, the Tax Matters

Member shall send, or cause to be sent to, each Person who was a Member at any time during the

Fiscal Year then ended a Schedule K-1 and such Company tax information as the Tax Matters

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Member reasonably believes shall be necessary for the preparation by such Person of its United

States federal, state and local tax returns in accordance with any Law. Such information shall

include a statement showing such Person’s share of distributions, income, gain, loss, deductions

and expenses and other relevant items of the Company for such Fiscal Year. Promptly upon the

request of any Member (or any former Member, for tax years during which such Person was a

Member), the Tax Matters Member will furnish to such Member (or former Member):

(i) United States federal, state and local income tax returns or

information returns, if any, filed by the Company; and

(ii) at the sole cost and expense of the requesting Member, such other

information as such Member may reasonably request for the purpose of applying

for refunds of withholding taxes.

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

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

deliver to the Initial Member a report which shall specify the information with respect to each

Mortgage Loan that is sold or otherwise disposed of by the Company so as to enable the Company

(and each Member) to comply with allocation provisions of Section 704(c) of the Code, as

determined as of the close of business on the applicable Determination Date and certified by an

Authorized Representative (who shall be the chief financial officer (or an equivalent officer)) of

the Company (the “Tax Allocation Report”).

7.7 Business Plan. As promptly as possible, but in no event later than 120 days after

the Closing Date the Manager shall deliver to the Initial Member a written plan (a “Business

Plan”) detailing the strategy to be used by it to manage and dispose of the assets of the Company

including all of the Mortgage Loans and for achieving the Company’s purposes with respect

thereto, in conformity with the Servicing Standard, based, to the extent appropriate, on

information gathered by the Company with respect to the Mortgage Loans. The Manager shall

meet with the Initial Member as reasonably requested by the Initial Member from time to time

during the thirty (30) Business Days following the Initial Member’s receipt of the same, to

review and discuss such Business Plan, including changes thereto suggested by the Initial

Member. Within thirty (30) Business Days following expiration of such review period, the

Manager will deliver to the Initial member a final version of the Business Plan reflecting such

changes as the Manager considers to be appropriate in light of its discussions with the Initial

Member during such review period. The Manager shall thereafter review and revise the

Business Plan as the circumstances may require, and in any event provide periodic updates to

such Business Plan to the Initial Member, commencing in April of 2011, and on an annual basis

thereafter, with each such periodic update to de delivered as part of the Monthly Reports due at

such time pursuant to Section 7.4(b). Upon reasonable notice by the Initial Member, the

Company shall make its personnel who are familiar with the Business Plan available during

normal business hours for the purposes of discussing the Business Plan with representatives of

the Initial Member and responding to questions therefrom.

(a) The Business Plan will set forth a strategy for the disposition of the

Mortgage Loans addressed thereby which strategy may consist of one or more of the following:

(i) the pay-off of Mortgage Loans at a discount; (ii) modifications of the related note and/or

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FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
mortgage, including reductions in the mortgage loan interest rate, reductions in the principal

balance and rescheduling principal payments; (iii) foreclosure upon the related Underlying

Collateral (or acquisition thereof by deed in lieu of foreclosure) and subsequent sale thereof; (iv)

assumptions of Mortgage Loans by new borrowers; (v) repairs to Underlying Collateral, with a

view towards selling such Underlying Collateral or the Mortgage Loan secured thereby; (vi) sale

of a Mortgage Loan, either singly or in pools, before or after restructuring; and (vii) any other

method of work-out, rehabilitation and disposition consistent with the Servicing Standard and

other general duties of the Company specified in this Agreement.

(b) The Business Plan will set forth a strategy for the disposition of the related

Acquired Property which strategy may consist of one or more of the following: (i) the sale or

leasing of the Acquired Property in whole or in parts, or in pools; (ii) making repairs to and, if

applicable, completion of construction of the Acquired Property or making changes to the

Acquired Property so that it may be used for uses other than its current use, with a view toward

selling the Acquired Property; (iii) rehabilitation or improvement and, if applicable, completion of

construction of the Acquired Property, with a view toward selling the Acquired Property; (iv)

continued leasing or sales activity with respect to the Acquired Property available for leasing or

sale (in whole or in part) at the time it is transferred to a Ownership Entity; and (v) maintenance,

landscaping and general upkeep of the Acquired Property.

(c) The Business Plan shall include projected financials including statements

of income, assets, and cash flows for the Company.

ARTICLE VIII
 

Restrictions on Disposition of LLC Interests
 

8.1 Limitations on Disposition of LLC Interests. Except as otherwise provided in this

Article VIII, the Private Owner shall not, directly or indirectly, Dispose of or permit to be

Disposed of, all or any part of its LLC Interest or any of its rights or interests under this

Agreement, except only that the Private Owner may make a direct, outright transfer of its entire

(but not less than its entire) LLC Interest if, and only if, (a) (i) the transferee is a single Person

that is a Qualified Transferee, (ii) such transferee delivers to the Initial Member a Purchaser

Eligibility Certification and the representations and warranties made by such transferee therein

shall be true and correct both before and after giving effect to such transfer of the LLC Interest,

and (iii) the Private Owner first obtains the prior written consent of the Initial Member and, until

the Purchase Money Note Maturity Date, the Purchase Money Note Guarantor to such transfer,

or (b) such Disposition is done by or at the direction of the Initial Member pursuant to

Sections 3.13 or 3.14. The Private Owner may not under any circumstances Dispose of less than

all of its LLC Interest. Transfers by the Private Member satisfying the foregoing criteria are

hereinafter referred to as “Permitted Dispositions.”

8.2 Change of Control. The Private Owner will not permit any Change of Control to

occur with respect to the Private Owner unless (i) it first obtains the prior written consent of the

Initial Member, and (ii) following such Change of Control, the Private Owner would be a

Qualified Transferee. Without limitation of the preceding sentence, the Private Owner will

provide the Initial Member with immediate notice at the address specified in Section 13.6 of the

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

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8.3 Additional Provisions Relating to Permitted Dispositions. Except as otherwise

expressly provided in this Section 8.3, the following provisions shall apply to each Permitted

Disposition under this Article VIII:

(a) In the event the Private Owner proposes to make a Permitted Disposition,

the Private Owner shall be required to pay any and all filing and recording fees, fees of counsel

and accountants and other out-of-pocket costs and expenses reasonably incurred by the Initial

Member and/or the Company in connection with such Permitted Disposition.

(b) The transferee in a Permitted Disposition shall deliver to the Company,

with a copy to the Initial Member, an agreement, in form and substance reasonably satisfactory to

the Initial Member, by which such transferee shall (i) agree to become a party to and be bound by

this Agreement as the “Private Owner,” agree (if the transferor Member, prior to such transfer,

also was the Manager) to be appointed as the “Manager”, and without limitation of the generality

of the foregoing, agree to be bound by the other terms of Section 8.4 hereof, (ii) assume and agree

to perform when due all of the obligations of the Private Owner and the Manager (if the transferor

Member, prior to such transfer, also was the Manager) under this Agreement, and (iii) represent

and warrant that it complies with the requirements set forth in Article X.

(c) In connection with each Permitted Disposition, the Private Owner and the

transferee shall deliver to the Company and the Initial Member such other documents and

instruments as the Initial Member reasonably may request and which are required to effect the

Permitted Disposition and substitute the transferee as a Member.

8.4 Effect of Permitted Dispositions.

(a) Upon consummation of any Permitted Disposition:

(i) the transferee shall be admitted as a member of the Company and

be deemed to be a party to this Agreement as the “Private Owner” and, if the

transferor Member, prior to such transfer, also was the Manager, such transferee

shall be appointed as the Manager (in the place of the transferor Member);

(ii) the transferred LLC Interest shall continue to be subject to all the

provisions of this Agreement, and the transferee Member shall have the same

status as the Private Owner had at the time of consummation of such Permitted

Disposition and, without limiting the generality of the foregoing, any outstanding

breach, misrepresentation, violation or default (with respect to this Agreement or

any Ancillary Document) by any direct or indirect predecessor to the transferee as

the Member, or by any Affiliate of any such predecessor Member, shall be

deemed to constitute an outstanding breach, misrepresentation, violation or

default as the case may be, by the transferee Member; and

(iii) subject to Section 8.4(b) and the last sentence of Section 13.8, the

transferor Member shall cease to be a member of the Company (and accordingly,

except as expressly otherwise provided in Section 8.4(b) or the last sentence of

Section 13.8, shall cease to be responsible for the payment or performance of any

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of the obligations or liabilities under this Agreement of the Private Owner, in any

capacity hereunder).

(b) No Permitted Disposition (and no resulting withdrawal or resignation of

the transferor Member from the Company) shall:

(i) relieve the transferor Member of any of the obligations or

liabilities of the transferor Member, in any capacity, under this Agreement or any

Ancillary Document required to have been paid or performed prior to the

consummation of such Permitted Disposition (or of any liability it may have

arising out of any breach, misrepresentation, violation or default by the transferor

Member prior to such consummation);

(ii) result in the termination of, relieve the transferor Member (or any

of its Affiliates) of, or otherwise affect, any of the obligations or liabilities of the

transferor Member, in any capacity, or its Affiliates under, any Related Party

Agreement (such Related Party Agreements to continue in effect in accordance

with their respective terms), except to the extent expressly provided in such

Related Party Agreement; or

(iii) dissolve the Company.

8.5 Effect of Prohibited Dispositions. Any attempted or purported Disposition of the

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

terms of this Agreement shall be void ab initio and of no force or effect whatsoever. The Private

Owner shall not be entitled, and hereby specifically waives any right, to receive Company

distributions during (i) the period between any attempted or purported Disposition of the LLC

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

this Agreement and the express rescission of such attempted or purported Disposition by the

Private Owner and (ii) during any period when a Member is in violation of Section 8.2, provided

that all such omitted Company distributions shall (subject to Section 8.6) be made to the Private

Owner (without interest) forthwith after the end of the relevant suspension period.

8.6 Distributions After Disposition. Distributions with respect to an LLC Interest

made on or after the effective date of the Permitted Disposition of such LLC Interest shall be

made to the transferee Member with respect to such LLC Interest, regardless of when such

distributions accrued on the books of the Company.

8.7 Transfers by the Initial Member. Notwithstanding anything to the contrary

contained in this Agreement, except as provided by applicable Law, there shall be no restriction

on the Initial Member’s ability to Dispose of the LLC Interest held by it, directly or indirectly, to

any Person and the Private Owner shall have no right to purchase or right-of-first-refusal in

connection with any such sale; provided, that, the Initial Member may not assign the consent and

voting rights associated with its LLC 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 Member’s right to Dispose of any interest associated with its LLC

Interest in the Company) and provided, further, that in the event the Initial Member determines

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to sell the LLC Interest held by it through an auction process, the Private Owner shall be entitled

to participate in such auction on the same terms that apply generally to other participants in the

auction. At the election of the Person then constituting the “Initial Member” under this

Agreement, the transferee in any direct Disposition of any portion of the LLC Interest of the

Initial Member shall, upon delivery to the Company, with a copy to the Private Owner, of an

agreement by which such transferee shall agree to become a party to and be bound by this

Agreement as the “Initial Member,” be admitted as a member of the Company and be deemed to

be a party to this Agreement as the “Initial Member”, and thereupon, subject to last sentence of

Section 13.8, the transferor Member shall cease to be a member of the Company (and

accordingly, except as expressly otherwise provided in last sentence of Section 13.8, shall cease

to be responsible for the payment or performance of any of the obligations or liabilities under

this Agreement of the Initial Member).

8.8 Resignation; Dissolution.

(a) The Private Owner may not withdraw or resign from the Company, except

(i) in connection with a Permitted Disposition made in accordance with the applicable provisions

of this Article VIII or (ii) with the prior written consent of the Initial Member.

(b) The Private Owner covenants that it shall not allow a Dissolution Event to

occur with respect to itself.

(c) Section 18-304 of the Act shall not apply to the Company. Nothing in this

Section 8.8(c) shall limit the terms of Section 9.1 hereof.

(d) Except as is otherwise expressly provided in this Agreement, no Member

shall be entitled to receive any payment pursuant to Section 18-604 of the Act.

8.9 Applicable Law Withdrawal. If, as a result of applicable Law, the ownership of

an LLC Interest by a Member becomes illegal or is likely to become illegal or the applicable

Law more likely than not requires divestiture of such Member’s LLC Interest, or the applicable

Law would require the Company to register as an investment company under the Investment

Company Act, then the Manager and the Member shall use their respective commercially

reasonable efforts to avoid a violation of any such applicable Law by a Member or the need for

the Company to register as an investment company. These steps may include, depending on the

provisions of such applicable Law, (i) arranging for the sale of the Member’s LLC Interest to a

third party upon terms reasonably satisfactory to the Member in a transaction that complies with

Articles VIII and X; (ii) making any appropriate applications to the relevant Governmental

Authority, (iii) prohibiting such Member from making further Capital Contributions, and

converting its LLC Interest into a special interest with no voting or similar rights but with only

an economic right (identical to its prior rights as a Member), or (iv) permitting the Member to

withdraw from the Company for a “payment” to such Member equal to the value of its LLC

Interest at the time of withdrawal, such value to be determined by a third party appraiser

mutually agreeable to the Manager and all Members. The aforesaid “payment” shall be made in

cash unless the Manager determines that the payment in cash would be economically detrimental

to the Company, in which case such payment may be made in kind, subject to the applicable

Law. The timing of any such withdrawal must be mutually agreeable to the Member and the

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Manager taking proper account of the effective date of the applicable Law or registration

requirement that is the basis for the withdrawal or other remedy provided herein and the need of

the Manager for a reasonable period of time to find a solution to the illegality or requirement for

divestiture. Such illegality or registration requirement must be established by (x) an opinion of

counsel (which counsel shall be reasonably satisfactory to the Manager and the Initial Member)

substantially to the effect that the ownership of the LLC Interest more likely than not will result

in such illegality or requirement for registration or divestiture or (y) upon a ruling or order from

a Governmental Authority.

ARTICLE IX
 

Dissolution and Winding-Up of the Company
 

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

of the following:

(a) the agreement by all Members to dissolve the Company (it being

understood and agreed that neither Member, acting alone, shall have the right unilaterally to

dissolve the Company);

(b) the sale of all or substantially all of the Company Property (other than

cash and cash equivalent instruments), including as an entirety or substantially as an entirety; or

(c) notice to such effect to the Private Owner from the Initial Member at any

time after the occurrence of a Dissolution Event or an Insolvency Event with respect to the Private

Owner or any Person that Controls the Private Owner; or

(d) exercise of the Clean-Up Call and liquidation of all remaining Mortgage

Loans and Acquired Property of the Company in accordance with Section 12.17.

9.2 Winding-Up Procedures. If a dissolution of the Company pursuant to Section 9.1

occurs, subject to the Company’s compliance with its obligation under the other agreements to

which it is a party, the other terms and conditions of this Agreement or the Ancillary Documents,

the Manager shall proceed as promptly as practicable to wind up the affairs of the Company in

an orderly and businesslike manner. A final accounting shall be made by the Manager. As part

of the winding up of the affairs of the Company, the following steps will be taken:

(a) The assets of the Company shall be sold except to the extent that some or

all of the assets of the Company are retained by the Company for distribution to the Members as

hereinafter provided.

(b) The Company shall comply with Section 18-804(b) of the Act.

(c) Distributions of the assets of the Company after a dissolution of the

Company shall be conducted as follows:

(i) first, to creditors, but excluding Members who are creditors (other

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

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Note)), to the extent otherwise permitted by Law (and, to the extent permitted, in

accordance with the Priority of Payments), in satisfaction of liabilities of the

Company (whether by payment or the making of reasonable provision for

payment thereof);

(ii) second, to Members or former Members who are creditors, to the

extent otherwise permitted by Law, in satisfaction of liabilities of the Company

(whether by payment or the making of reasonable provision for payment thereof)

other than liabilities for which reasonable provision for payment has been made

and liabilities for distributions to Members and former Members under

Section 18-601 of the Act;

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

(if any) for distributions under Section 18-601 of the Act; and

(iv) finally, to the Members in the manner set forth in Section 6.6(b).

(d) Upon dissolution, the Manager, may, with the consent of all Members,

(i) liquidate all or a portion of the Company assets and apply the proceeds of such liquidation in

the manner set forth in Section 9.2(c) and/or (ii) hire independent appraisers to appraise the value

of Company assets not sold or otherwise disposed of or determine the Fair Market Value of such

assets, and allocate any unrealized gain or loss determined by such appraisal to the Members’

respective Capital Accounts as though the properties in question had been sold on the date of

distribution and, after giving effect to any such adjustment, distribute said assets in the manner set

forth in Section 9.2(c), provided that the Manager shall in good faith attempt to liquidate sufficient

Company assets to satisfy in cash the debts and liabilities described in Section 9.2. If a Member

shall, upon the advice of counsel, determine that there is a reasonable likelihood that any

distribution in kind of an asset would cause such Member to be in violation of any Law, such

Member and the Manager shall each use its best efforts to make alternative arrangements for the

sale or transfer into an escrow account of any such distribution on mutually agreeable terms.

9.3 Termination of the Company.

Upon the dissolution of the Company and the completion of the winding up

process set forth in Section 9.2, the Manager (or such other Person or Persons as the Act may

require or permit) shall cause the cancellation of the Certificate and any filings made as provided

in clause (c) of Section 4.3 and shall take (or cause to be taken) such other actions as may be

necessary to terminate the Company.

ARTICLE X
 

Qualified Transferees
 

10.1 Qualified Transferees. Each Member, other than the Initial Member (including,

for the avoidance of doubt, its Successors and transferees), shall at all times be in compliance

with the following (and any proposed transferee of any LLC Interest in compliance with the

following shall be deemed a “Qualified Transferee”):

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(a) Organization; Good Standing; Licenses. Such Member (i) is a Single

Purpose Entity duly organized, validly existing and in good standing under the Laws of the state

of its organization, (ii) has qualified or will qualify to do business as a foreign corporation,

partnership or other entity and will remain so qualified, and is and will remain in good standing, in

each jurisdiction in which the character of its properties or the nature of its activities makes such

qualification necessary and in which failure to so qualify would have a material adverse effect

upon such Member or its ability to perform its obligations hereunder, (iii) has full power to own

its property, to carry on its business as presently conducted, and to enter into and perform its

obligations under this Agreement, (iv) has all licenses or other governmental approvals necessary

to perform its obligations hereunder; (v) except with respect to RoundPoint Ventures I, LLC, has a

net worth calculated in accordance with GAAP of not less than $5,000,000, excluding the value of

the LLC Interest of such Member, and (vi) in the case of the Private Owner, as of the Closing

Date, is wholly owned and Controlled by its Specified Parent.

(b) Authorization; No Violation. The execution and delivery by such Member

of this Agreement and the consummation of the transactions contemplated hereby have been duly

and validly authorized by all necessary action. Neither the execution and delivery of this

Agreement, nor the consummation of the transactions herein contemplated, nor compliance with

the provisions hereof, will conflict with or result in a breach of, or constitute a default under,

(i) any of the provisions of any Law binding on such Member or its properties, (ii) the constituent

documents of such Member, or (iii) any of the provisions of any indenture, mortgage, contract or

other instrument to which such Member is a party or by which it is bound or result in the creation

or imposition of any Lien upon any of its property pursuant to the terms of any such indenture,

mortgage, contract or other instrument.

(c) Governmental Approvals. All actions, approvals, consents, waivers,

exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to

be taken, given or obtained, as the case may be, by or from any Governmental Authority or

agency that are necessary in connection with the execution and delivery by such Member of this

Agreement and the consummation of the transactions contemplated hereby and the performance of

its obligations hereunder, have been duly taken, given or obtained, as the case may be, are in full

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

otherwise) and either the time within which any appeal therefrom may be taken or review thereof

may be obtained has expired or no review thereof may be obtained or appeal therefrom taken.

(d) No Litigation. On the date such Member becomes a party to this

Agreement, there is no action, suit, proceeding or investigation pending or threatened against such

Member before any Governmental Authority.

(e) No Violation of Orders, Decrees, etc. Such Member is not in default with

respect to any order or decree of any Governmental Authority or any Law.

(f) 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 the execution and delivery of this Agreement and the

consummation of all the transactions herein contemplated and the performance of its obligations

hereunder.

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(g) Owners Accredited Investors. All of the equity owners of such Member

are “accredited investors,” as that term is defined in Rule 501 under the Securities Act.

(h) Knowledge and Experience. Such Member, either by itself or through its

advisers and principals, has such knowledge and experience in the origination, servicing, sale

and/or purchase of performing and non-performing or distressed loans, and loans secured by

residential and commercial properties, as well as financial and business matters, as to enable such

Member to utilize the information made available to it with respect to the LLC Interest acquired

by it and the Mortgage Loans to evaluate the merits and risks of a purchase of the LLC Interest

acquired by it and, indirectly, the Mortgage Loans, and to make an informed decision with respect

thereto.

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

represents that it is able to bear the economic risks associated with the acquisition and ownership

of the LLC Interest acquired by it and, indirectly, the Mortgage Loans, including the risk of a total

loss of its investment in the Company and, indirectly, the Mortgage Loans and/or the risk that it

may be required to hold the LLC Interest and, indirectly, the Mortgage Loans for an indefinite

period of time.

(j) No Representations. Such Member hereby acknowledges that, except as is

otherwise expressly provided in this Agreement, the Transferred LLC Interest Sale Agreement, or

the Contribution Agreement, none of the Initial Member or the FDIC or any Affiliate of either, or

any of their respective officers, directors, employees, agents or contractors, makes or has made

any representation or warranty regarding the Company, the LLC Interest or the Mortgage Loans

or the value of any Underlying Collateral.

(k) Due Diligence. Such Member acknowledges and agrees that, whether or

not information is available with respect to the LLC Interest or the Mortgage Loans and whether

or not it chooses to review any information that is or was made available to it regarding the LLC

Interest or the Mortgage 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 LLC Interest and the Mortgage Loans and the economic, credit or other risks involved in an

acquisition of the LLC Interest and, indirectly, the Mortgage Loans. Except as is otherwise

expressly provided in this Agreement, none of the Initial Member or the FDIC or any Affiliate of

either, or any of their respective officers, directors, employees, agents or contractors, makes or has

made any representation or warranty as to the completeness or accuracy of any information

provided.

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

offer nor the sale of the LLC Interest (and, indirectly, the Mortgage 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 securities Laws, (ii) no inference that any of the LLC Interest or the

Mortgage Loans is a “security” under such federal or state securities Laws shall be drawn from

any of the certifications, representations or warranties made by any Person in this Agreement,

(iii) it is not contemplated that any filing will be made with the Securities and Exchange

Commission or pursuant to the “Blue Sky” or securities Laws of any jurisdiction, and (iv) if any

of the LLC Interest or the Mortgage Loans is a security, such may not be resold or otherwise

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transferred by such Member except in accordance with any and all applicable securities and Blue

Sky Laws.

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

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

meaning of the Securities Act.

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

sell or otherwise dispose of the LLC Interest (or any interest therein) or any Mortgage Loan (or

any interest therein or evidence thereof) to, or (ii) solicit any offer to buy or accept a transfer,

pledge or other disposition of the LLC Interest (or any interest therein) or any Mortgage Loan (or

any interest therein or evidence thereof) from, or (iii) otherwise approach or negotiate with respect

to the LLC Interest (or any interest therein) or any Mortgage 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 VIII, or (B) render the transfer to such Member of the LLC Interest or

any interest in any Mortgage Loan a violation of any Law relating to the issuance, regulation,

registration or disposition of securities, nor will it so act, nor will it authorize any person or entity

to so act, in any manner with respect to the LLC Interest (or any interest therein) or any Mortgage

Loan (or interest therein or evidence thereof).

(o) Acquisition in Compliance with Law. Such Member’s acquisition of the

LLC Interest and the resulting investment in the Mortgage Loans will comply with all applicable

Laws, including any and all Laws and/or restrictions imposed on resale of the LLC Interest and

the Mortgage Loans by federal and state securities or Blue Sky Laws.

(p) Independent Evaluation. Such Member has made an independent

evaluation of the Company and its assets (including the Mortgage Loans and related Mortgage

Loan files and/or any electronic data made available to it pertaining to the Mortgage 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 Member agrees and represents that it is entering into this Agreement solely

on the basis of its own investigations and its judgment as to the value of the LLC Interest and the

nature, validity, enforceability, collectability and value of the Mortgage Loans and all other facts

material to their ownership, including to the legal matters and risks relating to the collection and

enforcement, and the performance of any obligations under any of the Mortgage Loans in any

jurisdiction. Such Member further acknowledges that no officer, director, employee, agent,

representative or contractor of the Initial Member or any of its Affiliates has been authorized to

make any statements or representations other than those specifically contained in this Agreement

or the Contribution Agreement.

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

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

Ancillary Documents in connection with any transaction regarding any assets will have been

derived from or related to any activity that is deemed criminal under United States law; (ii) neither

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

Affiliates or Direct Owners engages in any dealings or transactions, or is otherwise “associated

with” (as defined in 31 C.F.R. 594.101, et seq.), any Embargoed Person; and (iv) if and to the

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extent such Member or any of its Affiliates are required by law to maintain an anti-money

laundering compliance program under applicable anti-money laundering laws and regulations,

including without limitation, the Uniting and Strengthening America by Providing Appropriate

Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)) such

compliance programs are currently being maintained. For purposes of the foregoing certifications,

representations and warranties, such certifications, representations and warranties shall be based

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

whether any of the same with respect to indirect ownership are true, the undersigned shall not be

required to make an investigation into the ownership of publicly-traded securities (including

securities of open-end investment companies registered under the Investment Company Act of

1940, as amended) or the ownership of assets by a collective investment fund that holds assets for

employee benefit plans or retirement arrangements.

(r) ERISA Plan Asset. The assets of such Member (including any successor to

or transferee of such Member) are not deemed to be “plan assets” within the meaning of Section

3(42) of ERISA and the “plan asset” regulations set forth in 29 C.F.R. Section 2510.3-101 as

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

“Plan Asset Regulation”).

(s) Purchase Eligibility. Each of such Member and any Person that, together

with its Affiliates, directly or indirectly holds 25% or more of the equity interests of such Member

is and remains capable of truthfully making the representations and warranties in the Purchaser

Eligibility Certification.

ARTICLE XI
 

Manager Liability
 

11.1 Liability of the Manager.

(a) Except as otherwise specifically provided in this Agreement (including in

the other subsections of this Section 11.1), the duties (including fiduciary duties) and obligations

owed to the Company and Initial Member by the Manager shall be as provided in Section 3.1(b)

hereof.

(b) The Manager may rely, and shall be protected in acting or refraining from

acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request,

consent, order, bond, debenture or other paper or document reasonably believed by it to be

genuine and to have been signed or presented by the proper party or parties.

(c) The Manager may consult with legal counsel, accountants, appraisers,

management consultants, investment bankers and other consultants and advisers selected by it,

and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to matters

that the Manager reasonably believes to be within such Person’s professional or expert

competence shall be conclusively presumed to have been done or omitted in good faith and in

accordance with such opinion.

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(d) The Manager shall not be liable to the Company or the Members for its

good faith reliance on the provisions of this Agreement.

(e) The limitations and exculpation afforded by each provision of this

Section 11.1 are cumulative and not exclusive. Nothing in this Section 11.1 is intended, or shall

be deemed, to permit conduct that would otherwise constitute misappropriation of a trade secret of

the Company under applicable Law or conduct that, even disregarding the terms hereof otherwise

would be actionable by the Company or any Member.

ARTICLE XII
 

Servicing of Mortgage Loans
 

12.1 Servicing.

(a) Appointment and Acceptance as Servicer. Effective as of the Closing

Date, but subject to Section 3.3 of the Contribution Agreement (with which the Manager agrees to

comply), the Manager is hereby appointed (and hereby accepts the appointment) with full

authority and responsibility, in its own name, to act as the servicer for the Mortgage Loans and

any Underlying Collateral. Until such time as the Company is dissolved and liquidated pursuant

to Article IX, and except as otherwise provided in Section 12.4 and subject to the interim

servicing being provided by the Initial Member pursuant to Section 3.3 of the Contribution

Agreement, the Manager shall, with respect to each Mortgage Loan or Group of Mortgage Loans,

from and after the Servicing Transfer Date with respect thereto, be responsible for (and hereby

assumes responsibility for) servicing, administering, managing and disposing of the Mortgage

Loans and the Underlying Collateral in accordance with the Servicing Standard set forth in

Section 12.2 and in the Servicing Agreement and the other provisions of this Article XII,

including the provisions of Section 12.3 (which require that servicing be performed through one

or more Qualified Servicers). Without in any way limiting the foregoing, but subject to

Section 3.3 of the Contribution Agreement, the Manager shall cause the Mortgage Loans

(including, for all purposes under this Article XII, the related Underlying Collateral) to be

serviced as follows: (a) such Mortgage Loan shall, except as provided in the immediately

following subsection (b), be serviced by the Servicer(s) appointed in accordance with Section 12.3

below, and (b) following the replacement of Servicer as a result of an Event of Default, the

Mortgage Loans shall be serviced by the Servicer appointed by the Initial Member in accordance

with Section 12.4 below. All servicing of Mortgage Loans following the Closing Date shall be

performed in accordance with the terms of the Contribution Agreement and this Article XII.

(b) Servicing and Subservicing Agreement Requirements. Except as is

otherwise agreed in writing by the Initial Member, each Servicing Agreement (and any

Subservicing Agreement with any Subservicer) shall, among other things,

(i) provide for the servicing of the Mortgage Loans and management

of the Underlying Collateral by the Servicer (or Subservicer) in accordance with

the Servicing Standard and the other terms of this Agreement;

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(ii) be terminable upon no more than thirty (30) days prior notice if an

Event of Default or any default under the Servicing Agreement (or Subservicing

Agreement) has occurred;

(iii) provide that the Manager (in its individual capacity) and the Initial

Member (and, in the case of any Subservicing Agreement, the Servicer) shall be

entitled to exercise termination rights under the relevant Servicing Agreement or

Subservicing Agreement (it being understood that the Initial Member shall only

exercise such termination rights as contemplated or permitted in this Agreement);

(iv) provide that the Servicer (or any Subservicer) and the Manager (in

its individual capacity) acknowledge that the Servicing Agreement (or

Subservicing Agreement) constitutes a personal services agreement between the

Manager (in its individual capacity) and the Servicer (or between the Servicer and

the Subservicer, as applicable);

(v) provide that (A) each of the Company, the Purchase Money Note

Guarantor, and the FDIC are third party beneficiaries thereunder to the extent of

any rights expressly granted to such Person under the Servicing Agreement or

Subservicing Agreement and is entitled to enforce the Servicing Agreement or

Subservicing Agreement, as applicable, with respect to such rights, (B) the Initial

Member and, in the case of any Subservicing Agreement, the Manager (in its

individual capacity) is a third party beneficiary thereunder; and further provide

that in no event shall any amendment or waiver to any such Servicing Agreement

or Subservicing Agreement limit or affect any rights of any such third party

beneficiary thereunder without the express written consent of such third party

beneficiary;

(vi) provide that (A) upon the removal of the Private Owner as the

Manager or the occurrence of an Event of Default, the Initial Member (and any

successor Manager) may exercise all of the rights of the Manager thereunder and

cause the termination or assignment of the same to any other Person, without

penalty or payment of any fee, and (B) upon the occurrence of any default under

the Servicing Agreement, the Initial Member (and any successor Manager) may

exercise all of the rights of (1) the Manager under such Servicing Agreement and

cause the termination or assignment of the same to any other Person, without

penalty or payment of any fee, and (2) the Servicer under the Subservicing

Agreement and cause the termination or assignment of the Subservicing

Agreement to any other Person, without penalty or payment of any fee (it being

understood that the Initial Member shall only exercise the foregoing rights as

contemplated or permitted in this Agreement);

(vii) provide that the Initial Member, the Manager, the Purchase Money

Note Guarantor and the Company (and each of their respective representatives)

shall each have access to and the right to review, copy and audit the books and

records of each Servicer and any Subservicers and that all Servicers and all

Subservicers shall make available their respective officers, directors, employees,

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accountants and attorneys to answer Initial Member’s, the Manager’s, the

Purchase Money Note Guarantor’s and the Company’s (and each of their

respective representatives’) questions or to discuss any matter relating to the

Servicer’s or Subservicer’s affairs, finances and accounts, as they relate to the

Mortgage Loans, the Underlying Collateral, the Collection Account or any other

accounts established or maintained pursuant to this Agreement, the Custodial and

Paying Agency Agreement, the Servicing Agreement or any Subservicing

Agreement, or any matters relating to the Servicing Agreement or any

Subservicing Agreement or the rights or obligations thereunder;

(viii) provide that all Mortgage Loan Proceeds are to be deposited into

the Collection Account on a daily basis (without reduction or setoff) within two

Business Days of receipt and that under no circumstances are funds, other than

Mortgage Loan Proceeds and interest and earnings thereon and the proceeds of

Excess Liquidity Advances, to be commingled in the Collection Account;

(ix) provide that the Servicer or Subservicer shall not sell, transfer or

assign its rights under the Servicing Agreement or Subservicing Agreement, as

applicable, other than Servicer’s rights to delegate to Subservicers certain

responsibilities thereunder as and to the extent permitted by this Agreement, and

that any prohibited sale, transfer or assignment shall be void ab initio;

(x) provide that (A) the Servicer or Subservicer consents to the

immediate termination of the Servicer or Subservicer, as applicable, upon the

occurrence of a termination event under the Servicing or Subservicing

Agreement, as applicable, and upon the occurrence of any Insolvency Event with

respect to the Servicer or Subservicer or any of their respective Related Parties, as

applicable, and (B) the occurrence of any Restricted Servicer Change of Control

with respect to the Servicer or of any Insolvency Event with respect to the

Servicer or Subservicer or any Related Party thereof constitutes a default under

the Servicing or Subservicing Agreement, as applicable; provided, that, in the

case of the Servicing Agreement, the occurrence of an Insolvency Event with

respect to a Subservicer or Related Party thereof (which is not an Related Party of

the Servicer) may, at the election of the Manager, be subject to a cure period of

not more than thirty (30) days for replacement of the affected Subservicer (in a

manner that will permit the Manager to comply with its obligations hereunder);

(xi) provide that there shall be no right of setoff on the part of the

Servicer or Subservicer against the Mortgage Loan Proceeds (or the Company);

(xii) provide for such other matters as are necessary or appropriate to

ensure that the Servicer or Subservicer is obligated to comply with the Servicing

Obligations of the Manager hereunder;

(xiii) provide a full release and discharge of the Initial Member, the

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

Loan, the relevant Failed Bank and any predecessor-in-interest thereof, any

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

of their respective officers, directors, employees, agents, attorneys, contractors

and representatives, and all of their respective successors, assigns and Affiliates

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

Person, a “Prior Servicer” and collectively, the “Prior Servicers”), from any and

all claims (including any counterclaim or defensive claim), demands, causes of

action, judgments or legal proceedings and remedies of whatever kind or nature

that the Servicer had, has or might have in the future, whether known or

unknown, which are related in any manner whatsoever to the servicing of the

Mortgage Loans by the Prior Servicers prior to the applicable Servicing Transfer

Date (other than due to gross negligence, violation of law or willful misconduct of

such Prior Servicer);

(xiv) provide that, to the extent required under Section 12.3(g), that all

Mortgage Loans registered on the MERS® System shall remain registered unless

default, foreclosure or similar legal or MERS requirements dictate otherwise;

(xv) provide that the Servicer or Subservicer shall immediately notify

the Manager and the Initial Member upon becoming aware of any Subservicer or

any Affiliate of the Servicer or of any Subservicer at any time, (A) being or

becoming a partner or joint venturer with any Borrower or Obligor, (B) being or

becoming an agent of any Borrower or Obligor, or allowing any Borrower or

Obligor to be an agent of such Servicer or any Subservicer or of any Affiliate of

the Servicer or any Subservicer, or (C) having any interest whatsoever in any

Borrower or Obligor;

(xvi) provide that the Servicer shall immediately notify the Manager and

the Initial Member of the occurrence of any Change of Control with respect to the

Servicer; and

(xvii) not conflict with the Servicing Standard or any other terms or

provisions of this Agreement, the Custodial and Paying Agency Agreement or any

of the other Ancillary Documents insofar as such other terms or provisions hereof

or thereof are required to be imposed by the Manager (in its individual capacity)

on the Servicer (or Subservicers) in the Servicing Agreement (or Subservicing

Agreements). Nothing contained in any Servicing Agreement or any

Subservicing Agreement shall alter any obligation of the Manager under this

Agreement and, in the event of any inconsistency between the Servicing

Agreement (or any Subservicing Agreement) and the terms of this Agreement,

among the Parties to this Agreement the terms of this Agreement shall control.

12.2 Servicing Standard. The Manager shall perform the Servicing Obligations: (i) in

the best interests and for the benefit of the Initial Member and the Company, (ii) in accordance

with the terms of the Mortgage Loans (and related Mortgage Loan Documents), (iii) in

accordance with the terms of this Agreement and the other Ancillary Documents, (iv) in

accordance with all applicable Law, and (v) to the extent consistent with the foregoing terms, in

the same manner in which a prudent servicer would service and administer similar loans and in

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which a prudent servicer would manage and administer similar properties for its own portfolio or

for other Persons, whichever standard is higher, but using no less care and diligence than would

be customarily employed by a prudent servicer following customary and usual standards of

practice of prudent mortgage lenders, loan servicers and asset managers servicing, managing and

administering similar loans and properties on an arms’ length basis, provided that, with respect to

each Mortgage Loan and related Underlying Collateral, in the absence of a customary and usual

standard of practice, the Company shall comply with the applicable Fannie Mae Guidelines, if

any, with respect to similar loans and properties in similar situations. The Manager shall cause

its Servicing Obligations with respect to the Mortgage Loans and the Underlying Collateral to be

performed without regard to (w) any relationship that the Company, the Manager, or any

Servicer or Subservicer, or any of their respective Affiliates may have to any Borrower, Obligor

or other obligor, or any of their respective Affiliates, including any other banking or lending

relationship, (x) the Company’s, the Manager’s, or any Servicer’s or Subservicer’s, obligation to

make disbursements and advances with respect to the Mortgage Loans and Underlying

Collateral, (y) any relationship that the Servicer or any Subservicer may have to each other or to

the Company, the Manager or any of their respective Affiliates, or any relationship that any of

their respective Affiliates may have to the Company, the Manager or any of their respective

Affiliates (other than the contractual relationship evidenced by this Agreement or the Servicing

Agreement or any Subservicing Agreement), and (z) the Manager’s, or any Servicer’s or

Subservicer’s, right to receive compensation (including the Management Fee and any Interim

Management Fee) for its services under this Agreement, the Servicing Agreement or any

Subservicing Agreement. Without limiting the generality of the foregoing, the Manager’s

Servicing Obligations hereunder shall include the following:

(a) discharging in a timely manner each and every obligation which the

Mortgage 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 the

Mortgage Loan Documents that were applicable to the Underlying Collateral before it became

REO Property provided were to be performed by the borrower thereunder in respect of such

Underlying Collateral (not including payment of debt service under the applicable Mortgage Loan

Documents), together with such additional obligations as are required of the Company under this

Agreement or the Servicing Agreement in respect of such REO Property;

(b) incurring costs (including Servicing Expenses and Pre-Approved

Changes) in accordance with the provisions of the Mortgage Loan Documents, and in the case of

REO Property, in accordance with the Mortgage Loan Documents that were applicable to the

REO Property before it became and REO Property (not including payment of debt service under

the applicable Mortgage Loan Documents) and otherwise in accordance with the Reimbursement

and Security Agreement;

(c) causing to be maintained for the Underlying Collateral (including any

Acquired Property) with respect to each Mortgage Loan with respect to which an Ownership

Entity or the Borrower has failed to maintain required insurance with extended coverage as is

customary in the area in which the Underlying Collateral is located and in such amounts and with

such deductibles as the Manager may, in the exercise of its reasonable discretion, determine are

prudent and as required under this Agreement and the Reimbursement and Security Agreement;

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Pool Nos. 24020 and 24021
(d) ensuring compliance with the terms and conditions of each insurer under

any hazard policy and preparing and presenting claims under any policy in a timely fashion in

accordance with the terms of the policy;

(e) supervising and coordinating the construction, ownership, management,

leasing and preservation of the Acquired Property as well as all other matters involved in the

administration, preservation and ultimate disposition of the Acquired Property as would be taken

by a prudent asset manager managing properties similar to the Acquired Property and as required

of the Company under this Agreement, and the Reimbursement and Security Agreement;

(f) administering the making of advances to Borrowers under the Mortgage

Loans pursuant to and in accordance with the provisions herein and in the Custodial and Paying

Agency Agreement governing the making of Funding Draws;

(g) to the extent consistent with the foregoing, seeking to maximize the timely

and complete recovery of principal and interest on the Mortgage Loans and otherwise to maximize

the value of the Mortgage Loans and the Underlying Collateral;

(h) except as otherwise set forth in this Agreement, making decisions under,

and enforcing and performing in accordance with, the Mortgage Loan Documents all loan

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

administration and management of the Mortgage Loans and the Underlying Collateral;

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

Collateral remain up to date and in force, including Uniform Commercial Code financing

statements;

(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 efforts in accordance with the requirements of the applicable Mortgage

Loan Documents (in the case of REO Property) and herein; and

(k) providing the Servicers and Subservicers with copies of such Ancillary

Documents (or portions thereof) as are necessary for the Servicers or Subservicers to be familiar

with in order to perform their respective obligations provided for in this Agreement, the Servicing

Agreements or the Subservicing Agreements, as applicable.

12.3 Servicing of Mortgage Loans.

(a) Appointment of Servicers. The Manager (in its individual capacity) has

entered into one or more Servicing Agreements dated the date hereof to provide for the servicing

and administration and management of the Mortgage Loans and Underlying Collateral by one or

more Qualified Servicers named therein (each, together with other Qualified Servicers, a

“Servicer”). Each Servicer, at all times during which it acts as Servicer, shall continue to satisfy

the definition of Qualified Servicer. Subject, with respect to the Interim Servicing Period, to the

provisions of Section 3.3 of the Contribution Agreement, each Mortgage Loan shall at all times be

serviced (and any Underlying Collateral managed) by or through at least one Servicer (including

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
any Subservicers engaged by the Servicer as permitted hereunder) and the performance of all dayto-day Servicing Obligations of the Manager shall be conducted by or through one or more

Servicers (including any Subservicers permitted hereunder). Subject to the other terms and

conditions of this Agreement, any Servicer may be an Affiliate of the Private Owner or of the

Manager. Each Servicer may engage or retain one or more Subservicers, including Affiliates of

the Private Owner or of the Manager, to perform certain of its duties under the Servicing

Agreement, as it may deem necessary and appropriate, by entering into a Subservicing Agreement

with each such Subservicer, provided that any Subservicer meets (and at all times continues to

meet) the requirements set forth in the definition of Qualified Servicer and the terms of the

applicable Subservicing Agreement comply with the terms of this Agreement and the applicable

Servicing Agreement. The costs and fees of the Servicers (and any Subservicers) shall be borne

exclusively by the Manager in its individual capacity without any right of reimbursement from the

Company or the Initial Member (it being understood that the Manager will receive the Interim

Management Fee and the Management Fee in accordance with Section 12.5 hereof). Under no

circumstances shall the Manager transfer, or permit to be transferred, to any Servicer or any other

Person any ownership interest in the servicing to the Mortgage Loans or any right to transfer or

sell the servicing to the Mortgage Loans (other than in connection with the sale of any Mortgage

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 otherwise transfer any interest in the

servicing to the Mortgage Loans (other than in connection with the sale of any Mortgage Loan),

and any purported assignment, pledge or other transfer in violation of this provision shall be void

ab initio and of no effect.

(b) Manager Liable for Servicer and Subservicers. Notwithstanding anything

to the contrary contained herein, the use of any Servicer (or any Subservicer) shall not release the

Manager from any of its Servicing Obligations or other obligations under this Agreement, and the

Manager shall remain responsible and liable for all acts and omissions of each Servicer (and each

Subservicer of each Servicer) as fully as if such acts and omissions were those of the Manager.

All actions of each Servicer (or any Subservicer) performed pursuant to the Agreement (or any

Subservicing Agreement) shall be performed as an agent of the Manager (or, in the case of

Subservicers, the Servicer).

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

executed Servicing Agreements and Subservicing Agreements, including all supplements and

amendments thereto, shall be provided to the Initial Member and the Purchase Money Note

Guarantor.

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

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

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

Section 1122(d)(1) of Regulation AB that are applicable and relate to the servicing being

conducted under this Agreement, and (ii) provide to the Manager, at the Servicer’s (and any

Subservicer’s) expense the annual reports (including the independent accountant report) required

pursuant to Section 7.4(d) above; provided that the following Regulation AB criteria shall not be

deemed relevant to the servicing being conducted under this Agreement (or the Servicing

Agreement): Section 1122(d)(1)(iii) regarding backup servicer requirements; Sections

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
1122(d)(3)(i-iv) regarding paying agent requirements; and Section 1122(d)(4)(xv) regarding

external credit enhancement.

(e) Servicer and Subservicer Fees. No Servicer or Subservicer shall be paid

any fees or indemnified out of any Mortgage Loan Proceeds (or funds in the Collection Account,

the Liquidity Account, the Special Reserve Account or any other Company account), it being

understood that all fees and related costs of liabilities of the Servicers and Subservicers shall be

the sole responsibility of the Manager (without any right of reimbursement from the Company or

the Initial Member).

(f) Fidelity Bond; E&O Insurance. The Servicer and each Subservicer shall

maintain each of the following types of insurance coverage having such limits as described below:

(i) Errors & Omissions Liability with limits of not less than

$10,000,000 per claim and $10,000,000 in the aggregate. The Manager shall be

notified immediately upon the reduction of or potential reduction of 50% of the

limits. The Manager may require that the Servicer and each Subservicer purchase

additional limits to provide back to the required limits as stated above. “Potential

reduction of 50%” shall mean any knowledge by the Servicer or Subservicer, as

applicable, that a claim or the sum of all claims, current or initiated after effective

date of policy which would reduce the limits by 50%.

(ii) Directors & Officers Liability with limits of not less than

$10,000,000 per claim and $10,000,000 in the aggregate.

(iii) Crime Insurance or a Fidelity Bond in an amount of not less than

$10,000,000 per claim and $10,000,000 in the aggregate, covering employee

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

Such coverage shall insure all employees or any other persons authorized by

Servicer or Subservicer to handle any funds, money, documents and papers

relating to any Mortgage Loan, and shall protect the Servicer or Subservicer, as

applicable, against losses arising out of theft, embezzlement, fraud, misplacement,

and other similar causes. The Manager and the Company shall each be named as

a loss payee with respect to claims arising out of assets handled under this

Agreement or any applicable Servicing Agreement or Subservicing Agreement.

(iv) General Liability with limits of not less than $1,000,000 each

occurrence, $2,000,000 in the aggregate, including coverage for

products/completed operations, advertising and personal injury. The Manager

and the Company shall each be named as additional insured. Policy shall include

a Waiver of Subrogation in favor of the Manager and the Company.

(v) Auto Liability with a combined single limit of not less than

$1,000,000 to provide coverage for any owned, hired, or non-owned vehicles.

(vi) Workers Compensation in such amount as required by the states in

which the Servicer or Subservicer, as applicable, operates, including coverage for

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Employer’s Liability in an amount not less than, $1,000,000. Policy shall include

a Waiver of Subrogation in favor of the Manager and the Company.

(vii) Umbrella Liability in an amount of not less than $10,000,000 each

occurrence and in the aggregate.

All such policies shall be written with carriers having a minimum insurer rating of A- VIII

from A.M. Best and A from Standard & Poor’s. All such policies shall have a minimum

notice of cancellation of thirty (30) days, except for non-payment of premium whereby a ten

(10) day notice of cancellation is acceptable. Certificates shall show each of the Manager

and the Company as certificate holder, or as otherwise designated by the language in clauses

(i)-(vii) above.

The Manager shall provide (or shall cause each Servicer and Subservicer to provide) the

Purchase Money Note Guarantor, and the Initial Member with certificates evidencing all

such policies on the Closing Date (and, with respect to each Mortgage Loan, on or before the

applicable Servicing Transfer Date with respect thereto) and each anniversary of the Closing

Date thereafter, and otherwise upon request of the Purchase Money Note Guarantor, or the

Initial Member. Copies of fidelity bonds and insurance policies required to be maintained

pursuant to this Section 12.3(f) shall be made available to the Purchase Money Note

Guarantor, and the Initial Member or their respective representative on the Closing Date

(and, with respect to each Mortgage Loan, on or before the applicable Servicing Transfer

Date with respect thereto), and shall otherwise be made available to any of the Purchase

Money Note Guarantor, and the Initial Member and their respective representative upon

request.

(g) MERS Requirements. In the event that any of the Mortgage Loans are

registered on the MERS® System, and unless and until no Mortgage Loan so remains registered

on the MERS® System in accordance herewith, (i) the Manager shall cause the Servicer to be (or

become) a member of MERS on or before the initial Servicing Transfer Date, and maintain itself

as a MERS member in good standing (including paying all dues and other fees required to

maintain its membership and complying with MERS policies and procedures), and (ii) the

Servicer shall maintain (or register, as applicable) such Mortgage Loan on the MERS® System

and execute and deliver on behalf of the Company (including, as applicable, on behalf of the

Manager, in turn on behalf of the Company) any and all instruments of assignment and other

comparable instruments with respect to such assignment or re-recording of a mortgage securing a

Mortgage Loan in the name of MERS, solely as nominee for the Company and its successors and

assigns. With respect to each Mortgage Loan that is registered on the MERS® System, (A) the

Servicer shall be designated as the “servicer” and the Company shall be designated as the

“investor” with respect to such Mortgage Loan, and, if applicable, the Manager may cause or

permit an applicable Subservicer to be designated as the “subservicer” with respect to such

Mortgage Loan (provided, that the Manager may, as determined in accordance with the Servicing

Standard and so long as each applicable designee is and remains a MERS member in good

standing, designate the Manager as the “servicer” with respect to any such Mortgage Loan, in

which case the Servicer shall be designated as the “subservicer” with respect thereto), and (B) no

other Person shall be identified on the MERS® System as having any interest in such Mortgage

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Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
Loan unless otherwise consented to by the Initial Member (or required pursuant to the Electronic

Tracking Agreement). All Mortgage Loans registered on the MERS® System shall remain

registered on the MERS® System unless default, foreclosure or similar legal or MERS

requirements dictate otherwise; provided, however, that if the Manager determines, in accordance

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

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

MERS® System, the Manager shall have the right to cause such removal so long as, with respect

to any such Mortgage Loan to be so removed, (A) the applicable mortgage (or other Underlying

Collateral Document) and rights to Underlying Collateral for such Mortgage Loan that are so

registered in the name of MERS are duly transferred and assigned to the Company (with all

applicable recordings or filings with respect thereto being duly made) so as to cause the Company

to have the full benefit of its applicable security (or other) interest in all such Underlying

Collateral, and (B) for any such removal occurring on or before the applicable Servicing Transfer

Date, the same is accomplished in accordance with the applicable requirements (and delivery of

the applicable notice) in Section 3.1(c) of the Contribution Agreement, and (C) for any such

removal prior to the Purchase Money Note Maturity Date, the Company shall have duly delivered

to the Collateral Agent such documents and otherwise taken such actions (including execution and

recordation of applicable assignments in accordance with the Reimbursement and Security

Agreement), in each case so as to cause all such Underlying Collateral to be and remain subject to

the first priority security interest granted under the Reimbursement and Security Agreement. The

Servicer shall provide the Manager and the Initial Member with such reports from the MERS®

System as the Manager or the Initial Member, from time to time, may request, including to allow

the Manager and the Initial Member to verify the Persons identified on the MERS® System as

having any interest in any of the Mortgage Loans and to confirm that the Mortgage Loans required

to be registered on the MERS® System are so registered. For so long as any Mortgage Loans

remain registered with MERS, the same shall be subject to an Electronic Tracking Agreement in

the form of Exhibit B to the Servicing Agreement, and, to the extent any such Mortgage Loans are

so registered with MERS as of the Closing Date, the Servicer, the Manager, the Collateral Agent

and the Initial Member shall execute such Electronic Tracking Agreement on the Closing Date

and deliver the same to MERS. Without limiting the foregoing, upon the request of the Manager

or the Initial Member, the Servicer shall cause MERS to run a query with respect to any and all

specified fields on the MERS® System with respect to any or all of the Mortgage Loans registered

on the MERS® System and provide the results to the Manager and the Initial Member and, if

requested by the Manager or the Initial Member (and subject to any applicable provisions of the

Electronic Tracking Agreement), shall cause MERS to change the information in such fields, to

the extent MERS will do so in accordance with its policies and procedures, to reflect its

instructions.

12.4 Removal of Servicer.

(a) Removal of Servicer. Upon the occurrence of an Event of Default, in

addition to any other rights it may have pursuant to this Agreement, any Ancillary Document or

applicable Law (including the Uniform Commercial Code), whether at law or in equity and

whether pursuant to statute or regulation or otherwise, the Initial Member shall have the right to

take, at the Initial Member’s option and the Manager’s expense, one or more of the following

actions: (i) upon notice in writing to the Manager (effective at such time as is specified in such

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notice), to act on behalf of the Manager (in its individual capacity) to terminate the existing

Servicer (and any Subservicers) and to cause the Manager (in its individual capacity) to enter into

a new Servicing Agreement with a servicer (a “successor Servicer”) selected by the Initial

Member (in its sole and absolute discretion), and (ii) upon notice in writing to the Manager

(effective at such time as is specified in such notice), to remove the Private Owner as the Manager

and appoint a successor Manager (which successor Manager may be the Initial Member) in the

sole and absolute discretion of the Initial Member, whereupon (without limitation of Section

13.5), such successor Manager shall immediately succeed to all, or such portion as the Initial

Member and successor Manager agree, of the rights and obligations of the Private Owner as the

Manager of the Company, and, in such case, the Initial Member shall further have the right (A) to

terminate the Servicer (in its sole and absolute discretion), and cause or permit the successor

Manager selected by the Initial Member (and/or the Company directly, as determined by the

Initial Member in its sole and absolute discretion) to enter into a Servicing Agreement with a

successor Servicer, such Servicing Agreement to be between the applicable successor Manager

(and/or the Company) and the successor Servicer chosen by the Initial Member, or (B) to retain

the existing Servicer and cause or permit the successor Manager (and/or the Company directly, as

determined by the Initial Member in its sole and absolute discretion) to enter into a new Servicing

Agreement between such successor Manager (and/or the Company) and the Servicer (or to effect

an assignment of the existing Servicing Agreement from the existing Manager (in its individual

capacity) to such successor Manager (and/or the Company). None of the Initial Member, any

successor Manager or the Company shall have any obligation to assume any obligations or

liabilities of the removed Manager (in its individual capacity) under or in connection with any

Servicing Agreement. Notwithstanding the foregoing, the Initial Member shall not exercise its

right to terminate a Servicer that is not an Affiliate of the Manager or of the Private Owner in the

absence of (1) an Event of Default attributable in whole or in part to the failure by the Servicer or

any of its Subservicers to perform any material obligation under its applicable Servicing

Agreement or Subservicing Agreement, (2) an Event of Default as described in clause (b) or

clause (g) of the definition thereof with respect to the Servicer or any Related Party thereof or any

of its Subservicers or any Related Party thereof, (3) an Event of Default resulting from the failure

of the Servicer or any of its Subservicers at any time to meet the criteria of a Qualified Servicer,

(4) an Event of Default as described in clause (e) of the definition thereof, to the extent relating to

such Servicer or any of its Subservicers, or (5) any other Event of Default that consists of a breach

of a servicing obligation under this Agreement. Subject to the foregoing, the Manager hereby

consents to the immediate termination of the Servicer upon the occurrence of any Event of

Default. For the avoidance of doubt, the rights of the Initial Member in this Section 12.4 are in

addition to, and can be exercised independently of the rights of the Initial Member in Sections 3.2,

3.13, and 3.14; and in any event all rights and remedies of the Initial Member under this

Agreement with respect to or following an Event of Default shall be cumulative, and any or all

thereof may be exercised instead of or in addition to each other or any other remedies available to

the Initial Member, whether under this Agreement, any Ancillary Document or otherwise.

(b) Appointment of Successor Servicer. If the Initial Member exercises its

right to act on behalf of the Manager (in its individual capacity) to appoint a successor Servicer,

the costs and expenses associated with such successor Servicer (including any servicing fees) shall

be borne by the Manager (and not the Company or the Initial Member), and no termination or

other fee shall be due to the Manager or the Servicer or any Subservicer in connection with or as a

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result of any such action; provided, that, if the Initial Member has also exercised its right to

remove the Manager (such that such removed Manager no longer has rights to the Management

Fee), then, with respect to servicing fees of such successor Servicer (but not costs and expenses in

connection with the replacement of the Servicer with such successor Servicer) such removed

Manager shall be responsible only for the portion of such fees that, as of any particular

Distribution Date, are in excess of the Management Fee payable to the successor Manager on such

Distribution Date.

(c) Removal of the Manager; Management Fee. If the Initial Member

exercises its right pursuant to this Section 12.4 to remove the Private Owner as the Manager and

appoint a successor Manager, (i) the successor Manager selected by the Initial Member shall

immediately succeed to all, or such portion as the Initial Member and successor Manager agree, of

the rights and obligations of the Private Owner as the Manager of the Company, and all references

in this Agreement to the Private Owner, in its capacity as Manager of the Company, shall be

deemed to be references to the successor Manager so appointed by the Initial Member, (ii) without

limitation of Section 13.5, the Initial Member shall have the right to determine, in its sole and

absolute discretion, the extent, terms and conditions of the appointment of any such successor

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

indemnification by the Company, term of appointment and removal rights, in each case without

the necessity for any consent from the Private Owner or any other Person, and (iii) the successor

Manager appointed by the Initial Member shall be entitled to be paid the Management Fee (or

such portion thereof as the Initial Member and the successor Manager agree) in accordance with

the terms of this Agreement and the Custodial and Paying Agency Agreement. The removal of

the Private Owner as the Manager shall not relieve the Private Owner of (x) any of the liabilities

and/or obligations of the Private Owner as Manager to the extent required under the terms of this

Agreement to have been paid and/or performed prior to such removal or (y) any liability the

Private Owner may have arising out of any act or omission by the Private Owner as Manager. No

successor to the Private Owner as Manager shall have any liability or obligation for any of the

matters described in clause (x) or (y) of the preceding sentence, except as may be otherwise

specified pursuant to any modification to this Agreement pursuant to Section 13.5. In connection

with any such removal of the Manager, the Initial Member and any successor Manager selected by

the Initial Member are each hereby authorized and empowered, as attorney-in-fact or otherwise, to

execute and deliver, on behalf of and at the expense of the removed Manager (in its individual

capacity), any and all documents and other instruments and to do or take any and all acts

necessary or appropriate to effect the termination and replacement of such Manager and the

Servicer and, in the event the Initial Member decides to retain a new Servicer, to enter into a new

Servicing Agreement between the successor Manager (and/or the Company) and the Servicer or to

effect an assignment of the existing Servicing Agreement from the removed Manager (in its

individual capacity) to the successor Manager (and/or the Company).

(d) Cooperation To Facilitate Transfer. In the event any of the Manager, a

Servicer or a Subservicer is terminated pursuant to the provisions of this Article XII, the Manager

(in its individual capacity) shall, and shall cause any Servicer (and any Subservicer) to, provide

the Initial Member and any successor Manager or Servicer in a timely manner with all documents,

records and data (including electronic documents, records and data) requested by the Initial

Member or any successor Manager or Servicer to enable such Person to assume the

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responsibilities as Manager under this Agreement and any applicable Servicing Agreement, and to

cooperate with the Initial Member in effecting the termination of any Servicer (or Subservicer) or

the Manager’s rights as “Manager” under this Agreement, including, in each case subject to

applicable requirements in the Custodial and Paying Agency Agreement and the Reimbursement

and Security Agreement, (x) the transfer within one (1) Business Day to such account as the Initial

Member may specify of all cash amounts which, at the time, shall be or should have been credited

to the Collection Account or are thereafter received with respect to any Mortgage Loans or

Acquired Property, and (y) the transfer of all lockbox accounts with respect to which payments or

other amounts with respect to the Mortgage Loans are directed or the redirection of all such

payments and other amounts to such account as the Initial Member may specify, and (z) the

assignment to the Initial Member (or the applicable successor Manager or Servicer as indicated by

the Initial Member) of the right to access all such lockbox accounts, the Collection Account and

any other account into which Mortgage Loan Proceeds or Borrower escrow payments are

deposited or held. The Manager (in its individual capacity) shall be liable for all costs and

expenses incurred by the Initial Member or the Company (x) associated with the complete transfer

of the servicing data, (y) associated with the completion, correction or manipulation of servicing

data as may be required to correct errors or insufficiencies in the servicing data to enable the

Initial Member and any successor Manager and successor Servicer (and Subservicers) to service

the Mortgage Loans and Acquired Property properly and effectively, and (z) to retain and

maintain the services of a successor Manager and/or successor Servicer (and any Subservicers), it

being understood that, as to the compensation to be paid to the successor Manager (and servicing

fees due and payable to any Servicer or Subservicer engaged by or through such successor

Manager), the removed Manager shall be responsible only for the portion of such compensation

and fees that, as of any particular Distribution Date, are in excess of the Management Fee payable

to the successor Manager on such Distribution Date. Within a reasonable time after receipt of a

written request of the Manager (in its individual capacity) for the same, the Initial Member shall

provide reasonable documentation evidencing such costs and expenses, but the Initial Member’s

right to reimbursement of such costs and expenses (and to exercise offset rights under Section

4.6(h) on account thereof) shall not be subject to or contingent upon the provision of such

documentation.

(e) Power of Attorney. The Company hereby irrevocably constitutes and

appoints the Initial Member and any officer or agent thereof, with full power of substitution, as its

true and lawful attorney-in-fact for the purposes of this Agreement and allowing the Initial

Member to perfect, preserve the validity, perfection and priority of, and enforce any Lien granted

by this Agreement and, after the occurrence and during the continuance of any Event of Default,

to exercise its rights, remedies and powers and privileges under this Agreement. This appointment

as attorney-in-fact is irrevocable and coupled with an interest until this Agreement is terminated

and the security interests created hereby are released. Without limiting the generality of the

foregoing, but subject at all times to the rights of a secured party under the Reimbursement and

Security Agreement, the Initial Member shall be entitled under this Section 12.4(e) to do any of

the following if an Event of Default has occurred and is continuing: (i) ask, demand, collect, sue

for, recover, receive and give receipt and discharge for amounts due and to become due under and

in respect of any or all of the Mortgage Loans; (ii) file any claims or take any action or proceeding

in any court of law or equity that the Initial Member may reasonably deem necessary or advisable

for the collection or other enforcement of all or any part of the Mortgage Loans, defend any suit,

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action or proceeding brought against the Company with respect to any Mortgage Loan, and settle,

compromise or adjust any such suit, action or proceeding; (iii) execute, in connection with any

sale or disposition of the Mortgage Loans, any endorsements, assignments, bills of sale or other

instruments of conveyance or transfer with respect to all or any part of the Mortgage Loans;

(iv) enforce the rights of the Company under any provision of any Servicing Agreement to the

extent permitted thereunder and under the terms of this Agreement; (v) pay or discharge taxes and

Liens levied or placed on the Mortgage Loans; (vi) generally, sell, transfer, pledge and make any

agreement with respect to or otherwise deal with any of the Mortgage Loans as fully and

completely as though the Initial Member were the absolute owner thereof for all purposes; and

(vii) do, at the Initial Member’s option and the Company’s expense, at any time and from time to

time, all acts and things that the Initial Member reasonably deems necessary to protect, preserve,

or realize upon the Mortgage Loans and the Initial Member’s security interests in any Secured

Assets and to effect the intent of this Agreement, all as fully and effectively as the Company

might do. Anything in this Section 12.4(e) to the contrary notwithstanding, the Initial Member

agrees that it shall not exercise any right under the power of attorney provided for in this

Section 12.4(e) unless an Event of Default shall have occurred and be continuing.

12.5 Interim Management Fee and Interim Servicing Fee; Management Fee . For each

Due Period commencing on or after the Closing Date (and as determined separately for each

Group of Mortgage Loans), (a) with respect to any Group of Mortgage Loans for which the

Servicing Transfer Date has not occurred as of the first day of such Due Period, the Company

shall pay the Interim Management Fee to the Manager and the Interim Servicing Fee to the Initial

Member, and (b) for each Group of Mortgage Loans for which the Servicing Transfer Date has

occurred as of (or occurs on) the first day of such Due Period, the Company shall pay the

Management Fee to the Manager. Each such payment of any Interim Servicing Fee, Interim

Management Fee and Management Fee shall be made in the manner described in the Custodial

and Paying Agency Agreement (and, as applicable, on the Distribution Date with respect to the

applicable Due Period). In the event the Manager is removed and replaced by the Initial Member

in accordance with Section 12.4 above, the Management Fee and Interim Management Fee shall

thereafter be payable to the Initial Member or successor Manager, as determined by the Initial

Member pursuant to such Section 12.4.

12.6 Servicing Expenses. Subject to Section 3.3 of the Contribution Agreement (with

respect to the Interim Servicing Period), from and after the Closing Date (and, with respect to

each Mortgage Loan, from and after the Servicing Transfer Date with respect thereto), the

Manager shall cause the Company to pay, from available Company funds (in the Collection

Account, the Liquidity Account or any other applicable Company account the funds of which

may be used for such purpose or otherwise through Excess Liquidity Advances funded by the

Manager) all amounts due as Servicing Expenses (or, as applicable, Pre-Approved Charges) in a

timely manner, and in each case in accordance to applicable requirements set forth in the

Custodial and Paying Agency Agreement (and, as applicable, the Contribution Agreement);

provided, however, that anything to the contrary herein or in any Ancillary Document

notwithstanding, the Manager shall not have an obligation to fund Excess Liquidity Advances for

purposes of the payment by the Company of (i) any Pre-Approved Charges, or (ii) any specific

Servicing Expense relating to a Mortgage Loan to the extent that the Manager has reasonably

determined in accordance with the Servicing Standard that such Servicing Expense, if so paid,

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when combined with all unreimbursed previous Servicing Expenses, Funding Draws and PreApproved Charges with respect to such Mortgage Loan (and any remaining amounts owing to

the Initial member with respect to its servicing of such Mortgage Loans during the Interim

Servicing Period pursuant to Sections 2.3, 2.4 and 3.1 of the Contribution Agreement), would not

ultimately be recoverable from the Mortgage Loan Proceeds for such Mortgage Loan. All

Servicing Expenses (and Excess Liquidity Advances for the funding of the same) shall be

reimbursed in accordance with the Custodial and Paying Agency Agreement.

12.7 Use of Mortgage Loan Proceeds.

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

Loan Proceeds shall be utilized and distributed in the manner set forth in the Custodial and Paying

Agency Agreement following receipt by the Paying Agent from the Manager of the Distribution

Date Report required to be provided under Section 7.4(b).

(b) Costs That Are Not Reimbursable. Notwithstanding anything else to the

contrary contained herein or in any Ancillary Document, without the prior written consent of the

Initial Member (which may be withheld in the Initial Member’s sole and absolute discretion), in

no event may the Manager deduct, from the Mortgage Loan Proceeds, or otherwise use Mortgage

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 Manager in its individual capacity) (collectively, the

“Excluded Expenses”):

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

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

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

or the Company, or any Affiliate of any Servicer or any Subservicer; provided,

Excluded Expenses under this clause (ii) do not include amounts payable to the

Servicer pursuant to the Servicing Agreement or to any Subservicer pursuant to

any Subservicing Agreement that would be deemed Excluded Expenses under this

clause (ii) solely as a result of such Servicer or Subservicer being an Affiliate of

the Manager or the Company, so long as such amounts would otherwise constitute

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

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

advisers, except to the extent the same are incurred as brokerage fees or sales

commissions incurred (x) to market or sell the Mortgage Loans or any Acquired

Property 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 marketing or sale of any Acquired Property (including

any REO Property) or any portion thereof on an individual basis;

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

similar charge, costs to release Liens or any other costs or expenses (including

legal fees and expenses) incurred by or on behalf of the Company or any Manager

(in its capacity as such or in its individual capacity) as a result of the Company’s

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or any Manager’s or the Servicer’s or any Subservicer’s failure to service any

Mortgage Loan or Underlying Collateral properly in accordance with the

applicable Mortgage Loan Documents, this Agreement, the Servicing Agreement,

any Subservicing Agreement or otherwise, or failure to make a payment in a

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

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

Servicing Expenses or Pre-Approved Charges;

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

the servicing, the subservicing or the management of any Mortgage Loan)

incurred by the Company, any Manager or any other Person (including any travel

expenses and any expenses incurred by any Manager, the Company or any

Servicer or Subservicer to comply with Section 4.3, Section 7.2, Section 7.3,

Section 7.4 and Section 7.5) in each case other than Reimbursable Company

Administrative Expenses;

(vii) any servicing, management or similar fees paid to the Servicer, any

Subservicer or any other Person;

(viii) any expenses incurred by the Company, the Manager or any other

Person (x) to become a MERS member or to maintain the Company, the Manager

or such other Person as a MERS member in good standing, or (y) to remove any

Mortgage Loan from the MERS® System in connection with any voluntary

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

hereof), it being understood that any such removal dictated by default, foreclosure

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

removal for purposes of this clause; or

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

Owner under Section 4.6 of this Agreement or of the Servicer under Section 8.2

of the Servicing Agreement.

12.8 Collection Account. On the Closing Date, the Manager shall cause the Company

to establish and maintain the Collection Account with the Paying Agent in accordance with the

Custodial and Paying Agency Agreement. The Collection Account (and all funds therein) shall

be subject to the security interest granted under the Reimbursement and Security Agreement and

to the Account Control Agreement under the Custodial and Paying Agency Agreement.

12.9 Distribution Account. On the Closing Date, the Manager shall cause the

Company to establish the Distribution Account with the Paying Agent in accordance with the

Custodial and Paying Agency Agreement. The Distribution Account (and all funds therein) shall

be subject to the security interest granted under the Reimbursement and Security Agreement and

to the Account Control Agreement under the Custodial and Paying Agency Agreement.

12.10 [Reserved]

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12.11 Liquidity Account.

(a) Establishment of Liquidity Account. On the Closing Date, the Manager

shall cause the Company to establish the Liquidity Account with the Paying Agent for the

exclusive purpose of holding a reserve to cover Operating Expenses to the same extent, and in the

same order of priority, as are applicable to Mortgage Loan Proceeds in accordance with the terms

hereof and the Custodial and Paying Agency Agreement. The Liquidity Account (and all funds

therein) shall be subject to the security interest granted under the Reimbursement and Security

Agreement and to the Account Control Agreement under the Custodial and Paying Agency

Agreement.

(b) Funding the Liquidity Account. The Company shall fund the Liquidity

Account with Mortgage Loan Proceeds in accordance with the terms of the Custodial and Paying

Agency Agreement.

(c) Use of the Liquidity Account. The Manager or (in relation to its interim

servicing obligations) the Initial Member may direct the Company to withdraw funds from the

Liquidity Account only to cover Operating Expenses in accordance with Section 3.7 of the

Custodial and Paying Agency Agreement or as otherwise agreed to with the Initial Member. The

Manager shall not permit withdrawals from the Liquidity Account for any other purpose;

provided, that, after the occurrence of the Purchase Money Note Maturity Date, the Manager may

cause the release of funds from the Liquidity Account (including for purposes of distributions to

the Members) in accordance with, and subject to, the terms of the Custodial and Paying Agency

Agreement. With respect to any Mortgage Loan, on the Servicing Transfer Date, the Initial

Member shall be reimbursed from the Liquidity Account or if there are not sufficient funds on

deposit in the Liquidity Account, through Excess Liquidity Advances, for an amount equal to all

Operating Expenses (and any advance of the Initial Member that is reimbursable pursuant to the

Contribution Agreement) paid by it at any time after the Cut-Off Date and on or before such

Servicing Transfer Date (to the extent the same have not been otherwise reimbursed pursuant to

the Contribution Agreement or Custodial and Paying Agency Agreement).

(d) Permitted Investments. The Liquidity Account shall be invested in

Permitted Investments in accordance with the Custodial and Paying Agency Agreement.

12.12 Certain Servicing and Mortgage Loan Administration Decisions. The Manager

shall have full power and authority, acting alone or through any Servicer or Subservicer, to cause

to be done any and all things in connection with the servicing and administration of the Mortgage

Loans that the Manager may deem necessary or desirable, and cause to be made all servicing

decisions in its reasonable discretion, subject to its obligation to comply with the Servicing

Standard and other applicable provisions herein and in the Ancillary Documents. Upon the

occurrence of an event of default under any of the Mortgage Loan Documents, but subject to the

other terms and conditions of this Agreement (including the Servicing Standard), the Manager

shall cause to be determined the response to such default and course of action with respect to

such default, including (i) the selection of attorneys to be used in connection with any action,

whether judicial or otherwise, to protect the interests of the Company in the Mortgage Loan and

the Underlying Collateral, (ii) the declaration and recording of a notice of such default and the

acceleration of the maturity of the Mortgage Loan, (iii) the institution of proceedings to foreclose

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the Mortgage Loan Documents securing the Mortgage Loan pursuant to the power of sale

contained therein or through a judicial action, (iv) the institution of proceedings against any

Obligor, (v) the acceptance of a deed in lieu of foreclosure, (vi) the purchase of the real property

Underlying Collateral at a foreclosure sale or trustee’s sale or the purchase of the personal

property Underlying Collateral at a Uniform Commercial Code sale, and (vii) the institution or

continuation of proceedings to obtain a deficiency judgment against such Borrower or any

Obligor. Notwithstanding any provision to the contrary herein, the Manager shall not, and shall

not cause any Servicer or Subservicer to, take any action that is inconsistent with or prohibited

by the terms of the Reimbursement and Security Agreement or the Custodial and Paying Agency

Agreement without the prior written consent of the Initial Member.

12.13 Management and Disposition of Underlying Collateral. Subject to the other terms

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

and Security Agreement, the Manager shall have full power and authority, acting alone or

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

with the Manager’s management of any Underlying Collateral or Acquired Property, that the

Manager may deem necessary or desirable, and cause to be made all asset management decisions

in its reasonable discretion.

12.14 Acquisition of Underlying Collateral.

(a) If title to any Underlying 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 REO Property shall be taken and held in the

name of an Ownership Entity; provided, however, that for any REO Property with respect to

which there exists any Environmental Hazard, a separate Ownership Entity will hold title to each

such REO Property.

(b) Nothing in this Article XII or anything else in this Agreement shall be

deemed to affirmatively require the Manager to cause the Company to acquire all or any portion

of any REO Property with respect to which there exists any Environmental Hazard. Except as

otherwise directed by the Manager, the Manager shall not permit the Servicer or any Subservicer

to acquire or otherwise cause the Company or any subsidiary or other entity in which the

Company owns any interest to acquire all or any portion of any Underlying Collateral having any

actual or threatened Environmental Hazard known to the Manager by foreclosure, deed in lieu of

foreclosure, power of sale or sale pursuant to the Uniform Commercial Code or otherwise.

Prior to acquisition of title to any commercial REO Property (whether by

foreclosure, deed in lieu of foreclosure, by power of sale or by sale pursuant to the Uniform

Commercial Code, or otherwise), the Manager shall, and prior to the acquisition of title to any

residential REO Property (whether by foreclosure, deed in lieu of foreclosure, by power of sale or

by sale pursuant to the Uniform Commercial Code, or otherwise), the Manager may cause to be

commissioned with respect to such REO Property either (i) a Transaction Screen Process

consistent with ASTM Standard E 1528-06, by an environmental professional or (ii) such other site

inspections and assessments by a Person who regularly conducts environmental audits using

customary industry standards as would customarily be undertaken or obtained by a prudent lender

in order to ascertain whether there are any actual or threatened Environmental Hazards (a “Site

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Assessment”), and the cost of such Site Assessment shall be deemed to be a Servicing Expense as

long as the costs for such Site Assessment were not paid to any Affiliate of the Manager, or any

Affiliate of the Servicer or any Subservicer.

(c) The Company shall be the sole member of any Ownership Entity. The

purposes of each Ownership Entity shall be to hold the REO Property pending sale, to complete

construction of such Underlying Collateral and to operate the Underlying Collateral as efficiently

as possible in order to minimize financial loss to the Company, and the Purchase Money Note

Guarantor and to sell the REO Property as promptly as practicable in a way designed to minimize

financial loss to the Company, and the Note Guarantor.

12.15 Administration of REO Properties. The following terms and conditions shall be

binding on the Company and the Ownership Entities (and on the Manager’s performance of its

obligations hereunder) with respect to any REO Properties, in addition to any other terms and

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

Ancillary Documents:

(a) Insurance. With respect to each REO Property, the Manager shall cause

the applicable Ownership Entity to maintain, with financially sound and reputable insurers,

insurance (including, as applicable, public liability insurance, property insurance, flood

insurance, boiler and machinery insurance, business interruption or rent insurance and other

insurance), in such amounts, with such deductibles, covering such risks and otherwise on such

terms and conditions, in each case as are customarily maintained by property owners for other

real property and buildings similar to such REO Property in the area in which such REO

Property is located, all as determined by the Manager in accordance with the Servicing Standard

and the provisions of this Agreement and the Ancillary Documents. All insurance policies shall

name the Collateral Agent, the Manager and the Company as an additional insured, loss payee or

mortgagee thereunder, as applicable, as its interest may appear. Each policy shall provide that

such policy may not be cancelled or materially changed except upon thirty (30) days’ prior

written notice to the Company and to the Collateral Agent, and shall further provide that no act

or thing done by the applicable Ownership Entity shall invalidate any policy as against the

Collateral Agent.

(b) Leasing Covenants. With respect to each REO Property, the Manager

shall cause the applicable Ownership Entity to (i) perform the obligations that such Ownership

Entity is required to perform under the leases to which it is a party in all material respects and (ii)

enforce, in accordance with commercially reasonable practices for properties similar to the

applicable REO Property, the material obligations to be performed by the tenants under such

leases.

(c) Zoning. The Manager shall not permit any Ownership Entity to initiate or

consent to any zoning reclassification of any portion of the REO Property owned by such

Ownership Entity, or use or permit the use of any portion of an REO Property in any manner that

could result in such use (taking into account any applicable variance obtained in accordance with

the Servicing Standard) becoming a non-conforming use under any zoning ordinance or any

other applicable land use law, rule or regulation, without the prior consent of the Initial Member

and the Collateral Agent.

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(d) No Joint Assessment. The Manager shall not permit any Ownership

Entity to suffer, permit or initiate the joint assessment of REO Property (i) with any other real

property constituting a tax lot separate from such REO Property, and (ii) with any portion of an

REO Property which may be deemed to constitute personal property, or any other procedure

whereby the lien of any taxes which may be levied against such personal property shall be

assessed or levied or charged to such REO Property.

(e) Maintenance, Repairs and Alterations. From and after the completion of

any buildings or other improvements at an REO Property, the Manager shall cause the applicable

Ownership Entity to maintain such REO Property in a good and safe condition and repair

(subject to such alterations as the Manager may from time to time determine to be appropriate in

accordance with the Servicing Standard and applicable requirements herein and in the Ancillary

Documents) and in accordance with applicable Law.

(f) Property Management. All property managers with respect to any REO

Property shall, in their respective property management agreements or by separate agreement,

subordinate their rights under such agreements (including their right to receive management fees)

to the rights and interest of the Collateral Agent under the applicable REO Mortgage (as defined

in the Reimbursement and Security Agreement).

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

ground or other lease (in each case, a “ground lease”), the Manager shall cause the applicable

Ownership Entity to (i) pay all rents and other sums required to be paid by the tenant under and

pursuant to the provisions of the applicable ground lease as and when such rent or other charge is

payable, and (ii) diligently and timely perform and observe all of the terms, covenants and

conditions binding on the tenant under the ground lease. The Manager shall not permit the

applicable Ownership Entity to subordinate or consent to the subordination of any ground lease

to any mortgage, lease or other interest on or in the ground lessor’s interest in the applicable

REO Property without the prior consent of the Collateral Agent unless such subordination is

required under the provisions of such ground lease.

(h) Additional Construction Covenants. In the event the Manager elects to

fund the construction of the REO Property (pursuant to Funding Draws for such purpose), then

the Manager shall cause each Ownership Entity to pursue with diligence the construction of the

REO Property owned by such Ownership Entity (i) in accordance with the construction,

construction management (if any) and all other material contracts relating to such construction,

and all requirements of Law, all restrictions, covenants and easements affecting such REO

Property, and all applicable governmental approvals, (ii) in substantial compliance with the plans

and specifications therefor as in existence on the Closing Date and as thereafter modified by the

Manager in its business judgment exercised in accordance with the Servicing Standard and

applicable provisions in this Agreement and the Ancillary Documents, (iii) in a good and

workmanlike manner and free of defects, (iv) in a manner such that such REO Property remains

free from any Liens, claims or assessments (actual or contingent) for any material, labor or other

item furnished in connection therewith and (v) in conformance with the requirements for

Funding Draws.

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(i) REO Property Generally. Notwithstanding any other provision of this

Section 12.15 to the contrary, (i) in operating, managing, leasing or disposing of any REO

Property, the Manager shall act in the best interests of the Company, and the members and

creditors of the Company (including the FDIC in its various capacities) and in accordance with

the Servicing Standard, and (ii) without relieving the Manager of any obligation elsewhere in this

Agreement or any Ancillary Document, the Manager shall not be required to act in accordance

with a specific provision of this Section 12.15 if such action is (A) not in the best interests of

Company and the members and creditors of the Company (including the FDIC in its various

capacities), as determined by the Manager in the exercise of its reasonable discretion, or (B) not

in accordance with the Servicing Standard.

(j) Reports. The Manager shall furnish to the Initial Member and the

Collateral Agent such reports regarding the construction, leasing and sales efforts of or relating

to the REO Property as the Initial Member or the Collateral Agent shall reasonably request.

12.16 Releases of Underlying Collateral. Manager is authorized to cause the release or

assignment of any Lien granted to or held by the Company on any Underlying Collateral upon

payment of any Mortgage Loan in full and satisfaction in full of all of the secured obligations

with respect to a Mortgage Loan, upon receipt of a discounted payoff as payment in full of a

Mortgage Loan, or upon a sale of the Mortgage Loan to any Person, in each case as and to the

extent permitted hereunder and under the Reimbursement and Security Agreement

12.17 Clean-Up Call Rights.

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

paid in full, and all reimbursement and other obligations to the FDIC under the Reimbursement

and Security Agreement have been satisfied in full, the Initial Member shall have the right,

exercisable in its sole and absolute discretion, to require the liquidation and sale, for cash

consideration, of any remaining Mortgage Loans and Acquired Property held by the Company or

any Ownership Entity (the “Clean-Up Call”) at any time after the earlier to occur of (i) the tenth

(10th) anniversary of the Closing Date and (ii) the date on which the then Unpaid Principal

Balance is ten percent (10%) or less of the Unpaid Principal Balance as of the Cut-Off Date as set

forth on the Mortgage Loan Schedule.

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

shall give notice in writing to the Manager, setting forth the date by which the remaining

Mortgage Loans and Acquired Property are to be liquidated by the Company, which date shall be

no less than 150 calendar days after the date of such notice.

(c) The Manager shall proceed expeditiously to cause to be commenced the

liquidation of the remaining Mortgage Loans and Acquired Property by means of sealed bid sales

to Persons other than Affiliates of the Company, the Servicer or any Subservicer, or Affiliates of

the Servicer or any Subservicer. The selection of any financial adviser or other Person, broker or

sales agent retained for the liquidation of the remaining Mortgage Loans and Acquired Property

pursuant to this Section 12.17 shall be subject to the prior approval of the Initial Member, such

approval not to be unreasonably withheld, delayed or conditioned as long as the fees to be charged

by such financial adviser or other Person, broker or sales agent are reasonable and such Person is

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not an Affiliate of the Manager or any Servicer or Subservicer. In the event the remaining

Mortgage Loans and Acquired Property are not liquidated by the date specified in the notice

provided by the Initial Member pursuant to Section 12.17(b), Initial Member shall be entitled to

liquidate the remaining Mortgage Loans and Acquired Property in its discretion and the Manager

shall, and shall cause the Company to, cooperate and assist with such liquidation to the extent

reasonably requested by the Initial Member. In the event the Manager or any Affiliate thereof

desires to bid to acquire the remaining Mortgage Loans and Acquired Property, then the Initial

Member shall be entitled to liquidate the remaining Mortgage Loans and Acquired Property in its

discretion. In the event Initial Member undertakes to liquidate the remaining Mortgage Loans and

Acquired Property pursuant to this Section 12.17(c), all costs and expenses incurred by it shall be

deducted from the Mortgage Loan Proceeds and retained by the Initial Member and the remaining

Mortgage Loan Proceeds shall be distributed in accordance with Section 9.2.

12.18 Certain Transfer Obligations. Without limitation of other obligations of the

Manager with respect to the Contribution Agreement, the Manager agrees to cause the Company

to comply with its obligations under the Contribution Agreement with respect to preparing,

furnishing, executing and recording transfer documents with respect to the Mortgage Loans

(including special warranty deeds to convey the real property subject to any contract for deed

and any Acquired Property to the Company). Any title curative work with respect to such real

property, if required, shall be at the Manager’s sole cost and expense.

ARTICLE XIII
 

Miscellaneous
 

13.1 Waiver of Rights of Partition and Dissolution. Each Member (other than the

Initial Member) hereby irrevocably waives all rights it may have at any time to maintain any

action for division or sale of the Company Property as now or hereafter permitted under any

applicable Law. Each Member (other than the Initial Member) hereby waives and renounces its

rights to seek a court decree of dissolution or to seek the appointment of a court receiver for the

Company as now or hereafter permitted under any applicable Law.

13.2 Entire Agreement; Other Agreements.

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

Ancillary Documents (and any other agreements expressly contemplated hereby or thereby),

constitutes the entire agreement and understanding, and supersedes all other prior agreements and

understandings, both written and oral, between the Members or their respective Affiliates or any

of them and the Company with respect to the subject matter hereof; provided, that any

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

Private Owner (including by way of joinder) with respect to the transaction that is the subject of

this Agreement and the Ancillary Documents shall remain in full force and effect to the extent

provided therein, except that the Company’s rights under Article VI of the Contribution

Agreement shall not be deemed a repurchase option for purposes of Section 2 of any such

Confidentiality Agreement. The Members acknowledge that certain agreements or other

instruments are being (or were) executed by the Company, the Members and/or Affiliates of the

Members simultaneously or otherwise in connection with the execution of this Agreement and

that notwithstanding anything to the contrary contained in the foregoing sentence of this

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Section 13.2, such agreements shall be effective and binding on the parties thereto in accordance

with the terms thereof.

(b) By executing this Agreement, the Manager agrees to be bound by the

terms of the Ancillary Documents pursuant to which the Manager is expressly required to take or

omit from taking certain actions, as in each case, with the same effect as if the Manager were a

party to such Ancillary Document.

13.3 Third Party Beneficiaries. Each of the FDIC and the Purchase Money Note

Guarantor, is hereby constituted an express third party beneficiary of this Agreement with

respect to those provisions of this Agreement which expressly grant rights to such Person, and,

as such, each is entitled to enforce such provisions of this Agreement as if such Person were a

party hereto; provided that, upon occurrence of the Purchase Money Note Maturity Date (and

subject to any rights of the Purchase Money Note Guarantor that, by their terms or nature,

survive such date), the Purchase Money Note Guarantor shall cease to have any of the specified

rights set forth herein with respect to consents/approvals, exercise remedies following an Event

of Default and receipt of reports and other information with respect to the continued operation of

the Business, in each case (i) to the extent relating exclusively to the period following such

Purchase Money Note Maturity Date, and (ii) except as to any rights or remedies relating to (or

the exercise or non-exercise of which rights or remedies would affect) the repayment of the

Purchase Money Note in accordance with the terms hereof and of the Ancillary Documents, as

determined by the Purchase Money Note Guarantor in its sole and absolute discretion. Each

Person ceasing to constitute the “Initial Member” under this Agreement (as a result of a

Disposition of its LLC Interest) shall remain a third-party beneficiary of this Agreement with

respect to Section 4.6 and, as such is entitled to enforce Section 4.6 as if such Person remained a

party hereto. For the avoidance of doubt, in furtherance and without limitation of the preceding

sentence, each Person comprising the “Initial Member” pursuant to the last sentence of Section

4.6(a) may enforce the provisions of Section 4.6 with respect to itself and/or any other

Indemnified Party(ies) in relation to itself (in its own name and/or in the name of and/or

otherwise on behalf of such other Indemnified Party(ies)). Subject to Section 11.1 and to the

immediately preceding sentence, (i) this Agreement is for the benefit solely of, and shall inure

solely to the benefit of, the Members and the Company, and (ii) this Agreement is not

enforceable by any Person (including any creditor of the Company or of any Member) other than

the Members and the Company.

13.4 Expenses. Except as may otherwise be expressly provided herein or in any

Ancillary Document, each Member shall pay its own expenses (including legal, accounting

investment banker, broker or finder’s fees) incident to the negotiation and execution of this

Agreement and the Ancillary Documents, the consummation of the transactions contemplated by

Section 2.3 hereof and the performance of its obligations hereunder.

13.5 Waivers and Amendments.

(a) This Agreement may be amended or modified, and the terms hereof may

be waived, only by a written instrument signed by all Members, provided, that, following an

Event of Default, from time to time this Agreement may be amended or modified and/or the terms

hereof may be waived, in each case, by a written instrument signed only by the Initial Member as

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long as such amendment, modification or waiver would not (i) adversely affect the Private

Owner’s or the Company’s limited liability status; (ii) adversely affect the Private Owner’s share

of the Company’s distributions, income, gains or losses; (iii) impose on the Private Owner any

additional obligations or (iv) amend Section 3.13 or this Section 13.5; provided further, that in no

event shall any amendment, modification or waiver limit or otherwise adversely affect the rights

expressly granted in this Agreement to (x) any Person comprising the “Initial Member” pursuant

to the last sentence of Section 4.6(a) (and/or any other Indemnified Party(ies) in relation to such

Person) without the express written consent of such Person so comprising the “Initial Member” or

(y) a third party beneficiary of this Agreement (to the extent such third party beneficiary is, and

remains, a third party beneficiary pursuant to Section 13.5 above) without the express written

consent of such third party beneficiary. Except where a specific period for action or inaction is

provided herein, no failure on the part of a Member to exercise, and no delay on the part of a

Member in exercising, any right, power or privilege hereunder shall operate as a waiver thereof;

nor shall any waiver on the part of such Member of any such right, power or privilege, or any

single or partial exercise of any such right, power or privilege, preclude any other or further

exercise thereof or the exercise of any other right, power or privilege.

(b) Notwithstanding anything to contrary contained elsewhere in this

Agreement (including without limitation the foregoing Section 13.5(a), or in any Ancillary

Document, but subject to the restrictions in Section 8.4 of the Contribution Agreement and

Section 2.8 of the Custodial and Paying Agency Agreement, as applicable), in order to facilitate

the possible restructuring and or sale of the Purchase Money Note (or any reissuance,

restructuring or sale of any such Purchase Money Note to be issued pursuant to Section 2.8 of the

Custodial and Paying Agency Agreement), the FDIC, without the consent of the Private Owner or

the Company, may at any time that the FDIC is the holder of 100 percent of any Purchase Money

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

Money Note (or any promissory note reissued in respect thereof) and make related changes,

modifications or amendments to this Agreement and the Ancillary Documents, in each case

subject to the applicable limitations set forth in Section 8.4 of the Contribution Agreement and

Section 2.8 of the Custodial and Paying Agency Agreement, as the case may be; provided,

however, no such change, amendment or modification shall adversely affect in any material

respect (i) the amount or timing of any payments or distributions to the Private Owner or any

permitted successor or assign pursuant to the Priority of Payments (or its share of the Company’s

distributions, income, gains or losses in accordance herewith), or (ii) any other rights or

obligations of, or the need for any advances, contributions or payments from, the Private Owner or

its Affiliates or any permitted successor or assign pursuant to this Agreement or any Ancillary

Document or otherwise. Prior to effecting any such changes, amendments or modifications, the

FDIC shall notify each of the Private Owner and the Company of any such contemplated changes,

amendments or modifications, and each of the Private Owner and the Company agrees that it will

cooperate in good faith with the FDIC in effecting all such changes, amendments or

modifications.

(c) Notwithstanding anything to contrary contained elsewhere in this

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

Document), this Agreement may be amended or modified by a written instrument signed only by

the Initial Member to the extent determined by the Initial Member in good faith to be necessary or

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desirable in order to facilitate any Disposition by the Initial Member of only a portion of its

Interest, or a Disposition by the Initial Member of its entire Interest to more than one Person,

including to provide for more than two Persons being members of the Company, provided that no

such amendment or modification shall (i) adversely affect the Private Owner’s or the Company’s

limited liability status; (ii) adversely affect the Private Owner’s share of the Company’s

distributions, income, gains or losses; (iii) impose on the Private Owner any additional obligations

or (iv) amend Section 3.13 (other than to the extent that such amendment or modification amends

or modifies which member or members of the Company shall constitute the “Initial Member”

hereunder) or this Section 13.5.

13.6 Notices. All notices, requests, demands and other communications required or

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

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

hand or by nationally recognized courier service, or by electronic mail (followed up by a hard

copy delivered through an alternate manner permitted under this Section 13.6), in each case

mailed or delivered to the applicable address or electronic mail address specified in, or in the

manner provided in, this Section 13.6. All such notices, requests, demands and other

communications shall be deemed to be given or made upon the earlier to occur of (i) actual

receipt (or refusal thereof) by the relevant party hereto and (ii) (A) if delivered by hand or by

nationally recognized courier service, when signed for (or refused) by or on behalf of the

relevant party hereto, and (B) if delivered by electronic mail (which form of delivery is subject to

the provisions of this paragraph), when delivered and capable of being accessed from the

recipient’s office computer, provided that any notice, request, demand or other communication

that is received other than during regular business hours of the recipient shall be deemed to have

been given at the opening of business on the next business day of the recipient. In no event shall

a voice mail message be effective as a notice, communication or confirmation hereunder. From

time to time, any party may designate a new address for purposes of notice to it hereunder by

notice to such effect to the other parties hereto in the manner set forth in this Section 13.6.

If to the Company, to:

Multibank 2010-1 SFR Venture, LLC

5032 Parkway Plaza Blvd

Charlotte, NC 28217

Attention: Shaun Ahmad

E-Mail Address: Shaun.Ahmad@roundpointmortgage.com

with a copy to:

Multibank 2010-1 SFR Venture, LLC

5032 Parkway Plaza Blvd

Charlotte, NC 28217

Attention: Peter Schancupp

E-Mail Address: Peter.Schancupp@roundpointmortgage.com

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If to the Initial Member, to:

Manager, Capital Markets & Resolutions
 

c/o Federal Deposit Insurance Corporation
 

550 17th Street, NW (Room F-7014)
 

Washington, D.C. 20429-0002
 

Attention: Ralph Malami
 

Email Address: RMalami@fdic.gov
 

with a copy to:

Senior Counsel

FDIC Legal Division

Litigation and Resolutions Branch, Receivership Section

Special Issues Unit

3501 Fairfax Drive (Room E-7056)

Arlington, VA 22226

Attention: David Gearin

Email Address: DGearin@fdic.gov

If to the Private Owner (including in its role as Manager and/or

Tax Matter Member), to:

RoundPoint Ventures I, LLC
 

9350 Conroy Windermere Rd
 

Windermere, FL 34786
 

Attention: Michael I. Wood
 

Email Address: mwood@tavistock.com
 

with a copy to:

DLA Piper
 

203 North LaSalle Street
 

Suite 1900
 

Chicago, IL 60601
 

Attention: Sachin A. Lele
 

Email Address: sachin.lele@dlapiper.com
 

13.7	 Counterparts; Facsimile Signatures.

(a) This Agreement may be executed in any number of counterparts, each of

which shall be an original and all of which shall together constitute one and the same instrument.

It shall not be necessary for any counterpart to bear the signature of all parties hereto.

(b) This Agreement and any amendments hereto, to the extent signed and

delivered by facsimile or other electronic means, shall be treated in all manner and respects as an

original agreement and shall be considered to have the same binding legal effect as if it were the

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original signed version thereof delivered in person. No signatory to this Agreement shall raise the

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

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

or other electronic means as a defense to the formation or enforceability of a contract and each

such Person forever waives any such defense.

13.8 Successors and Assigns. Except as otherwise specifically provided in this

Agreement (including in Article VIII), this Agreement shall be binding upon and inure to the

benefit of the Members and the Company and their respective Successors and assigns. Without

limitation of Section 8.4, this Agreement, as in effect on the date that any particular Person shall

cease to be Member, shall continue to bind such Person in relation to the period during which it

was Member.

13.9 Compliance With Law; Severability.

(a) Compliance With Law. Except as otherwise specifically provided herein,

each party to this Agreement shall obey and comply with all applicable Laws, as they may pertain

to such party’s performance of its obligations hereunder.

(b) Severability. Any provision of this Agreement which is prohibited or

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as

follows: (i) if such provision is prohibited or unenforceable in such jurisdiction only as to a

particular Person or Persons and/or under any particular circumstance or circumstances, such

provision shall be ineffective, but only in such jurisdiction and only with respect to such particular

Person or Persons and/or under such particular circumstance or circumstances, as the case may be;

(ii) without limitation of clause (i), such provision shall in any event be ineffective only as to such

jurisdiction and only to the extent of such prohibition or unenforceability, and such prohibition or

unenforceability in such jurisdiction shall not invalidate or render unenforceable such provision in

any other jurisdiction; and (iii) without limitation of clauses (i) or (ii), such ineffectiveness shall

not invalidate any of the remaining provisions of this Agreement. Without limitation of the

preceding sentence, it is the intent of the parties to this Agreement that in the event that in any

court proceeding, such court determines that any provision of this Agreement is prohibited or

unenforceable in any jurisdiction (because of the duration or scope (geographic or otherwise) of

such provision, or for any other reason) such court shall have the power to, and shall, (x) modify

such provision (including without limitation, to the extent applicable, by limiting the duration or

scope of such provision and/or the Persons against whom, and/or the circumstances under which,

such provision shall be effective in such jurisdiction) for purposes of such proceeding to the

minimum extent necessary so that such provision, as so modified, may then be enforced in such

proceeding and (y) enforce such provision, as so modified pursuant to clause (x), in such

proceeding. Nothing in this Section 13.9(b) is intended to, or shall, limit (1) the ability of any

party to this Agreement to appeal any court ruling or the effect of any favorable ruling on appeal

or (2) the intended effect of Section 13.11.

13.10 Power of Attorney.

(a) The Private Owner does hereby constitute and appoint the Manager as its

true and lawful representative and attorney-in-fact, in its name, place and stead to make, execute,

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sign, acknowledge, deliver or file any certificate, document or other instrument that the Private

Owner is required to execute and deliver pursuant to clause (a), (b), (c) or (d) of Section 4.3

hereof. The foregoing notwithstanding, the Manager shall not have any right, power or authority

to amend or modify this Agreement. The power of attorney granted hereby is coupled with an

interest and shall (i) survive and not be affected by the subsequent death, incapacity, disability,

dissolution, termination or bankruptcy of the Private Owner granting the same or the transfer of all

or any portion of the Private Owner’s LLC Interest and (ii) extend to the Private Owner’s

Successors, assigns and legal representatives.

(b) The Company hereby grants to the Manager a limited power of attorney to

execute all documents on its behalf in accordance with the Servicing Standard set forth above and

as may be necessary to effectuate the Manager’s obligations under Article XII until such time as

the Company revokes said limited power of attorney. Revocation of the limited power of attorney

shall take effect upon (i) the receipt by the Manager of written notice thereof from the Initial

Member, or (ii) removal of the Manager in accordance with the terms of this Agreement;

provided, however, in the event of such removal, the power of attorney granted hereunder shall

thereafter automatically be vested in the successor or replacement Manager appointed in

accordance with this Agreement.

13.11 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE

CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE,

EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW

OF ANOTHER JURISDICTION. In the event of a direct conflict between the provisions of this

Agreement and any mandatory, non-waivable provision of the Act, such provision of the Act

shall control to the extent necessary to eliminate such direct conflict. Nothing in this Agreement

shall require any unlawful action or inaction by any Person.

13.12 Jurisdiction; Venue and Service.

(a) Each of the Private Owner (for the avoidance of doubt, in any capacity,

including as a Member and/or as the Manager) and the Company, in each case on behalf of itself

and its Affiliates, hereby irrevocably and unconditionally:

(i) consents to the jurisdiction of the United States District Court for

the Southern District of New York and to the jurisdiction of the United States

District Court for the District of Columbia for any suit, action or proceeding

against it (in the case of the Private Owner and for the avoidance of doubt, in any

capacity, including as a Member and/or as the Manager) or any of its Affiliates

commenced by the Initial Member 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 proceeding to any

other court or dispute-resolution forum (other than the Court in which the

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

the Initial Member;

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(B) assert that venue is improper in either the United States

District Court for the Southern District of New York or the United States

District Court for the District of Columbia; or

(C) assert that the United States District Court for the Southern

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

Columbia is an inconvenient forum.

(ii) consents to the jurisdiction of the Chancery Court of the State of

Delaware for any suit, action or proceeding against it (in the case of the Private

Owner and for the avoidance of doubt, in any capacity, including as a Member

and/or as the Manager) or any of its Affiliates commenced by the Initial Member

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

Member);

(B) assert that venue is improper in the Chancery Court of the

State of Delaware; or

(C) assert that the Chancery Court of the State of Delaware is

an inconvenient forum.

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

the Private Owner and for the avoidance of doubt, in any capacity, including as a

Member and/or as the Manager) or any of its Affiliates against the Initial Member

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

Document in only the United States District Court for the Southern District of

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

waives any right to remove or transfer such suit, action or proceeding to any other

court or dispute-resolution forum without the consent of the Initial Member, and

agrees to consent thereafter to transfer of the suit, action or proceeding to either

the United States District Court for the Southern District of New York or the

United States District Court for the District of Columbia at the option of the Initial

Member; and

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

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

both lack jurisdiction to hear a suit, action or proceeding falling within

Section 13.12(a)(iii), to bring that suit, action or proceeding in only the Chancery

Court of the State of Delaware, and waives any right to remove or transfer such

suit, action or proceeding to any other court or dispute-resolution forum without

the consent of the Initial Member.

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(b) Each of the Private Owner (in any capacity, including as a Member and/or

as the Manager) and the Company, in each case on behalf of itself and its Affiliates, hereby

irrevocably and unconditionally agrees that any final judgment entered against it in any suit,

action or proceeding falling within Section 13.12(a) may be enforced in any court of competent

jurisdiction;

(c) Subject to the provisions of Section 13.12(d), each of the Private Owner

(in any capacity, including as a Member and/or as the Manager) and the Company, in each case on

behalf of itself and its Affiliates, and the Initial Member, hereby irrevocably and unconditionally

agrees that service of all writs, process and summonses in any suit, action or proceeding pursuant

to Section 13.12(a) or Section 13.12(b) may be effected by the mailing of copies thereof by

registered or certified mail, postage prepaid, to it at its address for notices pursuant to Section 13.6

(with copies to such other Persons as specified therein); provided, however, that nothing contained

in this Section 13.12(c) shall affect the right of any party to serve process in any other manner

permitted by Law;

(d) Nothing in this Section 13.12 shall constitute consent to jurisdiction in any

court by the FDIC (in any capacity, including as the Initial Member), other than as expressly

provided in Section 13.12(a)(iii) and Section 13.12(a)(iv), or in any way limit the FDIC’s (in any

capacity, including as the Initial Member) right to remove, transfer, seek to dismiss, or otherwise

respond to any suit, action, or proceeding against it (in any capacity, including as the Initial

Member) in any forum.

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

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

IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A

TRIAL BY JURY OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS

AGREEMENT OR THE ANCILLARY DOCUMENTS AND AGREES THAT ANY SUCH

DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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

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

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER FOR EACH OF 

THE FAILED BANKS. as Initial Member 

By: 

Name: Malami 

Title: Attorney-in-Fact 

MULTIBANK 20l 0-l SFR VENTURE, LLC 

By: 	 Federal Deposit Insurance Corporation, in 

its separate capacities as receiver for each of 

the Failed Banks 

By: 

arne: Ralph Malami 

Title: Attorney-in-Fact 

ROUND POINT VENTURES I, LLC, as Private 

Owner 

By: ________ 

Name: 

Title: 

FDIC SFR 2010-1 

Amended and Restated !untied Lmbiltt) (_om pan~ Operatmg Agreement 

Pool ~os 24020 and 24021 
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by 

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

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER FOR EACH OF 

THE FAILED BANKS, as Initial Member 

By: 


Name: Ralph Malami 


Title: Attorney-in-Fact 


MULTIBANK 2010-1 SFR VENTURE, LLC 

By: 	 Federal Deposit Insurance Corporation, in 

its separate capacities as receiver for each of 

the Failed Banks 

By: -------···------~----­

Name: Ralph Malami 

Title: Attorney-in-Fact 

ROUNDPOINT VENTURES I, LLC, as Private 

Owner 

By: -------·-----~----~-----­ Name: Shaun Ahmad 

Title: Vice President 

FDIC SFR 2010-1 

Amended and Restated Lrm!led Lrabrloty Company 0pCT11trng Agreement 

P()()l Nos. 24020 and 24021 
Annex I
 

Member Schedule
 

Member Percentage Interests Capital Contributions

Initial Member 50% $34,362,310

Private Owner 50% $34,362,310

II-1

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
EXHIBIT A

FORM OF

CERTIFICATE OF FORMATION
 

OF
 

MULTIBANK 2010-1 SFR 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, the name of the limited liability company is Multibank 2010-1 SFR

Venture, LLC (the “Company”).

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

Formation of the Company on this [___] day of [________________], 2010.

By:

Name: [_________]

Title: Authorized Person

A-1

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
EXHIBIT B
 

INFORMATION; FORM OF MONTHLY REPORT
 

[Attached]

B-1
 FDIC SFR 2010-1
 

Amended and Restated Limited Liability Company Operating Agreement
 

Pool Nos. 24020 and 24021
 
EXHIBIT C

FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is

made and entered into as of ____ by and between RoundPoint Ventures I, LLC, a Florida limited

liability company (“Transferor”), and ____, a ____ (“Transferee”).

RECITALS

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

interest (the “LLC Interest”) in Multibank 2010-1 SFR Venture, a Delaware limited liability

company (the “Company”);

WHEREAS, the LLC Interest represents a ____ percent (____%) “Percentage Interest” in

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

Operating Agreement, effective as of April 1, 2010, by and among the Federal Deposit Insurance

Corporation, in its capacity as receiver for Failed Banks defined therein (the “Initial Member”),

Transferor and the Company (the “LLC Operating Agreement”));

WHEREAS, the ownership and other rights associated with the LLC Interest are set forth

in the LLC Operating Agreement;

WHEREAS, pursuant to Section 3.13 of the LLC Operating Agreement, Transferor

granted the Initial Member a first priority security interest in the LLC Interest in order to secure

certain obligations of Transferor as more fully described in the LLC Operating Agreement;

WHEREAS, an Event of Default (as defined in the LLC Operating Agreement) has

occurred and is continuing, and the Initial Member has elected, pursuant to the LLC Operating

Agreement, to foreclose on its security interest in the LLC Interest and effect the assignment

contemplated hereby;

NOW THEREFORE, in consideration of the mutual agreements contained herein and in

the LLC Operating Agreement, and for other good and valuable consideration, the receipt and

sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the

parties hereto agree as follows:

1. Assignment and Assumption. Transferor hereby assigns and transfers the LLC

Interest to Transferee, and Transferee hereby accepts and assumes the LLC Interest and agrees to

be bound by the LLC Operating Agreement, as amended from time to time, to the extent it

relates to such LLC Interest.

2. Counterparts. This Agreement may be executed in two or more counterparts, all

of which shall be considered one and the same agreement and shall become effective when one

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

telecopy) to the other party.

C-1

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
___________________________________

3. No Third Party Beneficiaries. This Agreement shall inure to the benefit of the

parties hereto and their respective successors and permitted assigns. This Agreement is not

intended to confer upon any other person any rights or remedies hereunder.

4. Governing Law. The laws of the State of Delaware will govern the validity,

performance and enforcement of this Agreement, without giving effect to the principles of

conflict of laws of the State of Delaware or any other jurisdiction.

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

effective as of the date first above written.

TRANSFEROR:

RoundPoint Ventures I, LLC, as Private Owner
 

By: ________________________
 

Name:
 

Title:
 

TRANSFEREE:

By: _____________________________
 

Name:
 

Title:
 

C-2

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
FORM OF LETTER OF CREDIT
 

(Bank Letterhead Stationery)
 

Federal Deposit Insurance Corporation, in its capacity as Initial Member (as defined below)
 

[Manager, Capital Markets & Resolutions
 

c/o Federal Deposit Insurance Corporation
 

550 17th Street, NW (Room F-7014)
 

Washington, D.C. 20429-0002
 

Attention: [_________]
 

Email Address: [_________]
 

Tel: ________
 

Fax: ________]
 

RE: Irrevocable Transferable Letter of Credit No. __________ for
 

U.S.$__________, Dated ____________________.
 

Gentlemen:
 

We hereby issue our irrevocable transferable Letter of Credit No. _________________

(this “Letter of Credit”) in favor of Federal Deposit Insurance Corporation (in any capacity, the

“FDIC”), as receiver for the Failed Banks identified in the LLC Operating Agreement defined

below, as the Initial Member under such LLC Operating Agreement (including its successors,

and its assigns as provided herein, the “Initial Member”), for the account of _____________ (the

"Private Owner").

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

Company Operating Agreement dated as of ___________, 2010 (as amended or otherwise

modified from time to time, the “LLC Operating Agreement”), by and among Multibank 2010-1

SFR Venture, LLC (the “Company”), the Private Owner and the Initial Member.

We undertake to honor from time to time your draft or drafts presented to us in

accordance herewith not exceeding in the aggregate two million U.S. Dollars (U.S. $2,000,000).

All drafts hereunder (i) must be marked "Drawn under irrevocable transferable Letter of Credit

No. __________, dated ____________________", (ii) must be accompanied by a typewritten

statement signed by a purportedly authorized representative of the Initial Member stating that an

“Event of Default” or “LC Reissuance/Extension Failure” has occurred under (and as defined in)

the LLC Operating Agreement, and (iii) shall, unless payment is to be made at sight, include the

wire transfer instructions for remittance by us of the amount of such draft.

Presentation of drafts drawn hereunder, together with the required statement and

applicable wire transfer instructions, may be made at any time on or before the expiry date

hereof (i) by physical presentation of such draft at, or overnight delivery of such draft to, our

offices located at ______________________________ [include address in New York City or

Washington, D.C.], [or (ii) by telecopier (at telecopier number (___) ______,

Attention:________,] without further need of documentation. Presentation having been so made

D-1

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
at or before 12:00 noon (New York, New York time) on any day other than a Saturday, Sunday

or other day on which all commercial banks in [New York, New York / Washington, D.C.] are

authorized or required by law to be closed ("Banking Day") shall result in payment to the Initial

Member in accordance herewith on the same date. Drafts presented after 12:00 noon (New

York, New York time) or on any day other than a Banking Day, shall result in payment to the

Initial Member in accordance herewith on the next Banking Day.

This Letter of Credit shall expire at 5:00 p.m. (New York, New York time) on the date

that occurs one year after the date hereof; provided, however, that this Letter of Credit will

automatically extend without amendment for additional periods of one year each (in each case

commencing from the expiry date hereof as then in effect), unless we elect not to renew this

Letter of Credit and deliver to the Initial Member written notice of such election at least sixty

(60) days prior to any such expiry date. Any such notice shall be in writing and shall be

delivered in hand with receipt acknowledged, or by certified mail (return receipt requested), to

the Initial Member at its address set forth above (or to such other address for any such notices

which the Initial Member may hereafter specify in a written notice delivered to the undersigned).

Partial and multiple drafts are permitted, and the amount of this Letter of Credit will be

reduced by each such draft honored.

All our charges (including wire transfer fees in connection with any payments by us

hereunder) are for the account of the Private Owner, and in no event shall any such charges

reduce the amount of any draft or payment hereunder.

We agree that we shall have no duty or right to inquire as to the basis upon which the

Initial Member has determined to present to us any draft under this Letter of Credit. We hereby

waive any defense based upon any allegation of fraud.

This Letter of Credit is transferable to any transferee who has succeeded you as the Initial

Member under the LLC Operating Agreement, and may be successively transferred. Any transfer

request must be effected by presenting to us the attached form of Attachment I signed by the

transferor and the transferee together with the original Letter of Credit. Upon our endorsement

of such transfer, the transferee instead of the transferor shall, without necessity of further action,

be entitled to all the benefits of and rights under this Letter of Credit in the transferor’s place;

provided that, in such case, any drafts of the Initial Member to be provided hereunder shall be

signed by one who states therein that he is a duly authorized officer or agent of the transferee.

Except as otherwise expressly stated herein, this Letter of Credit is subject to the

International Standby Practices, International Chamber of Commerce Publication No. 590,

including any amendments, modifications or revisions thereof (the “ISP 98”). As to matters not

covered by the ISP 98, and to the extent not inconsistent with the ISP 98, this Letter of Credit

shall be governed by and construed in accordance with the laws of the State of New York,

including without limitation the Uniform Commercial Code as in effect in the State of New

York, without regard to principals of conflict of laws.

D-2

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
All of the terms and conditions of this Letter of Credit are contained herein and shall not

be altered except by reduction in the amount of this Letter of Credit due to corresponding

payments in like amount in compliance with the aforementioned terms. Except as otherwise

expressly set forth herein, there are no conditions to this Letter of Credit.

Very truly yours,

By: _________________________

Name:_______________________

Title: ________________________

D-3

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021
ATTACHMENT I TO LETTER OF CREDIT
 

REQUEST FOR TRANSFER

[Insert Bank Name and Address]

RE: Irrevocable Transferable Letter of Credit No. [__________] for

U.S.$[__________], Dated [____________________].

Gentlemen:

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

[_________________], dated _________ (the “Letter of Credit”), issued by you in favor of

[__________] (the “Transferor”), for the account of [_____________] (the "Private Owner").

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

assignment) all of its rights in and under the Letter of Credit to [name of Transferee] (the

“Transferee”) and confirms that the Transferor no longer has any rights under or interest in the

Letter of Credit.

The Letter of Credit is returned herewith and we request that you issue an irrevocable

transferable letter of credit in the name of the Transferee and providing for notices to be sent to

the Transferee at the address set forth below and in all other respects identical to the Letter of

Credit.

Transferee hereby certifies that it is a duly authorized transferee under the terms of the Letter of

Credit and is accordingly entitled, upon presentation of the drafts (and applicable items) called

for therein, to receive payment thereunder.

Notices under the Letter of Credit should be sent to the Transferee as follows: [Name],

[Address], [Attention:_______], Email: [______], Fax: [________], Tel: [________].

[NAME OF TRANSFEROR]

By_________________________
 

[Name and Title of Authorized
 

Representative of Transferor]
 

[NAME OF TRANSFEREE]

By_________________________
 

[Name and Title of Authorized
 

Representative of Transferee]
 

D-4

FDIC SFR 2010-1

Amended and Restated Limited Liability Company Operating Agreement

Pool Nos. 24020 and 24021