CRE Venture 2011-2 Structured Transaction 

PRIVATE OWNER INTEREST 


SALE AND ASSIGNMENT AGREEMENT 


by and among 


COLFIN 2011-2 CRE FUNDING, LLC, 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


in its capacity as Receiver, 


and 


CRE VENTURE 2011-2, LLC 


Dated as of December I3, 20 II 

CRE Venture 2011-2 Structured Transaction 

Private Owner Interest Sale Agreement 

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TABLE OF CONTENTS 


RECITALS .................................................................................................................................. 1 


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


Account Closing ...................................................................................................................2 


2. 	 LLC Operating Agreement ..................................................................................................3 


3. 	 Additional Security ..............................................................................................................3 


4. 	 PO Owner Undertaking; LPOA Letter. ...............................................................................3 


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


6. 	 Exclusivity ofRepresentations ............................................................................................4 


7. 	 Assignment ..........................................................................................................................4 


8. 	 Beneficiaries ........................................................................................................................4 


9. 	 Waivers and Amendments ...................................................................................................5 


10. 	 Governing Law ............................ : ....................................................................................... 5 


11. 	 Jurisdiction; Venue and Service ...........................................................................................5 


12. 	 Waiver of Jury Trial .............................................................................................................7 


13. 	 Notices .................................................................................................................................7 


14. 	 Counterparts; Facsimile Signatures .....................................................................................8 


15. 	 Headings ..............................................................................................................................8 


16. 	 Compliance with Law; Rules of Construction.....................................................................8 


Exhibit A Form of LLC Operating Agreement 

Exhibit B Form of Private Owner Interest Asset Value Schedule 

Exhibit C Form of Transferee Acknowledgment And Certification 

Exhibit D Form of Joinder And Consent Agreement 

Exhibit E Form of PO Owner Undertaking 

Exhibit F Form of Letter Designating Individuals For Limited Power of Attorney 

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PRIVATE OWNER INTEREST 


SALE AND ASSIGNMENT AGREEMENT 


THIS PRIVATE OWNER INTEREST SALE AND ASSIGNMENT AGREEMENT (this 

"Agreement") is made as of December 13, 2011, by and among ColFin 2011-2 CRE Funding, 

LLC, a limited liability company organized and existing under the laws of Delaware (the 

"Private Owner"), the Federal Deposit Insurance Corporation in its capacity as Receiver (the 

"Initial Member"), and CRE Venture 2011-2, LLC, a limited liability company organized and 

existing under the laws of Delaware (the "Company"). For purposes of this Agreement, all 

terms used in this Agreement (including in the preamble and recitals hereto) that are defined in, 

or by reference in, that certain Agreement of Definitions - CRE Venture 2011-2 Structured 

Transaction dated as of the date hereof among the parties hereto and certain others (as the same 

may be amended from time to time in accordance with the terms set forth herein for the 

amendment of this Agreement) (the "Agreement of Definitions"), and are not otherwise defined 

herein, shall have the meanings and definitions given, or referred to, in the Agreement of 

Definitions. 

RECITALS 

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

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

December 5, 2011, holds the sole limited liability company interest in the Company, and has 

entered into the Original LLC Operating Agreement; 

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

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

to the Assets; 

WHEREAS, after conducting a sealed bid sale for a forty percent ( 40%) limited liability 

company interest in the Company (the "Private Owner Interest"), the FDIC selected Colony 

Capital Acquisitions, LLC, a Delaware limited liability company (the "Winning Bidder"), as the 

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

with the instructions governing the sealed bid sale, the Winning Bidder has deposited 

$300,000.00 with its bid and an additional $2,430,710.10 after its bid was selected (collectively, 

the "Earnest Money Deposit") with the FDIC; 

WHEREAS, following its selection as the successful bidder, the Winning Bidder formed 

the Private Owner as a Qualified Transferee; 

WHEREAS, the Initial Member desires to transfer the Private Owner Interest to the 

Private Owner (and the Initial Member will retain a sixty percent (60%) limited liability 

company interest in the Company) and enter into the LLC Operating Agreement in the form 

attached hereto as Exhibit A, and the Private Owner desires to acquire the Private Owner Interest 

and enter into the LLC Operating Agreement; 

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

the Company pro rata in accordance with their proportionate limited liability company interests 

in the Company (after giving effect to the transfer of the Private Owner Interest), to fund the 

Working Capital Reserve Account with an aggregate amount of $3,000,000.00 (such sum, the 

"WCR Account Deposit"); and 

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

$1,800,000.00 (the "Initial Member WCR Account Deposit") and the Private Owner's pro rata 

share of such WCR Account Deposit is $1,200,000.00 (the "Private Owner WCR Account 

Deposit"); 

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

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

sufficiency of which are hereby acknowledged, the Initial Member, the Private Owner and the 

Company hereby agree as follows: 

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

Account Closing. 

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

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

purchases from the Initial Member, all of the Initial Member's right, title and interest in and to 

the Private Owner Interest for a purchase price of $27,307,101.00 (the "Private Owner Interest 

Sale Price"). On the date hereof, in satisfaction of its obligation to pay the Private Owner 

Interest Sale Price, the Private Owner shall: 

(i) remit to the Initial Member, by wire transfer of immediately 

available funds, to such account as the Initial Member may direct in writing, an amount (the 

"Purchase Price Payment") equal to the positive difference (if any) between (x) the Private 

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

Member WCR Account Deposit; and 

(ii) (x) remit, on behalf of the Initial Member, by wire transfer of 

immediately available funds, an amount equal to the Initial Member WCR Account Deposit to 

the Paying Agent for credit to the Working Capital Reserve Account, and (y) remit, on its own 

behalf, by wire transfer of immediately available funds, an amount equal to the Private Owner 

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

(b) Closing Procedure. The sale and assignment of the Private Owner Interest 

to the Private Owner and the closing of the other transactions contemplated hereby (collectively, 

the "Closing") shall be effective upon: 

(i) the receipt by the Initial Member of (x) the Purchase Price 

Payment, (y) evidence of the establishment of the Working Capital Reserve Account in 

accordance with the provisions of Section 3.6 of the Custodial and Paying Agency Agreement, 

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and (z) confirmation ofreceipt by the Paying Agent of each of the Initial Member WCR Account 

Deposit and the Private Owner WCR Account Deposit; 

(ii) the delivery of the executed LLC Operating Agreement by the 

parties thereto (as required by Section 2); 

(iii) the delivery ofthe Additional Security (as required by Section 3); 

(iv) the delivery by each Person specified in Section 4(a) of a PO 

Owner Undertaking; 

(v) the delivery by the Private Owner of the letter described in Section 

4(b); 

(vi) the delivery of the completed Private Owner Interest Asset Value 

Schedule, in the form attached hereto as Exhibit B, allocating the Private Owner Interest Sale 

Price among the Assets (the "Private Owner Interest Asset Value Schedule"), which shall be 

appended to the Contribution Agreement as the Private Owner Interest Asset Value Schedule 

thereunder; 

(vii) the delivery of the executed Transferee Acknowledgment and 

Certification, in the form attached hereto as Exhibit C; and 

(viii) the delivery of the executed Joinder and Consent Agreement, in the 

form attached hereto as Exhibit D. 

2. LLC Operating Agreement. Contemporaneously with the execution and 

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

Initial Member the LLC Operating Agreement. 

3. Additional Security. Contemporaneously with the execution of this Agreement 

and the LLC Operating Agreement, the Private Owner shall (i) pursuant to the applicable 

provisions in the LLC Operating Agreement and the Custodial and Paying Agency Agreement, 

establish the Private Owner Pledged Account and (ii) deliver or cause to be delivered to the 

Paying Agent the Additional Security (which, if in the form of Qualifying Cash Collateral, shall 

be remitted for deposit into the Private Owner Pledged Account). 

4. PO Owner Undertaking; LPOA Letter. 

(a) Contemporaneously with the execution of this Agreement, the Private 

Owner shall cause to be delivered to the Initial Member and the PMN Agent an instrument in the 

form attached hereto as Exhibit E (a "PO Owner Undertaking"), executed by each PO Owner. 

Each Person required pursuant to the preceding sentence to deliver a PO Owner Undertaking 

shall execute and deliver a separate PO Owner Undertaking. 

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(b) Contemporaneously with the execution of this Agreement, the Private 

Owner shall execute and deliver to the Receiver a letter in the form attached hereto as Exhibit F, 

appropriately completed. 

5. Representations and Warranties of Private Owner. The Private Owner hereby 

represents and warrants separately to each of the Initial Member and the Company as follows: 

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

and warrants that each item included in such definition is true and correct in all respects as of the 

date hereof as if set forth herein. 

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

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

Specified Parent of the Private Owner or any Affiliate thereof) in connection with this 

Agreement and the transactions contemplated hereby, including, but not limited to, the 

"Purchaser Eligibility Certification," the "Bid Certification," the "Structured Transaction 

Qualification Request," the "Bidder Qualification Application," the "Bid Form" and the 

"Structured Transaction Confidentiality Agreement," are true and correct in all respects as of the 

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

not misleading. 

(c) As of the date hereof, the only PO Owner is ColFin 2011-2 CRE Holdco, 

LLC, a Delaware limited liability company. 

6. Exclusivity of Representations. THE PRIVATE OWNER INTEREST IS SOLD 

:.:AS IS" AND "WITH ALL FAULTS," WITHOUT ANY REPRESENTATION, WARRANTY, 

GUARANTY OR RECOURSE WHATSOEVER, INCLUDING AS TO ITS VALUE (OR THE 

VALUE, COLLECTABILITY OR CONDITION OF THE ASSETS HELD BY THE 

COMPANY OR ANY OF THE COLLATERAL FOR ANY SUCH ASSETS), FITNESS FOR 

ANY PARTICULAR PURPOSE, MERCHANTABILITY, FITNESS FOR A SPECIFIC 

PURPOSE OR ANY OTHER MATTER, WHETHER EXPRESS OR IMPLIED OR BY 

OPERATION OF LAW OR OTHERWISE, AND THE INITIAL MEMBER SPECIFICALLY 

DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR 

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

OWNER INTEREST, THE ASSETS, OR THE COLLATERAL SECURING THE ASSETS. 

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

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

individual), successors and permitted assigns; provided, however, that the Private Owner may 

not assign this Agreement or any of its rights, interests or obligations hereunder. Any purported 

assignment or delegation in violation of this Agreement shall be null and void ab initio. 

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

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

assigns. Except for the FDIC (in its corporate capacity), which shall be considered a third party 

beneficiary to this Agreement, there shall be no other third party beneficiaries hereunder. 

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9. Waivers and Amendments. No amendment or waiver of any provision of this 

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

Member, the Private Owner, the Company and the FDIC (in its corporate capacity). 

10. Governing Law. EACH PARTY TO THIS AGREEMENT AGREES AND 

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

OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS TO BE 

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE 

STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE 

THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS 

AGREEMENT TO THE LAW OF ANOTHER JURISDICTION, AND EACH PARTY TO 

THIS AGREEMENT UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM 

TO ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

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

party hereto. 

11. Jurisdiction; Venue and Service. 

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

itself and its Affiliates, hereby irrevocably and unconditionally: 

(i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any such Affiliate 

commenced by the Initial Member arising out of, relating to, or in connection with this 

Agreement or any Transaction Document, and waives any right to: 

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

court or dispute-resolution forum (other than the court in which the Initial Member files the 

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

(B) assert that venue is improper in either the United States 

District Court for the Southern District of New York or the United States District Court for the 

District of Columbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

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

Affiliate commenced by the Initial Member arising out of, relating to, or in connection with this 

Agreement or any Transaction Document (other than the LLC Operating Agreement), and 

waives any right to: 

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

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

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

State ofNew York, County ofNew York; or 

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

County ofNew York is an inconvenient forum; 

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

Affiliate against the Initial Member arising out of, relating to, or in connection with this 

Agreement or any Transaction Document (other than the LLC Operating Agreement) 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 11(a)Ciii), to bring that suit, 

action or proceeding in only the Supreme Court ofthe State of New York, County ofNew York, 

and waives any right to remove or transfer such suit, action or proceeding to any other court or 

dispute-resolution forum without the consent of the Initial Member. 

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

itself and its Affiliates, hereby irrevocably and unconditionally agrees that any final judgment 

entered against it in any suit, action or proceeding falling within Section 11 (a) may be enforced 

in any court of competent jurisdiction. 

(c) Subject to the provisions of Section ll(d), each of the Private Owner and 

the Company, in each case on behalf of itself and its Affiliates, and the Initial Member, hereby 

irrevocably and unconditionally agrees that service of all writs, process and summonses in any 

suit, action or proceeding pursuant to Section 11 (a) or Section 11 (b) may be effected by the 

mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address for 

notices pursuant to Section 13 (with copies to such other Persons as specified therein); provided, 

however, that nothing contained in this Section ll(c) shall affect the right of any party to serve 

process in any other manner permitted by Law. 

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

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

Section 11(a)(iv), or in any way limit the FDIC's (in any capacity) right to remove, transfer, seek 

to dismiss, or otherwise respond to any suit, action, or proceeding against it in any forum. 

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

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

IRREVOCABLY AND UNCONDITIONALLY W AlVES ANY RIGHT IT MAY HAVE TO A 

TRIAL BY JURY OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS 

AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A 

JUDGE SITTING WITHOUT A JURY. 

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

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

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

hand or by nationally recognized courier service, or by electronic mail, in each case mailed or 

delivered to the applicable address or electronic mail address specified in, or in the manner 

provided in, this Section 13 below. All such notices, requests, demands and other 

communications shall be deemed to be given or made upon the earlier to occur of (i) actual 

receipt (or refusal thereof) by the relevant party hereto and (ii) (A) if delivered by hand or by 

nationally recognized courier service, when signed for (or refused) by or on behalf of the 

relevant party hereto; (B) if delivered by mail, when delivered (or refused), and (C) if delivered 

by electronic mail (which form of delivery is subject to the provisions of this 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. 

Ifto the Initial Member, to: 

Assistant Director - Structured Transactions 


Federal Deposit Insurance Corporation 


550 17th Street, NW (Room F -70 15) 


Washington, D.C. 20429-0002 


Attention: Ralph Malami 


E-mail Address: rmalami@fdic.gov 


with a copy to: 

Supervisory Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room D-7102) 

Arlington, Virginia 22226 

Attention: Kathleen Russo 

E-mail Address: krusso@fdic.gov 

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

CRE Venture 2011-2, LLC 

2450 Broadway, 6th Floor 

Santa Monica, California 90404 

Attention: Paul 


E-mail Address: 


with copies to: 

Colony Capital, LLC 

660 Madison A venue 

New York, New York 10065 

E-mail Address: 

Attention: Ronald M. Sanders 

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

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

constitute one and the same instrument. It shall not be necessary for any counterpart to bear the 

signature of all parties hereto. This Agreement and any amendments hereto, to the extent signed 

and delivered by facsimile or other electronic means, shall be treated in all manner and respects 

as an original agreement and shall be considered to have the same binding legal effect as if it 

were the original signed version thereof delivered in person. No signatory to this Agreement 

shall raise the use of a facsimile machine or other electronic means to deliver a signature or the 

fact that any signature or agreement was transmitted or communicated through the use of a 

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

contract and each such Person forever waives any such defense. 

15. Headings. Section or 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 Sections and paragraphs in this Agreement 

unless otherwise specified. 

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

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

comply with all Laws, as they may pertain to such party's performance of its obligations 

hereunder. The Rules of Construction apply to this Agreement. 

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

of the date first written above. 

PRIVATE OWNER: 

Name: 

Title: Vice President 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION in its capacity as Receiver (as 

defined in the Agreement of Definitions referred to 

herein) 

By: 

Name: 

Title: Attorney in Fact 

[Signature Page to Private Owner Interest Sale and Assignment Agreement - Page I of 2] 

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COMPANY: 

CRE VENTURE 2011-2, LLC 

By: Federal Deposit Insurance Corporation in its 

capacity as Receiver (as defined in the Agreement 

of Definitions referred to herein), as Sole Member 

and Manager 

By: 

[Signature Page to Private Owner Interest Sale and Assignment Agreement - Page 2 of 2] 

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