Multibank RADC/CADC Loan and REO Structured Transaction

 EXECUTION COPY 

REIMBURSEMENT, SECURITY AND GUARANTY AGREEMENT 

BY AND AMONG 

2010-1 RADC/CADC VENTURE, LLC, 

EACH OTHER GRANTOR FROM TIME TO TIME PARTY HERETO, 

FEDERAL DEPOSIT INSURANCE CORPORATION
 

IN ITS CORPORATE CAPACITY, AS PURCHASE MONEY NOTES GUARANTOR,
 

FEDERAL DEPOSIT INSURANCE CORPORATION
 

IN ITS CAPACITY AS RECEIVER FOR VARIOUS FAILED FINANCIAL
 

INSTITUTIONS LISTED ON SCHEDULE I HERETO,
 

AS INITIAL NGPMN AGENT,
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

IN ITS CAPACITY AS RECEIVER FOR VARIOUS FAILED FINANCIAL
 

INSTITUTIONS LISTED ON SCHEDULE I HERETO,
 

AS COLLATERAL AGENT,
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

IN ITS CAPACITY AS RECEIVER FOR VARIOUS FAILED FINANCIAL
 

INSTITUTIONS LISTED ON SCHEDULE I HERETO,
 

AS ADVANCE LENDER,
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

IN ITS CAPACITY AS RECEIVER FOR VARIOUS FAILED FINANCIAL
 

INSTITUTIONS LISTED ON SCHEDULE I HERETO,
 

AS INITIAL MEMBER,
 

AND
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

IN ITS CAPACITY AS RECEIVER FOR VARIOUS FAILED FINANCIAL
 

INSTITUTIONS LISTED ON SCHEDULE I HERETO
 

Dated as of August 26, 2010
 

Multibank RADC/CADC Loan and REO Structured Transaction 

Reimbursement, Security and Guaranty Agreement 

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TABLE OF CONTENTS
	

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

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

Section 1.2 Other Interpretive Provisions ......................................................................7
	

ARTICLE II Reimbursement .......................................................................................................... 8
	

Section 2.1 Reimbursement............................................................................................8
	

Section 2.2 Obligations Absolute ...................................................................................8
	

ARTICLE III Security Interest ........................................................................................................ 9
	

Section 3.1 Granting of Security Interest .......................................................................9
	

Section 3.2 Asset Defaults; Acquisition of Collateral..................................................11
	

Section 3.3 Continuing Security Interest ......................................................................12
	

Section 3.4 Destruction of Secured Parties Collateral..................................................12
	

Section 3.5 Releases of Collateral ................................................................................12
	

Section 3.6 Financing Statements.................................................................................13
	

Section 3.7 Power of Attorney .....................................................................................13
	

ARTICLE IV Events of Default .................................................................................................... 13
	

Section 4.1 Events of Default.......................................................................................13
	

ARTICLE V Remedies 16
	

Section 5.1 Remedies. ..................................................................................................16
	

Section 5.2 Application of Proceeds.............................................................................20
	

Section 5.3 Sale of Secured Parties Collateral. ............................................................20
	

Section 5.4 No Impairment of Action ..........................................................................21
	

Section 5.5 Remedies Cumulative; Waiver ..................................................................21
	

Section 5.6 Waiver of Certain Rights and Remedies ...................................................22
	

ARTICLE VI Guaranty22 

Section 6.1 Guaranty. ...................................................................................................22
	

Section 6.2 Right of Contribution ................................................................................23
	

Section 6.3 No Subrogation..........................................................................................23
	

Section 6.4 Amendments, etc. with Respect to the Secured Obligations.....................23
	

Section 6.5 Guaranty Absolute and Unconditional ......................................................24
	

Section 6.6 Reinstatement ............................................................................................25
	

Section 6.7 Payments....................................................................................................25
	

Section 6.8 Information ................................................................................................25
	

ARTICLE VII Representations And Warranties ........................................................................... 25
	

Section 7.1 Representations and Warranties ................................................................25
	

ARTICLE VIII Covenants ............................................................................................................ 27
	

Section 8.1 Debtor Accounts........................................................................................27
	

Section 8.2 Grantor Status; Licensing ..........................................................................27
	

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Section 8.3 LLC Operating Agreement........................................................................27
	

Section 8.9 Payment of Principal on Purchase Money Notes; Reimbursement 

Section 8.17 Debtor’s Duty To Advise Collateral Agent, Advance Lender and 

Section 8.4 Custodian/Paying Agent ............................................................................27
	

Section 8.5 Compliance with Law................................................................................28
	

Section 8.6 Servicer......................................................................................................28
	

Section 8.7 Certain Restrictions ...................................................................................28
	

Section 8.8 Change in Jurisdiction, Name, Location or Identity..................................29
	

of Collateral Agent ....................................................................................29
	

Section 8.10 Protection of Secured Parties Collateral; Further Assurances...................29
	

Section 8.11 Guaranties and Mortgages.........................................................................29
	

Section 8.12 Additional Grantors. ..................................................................................30
	

Section 8.13 Transaction with Affiliates. .......................................................................31
	

Section 8.14 Books and Records; Reports; Certifications; Audits.................................31
	

Section 8.15 Insurance....................................................................................................35
	

Section 8.16 Recovery of Expenses; Interest .................................................................35
	

Purchase Money Notes Guarantor; Delivery of Certain Notices ..............36
	

Section 8.18 Administration of REO Properties ............................................................36
	

Section 8.19 Purchase Money Notes Issuance Fee.........................................................36
	

Section 8.20 Purchase Money Notes Reissuance Fee. ...................................................37
	

ARTICLE IX Required Consent; Limits Liability ........................................................................ 37
	

Section 9.1 Required Consents; Limits Liability .........................................................37
	

Section 9.2 Limitation of Liability. ..............................................................................39
	

ARTICLE X Release of Secured Parties Collateral ...................................................................... 40
	

ARTICLE XI Liquidation of Assets.............................................................................................. 40
	

Section 11.1 Rights to Liquidate Assets and Secured Parties Collateral........................40
	

Section 11.2 Exercise of Rights to Liquidate Assets and Secured Parties 

Collateral ...................................................................................................41
	

ARTICLE XII Collateral Agent .................................................................................................... 41
	

Section 12.1 Appointment and Authorization of Collateral Agent ................................41
	

Section 12.2 Delegation of Duties ..................................................................................42
	

Section 12.3 Liability of Collateral Agent......................................................................42
	

Section 12.4 Reliance by Collateral Agent.....................................................................43
	

Section 12.5 Liability of Collateral Agent......................................................................43
	

Section 12.6 Successor Collateral Agent........................................................................44
	

ARTICLE XIII Miscellaneous ...................................................................................................... 44
	

Section 13.1 Attorney-in-Fact ........................................................................................44
	

Section 13.2 No Petition.................................................................................................44
	

Section 13.3 Reimbursement of Expenses .....................................................................44
	

Section 13.4 Termination of Security Interest ................................................................45
	

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Section 13.5 Indemnification..........................................................................................45
	

Section 13.6 Governing Law ..........................................................................................47
	

Section 13.7 Jurisdiction, Venue and Service. ...............................................................47
	

Section 13.8 Waiver of Jury ...........................................................................................49
	

Section 13.9 Notices.......................................................................................................49
	

Section 13.10 Assignment ................................................................................................51
	

Section 13.11 Entire Agreement.......................................................................................51
	

Section 13.12 Amendments and Waivers.........................................................................51
	

Section 13.13 Confidentiality...........................................................................................51
	

Section 13.14 Reinstatement ............................................................................................52
	

Section 13.15 Interpretation; No Presumption .................................................................52
	

Section 13.16 Severability................................................................................................52
	

Section 13.17 Survival......................................................................................................53
	

Section 13.18 No Third Party Beneficiaries .....................................................................53
	

Section 13.19 Counterparts; Facsimile Signatures ...........................................................53
	

Exhibit A Joinder Agreement 

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REIMBURSEMENT, SECURITY AND GUARANTY AGREEMENT
	

THIS REIMBURSEMENT, SECURITY AND GUARANTY AGREEMENT, effective 

as of the _____ day of August, 2010 (this “Agreement”), is entered into by and among 2010-1 

RADC/CADC VENTURE, LLC, a Delaware limited liability company (the “Debtor”), each of 

the other entities listed on the signature pages hereof or that becomes a party hereto pursuant to 

Section 8.12 (collectively, the “Subsidiary Grantors,” and each individually, a “Subsidiary 

Grantor”; the Subsidiary Grantors together with Debtor, collectively, the “Grantors,” and each 

individually, a “Grantor”), FEDERAL DEPOSIT INSURANCE CORPORATION (acting in its 

separate capacities, the “FDIC”) in its corporate capacity, as the Purchase Money Notes 

Guarantor, the FDIC, in its capacity as Receiver for each of the failed financial institutions listed 

on Schedule I to this Agreement, as the initial NGPMN Agent, the FDIC, in its capacity as 

Receiver, as the Collateral Agent for the Secured Parties (as such term is defined below) (in such 

capacity, together with any successor collateral agent, the “Collateral Agent”), the FDIC, in its 

capacity as Receiver, as the lender under the Advance Facility Agreement (in such capacity, the 

“Advance Lender”), the FDIC, in its capacity as Receiver, as Initial Member under the LLC 

Operating Agreement referred to below (in such capacity, the “Initial Member”), solely for 

purposes of Sections 4.1(a), 4.1(d), 4.1(f), 4.1(l), 5.1(a)(vi) – (ix), 5.1(b), 5.1(c), 5.5, 8.14(c) – 

(h), 9.1, 11.1, 11.2 and 13.6 – 13.19, and the FDIC, in its capacity as Receiver, solely for 

purposes of Sections 8.19, 11.1, 11.2 and 12.4(b). Capitalized terms used in this Agreement 

shall have the meanings assigned to them in, or by reference in, that certain Agreement of 

Common Definitions, dated as of the Closing Date, among the Initial Member, the Debtor and 

others, with respect to the Transaction (the “Agreement of Common Definitions”). 

WHEREAS, pursuant to the Contribution Agreement, the Receiver has transferred all of 

its right, title and interest in and to the Assets, including equity interests in Ownership Entities 

and certain Acquired REO Property, to the Debtor partly as a sale and partly as a capital 

contribution, and in consideration for the transfer of the Assets to the Debtor to the extent such 

transfer constitutes a sale, the Debtor has issued to the Receiver four Classes of Non-Guaranteed 

Purchase Money Notes, dated as of the Closing Date, in the principal face amount of 

$108,988,000.00; 

WHEREAS, the Non-Guaranteed Purchase Money Notes are issued without the 

guarantee of the Purchase Money Notes Guarantor, however, the Initial NGPMN Holder, with 

the consent of the Purchase Money Notes Guarantor, has the right to Convert such notes from 

time to time, in whole or in part, to one or more Guaranteed Purchase Money Notes; 

WHEREAS, upon the exercise by the Initial NGPMN Holder, with the consent of the 

Purchase Money Notes Guarantor of the Conversion Right to convert any Non-Guaranteed 

Purchase Money Note into one or more Classes of Guaranteed Purchase Money Notes, the 

obligations with respect to each Converted Guaranteed Purchase Money Note shall be made 

subject to the guaranty of the Purchase Money Notes Guarantor pursuant to a Purchase Money 

Notes Guaranty Agreement executed and delivered by the Purchase Money Notes Guarantor at 

the time of such Conversion; 

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WHEREAS, the Advance Lender has agreed to provide the Advance Facility to the 

Debtor, pursuant to which the Advance Lender will make advances to the Debtor to enable the 

Debtor to (a) pay or make, as applicable, certain Working Capital Expenses, (b) replenish the 

Working Capital Reserve up to the Working Capital Reserve Target and (c) pay Permitted 

Vertical Completion Expenses; and 

WHEREAS, in connection with the foregoing, each Grantor has agreed to (a) provide the 

Collateral Agent, for the benefit of the Secured Parties, with the collateral identified in this 

Agreement to secure the Secured Obligations and (b) guaranty payment of the Secured 

Obligations in order to induce (x) the Purchase Money Notes Guarantor to enter into each 

Purchase Money Notes Guaranty and to secure the Debtor’s obligation to reimburse the Purchase 

Money Notes Guarantor for any payments made by the Purchase Money Notes Guarantor 

thereunder; (y) the Advance Lender to enter into the Advance Facility Agreement and make the 

advances to Debtor thereunder and to secure Debtor’s obligations thereunder; and (z) the 

Receiver to provide financing to Debtor pursuant to the terms of the Non-Guaranteed Purchase 

Money Note. 

NOW, THEREFORE, in consideration of the promises contained in this Agreement and 

for other good and valuable consideration, the receipt and adequacy of which are hereby 

acknowledged, each Grantor, the Purchase Money Notes Guarantor, the Advance Lender, the 

Collateral Agent, the NGPMN Agent and the Initial Member agree as follows: 

ARTICLE I
	

Definitions
	

Section 1.1 Definitions. 

(a) For purposes of this Agreement, including the prefatory paragraphs, 

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

Agreement of Common Definitions (as such term is defined below). In addition, for purposes of 

this Agreement, the following terms shall have the meanings and definitions hereinafter 

respectively set forth: 

“Agreement” means this Reimbursement, Security and Guaranty 

Agreement. 

“Allonge” has the meaning given in Section 3.1 of this Agreement. 

“Controlling Party” means (i) until all “Advance Facility Obligations” 

(as such term is defined in the Advance Facility Agreement) have been paid and the Advance 

Facility and the commitments thereunder have been terminated and all Advance Loans and other 

amounts owing under the Asset Facility Agreement repaid in full, the Advance Lender, (ii) after 

the Advance Facility has been terminated and repaid in full, the Purchase Money Notes 

Guarantor and (iii) after the Advance Facility has been repaid in full and terminated and the 

Guaranteed Purchase Money Notes (including the satisfaction of all reimbursement obligations 

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to the Purchase Money Notes Guarantor on account of any Guaranty Payments) have been 

defeased in full or if no Guaranteed Purchase Money Notes have been issued or created by 

Conversion and the Initial NGPMN Holder has irrevocably terminated its right to cause a 

Conversion, the NGPMN Agent. 

“Debtor” has the meaning given in the introductory paragraph to this 

Agreement. 

“Debtor Accounts” means, collectively the Collection Account, the 

Distribution Account, the Defeasance Account, the Working Capital Reserve Account and the 

Company Development Account. 

“Default” means any event or condition that constitutes an Event of 

Default or that, with the giving of any notice, the passage of time, or both, would constitute an 

Event of Default. 

“Event of Default” means each of the “Events of Default” described in 

Section 4.1 of this Agreement. 

“Grantor” and “Grantors” have the meanings set forth in the 

introductory paragraph of this Agreement. 

“Guaranty” means, with respect to any particular indebtedness or other 

obligation, (i) any direct or indirect guaranty 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 guarantying 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. 

“Indebtedness” means, as applied to any Person, without duplication, (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 

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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 capitalized 

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 Guaranty. 

“Indemnification Losses” has the meaning given in Section 13.5(a) of 

this Agreement. 

“Indemnified Parties” has the meaning given in Section 13.5(a) of this 

Agreement. 

“Intellectual Property” means all United States or foreign intellectual 

and similar property of every kind and nature, including, without limitation, inventions, designs, 

patents, copyrights, trademarks, trade secrets, confidential or proprietary and technical and 

business information, know-how, show-how or other data or information, software and databases 

and all embodiments or fixations thereof and related documentation, registrations and franchises, 

and any license of any of the foregoing, and all additions, improvements and accessions to, and 

books and records describing or used in connection with, any of the foregoing and all rights to 

sue at law or in equity for any infringement or other violation thereof, including the right to 

receive all proceeds and damages therefrom. 

“Non-Guaranteed Purchase Money Note Obligations” means all debts, 

liabilities, obligations, covenants and duties of any Debtor arising under any Non-Guaranteed 

Purchase Money Note, whether direct or indirect (including those acquired by assumption), 

absolute or contingent, due or to become due, now existing or hereafter arising and including 

interest and fees that accrue after the commencement by or against the Debtor under any Debtor 

Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such 

interest and fees are allowed claims in such proceeding. Without limiting the generality of the 

foregoing, the obligations of the Debtor under the Non-Guaranteed Purchase Money Notes 

include the obligation to pay principal, interest, charges, expenses, fees, attorney costs, 

indemnities and other amounts payable by the Debtor under the Non-Guaranteed Purchase 

Money Note. 

“NY UCC” means the Uniform Commercial Code as in effect on the date 

hereof in the State of New York, as amended from time to time, and any successor statute. 

“Perfection Requirement” has the meaning given in Section 7.1(e) of 

this Agreement. 

“Proceedings” means any suit in equity, action at law or other judicial or 

administrative proceeding. 

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“Purchase Money Notes Issuance Fee” has the meaning given in Section 

8.19 of this Agreement. 

“Purchase Money Notes Reissuance Fee” has the meaning given in 

Section 8.20 of this Agreement. 

“Purchase Money Notes Trigger Event” means an event that shall be 

deemed to have occurred if, as of any time during the periods set forth below, (i) the total amount 

then on deposit in the Defeasance Account (without giving effect to any net losses thereon 

arising from the investment of such amounts in accordance with the Custodial and Paying 

Agency Agreement), plus the sum of the aggregate amount from the Defeasance Account 

previously paid by the Debtor (excluding any payments made pursuant to any Purchase Money 

Notes Guaranty) to all Holders to repay any Purchase Money Note and the aggregate amount 

previously paid to the Purchase Money Notes Guarantor to reimburse the Purchase Money Notes 

Guarantor for payments it has made pursuant to any Purchase Money Notes Guaranty, divided 

by (ii) the original aggregate principal amount of the Purchase Money Notes as of the Closing 

Date is less than: 

Fourth (4th) anniversary of the Closing Date or any time 

thereafter before the fifth (5th) anniversary of the Closing Date: 25% 

Fifth (5th) anniversary of the Closing Date or any time 

thereafter before the sixth (6th) anniversary of the Closing Date: 50% 

Sixth (6th) anniversary of the Closing Date or any time 

thereafter before the seventh (7th) anniversary of the Closing Date: 75% 

Seventh (7th) anniversary of the Closing Date or any time 

thereafter: 100% 

“Related Entities” has the meaning given in Section 13.5(a) of this 

Agreement. 

“REO Collateral Documents” means, with respect to each Acquired 

REO Property, to the extent applicable, the following, (i) the REO Mortgage and (ii) to the 

extent applicable, a deed in lieu of foreclosure, a subordination agreement to subordinate the lien 

of the Asset in favor of the Debtor to the lien in favor of the Collateral Agent for the benefit of 

the Secured Parties, opinions of counsel, lender’s policies of title insurance (together with all 

endorsements thereto reasonably required by the Collateral Agent, including endorsements with 

respect to future advances), amendments to the Transaction Documents deemed necessary or 

advisable by the Collateral Agent to reflect the particular nature and characteristics of the 

Acquired REO Property in question and the requirements of local law and such additional items 

as an institutional lender would customarily require in a construction or permanent, as 

applicable, loan transaction involving a property similar to such Acquired REO Property (all of 

the foregoing to be in form and substance satisfactory to the Collateral Agent). 

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“REO Mortgage” means, with respect to each Acquired REO Property, a 

mortgage, deed of trust, trust deed or deed to secure debt securing the Secured Obligations in 

form suitable for recording in the appropriate public records and otherwise in form and substance 

satisfactory to the Collateral Agent (which REO Mortgage may, if the Mortgage on the 

applicable Acquired REO Property has not been discharged and if the Collateral Agent agrees, 

consist of such Mortgage, as assigned to the Collateral Agent and including such Modifications 

thereto as the Collateral Agent might require). 

“Sale” has the meaning given in Section 5.3 of this Agreement. 

“Secured Obligations” means, collectively, (i) the Guaranteed 

Obligations and all obligations of the Grantors pursuant to this Agreement (including 

specifically, but not limited to, the obligations pursuant to Sections 2.1, 8.9 and 13.3), (ii) the 

Advance Facility Obligations (as such term is defined in the Advance Facility Agreement) and 

(iii) the Non-Guaranteed Purchase Money Note Obligations. 

“Secured Parties” means, collectively, the Collateral Agent, each coagent or sub-agent appointed by the Collateral Agent from time to time pursuant to this 

Agreement, the Purchase Money Notes Guarantor, each NGPMN Holder, the NGPMN Agent 

and the Advance Lender. 

“Secured Parties Collateral” has the meaning given in Section 3.1 of this 

Agreement. 

“Secured Parties Collateral Documents” means, collectively, this 

Agreement, the Account Control Agreements, the REO Collateral Documents, the Custodial and 

Paying Agency Agreement and each of the other agreements, instruments or documents that 

creates or purports to create a Lien or guaranty in favor of the Collateral Agent for the benefit of 

the Secured Parties. 

“Site Assessment” has the meaning given in Section 3.2(b) of this 

Agreement. 

“Subsidiary Grantor” and “Subsidiary Grantors” have the meanings 

given in the introductory paragraph to this Agreement. 

“Successor Servicer” has the meaning given in Section 5.1(a)(vi) of this 

Agreement. 

“Third Party Claim” has the meaning given in Section 13.5(a) of this 

Agreement. 

“Transfer” has the meaning given in Section 9.1(a) of this Agreement. 

(b) UCC Terms. The following terms have the meanings given to them in the 

UCC and terms used herein without definition that are defined in the UCC have the meanings 

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given to them in the UCC (such meanings to be equally applicable to both the singular and plural 

forms of the terms defined): “account”, “chattel paper”, “commercial tort claim”, “deposit 

account”, “equipment”, “fixture”, “general intangible”, “goods”, “instruments”, “inventory”, 

“investment property”, “letter-of-credit right”, “proceeds”, “security” and “supporting 

obligation”. 

Section 1.2 Other Interpretive Provisions. With reference to this Agreement and each 

other Secured Parties Collateral Document, unless otherwise specified herein or in such other 

Secured Parties Collateral Document: 

(a) References to “Affiliates” include, with respect to any specified Person, 

only such other Persons which from time to time constitute “Affiliates” 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” of such specified Person, except to the extent that any such 

reference specifically provides otherwise. 

(b) The term “or” is not exclusive. 

(c) A reference to a Law includes any amendment, modification or 

replacement to such Law. 

(d) References to any document, instrument or agreement (including this 

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 

thereto, 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. 

(e) Unless otherwise specified, the words “hereof,” “herein” and “hereunder” 

and words of similar import shall refer to this Agreement as a whole and not to any particular 

provision of this Agreement. 

(f) The words “include” and “including” and words of similar import 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. 

(g) The word “during” when used 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. 

(h) Unless the context otherwise requires, singular nouns and pronouns when 

used herein shall be deemed to include the plural and vice versa and impersonal pronouns shall 

be deemed to include the personal pronoun of the appropriate gender. 

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ARTICLE II
	

Reimbursement
	

Section 2.1 Reimbursement. In accordance with and subject to Section 8.9, the Debtor 

agrees to pay to the Purchase Money Notes Guarantor (a) on the Distribution Date following any 

payment by the Purchase Money Notes Guarantor with respect to the Guaranteed Obligations, 

the amount of such payment (provided, however, that any such payment by the Purchase Money 

Notes Guarantor occurring after the Determination Date immediately preceding such 

Distribution Date shall be payable on the second Distribution Date following such payment); and 

(b) for any day on which a Purchase Money Notes Trigger Event is continuing, interest on an 

amount equal to the lesser of (i) the amount, if any, necessary to be added to the Defeasance 

Account (without giving effect to any net losses thereon arising from the investment of such 

amounts in accordance with the Custodial and Paying Agency Agreement) to cure the Purchase 

Money Notes Trigger Event and (ii) any amount remaining unpaid by the Debtor pursuant to 

clause (a) of this Section 2.1 for each day unpaid, from the occurrence of a Purchase Money 

Notes Trigger Event until the earlier of (I) the day such Purchase Money Notes Trigger Event is 

cured and (II) the day all amounts owing to the Purchase Money Notes Guarantor pursuant to 

clause (a) of this Section 2.1 are reimbursed in full (both before and after judgment), payable in 

accordance with Section 5.1 of the Custodial and Paying Agency Agreement at a rate per annum 

equal to 30-day LIBOR + 3.00% (calculated on an actual/360 day basis). All payments by the 

Debtor to the Purchase Money Notes Guarantor hereunder shall be made free and clear of set-off 

or counterclaim in lawful currency of the United States and in immediately available funds. 

Section 2.2 Obligations Absolute. The obligations of the Debtor pursuant to this 

Agreement shall be absolute, unconditional and irrevocable, and shall be discharged strictly in 

accordance with the terms set forth herein, under all circumstances whatsoever, including, 

without limitation, the following circumstances: 

(a) any lack of validity or enforceability of this Agreement, any Purchase 

Money Note, any Purchase Money Notes Guaranty, the Advance Facility Documents or any 

other agreement or instrument relating thereto; 

(b) any amendment or waiver of or any consent to departure from all or any of 

the provisions of this Agreement, any Purchase Money Note, any Purchase Money Notes 

Guaranty or any Advance Facility Document; 

(c) the existence of any claim, setoff, defense or other right that the Debtor 

may have at any time against the Purchase Money Notes Guarantor, the Advance Lender, the 

Receiver or any other Person, whether in connection with this Agreement, any Purchase Money 

Note, any Advance Facility Document or any unrelated transaction; 

(d) payment by the Purchase Money Notes Guarantor pursuant to any 

Purchase Money Notes Guaranty against demand of the Receiver that does not comply with the 

terms of such Purchase Money Notes Guaranty; 

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(e) any other act or omission to act or delay of any kind by the Purchase 

Money Notes Guarantor, the Advance Lender or any other Person or any other event or 

circumstance whatsoever that might, but for the provisions of this Section, constitute a legal or 

equitable discharge of or defense to the Debtor’s obligations hereunder pursuant to this 

Agreement; and 

(f) any exercise from time to time of the Conversion Right by the Initial 

NGPMN Holder with the consent of the Purchase Money Notes Guarantor. 

ARTICLE III 

Security Interest 

Section 3.1 Granting of Security Interest. To secure the Debtor’s payment and 

performance of the Secured Obligations and each Subsidiary Grantor’s guaranty of payment of 

the Secured Obligations, each Grantor hereby transfers, assigns, sets over, conveys, mortgages 

and grants to the Secured Parties, subject to the terms of this Agreement, the Advance Facility 

Agreement and the Purchase Money Notes (and any substitute purchase money notes that might 

be issued), a continuing security interest in, lien on and right of setoff against all of its right, title 

and interest in and to all accounts, chattel paper, deposit accounts, documents (as defined in the 

UCC), equipment, fixtures, general intangibles, Intellectual Property, instruments, insurance (as 

defined in the UCC), inventory, investment property, letter-of-credit rights, money (as defined in 

the UCC) and other property and any supporting obligations related thereto, in each case, 

whether now owned or hereafter acquired, regardless of whether such property is in the future 

subdivided into one or more groups to separately secure the Debtor’s and each Subsidiary 

Grantor’s obligations hereunder, including: 

(a) the Assets, including all future advances made with respect thereto; 

(b) the Asset Documents; 

(c) all amounts payable to such Grantor pursuant to the Asset Documents and 

all obligations owed to such Grantor in connection with the Assets and the Asset Documents; 

(d) all Collateral, including all Acquired Property; 

(e) all claims, suits, causes of action and any other right of such Grantor, 

whether known or unknown, against a Borrower, any Obligor or other obligor or any of their 

respective Affiliates, agents, representatives, contractors, advisors or any other Person arising 

under or in connection with the Assets or the Asset Documents or that is in any way based on or 

related to any of the foregoing, including contract claims, tort claims, malpractice claims, 

statutory claims and all other claims at law or in equity arising under or in connection with the 

Asset Documents or the transactions related thereto or contemplated thereby ; 

(f) all cash, securities and other property received or applied by or for the 

account of such Grantor under the Assets, including all distributions received through 

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redemption, consummation of a plan of reorganization, restructuring, liquidation or otherwise of 

a Borrower, Obligor or other obligor under or with respect to the Assets, and any securities, 

interest, dividends or other property that may be distributed or collected with respect to any of 

the foregoing; 

(g) the Debtor Accounts and any other accounts established by the Debtor 

pursuant to the Custodial and Paying Agency Agreement, and all amounts on deposit therein 

(provided, however, that the security interest in, lien on and right of setoff against the 

Defeasance Account and all amounts on deposit therein shall secure only the payment and 

performance of the Guaranteed Obligations and the Non-Guaranteed Purchase Money Notes 

Obligations); 

(h) the equity interests in all Ownership Entities; 

policies; and 

(i) all of such Grantor’s right, title and interest in and to all insurance 

(j) any and all distributions on, or proceeds or products of or with respect to, 

any of the foregoing, and the rights to receive such proceeds and products (all of the foregoing 

property described in this Section 3.1, the “Secured Parties Collateral”). 

This grant of a security interest in the Secured Parties Collateral is expressly intended to remain 

in full force and effect from the Closing Date until the Secured Obligations, as such might be 

modified in connection with the amendment of this Agreement, the Advance Facility Agreement, 

any Purchase Money Notes Guaranty or any Transaction Document, have been satisfied in full. 

All of the Notes and other Custodial Documents shall be held by the Custodian/Paying 

Agent as set forth in Section 8.4 (except and to the extent the same are permitted to be removed 

from the Custodian/Paying Agent’s possession as provided in the Custodial and Paying Agency 

Agreement). The Collateral Agent shall retain possession of the Notes and other Custodial 

Documents with respect to the Assets until such time as the Debtor retains the Custodian/Paying 

Agent pursuant to the provisions of Section 8.4 and, at such time, shall cause the 

Custodian/Paying Agent to take possession of the Notes and other Custodial Documents with 

respect to the Assets on behalf of Collateral Agent. The Debtor shall deliver to the Collateral 

Agent within sixty days after the Closing Date, (x) for each Asset, an allonge, endorsed in blank, 

and executed by the Debtor (an “Allonge”), and (y) for each Asset, a Mortgage Assignment, in 

blank, and executed by the Debtor. Such Allonges and Mortgage Assignments shall be held by 

the Custodian/Paying Agent with the Notes and other Custodial Documents. Reasonable and 

customary expenses paid to third parties actually incurred by the Debtor in preparing and 

delivering such allonges and Mortgage Assignments shall constitute Pre-Approved Charges for 

purposes of the Custodial and Paying Agency Agreement. The Collateral Agent may use the 

Allonge to effect the endorsement of a Note or the Mortgage Assignment to effect the 

assignment of a mortgage to the Collateral Agent at any time if an Event of Default occurs and is 

continuing. Notwithstanding anything in this Agreement to the contrary, if the Debtor (acting by 

and through the Manager in accordance with the applicable provisions of the LLC Operating 

Agreement) elects to remove any MERS Registered Mortgage from the MERS System in 

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accordance with the LLC Operating Agreement and the Contribution Agreement, then the 

Debtor must execute and deliver to the Collateral Agent or the Custodian/Paying Agent, as the 

case might be, the Allonge and Mortgage Assignment described above in this Section 3.1 

promptly after the removal of such MERS Registered Mortgage from the MERS System and take 

such other action so as to cause such MERS Registered Mortgage and all Collateral relating to 

such MERS Registered Mortgage to be and remain subject to the first priority security interest 

granted pursuant to this Agreement. 

Section 3.2 Asset Defaults; Acquisition of Collateral. 

(a) Discretion of Debtor in Responding to Defaults of a Borrower. Upon the 

occurrence of an event of default pursuant to any of the Asset Documents, but subject to the 

other terms and conditions of this Agreement and the Advance Facility Agreement applicable 

thereto, the Debtor 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 respective interests of the Debtor and the 

Collateral Agent in the applicable Asset and the Collateral, (ii) the declaration and recording of a 

notice of such default and the acceleration of the maturity of the Asset, (iii) the institution of 

proceedings to foreclose the Asset Documents securing the Asset pursuant to the power of sale 

contained therein or through a judicial action, (iv) the institution of proceedings against any 

Obligor, (v) the acceptance of a deed in lieu of foreclosure, (vi) the purchase of the real property 

Collateral at a foreclosure sale or trustee’s sale or the purchase of the personal property 

Collateral at a Uniform Commercial Code sale, (vii) the institution or continuation of 

proceedings to obtain a deficiency judgment against such Borrower or any Obligor and (viii) the 

institution of any other remedy provided for in the respective Asset Documents or at law. 

(b) Acquisition of Collateral. Nothing in this Section 3.2 or anything else in 

this Agreement shall be deemed to affirmatively require any Grantor to cause to be acquired all 

or any portion of any Collateral with respect to which there exists any Environmental Hazard. 

Except as otherwise directed by the Debtor, the Debtor shall not permit the Servicer or any 

Subservicer to acquire or otherwise cause the Debtor or any subsidiary or other entity in which 

the Debtor owns any interest to acquire all or any portion of any Collateral having any actual or 

threatened Environmental Hazard known to the Debtor 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 Collateral (whether by foreclosure, deed in lieu of foreclosure, by 

power of sale or by sale pursuant to the Uniform Commercial Code, or otherwise), the Debtor 

shall cause to be commissioned with respect to such Collateral 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 Assessment”), and the cost of such Site Assessment shall be reimbursable as if it were a 

Servicing Expense as long as the costs for such Site Assessment were not paid to any Affiliate of 

the Debtor, or any Affiliate of any Servicer or Subservicer. If title to any Collateral with respect 

to which there exists any Environmental Hazard is to be acquired by foreclosure, by deed in lieu 

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of foreclosure, by power of sale or by sale pursuant to the Uniform Commercial Code, or 

otherwise, title to such Collateral shall be taken and held in the name of an Ownership Entity, 

whether already in existence or formed by the Debtor for such purpose, provided that each 

Ownership Entity may only hold title to a single property constituting Collateral with respect to 

which there exists any Environmental Hazard. The purposes of the Ownership Entity shall be to 

hold the Acquired Property pending sale, to complete construction of such Acquired Property 

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

to the Debtor and the Collateral Agent and to sell the Acquired Property as promptly as 

practicable in a way designed to minimize financial loss to the Debtor and the Collateral Agent, 

in each case, in conformity with the Advance Facility Agreement and any applicable Business 

Plan. 

(c) Acquired REO Property. If title to any Acquired REO Property is to be 

acquired by the Debtor by foreclosure, by deed in lieu of foreclosure, by power of sale or by sale 

pursuant to the Uniform Commercial Code, or otherwise, title to such Acquired REO Property 

shall be taken and held in the name of one or more Ownership Entities, whether already in 

existence or formed by the Debtor for such purpose. The Debtor shall be the sole member of any 

Ownership Entity. The purposes of the Ownership Entity shall be to hold the Acquired REO 

Property pending sale, to complete construction of such Acquired REO Property and to operate 

the Acquired REO Property as efficiently as possible in order to minimize financial loss to the 

Debtor and the Collateral Agent and to sell the Acquired REO Property as promptly as 

practicable in a way designed to minimize financial loss to the Debtor and the Collateral Agent, 

in each case in conformity with the Advance Facility Agreement and any applicable Business 

Plan. 

Section 3.3 Continuing Security Interest. This Agreement shall create a continuing 

security interest in any and all of the Secured Parties Collateral and shall remain in full force and 

effect until all Non-Guaranteed Purchase Money Notes have been paid in full or converted into 

Guaranteed Purchase Money Notes, the termination of all Purchase Money Notes Guaranties, if 

any, and the termination of the Advance Facility Agreement in accordance with their respective 

terms and the satisfaction and discharge of all Secured Obligations in full. It is the intent of each 

Grantor and the Collateral Agent to create a continuing, perfected first priority security interest 

in the Secured Parties Collateral for the benefit of the Secured Parties. The release of the 

security interest in any or all of the Secured Parties Collateral, the taking or acceptance of 

additional security, or the resort by the Collateral Agent to any security it may have in any order 

it may deem appropriate, shall not affect the liability of any Person on the Secured Obligations 

secured hereby or the security interest and Lien granted hereby (other than in respect of the 

released Secured Parties Collateral). 

Section 3.4 Destruction of Secured Parties Collateral. No injury to, or loss or 

destruction of, the Secured Parties Collateral or any part thereof shall relieve any Grantor of any 

of its obligations hereunder or any of the Secured Obligations. 

Section 3.5 Releases of Collateral. Each Grantor is authorized to cause the release or 

assignment of any Lien granted to or held by such Grantor on any Collateral, solely to the extent 

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necessary, (a) upon a final, nonappealable order of a court of competent jurisdiction permitting 

or directing disposition thereof, (b) upon payment of any Asset in full and satisfaction in full of 

all of the secured obligations with respect to an Asset or upon receipt of a discounted payoff as 

payment in full of an Asset, (c) as is necessary in connection with the foreclosure on a 

Mortgaged Property, acceptance of a deed in lieu thereof or Modification or restructuring of the 

terms thereof, (d) in connection with such Grantor’s sale of an Asset or any Collateral or (e) in 

the case of condominium units, individual land parcels and similar portions of the Collateral, as 

are permitted in, and to the extent required by, the applicable Asset Documents; provided, 

however, that any such transaction is consistent with the Advance Facility Agreement and the 

Business Plan and the proceeds of such sale or disposition are applied in accordance with the 

Priority of Payments set forth in Section 5.1 of the Custodial and Paying Agency Agreement and 

the other terms thereof. 

Section 3.6 Financing Statements. Each Grantor hereby irrevocably authorizes, and 

ratifies and retroactively authorizes any filing made on or prior to the Closing Date, the filing, at 

any time and from time to time, of any financing statements or continuation statements, and 

amendments to such financing statements or any similar document in such jurisdictions and with 

such filing offices as the Collateral Agent may determine are necessary or advisable to perfect 

the security interest granted to it hereunder. Such financing statements may indicate the Secured 

Parties Collateral as all assets of such Grantor or words of similar effect as being of any equal or 

lesser scope or with greater detail or in any other manner as the Collateral Agent may determine 

is necessary, advisable or prudent to ensure the perfection of the security interest in the Secured 

Parties Collateral granted to the Collateral Agent herein pursuant to the terms hereof. 

Section 3.7 Power of Attorney. Each Grantor hereby irrevocably appoints the 

Collateral Agent its lawful attorney-in-fact, with full authority in the place and stead of such 

Grantor and in the name of such Grantor, the Collateral Agent or otherwise, and with full power 

of substitution in the premises (which power of attorney, being coupled with an interest, is 

irrevocable for so long as this Agreement shall be in effect), from time to time in the Collateral 

Agent’s discretion, following a failure by the Debtor to satisfy promptly its obligations pursuant 

to Section 3.1, Section 3.2, Section 4.10, Section 4.11 or Section 4.12 of the Contribution 

Agreement as it relates to the preparing, furnishing, executing and/or recording of all relevant 

Transfer Documents and other documents as might be reasonably necessary to satisfy the 

transfer and recording obligations of the Debtor pursuant to Section 3.1, Section 3.2, Section 

4.10, Section 4.11 or Section 4.12, to execute, furnish and record all relevant Transfer 

Documents and other documents as might be reasonably necessary to satisfy such transfer and 

recording obligations of the Debtor. 

ARTICLE IV
	

Events of Default
	

Section 4.1 Events of Default. 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 

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or regulation of any administrative or governmental body) shall constitute an “Event of Default” 

hereunder: 

(a) the receipt by the Debtor, the Private Owner or the Manager, as 

applicable, from the Initial Member of notice of the occurrence and continuance beyond any 

applicable cure periods of an “Event of Default” (pursuant to and as such term is defined in the 

LLC Operating Agreement); 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 (A) 

the Debtor or (B) the Private Owner; or (ii) with respect to any Servicer (or any Subservicer); 

provided, that such Insolvency Event pursuant to this clause (ii) (that is not otherwise an 

Insolvency Event under clause (i) above shall not be an Event of Default pursuant to this 

Agreement (but in all events shall 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 days after the occurrence of 

such Insolvency Event; or 

(c) the occurrence of any Dissolution Event with respect to the Private 

Owner; or 

(d) any failure of the Debtor or the Private Owner to pay or to cause to 

be paid any Servicing Expense when due, which failure continues unremedied for a period of 

thirty days or more after the date on which written notice of such failure requiring the same to be 

remedied shall have been given to the Debtor and the Private Owner; provided, however, that 

such failure to pay or cause to be paid any Servicing Expense relating to an Asset pursuant to this 

paragraph (d) shall not be an Event of Default pursuant to this Agreement, to the extent that the 

Debtor or the Private Owner reasonably has determined in accordance with applicable Servicing 

Standards that such Servicing Expense, if so paid, when combined with all reimbursed previous 

Servicing Expenses, Required Funding Draws, Discretionary Funding Advances and PreApproved Charges with respect to such Asset (and any remaining amounts owing to the Initial 

Member with respect to its servicing of such Asset as described in the Contribution Agreement), 

would not be recoverable from the Asset Proceeds from such Asset; or 

(e) the failure of the Debtor, the Private Owner or the Manager to 

comply in any material respect with or enforce the provisions of the LLC Operating Agreement, 

which failure continues unremedied for a period of thirty days or more after the date on which 

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

Debtor, the Private Owner or the Manager (in any capacity), as applicable; or 

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

any material respect its obligations pursuant to the Servicing Agreement, which continues 

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

requiring the same to be remedied shall have been given by the Initial Member or the Manager to 

the Servicer or by the Purchase Money Notes Guarantor, the Advance Lender or the Collateral 

Agent to Debtor, or (ii) a failure by the Manager (in its individual capacity) to replace the 

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Servicer upon the occurrence of either an Event of Default pursuant to this Agreement as a result 

of the Servicer’s acts or omissions or a material breach of or event of default pursuant to the 

Servicing Agreement by the Servicer, in either case that continues unremedied for a period of 

thirty days or more after the date on which written notice of such failure requiring the same to be 

remedied shall have been given to the Manager (in any capacity); or 

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

material respect with its obligations pursuant to the Servicing Agreement or the Debtor to 

comply in any material respect with its obligations pursuant to the Custodial and Paying Agency 

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

remains unremedied for a period of thirty days or more after the date on which written notice of 

such failure requiring the same to be remedied shall have been given to the Manager (in any 

capacity) or the Debtor, as applicable; or 

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

there shall occur a Change of Control with respect to the Manager or the Private Owner, in either 

case without the consent of the Required Consenting Parties; or 

(i) the failure of the Manager or the Private Owner to remit or cause 

to be remitted all Asset Proceeds received by it to the Custodian/Paying Agent as and when 

required; or 

(j) the failure at any time of the Private Owner to maintain Additional 

Security in an amount equal to or exceeding $5,000,000.00 or, if applicable, any failure of the 

bank issuing the Qualifying Letter of Credit to comply with its terms; or 

(k) any material breach of a representation or warranty made by the 

Debtor in this Agreement or the Advance Facility Agreement or any documents related thereto 

that remains unremedied for a period of thirty days or more after the date on which written notice 

of such breach requiring the same to be remedied shall have been given to the Debtor; or 

(l) the failure of the Debtor or the Manager to cause the liquidation of 

the Assets in accordance with Section 11.2 upon the exercise of the rights of Initial Member, the 

Receiver, the Advance Facility Lender and the NGPMN Agent in Section 11.1; or 

(m) any failure by the Debtor to pay or to cause the payment of any 

fees and expenses of the Custodian/Paying Agent when due, which failure continues unremedied 

for a period of thirty days or more after the date on which written notice of such failure requiring 

the same to be remedied shall have been given to the Debtor; or 

(n) any failure by the Debtor to cause any Discretionary Funding 

Advances to be repaid in full to the extent Asset Proceeds from the applicable Asset are available 

for such repayment; or 

(o) the occurrence of a Purchase Money Notes Trigger Event unless 

such Purchase Money Notes Trigger Event is cured within ten Business Days; or 

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(p) the occurrence of any “Event of Default” pursuant to and as 

defined in the Advance Facility Agreement; or 

(q) any other failure (other than those specified in any of subsections 

(a) through (p) above) on the part of the Debtor duly to observe or perform in any material 

respect any other covenants or agreements on the part of the Debtor contained in this Agreement 

(including any obligations imposed upon any Servicer or Subservicer but excluding any failure 

to pay any amount payable pursuant to Section 2.1) or the Advance Facility Agreement or any 

documents related thereto that continues unremedied for a period of thirty days or more after the 

date on which written notice of such failure requiring the same to be remedied shall have been 

given to the Debtor; provided, however, that in the case of a failure that cannot be cured within 

thirty days, the cure period shall be extended for an additional thirty days if the Debtor can 

demonstrate to the reasonable satisfaction of the Purchase Money Notes Guarantor, the NGPMN 

Agent and the Advance Lender that the Debtor is diligently pursuing remedial action. 

ARTICLE V
	

Remedies
	

Section 5.1 Remedies. 

(a) If an Event of Default shall have occurred and be continuing: 

(i) The Purchase Money Notes Guarantor and the NGPMN Agent, 

upon the occurrence of such Event of Default, shall notify the Custodian/Paying Agent thereof, 

and the Purchase Money Notes Guarantor and the NGPMN Agent in their sole discretion may 

cause the Holders (as such term is defined in each Purchase Money Note) to declare the 

applicable Class of the Purchase Money Notes to be immediately due and payable, by a notice in 

writing to the Debtor and the Custodian/Paying Agent, and upon any such declaration the unpaid 

principal amount of such Class of Purchase Money Notes, together with all other accrued and 

unpaid amounts in respect thereof through the date of acceleration, shall become immediately 

due and payable; provided, however, that with respect to an Event of Default pursuant to Section 

4.1(b)(i)(A), the unpaid principal amount of, and such amounts in respect of, each Purchase 

Money Note shall automatically become immediately due and payable; 

(ii) The Purchase Money Notes Guarantor may institute Proceedings 

for the collection of all amounts then payable by Debtor pursuant to Section 2.1 of this 

Agreement and the Collateral Agent may institute Proceedings for the collection of all other 

amounts then payable by Debtor pursuant to this Agreement, whether by declaration or 

otherwise, enforce any judgment obtained, and collect from Debtor moneys adjudged due; 

(iii) The Collateral Agent may institute Proceedings from time to time 

for the complete or partial foreclosure of the Secured Parties Collateral or collateral pursuant to 

any other Secured Parties Collateral Document; 

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(iv) The Collateral Agent may exercise any rights or remedies upon the 

occurrence of an Event of Default pursuant to this Agreement and/or one or more of the other 

Secured Parties Collateral Documents and/or any rights or remedies of a secured party under the 

NY UCC, and take any other appropriate action to protect and enforce the rights and remedies of 

the Collateral Agent; 

(v) The Collateral Agent may sell the Secured Parties Collateral or any 

portion thereof or rights or interest therein; 

(vi) If an “Event of Default” pursuant to and as defined in the LLC 

Operating Agreement has occurred, the Controlling Party may direct the Initial Member to 

exercise its right, and the Initial Member shall exercise such right, pursuant to the LLC 

Operating Agreement to terminate the Servicer (and any Subservicers) and cause the Manager to 

enter into a new Servicing Agreement with a servicer (a “Successor Servicer”) selected by the 

Initial Member (in its sole and absolute discretion); 

(vii) If an “Event of Default” pursuant to and as defined in the LLC 

Operating Agreement has occurred, the Controlling Party may direct the Initial Member to 

exercise its right, and the Initial Member shall exercise its right, pursuant to the LLC Operating 

Agreement to terminate the existing Manager and appoint a new Manager selected by the Initial 

Member (in its sole and absolute discretion); 

(viii) The Initial Member may institute Proceedings from time to time 

for the complete or partial foreclosure of any equity interests in the Debtor that have been 

pledged to the Initial Member pursuant to the LLC Operating Agreement to secure the Debtor’s 

obligations thereunder; 

(ix) If an “Event of Default” pursuant to and as defined in the LLC 

Operating Agreement has occurred, the Controlling Party may direct the Initial Member to 

exercise its right, and the Initial Member shall exercise its right, pursuant to the LLC Operating 

Agreement, to require the Private Owner to sell its equity interest in the Debtor to the Initial 

Member or its designee for fair market value in accordance with Section 3.14 of the LLC 

Operating Agreement; 

(x) The Collateral Agent may institute Proceedings for the collection 

of all amounts then payable pursuant to the Purchase Money Notes Guaranty for the enforcement 

of any judgment and for the collection of any monies adjudged due pursuant to the Purchase 

Money Notes; 

(xi) The Collateral Agent may institute Proceedings for the collection 

of all amounts then payable pursuant to the NGPMN Holders for the enforcement of any 

judgment and for the collection of any monies adjudged due pursuant to the Non-Guaranteed 

Purchase Money Notes; 

(xii) The Collateral Agent may institute Proceedings for the collection 

of all amounts then payable by any Subsidiary Grantor pursuant to Article VI of this Agreement 

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for the enforcement of any judgment and for the collection from such Subsidiary Grantor of any 

monies adjudged due; 

(xiii) The Advance Lender may declare the Advance Facility to be 

immediately due and payable, by a notice in writing to the Debtor and the Custodian/Paying 

Agent, and upon any such declaration the unpaid principal amount of such Advance Facility, 

together with all other accrued and unpaid amounts in respect thereof through the date of 

acceleration, shall become immediately due and payable; provided, however, that with respect to 

an Event of Default pursuant to Section 4.1(b)(i)(A), the unpaid principal amount of, and such 

amounts in respect of the Advance Facility shall automatically become immediately due and 

payable; 

(xiv) The Advance Lender may exercise its rights and remedies pursuant 

to Section 8.02 of the Advance Facility Agreement; 

(xv) The NGPMN Agent may exercise on behalf of the NGPMN 

Holders their rights and remedies pursuant to the Non-Guaranteed Purchase Money Notes; 

(xvi) The NGPMN Agent may declare the Non-Guaranteed Purchase 

Money Notes to be immediately due and payable, by a notice in writing to the Debtor and the 

Custodian/Paying Agent, and upon any such declaration the unpaid principal amounts of the 

Non-Guaranteed Purchase Money Notes, together with all other accrued and unpaid amounts in 

respect thereof through the date of acceleration, shall become immediately due and payable; 

provided, however, the NGPMN Agent shall not declare the Non-Guaranteed Purchase Money 

Notes due and payable as described in this subsection without the consent of (x) so long as the 

Guaranteed Purchase Money Notes are outstanding (or any reimbursement obligation to the 

Purchase Money Notes Guarantor on account of any Guaranty Payment remains unsatisfied), the 

Purchase Money Notes Guarantor and (y) so long as any Advance Loans or any Advance 

Facility Obligations (as such term is defined in the Advance Facility Agreement) are outstanding, 

the Advance Lender; 

(xvii) Each of the Collateral Agent’s, the Purchase Money Notes 

Guarantor’s, the NGPMN Agent’s, the Initial Member’s and the Advance Lender’s rights and 

remedies pursuant to this Section 5.1(a) of this Agreement shall be in addition to, and not in 

limitation or exclusion of, any other rights and remedies that they might have (whether by 

operation of law, in equity, pursuant to contract or otherwise) and without prejudice and in 

addition to any right to which they are at any time entitled under the Transaction Documents. 

Notwithstanding any provision in this Section 5.1 to the contrary, the Purchase Money Notes 

Guarantor shall have the right to exercise the rights and remedies available to the NGPMN Agent 

as set forth in this Section 5.1 without the consent of the NGPMN Agent so long as any 

Guaranteed Purchase Money Note (or reimbursement obligation to the Purchase Money Notes 

Guarantor on account of any Guaranty Payment) remains outstanding and not fully discharged. 

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(b) Appointment of Successor Servicer. If the Initial Member exercises its 

right to appoint a Successor Servicer pursuant to Section 5.1(a)(vi), the costs and expenses 

associated with such Successor Servicer (including any servicing fees) shall be borne by the 

Manager (and not the Initial Member or Debtor), and no termination or other fee shall be due to 

the Manager or the Servicer or any Subservicer in connection with or as a result of any such 

action. All authority and power of the Manager to act with respect to the terminated Servicer 

shall pass to and be vested in the Initial Member pursuant to this Article V and, without 

limitation, the Initial Member is hereby authorized and empowered, as attorney-in-fact or 

otherwise, to execute and deliver, on behalf of and at the expense of the Manager, any and all 

documents and other instruments and to do or take any and all acts necessary or appropriate to 

effect the termination of the Servicer and the replacement of the Servicer with a Successor 

Servicer. 

(c) Cooperation to Facilitate Transfer. In any event, if a Servicer or 

Subservicer is terminated pursuant to the provisions of this Article V, the Manager shall, and 

shall cause any Servicer (and any Subservicer) to, provide the Initial Member, the Purchase 

Money Notes Guarantor, the NGPMN Agent and the Advance Lender and any Successor 

Servicer in a timely manner with all documents, records and data (including electronic 

documents, records and data) requested by the Initial Member, the Purchase Money Notes 

Guarantor, the NGPMN Agent or the Advance Lender or any Successor Servicer to enable it and 

any Successor Servicer to assume the responsibilities as servicer, and to cooperate with the 

Initial Member, the Purchase Money Notes Guarantor, the NGPMN Agent and the Advance 

Lender in effecting the termination of any Servicer (or Subservicer), including (i) the transfer 

within one Business Day of all cash amounts that, at the time, shall be or should have been 

credited to the Collection Account or are thereafter received with respect to any Asset, (ii) the 

transfer of all lockbox accounts with respect to which payments or other amounts with respect to 

the Assets are directed or the redirection of all such payments and other amounts to such account 

as the Initial Member, the Purchase Money Notes Guarantor, the NGPMN Agent or the Advance 

Lender might specify and (iii) the assignment to Collateral Agent of the right to access all such 

lockbox accounts, the Debtor Accounts and any other account into which Asset Proceeds or 

Borrower escrow or other payments are deposited or held; provided, however, that the 

documents, records and data delivered by the Servicer (and any Subservicer) to the Initial 

Member, the Purchase Money Notes Guarantor, the NGPMN Agent and the Advance Lender and 

any Successor Servicer pursuant to this Section 5.1(c) shall be limited to those documents in 

such Servicer’s possession at the time of such transfer or which the Servicer acquires thereafter 

and shall not include or be deemed to include any documents, records or data in the possession of 

the Custodian/Paying Agent. The Manager shall be liable for all costs and expenses incurred by 

the Initial Member, the Purchase Money Notes Guarantor, the NGPMN Agent, the Advance 

Lender and the Collateral Agent (I) associated with the complete transfer of the servicing data, 

(II) associated with the completion, correction or manipulation of servicing data as might be 

required to correct errors or insufficiencies in the servicing data to enable the Collateral Agent 

and any Successor Servicer (and any Subservicers) to service the Assets properly and effectively, 

and (III) to retain and maintain the services of a Successor Servicer (and any Subservicers). 

Within a reasonable time after receipt of a written request of the Manager for the same, the Initial 

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Member, the Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender and the 

Collateral Agent shall provide reasonable documentation evidencing such costs and expenses. 

Section 5.2 Application of Proceeds. If the Collateral Agent collects any money or 

property pursuant to Section 5.1 of this Agreement, it shall pay out the money in the following 

order notwithstanding anything in the Advance Facility Agreement, any Purchase Money Note, 

any Purchase Money Notes Guaranty, the Servicing Agreement, the Custodial and Paying 

Agency Agreement or the Contribution Agreement to the contrary (including, without limitation, 

any provision in any of the foregoing agreements providing for repayment of Discretionary 

Funding Advances from the Asset Proceeds of the Asset in respect of which such Discretionary 

Funding Advance was made): (i) first, to pay or reimburse the fees, expenses, costs and charges 

(including attorneys' fees and expenses, costs or charges relating thereto) described in Section 

13.3 of this Agreement, (ii) second, to the reimbursement of the Purchase Money Notes 

Guarantor on account of any Guaranty Payment after the application of any available funds in 

the Defeasance Account, (iii) third, to the repayment of the Guaranteed Obligations (including 

specifically the obligations pursuant to Sections 2.1 and 8.9) after the application of any 

available funds in the Defeasance Account, (iv) fourth, to the repayment of the Advance Facility 

Obligations (as such term is defined in the Advance Facility Agreement), (v) fifth, to the 

repayment of Non-Guaranteed Purchase Money Notes Obligations after the application of any 

available funds in the Defeasance Account and (vi) the balance, if any, to be transferred to the 

Collection Account, for transfer to the Distribution Account in accordance with Section 3.2 of 

the Custodial and Paying Agency Agreement for application in accordance with the Priority of 

Payments; provided, however, that if the Collateral Agent collects any money or property 

pursuant to Section 5.1 of this Agreement in respect of the Defeasance Account, it shall pay out 

such money or property pursuant to directions received from the Purchase Money Notes 

Guarantor or, if no Guaranteed Purchase Money Notes are outstanding and no reimbursement 

obligation is owed to the Purchase Money Notes Guarantor on account of any Guaranty Payment 

then pursuant to direction received from the NGPMN Agent. 

Section 5.3 Sale of Secured Parties Collateral. 

(a) The power to effect any sale or other disposition (a “Sale”) of any portion 

of the Secured Parties Collateral shall not be exhausted by any one or more Sales as to any 

portion of the Secured Parties Collateral remaining unsold, but shall continue unimpaired until 

the entire Secured Parties Collateral shall have been sold or all Secured Obligations shall have 

been paid. The Collateral Agent from time to time may postpone any public Sale by public 

announcement made at the time and place of such Sale. The Collateral Agent hereby expressly 

waives its right to any amount fixed by Law as compensation for any Sale. 

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(b) In connection with a Sale of all or any portion of the Secured Parties 

Collateral: 

(i) The Collateral Agent may bid for and purchase the property 

offered for Sale, and upon compliance with the terms of Sale may hold, retain and possess and 

dispose of such property, without further accountability; 

(ii) The Collateral Agent may bid for and acquire the property offered 

for Sale in connection with any Sale thereof, and, subject to any requirements of, and to the 

extent permitted by, applicable Law in connection therewith, may purchase all or any portion of 

the Secured Parties Collateral in a private sale, and, in lieu of paying cash therefor, may make 

settlement for the purchase price by crediting the gross Sale price against the sum of (A) the 

amount which would be distributable to the Collateral Agent as a result of such Sale in 

accordance with Section 5.2 on the Distribution Date next succeeding the date of such Sale and 

(B) the expenses of the Sale and of any Proceedings in connection therewith which are 

reimbursable to it; 

(iii) The Collateral Agent shall execute and deliver an appropriate 

instrument of conveyance prepared by the Servicer transferring its interest in any portion of the 

Secured Parties Collateral in connection with a Sale thereof; 

(iv) The Collateral Agent is, pursuant to Section 13.1 of this 

Agreement, appointed the agent and attorney-in-fact of each Grantor to transfer and convey its 

interest in any portion of the Secured Parties Collateral in connection with a Sale thereof, and to 

take all action necessary to effect such Sale; and 

(v) No purchaser or transferee at such a Sale shall be bound to 

ascertain the Collateral Agent’s authority, inquire into the satisfaction of any conditions 

precedent or see to the application of any monies. 

Section 5.4 No Impairment of Action. The Collateral Agent’s right to seek and 

recover judgment pursuant to this Agreement shall not be affected by the seeking, obtaining or 

application of any other relief under or with respect to this Agreement. Neither the Lien of this 

Agreement nor any rights or remedies of the Collateral Agent shall be impaired by the recovery 

of any judgment by the Collateral Agent against any Grantor or by the levy of any execution 

under such judgment upon any portion of the Secured Parties Collateral or upon any of the assets 

of such Grantor. Any money or property collected by the Collateral Agent shall be applied in 

accordance with Section 5.2. 

Section 5.5 Remedies Cumulative; Waiver. The rights of each of the Collateral 

Agent, the Purchase Money Notes Guarantor, the NGPMN Agent, the Initial Member and the 

Advance Lender pursuant to this Agreement shall be in addition to, and not in limitation or 

exclusion of, any other rights and remedies that it may have (whether by operation of law, in 

equity, under contract or otherwise) and without prejudice and in addition to any right of setoff, 

recoupment, combination of accounts, Lien or other right to which it is at any time entitled; 

provided, however, that so long as any Guaranteed Purchase Money Note (or reimbursement 

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obligations to the Purchase Money Notes Guarantor on account of any Guaranty Payment) 

remains outstanding and not fully discharged, the NGPMN Agent may exercise such rights and 

remedies only upon the written consent of the Purchase Money Notes Guarantor, which consent 

the Purchase Money Notes Guarantor can grant or withhold in the exercise of its sole discretion. 

Each of the Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Agent, the 

Initial Member and the Advance Lender may enforce any of its remedies pursuant to this 

Agreement successively or concurrently in its sole discretion (subject to any express limitation 

set forth in this Agreement). No delay or failure on the part of the Collateral Agent, the Purchase 

Money Notes Guarantor, the NGPMN Agent, the Initial Member or the Advance Lender to 

exercise any right or remedy to which it might become entitled pursuant to this Agreement upon 

an Event of Default shall constitute abandonment or waiver of any such right and the Collateral 

Agent, the Purchase Money Notes Guarantor, the NGPMN Agent, the Initial Member or the 

Advance Lender shall be entitled to exercise such right or remedy at any time during the 

continuance of a Event of Default. 

Section 5.6 Waiver of Certain Rights and Remedies. To the extent permitted pursuant 

to applicable Law, each Grantor hereby waives all rights and remedies of a debtor or grantor 

under the NY UCC or other applicable Law, and all formalities prescribed by Law relative to the 

sale or disposition of the Secured Parties Collateral (other than notice of sale and any other 

formalities expressly provided in this Agreement), after the occurrence and during the 

continuation of an Event of Default and, except as otherwise set forth in this Agreement, all other 

rights and remedies of such Grantor with respect thereto. 

ARTICLE VI
	

Guaranty
	

Section 6.1 Guaranty. 

(a) Each Grantor hereby, jointly and severally, unconditionally and 

irrevocably, guaranties to the Collateral Agent, for the benefit of the Secured Parties and their 

respective successors, indorsees, transferees and assigns, the prompt and complete payment and 

performance by the Debtor when due (whether at the stated maturity, by acceleration or 

otherwise) of the Secured Obligations. 

(b) Anything in this Agreement or in any other Transaction Document to the 

contrary notwithstanding, the maximum liability of each Grantor pursuant to this Agreement and 

the Transaction Documents shall in no event exceed the amount that validly can be guarantied by 

such Grantor, if any, pursuant to applicable federal and state laws relating to the insolvency of 

debtors (after giving effect to the right of contribution established in Section 6.2 of this 

Agreement). 

(c) Each Grantor agrees that the Secured Obligations at any time and from 

time to time might exceed the amount of the liability of such Grantor pursuant to this Agreement 

without impairing the guaranty contained in this Section 6.1 or affecting the rights and remedies 

of the Secured Parties pursuant to this Agreement. 

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(d) The guaranty contained in this Section 6.1 shall remain in full force and 

effect until the termination of this Agreement, notwithstanding that from time to time prior 

thereto the Debtor might be free from any Secured Obligations. 

(e) No payment made by the Debtor, any Grantor, any other guarantor or any 

other Person or received or collected by the Secured Parties from the Debtor, any Grantor, any 

other guarantor or any other Person by virtue of any action or proceeding or any set-off or 

appropriation or application at any time or from time to time in reduction of or in payment of the 

Secured Obligations shall be deemed to modify, reduce, release or otherwise affect the liability 

of any Grantor pursuant to this Agreement, which shall remain, notwithstanding any such 

payment (other than any payment made by such Grantor in respect of the Secured Obligations or 

any payment received or collected from such Grantor in respect of the Secured Obligations), 

liable for the Secured Obligations up to the maximum liability of such Grantor pursuant to this 

Agreement until the termination of this Agreement. 

Section 6.2 Right of Contribution. Each Grantor hereby agrees that to the extent that a 

Grantor shall have paid more than its proportionate share of any payment made pursuant to this 

Agreement, such Grantor shall be entitled to seek and receive contribution from and against any 

other Grantor pursuant to this Agreement that has not paid its proportionate share of such 

payment. Each Grantor’s right of contribution shall be subject to the terms and conditions of 

Section 6.3. The provisions of this Section 6.2 in no respect shall limit the obligations and 

liabilities of any Grantor to the Secured Parties, and each Grantor shall remain liable to the 

Secured Parties for the full amount guarantied by such Grantor pursuant to this Agreement. 

Section 6.3 No Subrogation. Notwithstanding any payment made by any Grantor 

pursuant to this Agreement or any set-off or application of funds of any Grantor by the Secured 

Parties, no Grantor shall be entitled to be subrogated to any of the rights of the Secured Parties 

against the Debtor or any other Grantor or any collateral security or guaranty or right of offset 

held by any Secured Party for the payment of the Secured Obligations, nor shall any Grantor 

seek or be entitled to seek any contribution or reimbursement from the Debtor or any other 

Grantor in respect of payments made by such Grantor hereunder, until the termination of this 

Agreement and the indefeasible satisfaction in full in cash of the Secured Obligations. If any 

amount shall be paid to any Grantor on account of such subrogation, contribution or 

reimbursement rights at any time when all of the Secured Obligations shall not have been paid in 

full, such amount shall constitute Asset Proceeds and shall be held by such Grantor in trust for 

the Secured Parties, segregated from other funds of such Grantor, and, immediately upon receipt 

by such Grantor, shall be deposited into the Collection Account, to be applied in accordance with 

the Priority of Payments. 

Section 6.4 Amendments, etc. with Respect to the Secured Obligations. Each 

Grantor shall remain obligated pursuant to this Agreement notwithstanding that, without any 

reservation of rights against any Grantor and without notice to or further assent by any Grantor, 

any demand for payment of any of the Secured Obligations made by the Collateral Agent, the 

Advance Lender, the Purchase Money Notes Guarantor or the NGPMN Agent may be rescinded 

by such Person and any of the Secured Obligations continued, and the Secured Obligations, or 

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the liability of any other Person upon or for any part thereof, or any collateral security or 

guaranty therefor or right of offset with respect thereto, may, from time to time, in whole or in 

part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered 

or released by the Collateral Agent, the Advance Lender, the Purchase Money Notes Guarantor 

or the NGPMN Agent, as the case might be, and the Advance Facility Agreement, any Purchase 

Money Notes Guaranty, any Purchase Money Notes and the other Transaction Documents and 

any other documents executed and delivered in connection therewith may be amended, modified, 

supplemented or terminated, in whole or in part, as the Collateral Agent, the Advance Lender, 

the Purchase Money Notes Guarantor or the NGPMN Agent might deem reasonably advisable 

from time to time, and any collateral security, guaranty or right of offset at any time held by the 

Collateral Agent for the payment of the Secured Obligations may be sold (in the case of any such 

collateral security), exchanged, waived, surrendered or released. The Collateral Agent shall not 

have any obligation to protect, secure, perfect or insure any Lien at any time held by it as 

security for the Secured Obligations or for the guaranty contained in this Article VI or any 

property subject thereto. 

Section 6.5 Guaranty Absolute and Unconditional. Each Grantor waives any and all 

notice of the creation, renewal, extension, amendment, modification, waiver or accrual of any of 

the Secured Obligations and notice of or proof of reliance by the Collateral Agent upon the 

guaranty contained in this Article VI or acceptance of the guaranty contained in this Article VI; 

the Secured Obligations, and any of them, shall conclusively be deemed to have been created, 

contracted or incurred, or renewed, extended, amended, modified or waived, in reliance upon the 

guaranty contained in this Article VI and the grant of the security interests pursuant to Section 

3.1; and all dealings between the Debtor and any of the Grantors, on the one hand, and the 

Collateral Agent, on the other hand, likewise shall be conclusively presumed to have been had or 

consummated in reliance upon the guaranty contained in this Article VI and the grant of the 

security interests pursuant to Section 3.1. Each Grantor waives diligence, presentment, protest, 

demand for payment and notice of default or nonpayment to or upon the Debtor or any of the 

Grantors with respect to the Secured Obligations. Each Grantor understands and agrees that the 

guaranty contained in this Article VI and the grant of the security interests pursuant to Section 

3.1 shall be, and shall be construed to be, a continuing, absolute and unconditional guaranty of 

payment and performance without regard to (a) the validity or enforceability of the Advance 

Facility Agreement, any Purchase Money Notes Guaranty, any Purchase Money Notes or any 

other Transaction Document, any of the Secured Obligations or any other collateral security 

therefor or guaranty or right of offset with respect thereto at any time or from time to time held 

by the Collateral Agent, for the benefit of the Secured Parties, (b) any defense, set-off or 

counterclaim (other than a defense of payment or performance) which may at any time be 

available to or be asserted by the Debtor or any other Person against the Collateral Agent, or (c) 

any other circumstance whatsoever (with or without notice to or knowledge of the Debtor or 

such Grantor) which constitutes, or might be construed to constitute, an equitable or legal 

discharge of the Debtor for the Secured Obligations, or of such Grantor pursuant to the guaranty 

contained in this Article VI and the grant of the security interests pursuant to Section 3.1, in 

bankruptcy or in any other instance. When making any demand pursuant to this Agreement or 

otherwise pursuing its rights and remedies hereunder against any Grantor, the Collateral Agent 

may, but shall be under no obligation to, make a similar demand on or otherwise pursue such 

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rights and remedies as it might have against the Debtor, any Grantor or any other Person or 

against any collateral security or guaranty for the Secured Obligations or any right of offset with 

respect thereto, and any failure by the Collateral Agent to make any such demand, to pursue such 

other rights or remedies or to collect any payments from the Debtor, any Grantor or any other 

Person or to realize upon any such collateral security or guaranty or to exercise any such right of 

offset, or any release the Debtor, any Grantor or any other Person or any such collateral security, 

guaranty or right of offset, shall not relieve any Grantor of any obligation or liability pursuant to 

this Agreement, and shall not impair or affect the rights and remedies, whether express, implied 

or available as a matter of law, of the Collateral Agent against any Grantor. For the purposes of 

this Agreement, “demand” shall include the commencement and continuance of any legal 

proceedings. 

Section 6.6 Reinstatement. The guaranty contained in this Article VI shall continue to 

be effective, or be reinstated, as the case might be, if at any time payment, or any part thereof, of 

any of the Secured Obligations is rescinded or must otherwise be restored or returned by the 

Collateral Agent upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of 

the Debtor or any Grantor, or upon or as a result of the appointment of a receiver, intervenor or 

conservator of, or trustee or similar officer for, the Debtor or any Grantor or any substantial part 

of its property, or otherwise, all as though such payments had not been made. 

Section 6.7 Payments. Each Grantor hereby guaranties that payments pursuant to this 

Article VI will constitute Asset Proceeds and will be deposited into the Collection Account, to be 

applied in accordance with the Priority of Payments. 

Section 6.8 Information. Each Grantor assumes all responsibility for being and 

keeping itself reasonably informed of the Debtor’s and each other Grantor’s financial condition 

and assets, and of all other circumstances bearing upon the risk of nonpayment of the Secured 

Obligations and the nature, scope and extent of the risks that such Grantor assumes and incurs 

hereunder, and agrees that neither the Collateral Agent nor any other Secured Party will have any 

duty to advise such Grantor of information known to it or any of them regarding such 

circumstances or risks. 

ARTICLE VII
	

Representations And Warranties
	

Section 7.1 Representations and Warranties. Each Grantor hereby represents and 

warrants to the Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender and 

the Collateral Agent as of the Closing Date and at all times while the Secured Obligations remain 

unsatisfied and undischarged in full, that: 

(a) This Agreement has been duly executed by such Grantor and constitutes a 

legal, valid and binding obligation of such Grantor, enforceable against such Grantor in 

accordance with its terms, except as such enforceability may be limited by the Debtor Relief 

Laws and by general principles of equity; 

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(b) There are no actions, suits, Proceedings, claims or disputes pending or, to 

the knowledge of the Manager or such Grantor, threatened in writing, at law, in equity, in 

arbitration or before any Governmental Authority affecting such Grantor or any of its properties 

or revenues that might affect adversely the grant by such Grantor, or the perfection, of the 

security interest purported to be created hereby in the Secured Parties Collateral, or the exercise 

by the Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Agent or the 

Advance Lender of any of its rights or remedies pursuant to this Agreement; 

(c) The Grantors are and will be at all times the sole and exclusive owners of, 

or otherwise have and will have rights in, the Secured Parties Collateral free and clear of any 

Lien other than Liens in favor of the Collateral Agent and other Liens expressly permitted 

pursuant to the Transaction Documents, and no effective financing statement or other instrument 

similar in effect covering all or any part of the Secured Parties Collateral (except in favor of the 

Collateral Agent) is on file in any recording or filing office; 

(d) The transactions provided for in this Agreement (i) have been duly 

authorized by all requisite limited liability company action, and (ii) do not and will not (A) 

violate (1) any applicable provision of any Law or of the certificate of formation or operating 

agreement of such Grantor, (2) any order of any Governmental Authority or arbitrator or (3) any 

material provision of any indenture or any agreement or other instrument to which such Grantor 

is a party or by which it or the Secured Parties Collateral is or might be bound, (B) be in conflict 

with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default 

pursuant to any such indenture or agreement or other instrument, (C) result in the creation or 

imposition of any security interest in or Lien upon the Secured Parties Collateral (other than the 

security interest and Lien created thereon pursuant to this Agreement) or (D) require the consent 

of any party for the granting of the security interest created pursuant to this Agreement; 

(e) No authorization or approval or other action by, and no notice to or filing 

with, any Governmental Authority or other regulatory body, or any other Person, is required on 

the Closing Date for (i) the due execution, delivery and performance by such Grantor of this 

Agreement, (ii) the grant by such Grantor of the security interest purported to be created hereby 

in the Secured Parties Collateral or (iii) the exercise by the Collateral Agent, the Purchase Money 

Notes Guarantor, the NGPMN Agent or the Advance Lender of any of its rights and remedies 

pursuant to this Agreement. No authorization or approval or other action by, and no notice to or 

filing with, any Governmental Authority or other regulatory body, or any other Person, is 

required for the perfection of the security interest purported to be created pursuant to this 

Agreement in the Secured Parties Collateral, except for (A) the filing of a UCC-1 financing 

statement properly describing the Secured Parties Collateral and identifying such Grantor and the 

Collateral Agent in the applicable jurisdiction required pursuant to the Uniform Commercial 

Code, (B) the execution and delivery of the Account Control Agreements pursuant to the 

Uniform Commercial Code, (C) the execution and delivery by the Custodian/Paying Agent of the 

Custodial and Paying Agency Agreement containing an acknowledgment by the 

Custodian/Paying Agent that it holds possession of the Custodial Documents for the Collateral 

Agent’s benefit and (D) the taking of any action required to maintain continuing perfection with 

respect to proceeds which cannot be perfected by the filing of financing statements pursuant to 

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the Uniform Commercial Code (subclauses (A), (B), (C) and (D), each a “Perfection 

Requirement” and collectively, the “Perfection Requirements”); and 

(f) This Agreement creates a legal, valid and enforceable security interest in 

favor of the Collateral Agent, for the benefit of the Secured Parties, in the Secured Parties 

Collateral, as security for the Secured Obligations. The compliance with the Perfection 

Requirements will result in the perfection of such security interests. After compliance with the 

Perfection Requirements, such security interests, including in the case of Secured Parties 

Collateral in which such Grantor obtains rights after the Closing Date, will be perfected, first 

priority security interests. Such Perfection Requirements and all other action necessary or 

desirable to perfect and protect such security interest have been duly made or taken, except for 

the other filings and recordations and actions described in Section 7.1(e) above. 

ARTICLE VIII
	

Covenants
	

Section 8.1 Debtor Accounts. The Debtor shall establish and maintain with the 

Custodian/Paying Agent the Debtor Accounts (excluding the Escrow Accounts, which shall be 

established and maintained by the Servicer). 

Section 8.2 Grantor Status; Licensing. The Debtor at all times shall constitute a 

limited liability company organized pursuant to the laws of the State of Delaware and a Single 

Purpose Entity. Each Subsidiary Grantor at all times shall be a Single Purpose Entity. As soon 

as reasonably practical after the Closing Date, the Debtor (on its own behalf or, if applicable, on 

behalf of the Ownership Entities that hold Acquired Property) shall 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 its business, including qualifications to conduct business in jurisdictions 

other than Delaware and licenses to purchase, own or service the Assets and, if applicable, 

operate, manage, lease and dispose of Acquired Property, if the failure to so obtain such licenses 

reasonably would be expected to result in the imposition of fines, penalties or other liabilities on 

the Debtor, claims and defenses being asserted against the Debtor (including counterclaims and 

defense asserted by Borrowers) or materially adversely affect the Debtor or the Debtor’s ability 

to foreclose on the Collateral securing or otherwise realize the full value of any Asset. 

Section 8.3 LLC Operating Agreement. The Debtor (a) at all times shall have in effect 

and be subject to the LLC Operating Agreement, (b) except as is otherwise expressly permitted 

therein, shall not amend or modify in any material respect the LLC Operating Agreement 

without the prior written approval of the Purchase Money Notes Guarantor, the NGPMN Agent 

and the Advance Lender and (c) shall not enter into or allow itself to become subject to any other 

constituent documents inconsistent with any terms of the LLC Operating Agreement. 

Section 8.4 Custodian/Paying Agent. The Debtor shall retain the Custodian/Paying 

Agent and shall enter into and at all times be a party to a Custodial and Paying Agency 

Agreement with the Custodian/Paying Agent. The Custodian/Paying Agent at all times shall 

have custody and possession of the Notes and other Custodial Documents to the extent required 

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pursuant to the Custodial and Paying Agency Agreement. At no time shall the Debtor have more 

than one Custodian/Paying Agent. The fees and expenses paid to the Custodian/Paying Agent 

shall be no more than market rates and the Custodian/Paying Agent shall be terminable by the 

Controlling Party upon no more than thirty days notice without cause thereunder. In the event 

that the Debtor (or any Servicer or Subservicer) removes any Notes or other Custodial 

Documents from the possession of the Custodian/Paying Agent (which shall be done only in 

accordance with the Custodial and Paying Agency Agreement), (a) any loss or destruction of or 

damage to such Notes or Custodial Documents shall be the liability of the Debtor (who, along 

with the Servicer and any Subservicer, shall be responsible for safeguarding such Notes and 

Custodial Documents), and (b) such Notes shall be returned to the Custodian/Paying Agent 

within the time provided pursuant to the Uniform Commercial Code to maintain the Collateral 

Agent’s perfection thereof by possession. If any Notes or other Custodial Documents are 

removed in connection with the Modification or restructuring of an Asset, the modified or 

restructured Notes and other Custodial Documents removed in connection therewith shall be 

returned to the Custodian/Paying Agent as soon as is possible following the completion of the 

restructuring or modification (and, in any event, in accordance with clause (b) of the immediately 

preceding sentence). The Debtor shall ensure that each of the Purchase Money Notes Guarantor, 

the NGPMN Agent and the Advance Lender receives a copy of each demand, notice or other 

communication given pursuant to the Custodial and Paying Agency Agreement at the time that 

such notice or other communication is given thereunder. 

Section 8.5 Compliance with Law. Each Grantor at all times shall comply with 

applicable Law in connection with the performance of its obligations pursuant to this Agreement. 

Section 8.6 Servicer. The Debtor at all times shall cause the Servicing Obligations to 

be performed by a Servicer or a Subservicer, each of which shall be a Qualified Servicer. 

Section 8.7 Certain Restrictions. The Debtor shall not: 

(a) at any time, without limiting its obligation to constitute a Single Purpose 

Entity, incur any Indebtedness (other than Indebtedness evidenced by the Purchase Money Notes 

and pursuant to this Agreement, Indebtedness in respect of the Advance Facility Agreement, 

Indebtedness in respect of Excess Working Capital Advances and Indebtedness in respect of 

Discretionary Funding Advances); 

(b) dissolve or liquidate at any time prior to such time as the Debtor makes the 

Final Distribution and this Agreement is terminated; 

(c) (i) file a voluntary petition for bankruptcy, (ii) file a petition or 

answer seeking any reorganization, arrangement, composition, readjustment, liquidation, 

dissolution or similar relief under any Law, (iii) make an assignment for the benefit of creditors, 

(iv) seek, consent to or acquiesce in the appointment of a trustee, receiver or liquidator for all or 

any substantial part of its properties, (v) file an answer or other pleading admitting or failing to 

contest the material allegations of (A) a petition filed against it in any proceeding described in 

clause (i) through (iv) or (B) any order adjudging it bankrupt or insolvent or for relief against it 

in any bankruptcy or insolvency proceeding or (vi) allow itself to become unable to pay its 

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obligations as they become due or allow the sum of its debts to be greater than the value of all of 

its property, at a fair valuation; or 

(d) place or permit (voluntarily or involuntarily) any Lien to be placed on any 

of the Secured Parties Collateral (other than the security interest granted to Collateral Agent 

hereunder and Liens expressly permitted pursuant to the Transaction Documents), and shall not 

take any action to interfere with the Collateral Agent’s rights as a secured party with respect to 

the Secured Parties Collateral. 

Section 8.8 Change in Jurisdiction, Name, Location or Identity. Each Grantor agrees 

to provide the Collateral Agent with not less than ten days’ prior written notice of any change (a) 

in the jurisdiction in which it is organized, (b) in its company name, (c) in the location of its 

principal place of business or (d) in its federal taxpayer identification number. Each Grantor 

agrees not to effect or permit any change referred to in the preceding sentence unless all filings 

have been made pursuant to the Uniform Commercial Code or otherwise that are required in 

order for the Collateral Agent, following such change, to continue to have a valid, legal and 

perfected first priority security interest in the Secured Parties Collateral to the extent a security 

interest therein may be perfected by filing pursuant to the Uniform Commercial Code. 

Section 8.9 Payment of Principal on Purchase Money Notes and Advance Facility; 

Reimbursement of Collateral Agent. Subject to the last sentence of this Section 8.9, Debtor will 

duly and punctually pay, or cause the Custodian/Paying Agent to pay, (a) the principal of, and 

interest on, the Purchase Money Notes in accordance with the terms of the Purchase Money 

Notes, this Agreement and the Custodial and Paying Agency Agreement, and from moneys on 

deposit in the Defeasance Account, and (b) the obligations pursuant to the Advance Facility in 

accordance with the terms of the Advance Facility Agreement, this Agreement and the Custodial 

and Paying Agency Agreement, and from moneys on deposit in the Distribution Account. On 

each Distribution Date, the Debtor will, as and to the extent of available funds required to be 

deposited in the Distribution Account, direct the Custodian/Paying Agent to distribute amounts 

on deposit in the Distribution Account to the Collateral Agent in payment of any amounts owed 

by the Debtor to the Purchase Money Notes Guarantor, each NGPMN Holder, the Collateral 

Agent or the Advance Lender pursuant to this Agreement, the Purchase Money Notes and/or the 

Advance Facility Agreement, subject to the priority of payments set forth in Section 5.1 of the 

Custodial and Paying Agency Agreement and the other terms thereof. 

Section 8.10 Protection of Secured Parties Collateral; Further Assurances. From time 

to time, at its cost and expense, each Grantor promptly shall execute and deliver all further 

instruments and documents, and take all further action, that might be necessary, or that the 

Collateral Agent reasonably might request, in order to perfect, to ensure the continued perfection 

of and to protect the assignment and security interest granted or intended to be granted hereby or 

to enable the Collateral Agent to exercise and enforce its rights and remedies pursuant to this 

Agreement with respect to any Secured Parties Collateral. 

Section 8.11 Guaranties and Mortgages. If any Ownership Entity acquires any 

Acquired REO Property after the Closing Date, then, within fifteen Business Days after the 

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foreclosure, conveyance in lieu of foreclosure or other event that resulted in such property 

becoming Acquired REO Property, the Debtor promptly shall cause such Ownership Entity to 

execute and deliver to the Collateral Agent or its designee (in addition to the Joinder Agreement 

provided for in Section 8.12) an REO Mortgage with respect to such Acquired REO Property in 

favor of the Collateral Agent or its designee for the benefit of the Secured Parties in form and 

substance satisfactory to the Collateral Agent (which REO Mortgage shall (a) secure all of the 

Secured Obligations (or, in jurisdictions with a mortgage recording tax that would be payable on 

the full amount of the Secured Obligations or on successive reborrowings of the Advance Loan, 

an amount equal to 105% of the Total Asset Valuation of the Asset to which such Acquired REO 

Property relates), (b) provide for a release price (or, in the case of Acquired REO Property 

consisting of condominiums or cooperative units or separate land parcels, release prices for 

individual units or parcels) based on the Business Plan or otherwise satisfactory to the Collateral 

Agent and (c) contain such other provisions (in addition to those included in the Asset 

Documents) as the Collateral Agent shall reasonably require in light of the particular nature or 

characteristics of such Acquired REO Property). Such REO Mortgage shall be accompanied by 

such related documentation and deliveries as the Collateral Agent reasonably may request, each 

in form and substance satisfactory to the Collateral Agent, including, without limitation, the REO 

Collateral Documents. Such REO Mortgage shall be duly recorded or filed in such manner and 

in such places as are required by applicable law to establish, perfect, preserve and protect the 

Liens in favor of the Collateral Agent granted pursuant to such REO Mortgage, and all taxes, 

fees and other charges payable in connection therewith shall be paid in full. The cost of 

preparing, negotiating and recording such REO Mortgage (including mortgage recording taxes) 

and the costs associated with such additional documentation and deliverables shall be Servicing 

Expenses. At the Debtor’s request, the Collateral Agent shall prepare and deliver to the Debtor a 

form of REO Mortgage that (with such Modifications as the Collateral Agent shall agree to in its 

sole discretion) shall serve as a model for subsequent REO Mortgages (subject to changes 

necessary or advisable, in the Collateral Agent’s judgment, to reflect local law and the particular 

nature and characteristics of the Acquired REO Property in question). Notwithstanding anything 

to the contrary contained in the foregoing, with respect to the Acquired REO Property (p) 

acquired on the date hereof, the Debtor shall deliver (and/or shall cause the applicable 

Ownership Entity to deliver) to the Collateral Agent or its designee the REO Collateral 

Documents and other items required to be delivered pursuant to this Section 8.11 within thirty 

days after the Closing Date or (q) acquired on any date after the Closing Date, the Debtor shall 

deliver (and/or shall cause the applicable Ownership Entity to deliver) to the Collateral Agent or 

its designee the REO Collateral Documents and other items required to be delivered pursuant to 

this Section 8.11 (x) within ten days following the execution and delivery of such instrument or 

(y) within ten days following receipt of any other REO Collateral Documents or other items. 

Section 8.12 Additional Grantors. If the Debtor shall form or otherwise acquire or have 

any Subsidiary, the Debtor shall cause such Subsidiary to become a Subsidiary Grantor pursuant 

to this Agreement, such Subsidiary shall execute and deliver to the Collateral Agent a Joinder 

Agreement substantially in the form of Exhibit A, which Joinder Agreement will be enforceable 

against such Subsidiary whether or not formally acknowledged or accepted by the Advance 

Lender, the NGPMN Agent, any NGPMN Holder, the Purchase Money Notes Guarantor, the 

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Collateral Agent or the Initial Member, and shall thereafter for all purposes be a party hereto and 

have the same rights, benefits and obligations as a Grantor party hereto on the Closing Date. 

Each Grantor expressly agrees that its obligations arising hereunder shall not be affected or 

diminished by the addition or release of any other Grantor hereunder, nor by any election of the 

Collateral Agent not to cause any Subsidiary of the Debtor to become a Grantor hereunder. This 

Agreement shall be fully effective as to any Grantor that is or becomes a party hereto regardless 

of whether any other Person becomes or fails to become or ceases to be a Grantor hereunder. 

Section 8.13 Transaction with Affiliates. No Grantor shall enter into any transaction 

with any Affiliate, except as expressly permitted pursuant to Section 3.5 of the LLC Operating 

Agreement, without the prior written consent of the Collateral Agent. 

Section 8.14 Books and Records; Reports; Certifications; Audits. 

(a) Maintenance of Books and Records. The Debtor shall cause to be kept 

and maintained (including by the Servicer and any Ownership Entity and including records 

transferred by the Receiver to the Debtor in connection with its conveyance of the Assets to the 

Debtor pursuant to the Contribution Agreement), at all times, at the Debtor’s chief executive 

office, a complete and accurate set of files, books and records regarding the Collateral, the 

Secured Parties Collateral and the Assets and the Debtor’s, any Ownership Entity’s and the 

Collateral Agent’s interests in the Collateral, the Secured Parties Collateral and the Assets, 

including records relating to the Debtor Accounts and the disbursement of all Asset Proceeds. 

This obligation to maintain a complete and accurate set of records shall encompass all files in the 

Debtor’s custody, possession or control pertaining to the Collateral, the Secured Parties 

Collateral and the Assets, including (except as required to be held by the Custodian/Paying agent 

pursuant to the Custodial and Paying Agency Agreement) all original and other documentation 

pertaining to the Collateral, the Secured Parties Collateral and the Assets, all documentation 

relating to items of income and expense pertaining to the Collateral, the Secured Parties 

Collateral and the Assets and all of the Debtor’s (and the Servicer’s and each Subservicer’s) 

internal memoranda pertaining thereto. The books of account shall be maintained in a manner 

that provides sufficient assurance that: (i) transactions of the Debtor are executed in accordance 

with the general or specific authorization of the Manager consistent with the provisions of the 

LLC Operating Agreement and the other Transaction Documents; and (ii) transactions of the 

Debtor are recorded in such form and manner as will (A) permit preparation of federal, state and 

local income and franchise tax returns and information returns in accordance with the LLC 

Operating Agreement and the other Transaction Documents and as required by Law; (B) permit 

preparation of the Debtor’s financial statements in accordance with GAAP and as otherwise set 

forth in the LLC Operating Agreement and the other Transaction Documents; and (C) maintain 

accountability for the Debtor’s assets. 

(b) Retention of Books and Records. The Debtor shall cause all such books 

and records to be maintained and retained until the date that is the later of ten years after the 

Closing Date or three 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 Collateral Agent, 

the Purchase Money Notes Guarantor, the NGPMN Agent or the Advance Lender or their 

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respective representatives (including any Governmental Authority) and agents at the chief 

executive office of the Debtor 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 Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Agent and 

the Advance Lender), in each instance upon not less than two Business Days’ prior notice to the 

Debtor unless an Event of Default shall have occurred and be continuing, in which case no notice 

is required. Upon request by the Collateral Agent, the Purchase Money Notes Guarantor, the 

NGPMN Agent or the Advance Lender, the Debtor, at the sole cost and expense of the Collateral 

Agent, the Purchase Money Notes Guarantor, the NGPMN Agent or the Advance Lender, as the 

case might be, promptly shall send copies (the number of copies of which shall be reasonable) of 

such books and records to the Collateral Agent, the Purchase Money Notes Guarantor, the 

NGPMN Agent or the Advance Lender. The Debtor shall provide the Collateral Agent, the 

Purchase Money Notes Guarantor, the NGPMN Agent and the Advance Lender with reasonable 

advance notice of the Debtor’s intention to destroy or dispose of any documents or files relating 

to the Assets and, upon the request of the Collateral Agent, the Purchase Money Notes 

Guarantor, the NGPMN Agent or the Advance Lender, shall allow such Person, at its own 

expense, to recover the same from the Debtor. 

(c) Reporting. 

(i) As soon as practicable following, but no later than ninety (90) days 

immediately after, the end of each Fiscal Year (as such term is defined in the LLC Operating 

Agreement) (commencing with respect to the 2010 Fiscal Year), the Debtor shall deliver, subject 

to the provisions of subsection (h) below, to each of the Initial Member, the Advance Lender, the 

Collateral Agent, the NGPMN Agent and the Purchase Money Notes Guarantor an audited 

consolidated balance sheet of the Debtor and its Subsidiaries as at the end of such Fiscal Year, 

and audited consolidated statements of operations and cash flow of the Debtor and its 

Subsidiaries for such Fiscal Year, each prepared in accordance with GAAP and accompanied by 

the Accountants’ (as such term is defined in the LLC Operating Agreement) report thereon, 

which shall be certified in the customary manner by the Accountants. 

(ii) As soon as practicable following, but no later than forty-five days 

immediately after, the end of each quarter of each Fiscal Year (other than the last quarter of such 

Fiscal Year, and commencing with the calendar quarter ending on or about March 31, 2011), the 

Debtor shall deliver, subject to the provisions of subsection (h) below, to the Initial Member, the 

Collateral Agent, the Advance Lender, the Purchase Money Notes Guarantor and the NGPMN 

Agent an unaudited consolidated balance sheet of the Debtor and its Subsidiaries as at the end of 

such calendar quarter and an unaudited consolidated statements of operations and cash flow of 

the Debtor and its Subsidiaries 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. 

(iii) The Debtor shall cause to be delivered, subject to the provisions of 

subsection (h) below, to the Initial Member, the Advance Lender, the Collateral Agent, the 

Purchase Money Notes Guarantor and the NGPMN Agent such information as is specified in 

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Exhibit B of the LLC Operating Agreement and such other information relating to the Assets, the 

Collateral, the Debtor, the Servicers and any Subservicers as the Initial Member, the Advance 

Lender, the Collateral Agent, the Purchase Money Notes Guarantor or the NGPMN Agent 

reasonably might request from time to time and, in any case, shall ensure that the Initial Member, 

the Advance Lender, the Collateral Agent, the Purchase Money Notes Guarantor and the 

NGPMN Agent promptly are advised, in writing, of any matter of which the Manager, any 

Servicer or any Subservicer becomes aware relating to the Assets, the Collateral, the Collection 

Account, the Escrow Accounts, the Working Capital Reserve Account, the Defeasance Account 

or any Borrower or Obligor that materially and adversely affects the interests of the Initial 

Member, the Advance Lender, the Collateral Agent, the Purchase Money Notes Guarantor or the 

NGPMN Agent or of any Secured Party pursuant to this Agreement. 

(d) Monthly Reports. The Debtor shall cause to be furnished to each of the 

Initial Member, the Advance Lender, the Collateral Agent, the Purchase Money Notes Guarantor 

and the NGPMN Agent on or prior to the day which is five (5) Business Days prior to the 

Distribution Date for each month, commencing on the Distribution Date following the calendar 

month in which the Closing Date occurs the Monthly Report (in the form set forth in Exhibit B 

of the LLC Operating Agreement) 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. With respect to each 

Interim Servicing Period, the Initial Member agrees that it will cooperate with the Debtor in 

preparing the Monthly Report or will provide to the Debtor information needed to enable the 

Debtor to prepare the Monthly Report. Each of the Monthly Report and the Distribution Date 

Report shall be certified by the chief financial officer (or an equivalent officer) of the Manager. 

The Monthly Report also shall 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. For the Distribution 

Date immediately preceding the Maturity Date for each Class of Purchase Money Notes, the 

Debtor shall also deliver to the Initial Member, the Purchase Money Notes Guarantor and, if 

applicable (for the Maturity Date for the Non-Guaranteed Purchase Money Notes), the NGPMN 

Agent, Maturity Date Report. The Debtor also shall cause to be furnished to each of the Initial 

Member, the Advance Lender, the Collateral Agent, the Purchase Money Notes Guarantor and 

the NGPMN Agent, the Custodian and Paying Agent Report in accordance with the terms of the 

Custodial and Paying Agency Agreement. 

(e) Annual Compliance Certificates. The Debtor shall, and shall cause the 

Servicer and any Subservicer to deliver to the Initial Member, the Advance Lender, the 

Collateral Agent, the Purchase Money Notes Guarantor and the NGPMN Agent 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 during the preceding calendar year (or 

portion thereof) and of its performance pursuant to this Agreement and the Advance Facility 

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 has fulfilled all of its obligations pursuant to this 

Agreement and the Advance Facility Agreement (or, as applicable, the Servicing Agreement or 

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any Subservicing Agreement) in all material respects throughout such year or portion thereof or, 

if there has been a failure to fulfill any such obligation in any material respect, specifying each 

such failure and the nature and status thereof. The first such officer’s certificate shall cover, with 

respect to any Asset, the period commencing on the Closing Date (and with respect to each 

Asset, including relevant information with respect thereto for the period commencing on the 

Servicing Transfer Date for such Asset) and continuing through the end of the 2010 calendar 

year. In the event the Servicer or any Subservicer was terminated, resigned or otherwise 

performed in such capacity for only part of a year, such party shall provide an officer’s 

certificate pursuant to this Section 8.14(e) with respect to such portion of the year. 

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

commencing in the year 2011, the Debtor shall cause the Servicer and any Subservicer, at its 

own expense or the expense of the Manager, to provide to the Initial Member, the Advance 

Lender, the Collateral Agent, the Purchase Money Notes Guarantor and the NGPMN Agent 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)(l) of Regulation AB that are applicable to the 

servicing being conducted under the LLC Operating Agreement (and the Servicing Agreement). 

The first such reports shall cover the period commencing on the Closing Date (and for each 

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

the end of the 2010 Fiscal Year. 

(g) Audits. Until the later of the date that is ten years after the Closing Date 

or the date that is three years after the Final Distribution, the Debtor shall, and shall cause the 

Servicer and any Subservicer to, (i) provide any representative of the Initial Member, the 

Advance Lender, the Collateral Agent, the Purchase Money Notes Guarantor or the NGPMN 

Agent (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 Collateral, 

the Secured Parties Collateral, the Servicing Obligations, the Debtor Accounts or any other 

matters relating to this Agreement or the rights or obligations pursuant to this Agreement or the 

other Transaction Documents, (ii) permit such representatives to make copies of and extracts 

from the same, (iii) allow the Initial Member, the Advance Lender, the Collateral Agent, the 

Purchase Money Notes Guarantor or the NGPMN Agent to cause such books to be audited by 

accountants selected by the Initial Member, the Advance Lender, the Collateral Agent, the 

Purchase Money Notes Guarantor or the NGPMN Agent and (iv) allow representatives of the 

Initial Member, the Advance Lender, the Collateral Agent, the Purchase Money Notes Guarantor 

or the NGPMN Agent to discuss Debtor’s and the Servicer’s or Subservicer’s affairs, finances 

and accounts, as they relate to the Collateral, the Secured Parties Collateral and the Assets, the 

Servicing Obligations, the Debtor Accounts or any other matters relating to this Agreement, the 

Secured Obligations or the rights or obligations pursuant to this Agreement, with its officers, 

directors, employees, accountants (and by this provision the Debtor hereby authorizes such 

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

Servicer, any Subservicer, and attorneys. Any expense incurred by the Initial Member, the 

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Advance Lender, the Collateral Agent, the Purchase Money Notes Guarantor or the NGPMN 

Agent and any reasonable out-of-pocket expense incurred by the Debtor in connection with the 

exercise by the Initial Member, the Advance Lender, the Collateral Agent, the Purchase Money 

Notes Guarantor or the NGPMN Agent of its rights in this Section 8.14(g) shall be borne by such 

party; provided, however, that any expense incident to the exercise by the Initial Member, the 

Advance Lender, the Collateral Agent, the Purchase Money Notes Guarantor or the NGPMN 

Agent of its rights pursuant to this Section 8.14(g) as a result of or during the continuance of an 

Event of Default shall be borne in all cases by the Private Owner as the Manager under the LLC 

Operating Agreement (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 any Subservicers) having been engaged by 

the Initial Member, the Debtor or the applicable replacement Manager following such removal of 

the Private Owner as the Manager, in each case that is not an Affiliate of the Private Owner). 

(h) No Duplicate Reports. Notwithstanding any provision in subsections (c) 

through (f) above to the contrary, the Debtor (i) shall not be required to deliver duplicate copies 

of the reports as described in such subsections to the Receiver, so long as the Receiver is acting 

in its capacity as the Collateral Agent and also in its capacities as one or more of the Initial 

Member, the Advance Lender or the NGPMN Agent and (ii) shall only be required to deliver one 

copy of each such reports addressed to the Receiver with a notation on the envelope that such 

reports is being delivered to the Receiver in its capacity as the Collateral Agent and also in its 

capacity as the Initial Member, the Advance Lender, and/or the NGPMN Agent, as applicable. 

Section 8.15 Insurance. 

(a) The Debtor shall cause insurance coverage to be maintained for the 

Collateral and the Acquired Property from an insurer (unless provided for in the then-applicable 

Business Plan) reasonably acceptable to the Purchase Money Notes Guarantor, the NGPMN 

Agent and the Advance Lender for any Asset with respect to which the Borrower has failed to 

maintain required fire, hurricane, flood and hazard insurance with extended coverage as is 

customary in the area in which the Collateral or Acquired Property is located and in such 

amounts and with such deductibles as, from time to time, are approved by the Purchase Money 

Notes Guarantor, the NGPMN Agent and the Advance Lender (unless provided for in the thenapplicable Business Plan). 

(b) All such insurance shall (i) provide that no cancellation, material reduction 

in amount or material change in coverage thereof shall be effective until at least thirty (30) days 

after receipt by the Collateral Agent of written notice thereof, (ii) with respect to any policy 

insuring a Grantor or Collateral, name the Collateral Agent as additional insured on behalf of the 

Secured Parties (in the case of liability insurance) or loss payee (in the case of property 

insurance). 

Section 8.16 Recovery of Expenses; Interest. The Debtor shall cause commercially 

reasonable efforts to be used to recover from Borrowers and Obligors those Servicing Expenses 

that such Borrowers or Obligors are obligated to pay. No Servicing Expenses shall bear interest 

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chargeable in any way to the Collateral Agent, the Purchase Money Notes Guarantor, the 

NGPMN Agent or the Advance Lender. 

Section 8.17 Debtor’s Duty To Advise Collateral Agent, Advance Lender and Purchase 

Money Notes Guarantor; Delivery of Certain Notices. In addition to such other reports and 

access to records and reports as are required to be provided to the Collateral Agent, the Purchase 

Money Notes Guarantor, the NGPMN Agent or the Advance Lender pursuant to this Agreement, 

the Debtor shall cause to be delivered to the Collateral Agent, the Purchase Money Notes 

Guarantor, the NGPMN Agent or the Advance Lender such information relating to the Assets, 

the Collateral, the Secured Parties Collateral, the Debtor, the Servicer and any Subservicer as the 

Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Agent or the Advance 

Lender reasonably might request from time to time and, in any case, shall ensure that the 

Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Agent and the Advance 

Lender are promptly advised, in writing, of any matter of which the Debtor, the Servicer or any 

Subservicer becomes aware relating to the Assets, the Collateral, the Secured Parties Collateral, 

the Debtor Accounts or any Borrower or Obligor that materially and adversely affects the 

interests of the Collateral Agent, the Purchase Money Notes Guarantor, the Advance Lender or 

the NGPMN Agent pursuant to this Agreement. Without limiting the generality of the foregoing, 

the Debtor shall cause to be delivered to the Collateral Agent, the Purchase Money Notes 

Guarantor, the NGPMN Agent and the Advance Lender information indicating any possible 

Environmental Hazards with respect to any Collateral or any Secured Parties Collateral and any 

notice or report provided to the Debtor or the Manager pursuant to Section 5.5 of the Servicing 

Agreement as in effect on the Closing Date. To the extent the Collateral Agent requests 

information that is dependent upon obtaining such information from a Borrower, Obligor or 

other third party, the Debtor shall cause to be made commercially reasonable efforts to obtain 

such information but it shall not be a breach by the Debtor of this Agreement if the Debtor fails 

to cause such information to be provided to the Collateral Agent because a Borrower, Obligor or 

other Person (other than the Servicer or any Subservicer) has failed to provide such information 

after such efforts have been made. 

Section 8.18 Administration of REO Properties. Notwithstanding any other provision 

of this Agreement to the contrary, in operating, managing, leasing or disposing of any Acquired 

REO Property, the Debtor and the Manager shall act in the best interests of the Debtor and the 

members and creditors of the Debtor (including the FDIC in its various capacities) in accordance 

with the Servicing Standards pursuant to the LLC Operating Agreement, in accordance with the 

specific provisions of the LLC Operating Agreement relating to REO Properties and in general 

conformance with the Business Plan. The Debtor shall furnish to the Collateral Agent such 

reports regarding the operation, management, leasing or disposition of any Acquired REO 

Property as the Collateral Agent reasonably shall request. 

Section 8.19 Purchase Money Notes Issuance Fee. 

(a) [Reserved.] 

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(b) In consideration of the Receiver agreeing to hold the Non-Guaranteed 

Purchase Money Notes, the Receiver shall receive on the Closing Date a fee equal to 3.50% of 

the original principal amount of the Non-Guaranteed Purchase Money Notes (the “Purchase 

Money Notes Issuance Fee”). To effect reimbursement and repayment of the Purchase Money 

Note Issuance Fee to the Receiver, the Purchase Money Note Issuance Fee will be added to the 

principal amount of the Non-Guaranteed Purchase Money Notes and paid by the Debtor when 

and as it pays the Purchase Money Notes. Upon the Conversion of any of the Non-Guaranteed 

Purchase Money Notes to one or more Guaranteed Purchase Money Notes, the Receiver shall 

pay the portion of the Non-Guaranteed Purchase Money Note Issuance Fee allocated on a pro 

rata basis to each portion of the Non-Guaranteed Purchase Money Note so Converted to the 

Purchase Money Notes Guarantor, which fee shall be deemed for all purposes to be the Purchase 

Money Notes Issuance Fee for each newly Converted Guaranteed Purchase Money Note. 

Section 8.20 Purchase Money Note Reissuance Fee. 

(a) In consideration of the Purchase Money Notes Guarantor agreeing to 

continue its guaranty of certain obligations of the Debtor following reissuance of any Guaranteed 

Purchase Money Note, including any Reissued Purchase Money Note, the Purchase Money 

Notes Guarantor will receive (in the manner specified in the following sentence) a reissuance fee 

from the Debtor in an amount equal to 0.50% of the principal amount of the Reissued Purchase 

Money Note (the “Purchase Money Notes Reissuance Fee”), which Purchase Money Notes 

Reissuance Fee is to be based on the then principal amount of the Maturing Purchase Money 

Note without taking into account the increase in the amount due to the Purchase Money Notes 

Reissuance Fee). To effect payment of the Purchase Money Notes Reissuance Fee to the 

Purchase Money Notes Guarantor, the Purchase Money Notes Reissuance Fee will be added to 

the principal balance of the Guaranteed Purchase Money Note. 

(b) Notwithstanding any provision of this Agreement to the contrary, (i) no 

Purchase Money Notes Reissuance Fee shall be payable solely as a result of the Conversion of a 

Non-Guaranteed Purchase Money Note to a Guaranteed Purchase Money Note pursuant to the 

rights granted to the Purchase Money Notes Guarantor and (ii) the Purchase Money Notes 

Reissuance Fee shall be payable only with respect to the first reissuance of each Guaranteed 

Purchase Money Note. 

ARTICLE IX
	

Required Consent; Limits Liability
	

Section 9.1 Required Consents; Limits Liability. Notwithstanding anything to the 

contrary contained in this Agreement, the Debtor shall not permit to be taken any action 

enumerated in Section 6.1 of the Servicing Agreement (other than as permitted by the last 

sentence of this Section 9.1), any action described in the LLC Operating Agreement as requiring 

the consent of the Required Consenting Parties, as applicable (including but not limited to the 

actions enumerated in Sections 3.4, 5.3, 5.4, 5.5, 8.1, 8.2, 12.13, 12.14, 12.18 and 12.20 of the 

LLC Operating Agreement), or any action enumerated below without the prior written consent of 

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the Required Consenting Party, which consent may be withheld or conditioned in such party’s 

sole and absolute discretion: 

(a) any sale, assignment, transfer, pledge, hypothecation or other 

encumbrance or disposition (each a “Transfer”) of the Private Owner LLC Interest; provided 

that any such Transfer must be of all (and not less than all) of the Private Owner LLC Interest; 

(b) any financing of the sale of any of the Assets or any financing of any other 

transfer of any of the Assets; 

(c) any Transfer of any Asset that provides for any recourse against the Initial 

Member, the Purchase Money Notes Guarantor, the Advance Lender, the Initial Member or the 

Receiver; 

(d) any disbursement of amounts from the Advance Facility other than to (i) 

fund Working Capital Expenses, (ii) replenish the Working Capital Reserve and (iii) make 

payments for Substantially Compete Vertical Development; 

(e) any disbursement of amounts from the Working Capital Reserve other 

than to fund Working Capital Expenses and Substantially Complete Vertical Development; 

(f) any disbursement of any funds in the Collection Account or the 

Distribution Account, except as expressly contemplated by the Transaction Documents; 

(g) any advances of additional funds that would increase the Unpaid Principal 

Balance of any of the Assets, other than through capitalizing accrued and unpaid interest and 

Servicing Expenses permitted under the Transaction Documents and through Required Funding 

Draws or funding of Substantially Complete Vertical Development; 

(h) reimbursement for any expense or cost incurred (or paid) to any Affiliate 

of any of the Private Owner, the Debtor, the Servicer or any Subservicer, except as permitted 

pursuant to the Transaction Documents; 

(i) any amendment or Modification to, or waiver of, any terms of the LLC 

Operating Agreement that relate to the manner in which the Servicer services the Assets, 

including, without limitation, the Servicing Obligations and the Servicing Standard; 

(j) the replacement of the Servicer; 

(k) the payment of any fees to, or entering into any transaction with, any 

Affiliate of the Debtor or the Private Owner or the Servicer or any Subservicer, except as 

expressly contemplated by the Transaction Documents; 

(l) any amendment to, Modification to or change in any material respect, or 

provide a material waiver of any provision of, the Organization Documents of the Debtor; 

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(m) any Change of Control; 

(n) [Intentionally Omitted]; 

(o) the incurrence, creation or assumption of any Indebtedness other than in 

respect of the Purchase Money Notes, this Agreement, the Discretionary Funding Advances and 

Excess Working Capital Advances and the obligations pursuant to the Advance Facility. 

Notwithstanding the foregoing, the Debtor may permit to be taken any action enumerated 

in Section 6.1(g) of the Servicing Agreement without the consent of the Required Consenting 

Party. 

Section 9.2 Limitation of Liability. 

(a) Liability Generally. Neither the Collateral Agent, the Purchase Money 

Notes Guarantor, the NGPMN Agent, the Advance Lender nor any other Secured Party nor any 

of their respective Affiliates, nor any of their respective officers, directors, employees, partners, 

principals or agents, including the Servicer and any Subservicer when acting as an agent of any 

of the foregoing, shall be liable for any action taken or omitted to be taken by them or any one of 

them under this Agreement or in connection with any Secured Parties Collateral or any portion 

thereof, except that this sentence shall not apply to any act or omission constituting gross 

negligence, bad faith or willful misconduct (including any act or omission constituting theft, 

embezzlement, breach of trust or violation of any Law). In the event the Collateral Agent, the 

Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender or any Secured 

Party exercises its rights pursuant to Article V of this Agreement, none of the Collateral Agent, 

the Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender or any Secured 

Party, nor any of their respective Affiliates, nor any of their respective officers, directors, 

employees, partners, principals or agents, including the Servicer and any Subservicer when 

acting as an agent of any of the foregoing, shall be liable for any action taken or omitted to be 

taken by them or any one of them pursuant to this Agreement or in connection with any Secured 

Parties Collateral or any portion thereof, except that this sentence shall not apply to any act or 

omission constituting willful misconduct. 

(b) Reliance on Notices, etc. None of the Debtor, the Collateral Agent, the 

Purchase Money Notes Guarantor, the NGPMN Agent or the Advance Lender shall incur any 

liability to the other by acting in good faith upon any notice, consent, certificate or other 

instrument or writing (including telegram, cable, telex or telecopy) that is reasonably believed by 

the Debtor, the Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Agent or 

the Advance Lender as applicable, to be genuine and to have been signed or sent by the proper 

party and that on its face is properly executed. 

(c) No Consequential Damages. Regardless of the legal theory upon which 

any claim by or against the Debtor or the Collateral Agent, the Purchase Money Notes 

Guarantor, the NGPMN Agent or the Advance Lender is based, including any claim based on 

contract, tort, strict liability or fraud, none of the Collateral Agent, the Purchase Money Notes 

Guarantor, the NGPMN Agent or the Advance Lender or the Debtor shall be liable for, or may 

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recover from the other, any amounts other than actual losses, costs and expenses (including 

reasonable attorneys’ fees and litigation and similar costs to pursue such recovery) incurred by 

the party asserting the claim. Without limiting the foregoing, neither party shall be liable for, or 

entitled to recover from the other party, any consequential, special, indirect, punitive, treble, 

nominal or exemplary damages, business interruption costs or expenses, or damages for lost 

profits, operating losses or lost investment opportunity (regardless of whether any such damages 

are characterized as direct or indirect), each of which is and all of which are hereby excluded by 

agreement of the Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Agent, 

the Advance Lender and the Debtor, regardless of whether the party against whom such damages 

may be claimed has been advised of the possibility of any such damages, unless (in each case) 

such losses are incurred by the party asserting the claim as a direct result of a claim asserted 

against such party by a third party. For purposes of this Section 9.2, the following claims shall 

not constitute claims asserted by a third party: (i) with respect to the Debtor, any claims asserted 

by (A) the Servicer or any Subservicer, (B) any Affiliate of the Debtor, the Servicer or any 

Subservicer and (C) any officer, director, employee, partner, principal or agent of the Debtor or 

the Servicer or any Subservicer, or any Affiliate of the Debtor, the Servicer or any Subservicer; 

and (ii) with respect to Collateral Agent, any claims asserted by any Affiliate or officer, director, 

employee, partner, principal or agent of the Collateral Agent, the Purchase Money Notes 

Guarantor, the NGPMN Agent, the Advance Lender or any Affiliate of any of them. 

ARTICLE X
	

Release of Secured Parties Collateral
	

Each of the Purchase Money Notes Guarantor, the NGPMN Agent and the Advance 

Lender hereby authorizes the Collateral Agent to, and Collateral Agent agrees that it shall, 

release its Lien on any Secured Parties Collateral, solely to the extent necessary, (a) upon a final, 

nonappealable order of a court of competent jurisdiction permitting or directing disposition 

thereof, (b) upon payment of any Asset in full and satisfaction in full of all of the secured 

obligations with respect to an Asset or upon receipt of a discounted payoff as payment in full of 

an Asset, (c) as is necessary in connection with the foreclosure on a Mortgaged Property, 

acceptance of a deed in lieu thereof or Modification or restructuring of the terms thereof or (d) in 

connection with the Debtor’s sale of an Asset or any Collateral to the extent permitted under the 

Transaction Documents, provided, that the proceeds of such sale or disposition are applied in 

accordance with the priority of payments set forth in Section 5.1 of the Custodial and Paying 

Agency Agreement and the other terms thereof. 

ARTICLE XI
	

Liquidation of Assets
	

Section 11.1 Rights to Liquidate Assets and Secured Parties Collateral. Each of the 

Initial Member, the Advance Lender and, (a) so long as any Purchase Money Note is outstanding 

and not fully discharged, the Receiver or (b) if no Non-Guaranteed Purchase Money Notes have 

been converted into Guaranteed Purchase Money Notes or, if a Conversion has occurred, after 

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the repayment in full of and the discharge of the Guaranteed Purchase Money Notes (and the 

satisfaction of the reimbursement obligation to the Purchase Money Notes Guarantor on account 

of any Guaranty Payment), the NGPMN Agent, shall have the right, exercisable in its sole and 

absolute discretion, to require the liquidation and sale, for cash consideration, of any remaining 

Assets or other Secured Parties Collateral held by the Debtor or any Ownership Entity at any 

time after the earlier to occur of (x) the seventh anniversary of the Closing Date or (y) the date 

on which the then Unpaid Principal Balance is ten percent or less of the Unpaid Principal 

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

Section 11.2 Exercise of Rights to Liquidate Assets and Secured Parties Collateral. In 

order to exercise its rights pursuant to Section 11.1, the Initial Member, the Advance Lender or, 

(a) if any Non-Guaranteed Purchase Money Notes have been Converted into Guaranteed 

Purchase Money Notes, then until the repayment in full of and the discharge of the Guaranteed 

Purchase Money Notes (and the satisfaction of the reimbursement obligation to the Purchase 

Money Notes Guarantor on account of any Guaranty Payment), the Receiver or (b) if no 

Guaranteed Purchase Money Notes have been created or after the repayment in full of and the 

discharge of any Guaranteed Purchase Money Notes (and the satisfaction of the reimbursement 

obligation to the Purchase Money Notes Guarantor on account of any Guaranty Payment), the 

NGPMN Agent, shall give notice in writing to the Collateral Agent, the Custodian/Paying Agent 

and the Debtor (with copies thereof to the Initial Member, the Advance Lender, the Purchase 

Money Notes Guarantor and the NGPMN Agent, as applicable), setting forth the date by which 

the remaining Assets or other Secured Parties Collateral are to be liquidated by the Collateral 

Agent. The Debtor shall, and shall cause the Custodian/Paying Agent to, cooperate and assist the 

Collateral Agent with any and all aspects of the liquidation of the remaining Assets and other 

Secured Parties Collateral to the extent reasonably requested by the Collateral Agent. In the 

event the Debtor or any Affiliate thereof desires to bid to acquire the remaining Assets or other 

Secured Parties Collateral, then the Collateral Agent shall be entitled to liquidate the remaining 

Assets and other Secured Parties Collateral in its discretion. In the event the Collateral Agent 

undertakes to liquidate the remaining Assets or other Secured Parties Collateral pursuant to this 

Section 11.2, the proceeds thereof shall be applied on the Distribution Date following any such 

liquidation in accordance with the priority of payments set forth in Section 5.1 of the Custodial 

and Paying Agency Agreement and the other terms thereof; provided, however, that, 

notwithstanding such priority of payments, no portion of such proceeds shall be paid pursuant to 

Section 5.1(a)(vii) of the Custodial and Paying Agency Agreement until the Secured Obligations 

have been repaid in full. 

ARTICLE XII
	

Collateral Agent
	

Section 12.1 Appointment and Authorization of Collateral Agent. Each of the Purchase 

Money Notes Guarantor, the NGPMN Agent and the Advance Lender hereby irrevocably 

appoints, designates and authorizes the Receiver to act as the Collateral Agent pursuant to this 

Agreement to act as the agent of (and to hold any security interest created by the Secured Parties 

Collateral Documents for and on behalf of or in trust for) the Advance Lender, the Purchase 

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Money Notes Guarantor, the NGPMN Agent and each other Secured Party for purposes of 

acquiring, holding and enforcing any and all Liens on the Secured Parties Collateral granted by 

any Grantor to secure any of the Secured Obligations, together with such powers and discretion 

as are reasonably incidental thereto. In this capacity, the Collateral Agent (and any co-agents, 

sub-agents and attorneys-in-fact appointed by the Collateral Agent for purposes of holding or 

enforcing any Lien on the Secured Parties Collateral (or any portion thereof) granted pursuant to 

the Secured Parties Collateral Documents, or for exercising any rights and remedies thereunder 

at the direction of the Collateral Agent), shall be entitled to the benefits of all provisions of this 

Article XII as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent 

pursuant to this Agreement. Notwithstanding any provision to the contrary contained elsewhere 

in this Agreement or in any other Transaction Document, the Collateral Agent shall have no 

duties or responsibilities, except those expressly set forth in this Agreement, nor shall the 

Collateral Agent have or be deemed to have any fiduciary relationship with any Secured Party or 

participant of a Secured Party, and no implied covenants, functions, responsibilities, duties, 

obligations or liabilities shall be read into this Agreement or any other Transaction Document or 

otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing 

sentence, the use of the term “agent” in this Agreement and in the other Transaction Documents 

with reference to the Collateral Agent is not intended to connote any fiduciary or other implied 

(or express) obligations arising under agency doctrine of any applicable Law. Instead, such term 

is used merely as a matter of market custom and is intended to create or reflect only an 

administrative relationship between independent contracting parties. 

Section 12.2 Delegation of Duties. The Collateral Agent may execute any of its duties 

pursuant to this Agreement or any other Secured Parties Collateral Document (including for 

purposes of holding or enforcing any Lien on the collateral (or any portion thereof) granted 

pursuant to the Secured Parties Collateral Documents or of exercising any rights and remedies 

thereunder) by or through agents, sub-agents, employees or attorneys-in-fact as shall be deemed 

necessary by the Collateral Agent and shall be entitled to advice of counsel and other consultants 

or experts concerning all matters pertaining to such duties. The Collateral Agent shall not be 

responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it 

selects in the absence of gross negligence or willful misconduct (as determined in the final 

judgment of a court of competent jurisdiction). 

Section 12.3 Liability of Collateral Agent. Neither the Collateral Agent, nor any of its 

Affiliates or officers, directors, employees, agents, sub-agents or attorneys-in-fact of any of them 

shall (a) be liable for any action taken or omitted to be taken by any of them pursuant to or in 

connection with this Agreement or any other Transaction Document or the transactions 

contemplated hereby (except that this sentence shall not apply to the Collateral Agent’s own 

gross negligence or willful misconduct, as determined by the final judgment of a court of 

competent jurisdiction, in connection with its duties expressly set forth in this Agreement), or (b) 

be responsible in any manner to any Secured Party for any recital, statement, representation or 

warranty made by any Grantor or any officer thereof, contained herein or in any other 

Transaction Document, or in any certificate, report, statement or other document referred to or 

provided for in, or received by the Collateral Agent under or in connection with, this Agreement 

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or any other Transaction Document, or the validity, effectiveness, genuineness, enforceability or 

sufficiency of this Agreement or any other Transaction Document, or the perfection or priority of 

any Lien or security interest created or purported to be created pursuant to the Secured Parties 

Collateral Documents, or for any failure of any Grantor or any other party to any Transaction 

Document to perform its obligations pursuant to this Agreement or any other Transaction 

Document. 

Section 12.4 Reliance by Collateral Agent. 

(a) The Collateral Agent shall be entitled to rely, and shall be fully protected 

in relying, upon any writing, communication, signature, resolution, representation, notice, 

consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic 

mail message, statement or other document or conversation believed by it to be genuine and 

correct and to have been signed, sent or made by the proper Person or Persons, and upon advice 

and statements of legal counsel (including counsel to the Debtor), independent accountants and 

other experts selected by the Collateral Agent. The Collateral Agent shall be fully justified in 

failing or refusing to take any action pursuant to any Secured Parties Collateral Document unless 

it shall first receive such advice or concurrence of the Controlling Party as it deems appropriate. 

The Collateral Agent in all cases shall be fully protected in acting, or in refraining from acting, 

pursuant to this Agreement or any other Secured Parties Collateral Document in accordance with 

a request or consent of the Controlling Party and such request and any action taken or failure to 

act pursuant thereto shall be binding upon all the Secured Parties. 

(b) Each of the Purchase Money Notes Guarantor, the NGPMN Agent and the 

Advance Lender, by its execution of this Agreement, shall be deemed to have consented to, 

approved or accepted or to be satisfied with, each document or other matter required to be 

consented to or approved by or acceptable or satisfactory to the Collateral Agent unless the 

Collateral Agent shall have received notice from the Purchase Money Notes Guarantor, the 

NGPMN Agent or the Advance Lender prior to the proposed Closing Date specifying its 

objection thereto. 

Section 12.5 Liability of Collateral Agent. The Collateral Agent shall not be deemed to 

have knowledge or notice of the occurrence of any Default or Event of Default, unless the 

Collateral Agent shall have received written notice from a Grantor or any Secured Party referring 

to this Agreement, describing such Default or Event of Default and stating that such notice is a 

“notice of default.” The Collateral Agent will notify the Purchase Money Notes Guarantor, the 

NGPMN Agent and the Advance Lender of its receipt of any such notice. The Collateral Agent 

shall take such action with respect to any Event of Default as might be directed by the 

Controlling Party in accordance with Article V; provided, however, that unless and until the 

Collateral Agent has received any such direction, the Collateral Agent may (but shall not be 

obligated to) take such action, or refrain from taking such action, with respect to such Event of 

Default as it shall deem advisable or in the best interest of the Secured Parties. 

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Section 12.6 Successor Collateral Agent. 

The Collateral Agent may resign as the Collateral Agent upon thirty (30) days’ notice to 

the Purchase Money Notes Guarantor, the Advance Lender, the NGPMN Agent and Debtor; 

provided, however, that the prior written consent of the Purchase Money Notes Guarantor, the 

NGPMN Agent, the Advance Lender and the Debtor will be required prior to the effectiveness of 

any such resignation. If the Collateral Agent resigns pursuant to this Agreement, the 

Controlling Party, with the written consent of the Debtor, shall appoint a successor collateral 

agent for the Secured Parties. If no successor collateral agent is appointed prior to the effective 

date of the resignation of the Collateral Agent, the retiring Collateral Agent may appoint, after 

consulting with the Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender 

and the Debtor, a successor collateral agent. Upon the acceptance of its appointment as 

successor collateral agent pursuant to this Agreement, the Person acting as such successor agent 

shall succeed to all the rights, powers and duties of the retiring Collateral Agent and the term 

“Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s 

appointment, powers and duties as the Collateral Agent shall be terminated. 

ARTICLE XIII
	

Miscellaneous
	

Section 13.1 Attorney-in-Fact. Each Grantor hereby constitutes and appoints the 

Collateral Agent the true and lawful attorney-in-fact of such Grantor, with full power and 

authority in the place and stead of such Grantor and in the name of such Grantor, Collateral 

Agent or otherwise, subject to the terms of this Agreement and applicable Law, to enforce all 

rights, interests and remedies of such Grantor with respect to the Secured Parties Collateral; 

provided, however, that the Collateral Agent shall not exercise any of the aforementioned rights 

unless an Event of Default has occurred and is continuing. This power of attorney is a power 

coupled with an interest and shall be irrevocable until the termination of this Agreement in 

accordance with the terms hereof; provided, however, that nothing in this Agreement shall 

prevent such Grantor from, prior to the exercise by the Collateral Agent of any of the 

aforementioned rights, utilizing the Secured Parties Collateral to transact Grantor ordinary course 

business operations. 

Section 13.2 No Petition. Each of the Collateral Agent, the Purchase Money Notes 

Guarantor, the NGPMN Agent and the Advance Lender hereby covenants and agrees that it will 

not at any time institute against the Debtor, or join in any institution against the Debtor of, any 

bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other 

proceedings under any United States federal or state bankruptcy or similar law in connection 

with any obligation relating to any Purchase Money Note, the Purchase Money Notes Guaranty, 

the Advance Facility Agreement or this Agreement. 

Section 13.3 Reimbursement of Expenses. Except as prohibited by Law, if at any time 

the Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Agent or the Advance 

Lender incurs any fees, expenses, costs, or charges (including attorneys’ fees and expenses, costs 

or charges relating thereto) in connection with the creation, perfection, preservation, or release of 

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the security interest of the Collateral Agent in the Secured Parties Collateral or the enforcement 

of any of the rights or remedies of the Collateral Agent, the Purchase Money Notes Guarantor, 

the NGPMN Agent or the Advance Lender pursuant to this Agreement, all of such fees, 

expenses, costs or charges incurred by the Collateral Agent, the Purchase Money Notes 

Guarantor, the NGPMN Agent or the Advance Lender shall become part of the Secured 

Obligations secured hereby and be paid by the Debtor on demand. 

Section 13.4 Termination of Security Interest. Upon the indefeasible satisfaction and 

discharge in full of the Secured Obligations, the security interest and all other rights granted 

hereby shall terminate and all rights to the Secured Parties Collateral shall revert to the Debtor. 

Upon any such indefeasible satisfaction, and discharge of the Secured Obligations, the Collateral 

Agent (a) upon the written request of the Debtor promptly shall execute and deliver all such 

documentation, Uniform Commercial Code termination statements and instruments as are 

necessary to release the Liens created pursuant to this Agreement and to terminate this 

Agreement, and (b) agrees, at the reasonable request of the Debtor, to furnish, execute and 

deliver such documents, instruments, certificates, notices or further assurances as the Debtor 

reasonably might request as necessary or desirable to effect such termination and release, all at 

the Debtor’s sole cost and expense. 

Section 13.5 Indemnification. 

(a) Each Grantor shall indemnify and hold harmless the Collateral Agent, the 

Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender, the FDIC and each 

of their respective Affiliates, and their respective officers, directors, employees, partners, 

principals, agents and contractors (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, “Indemnification Losses”) arising out of or 

resulting from (i) any breach by any Grantor or any of its Affiliates or any of their respective 

officers, directors, employees, partners, principals, agents or contractors (including the Servicer 

and any Subservicer) (collectively, “Related Entities”) of any of their respective obligations 

pursuant to or covenants or agreements contained in this Agreement, the Secured Parties 

Collateral Documents or the Servicing Agreement (including any claim asserted by the Collateral 

Agent, the Purchase Money Notes Guarantor, the NGPMN Agent or the Advance Lender against 

the Debtor to enforce its rights pursuant to Article V, or any third-party allegation or claim based 

upon facts alleged that, if true, would constitute such a breach), or (ii) any gross negligence, bad 

faith or willful misconduct of any of the Related Entities (including any act or omission 

constituting theft, embezzlement, breach of trust or violation of any Law). Such indemnity shall 

survive the termination of this Agreement. In order for an Indemnified Party to be entitled to any 

indemnification provided for pursuant to this Agreement in respect of, arising out of or involving 

an Indemnification 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 Debtor 

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 pursuant to 

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this Agreement, the amount of such claim (if known) and such other information with respect 

thereto as is available to the Indemnified Party and as the Debtor reasonably might request. The 

failure or delay to provide such notice, however, shall not release any Grantor from any of its 

obligations pursuant to this Section 13.5 except to the extent that it is materially prejudiced by 

such failure or delay. 

(b) If for any reason the indemnification provided for pursuant to this Section 

13.5 is unavailable or insufficient to hold harmless the Indemnified Parties, the Debtor shall 

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

Indemnification 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 Debtor or any Subsidiary 

Grantor (including the Servicer and any Subservicer), on the other hand in connection with a 

breach of the Debtor’s or any Subsidiary Grantor’s obligations pursuant to this Agreement. 

(c) If the Debtor confirms in writing to the Indemnified Party within fifteen 

days after receipt of a Third Party Claim the Debtor’s responsibility to indemnify and hold 

harmless the Indemnified Party therefor, the Debtor may elect to assume control over the 

compromise or defense of such Third Party Claim at the Debtor’s own expense and by the 

Debtor’s own counsel, which counsel must be reasonably satisfactory to the Indemnified Party; 

provided, however, that (i) if such Indemnified Party so desires, the Indemnified Party may 

employ counsel at such Indemnified Party’s own expense to assist in the handling (but not 

control the defense) of any Third Party Claim; (ii) the Debtor shall keep the Indemnified Party 

advised of all material events with respect to any Third Party Claim; (iii) the Debtor 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 any Indemnified Party 

or any of its or his Affiliates; and (iv) no Grantor, without the prior written consent of each 

Indemnified Party, will 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 such Grantor to satisfy the full amount of the 

liability in connection with such Third Party Claim and includes an unconditional release of the 

Indemnified Party from all liability arising out of such Third Party Claim. 

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

Debtor 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 Debtor shall 

nevertheless be required to pay all Indemnification 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 Debtor or any Subsidiary Grantor (or any Affiliate) and the 

Indemnified Party are named as parties and either the Debtor or such Subsidiary Grantor (or such 

Affiliate) or the Indemnified Party determines with advice of counsel that there might 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 might exist in respect of such 

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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 Debtor 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 Debtor shall nevertheless be 

required to pay all Indemnification 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 Debtor, a Subsidiary Grantor or the Indemnified Party), all of the parties to this 

Agreement 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 

reasonably might be requested by a party to this Agreement in connection therewith. 

Section 13.6 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. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS 

SECTION 13.6, HOWEVER, (a) THE UNIFORM COMMERCIAL CODE AS IN EFFECT 

FROM TIME TO TIME IN THE JURISDICTION WHERE EACH GRANTOR IS LOCATED 

IS TO GOVERN THE PERFECTION OR NON-PERFECTION AND THE PRIORITY OF 

ANY SECURITY INTERESTS GRANTED BY SUCH GRANTOR TO THE SECURED 

PARTIES PURSUANT TO THIS AGREEMENT AND (b) THE APPLICABLE LAWS IN 

EFFECT FROM TIME TO TIME IN THE JURISDICTION WHERE ANY ACQUIRED REO 

PROPERTY IS LOCATED ARE TO GOVERN THE CREATION, PERFECTION OR NONPERFECTION, PRIORITY AND ENFORCEMENT OF ANY SECURITY INTERESTS 

GRANTED BY THE APPLICABLE GRANTOR TO THE SECURED PARTIES PURSUANT 

TO THIS AGREEMENT IN AND TO SUCH ACQUIRED REO PROPERTY. NOTHING IN 

THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL ACTION OR INACTION BY 

ANY PARTY TO THIS AGREEMENT. 

Section 13.7 Jurisdiction, Venue and Service. 

(a) 

unconditionally: 

Each Grantor, for itself and its Affiliates, hereby irrevocably and 

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

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

the District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

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commenced by the Collateral Agent, the Advance Lender, the Purchase Money Notes Guarantor, 

the NGPMN Agent or the Initial Member arising out of, relating to, or in connection with this 

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

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

court or dispute-resolution forum other than the court in which the Collateral Agent, the Advance 

Lender, the Purchase Money Notes Guarantor, the NGPMN Agent or the Initial Member, as 

applicable, files the suit, action or proceeding without the consent of the Collateral Agent, the 

Advance Lender, the Purchase Money Notes Guarantor, the NGPMN Agent or the Initial 

Member, as applicable; 

(B) assert that venue is improper in 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 for any suit, action or proceeding against it or any of its Affiliates commenced by the 

Collateral Agent, the Advance Lender, the Purchase Money Notes Guarantor, the NGPMN 

Agent or the Initial Member arising out of, relating to, or in connection with this Agreement or 

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

right to: 

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

other court or dispute-resolution forum without the consent of the Collateral Agent, the Advance 

Lender, the Purchase Money Notes Guarantor, the NGPMN Agent or the Initial Member, as 

applicable; 

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

State of New York; or 

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

an inconvenient forum. 

(iii) agrees to bring any suit, action or proceeding by any Grantor or its 

Affiliates against the Collateral Agent, the Advance Lender, the Purchase Money Notes 

Guarantor, any NGPMN Holder, the NGPMN Agent or the Initial Member arising out of, 

relating to or in connection with this Agreement or any Transaction Document in only either 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 Collateral 

Agent, the Advance Lender, the Purchase Money Notes Guarantor, each NGPMN Holder, the 

NGPMN Agent or the Initial Member, as applicable, and agrees to consent thereafter to transfer 

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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 Collateral Agent, the Advance Lender, the Purchase Money Notes Guarantor or the 

Initial Member, as applicable; 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 13.7(a)(iii), to bring that 

suit, action or proceeding in only the Supreme Court of the State of New York, and waives any 

right to remove or transfer such suit, action or proceeding to any other court or dispute-resolution 

forum without the consent of the Collateral Agent, the Advance Lender, the Purchase Money 

Notes Guarantor, each NGPMN Holder, the NGPMN Agent or the Initial Member, as applicable. 

(b) Each Grantor, 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 13.7(a) may be enforced in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 13.7(d), each Grantor, on behalf of 

itself and its Affiliates, the Collateral Agent, the Advance Lender, the Purchase Money Notes 

Guarantor, each NGPMN Holder, the NGPMN Agent and the Initial Member hereby irrevocably 

and unconditionally agree that service of all writs, process and summonses in any suit, action or 

proceeding pursuant to Section 13.7(a) or Section 13.7(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 13.9 (with copies to such other Persons as specified therein); provided, 

however, that nothing contained in this Section 13.7(c) shall affect the right of any party to serve 

process in any other manner permitted by Law. 

(d) Nothing in this Section 13.7 shall constitute consent to jurisdiction in any 

court by the FDIC, other than as expressly provided in Section 13.7(a)(iii) and Section 

13.7(a)(iv), or in any way limit the FDIC’s right to remove, transfer, seek to dismiss or otherwise 

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

Section 13.8 Waiver of Jury. EACH GRANTOR (ON BEHALF OF ITSELF AND ITS 

AFFILIATES), THE COLLATERAL AGENT, THE PURCHASE MONEY NOTES 

GUARANTOR, ANY NGPMN HOLDER, THE NGPMN AGENT, THE ADVANCE LENDER 

AND THE INITIAL MEMBER HEREBY IRREVOCABLY AND UNCONDITIONALLY 

WAIVE ANY RIGHT THEY MIGHT HAVE TO A TRIAL BY JURY OF ANY DISPUTE 

ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREE THAT ANY 

SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 

Section 13.9 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 mailed or delivered to the applicable address or 

electronic mail address of the parties specified below for such Person or to such other address or 

electronic mail address as shall be designated by such party in a notice to the other parties. All 

such notices and other communications shall be deemed to be given or made upon the earlier to 

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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, four (4) Business Days after deposit in the 

mails, postage prepaid; and (C) if delivered by electronic mail, when delivered. In no event shall 

a voice mail message be effective as a notice, communication or confirmation pursuant to this 

Agreement. 

Address for notices or communications to the Debtor and any Subsidiary Grantor: 

2010-1 RADC/CADC Venture, LLC
	

4200 W. 115th Street, Suite 100
	

Leawood, Kansas 66211
	

Attention: Ryan Anderson and Kirk Lambright 

E-mail Addresses: 

with a copy to: 

Greenberg Traurig, LLP 

1750 Tysons Boulevard, Suite 1200 

McLean, Virginia 22102 

E-mail Address: 

Attention: Thomas Galli, Shareholder 

Address for notices or communications to any of the Collateral Agent, the Initial 

Member, the Purchase Money Notes Guarantor, the NGPMN Holder, the NGPMN Agent and the 

Advance Lender: 

Assistant Director, Structured Deals
	

c/o Federal Deposit Insurance Corporation
	

550 17th Street, NW (Room F-7014)
	

Washington, D.C. 20429-0002
	

Attention: Ralph Malami
	

E-mail Address: RMalami@fdic.gov
	

with a copy to: 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

E-mail Address: DGearin@fdic.gov 

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Section 13.10 Assignment. This Agreement shall inure to the benefit of and be binding 

on and enforceable against each Grantor, the Collateral Agent, the Purchase Money Notes 

Guarantor, each NGPMN Holder, the NGPMN Agent, the Advance Lender and the Initial 

Member and their respective successors and assigns; provided, however, that no Grantor shall 

assign its rights pursuant to this Agreement in whole or in part without the prior written consent 

of the Collateral Agent, the Advance Lender, any NGPMN Holder, the NGPMN Agent and the 

Purchase Money Notes Guarantor. 

Section 13.11 Entire Agreement. This Agreement contains the entire agreement among 

the Grantors, the Collateral Agent, the Purchase Money Notes Guarantor, the NGPMN Holder, 

the NGPMN Agent, the Advance Lender and the Initial Member with respect to the subject 

matter of this Agreement and supersedes any and all other prior agreements, whether oral or 

written, 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 other Transaction Documents shall 

remain in full force and effect to the extent provided therein. 

Section 13.12 Amendments and Waivers. No provision of this Agreement may be 

amended or waived except in writing executed by all of the parties to this Agreement, except for 

Article II, any provision of which may be amended and waived in writing executed by the 

Debtor, the Advance Lender, the NGPMN Agent and the Purchase Money Notes Guarantor. 

Section 13.13 Confidentiality. Each Grantor shall keep confidential and shall not 

divulge to any Person, without the prior written consent of the Collateral Agent, the Advance 

Lender, the Purchase Money Notes Guarantor, the NGPMN Agent and the Initial Member, any 

information pertaining to this Agreement, the Assets or any Borrower or the Collateral 

thereunder, except as reasonably necessary to carry out the intent of this Agreement and the other 

Transaction Documents and except to the extent that it is necessary and appropriate for such 

Grantor to do so in working with legal counsel, auditors, taxing authorities, regulatory authorities 

or any other Governmental Authority; provided, however, that, to the extent that disclosure 

should be required by Law, rule, regulation (including any securities listing requirements or the 

requirements of any self-regulatory organization) or subpoena or in connection with any legal or 

regulatory proceeding (including in connection with or pursuant to any action, suit, subpoena, 

arbitration or other dispute resolution process or other legal proceedings, whether civil or 

criminal, and including before any court or administrative or legislative body), such Grantor will 

use all reasonable efforts to maintain confidentiality and (unless otherwise prohibited by Law) 

will notify the Collateral Agent, the Advance Lender, the Purchase Money Notes Guarantor, the 

NGPMN Agent and the Initial Member within one Business Day after its knowledge of such 

legally required disclosure so that the Collateral Agent, the Advance Lender, the Purchase 

Money Notes Guarantor, the NGPMN Agent and/or the Initial Member may seek an appropriate 

protective order. Notice shall be by telephone, by email and in writing. In the absence of a 

protective order or waiver, such Grantor may make such required disclosure if, in the written 

opinion of its outside counsel (which opinion shall be provided to the Collateral Agent, the 

Advance Lender, the Purchase Money Notes Guarantor, the NGPMN Agent and the Initial 

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Member prior to disclosure pursuant to this Section 13.13), failure to make such disclosure 

would subject such Grantor to liability for contempt, censure or other legal penalty or liability. 

Section 13.14 Reinstatement. This Agreement shall continue to be effective or be 

automatically reinstated, as the case may be, if at any time payment pursuant to this Agreement 

is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, 

reorganization, liquidation of any Grantor or upon the dissolution of, or appointment of any 

intervenor or conservator or, or trustee or similar official for, any Grantor or any substantial part 

of any Grantor’s assets, or otherwise, all as though such payments had not been made, and the 

Debtor shall pay the Collateral Agent, the Advance Lender, the Purchase Money Notes 

Guarantor, each NGPMN Holder or the NGPMN Agent on demand all reasonable costs and 

expenses (including reasonable fees of counsel) incurred by the Collateral Agent, the Advance 

Lender, the Purchase Money Notes Guarantor, each NGPMN Holder or the NGPMN Agent in 

connection with such rescission or restoration. 

Section 13.15 Interpretation; No Presumption. Headings are intended solely for 

convenience of reference and shall not affect the meaning or interpretation of the provisions of 

this Agreement. This Agreement shall be construed fairly as to each party to this Agreement and 

if at any time any such term or condition is desired or required to be interpreted or construed, no 

consideration shall be given to the issue of who actually prepared, drafted or requested any term 

or condition of this Agreement or any agreement or instrument subject to this Agreement. 

Section 13.16 Severability. Any provision of this Agreement that is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (a) 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 might be; (b) without limitation of clause (a), such provision in any event shall 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 (c) without limitation of 

clauses (a) or (b), 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, if 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, (p) 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, then might be enforced in such proceeding and (q) enforce such provision, as so 

modified pursuant to clause (p), in such proceeding. Nothing in this Section 13.16 is intended to, 

or shall, limit (x) the ability of any party to this Agreement to appeal any court ruling or the 

effect of any favorable ruling on appeal or (y) the intended effect of Section 13.6. 

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Section 13.17 Survival. All obligations made in this Agreement shall survive the 

execution and delivery of this Agreement. Except as otherwise provided in this Agreement or 

implied by applicable Law, the obligations of each Grantor set forth in this Agreement shall 

terminate only upon the satisfaction and discharge in full of the Secured Obligations. 

Section 13.18 No Third Party Beneficiaries. This Agreement is made for the sole benefit 

of the Collateral Agent, the Advance Lender, the Purchase Money Notes Guarantor, each 

NGPMN Holder, the NGPMN Agent, the Secured Parties and the Grantors and their respective 

successors and permitted assigns, and no other Person or Persons (including Borrowers or any 

co-lender or other Person with any interest in or liability under any of the Assets) shall have any 

rights or remedies pursuant to or by reason of this Agreement. 

Section 13.19 Counterparts; Facsimile Signatures. This Agreement may be executed in 

two or more counterparts, each of which shall be deemed an original but all of which together 

shall constitute but one and the same agreement. This Agreement and any amendments to this 

Agreement, 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. 

[Remainder of Page Intentionally Left Blank] 

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By: 	 FEDERAL DEPOSIT INSURANCE 

CORPORATION in its capacity as Receiver 

for various failed financial institutions listed 

on Schedule I hereto, as Sole Member 

By: 


Name:
 

Title: Attorney-in-Fact 


FEDERAL DEPOSIT INSURANCE 

CORPORATION in its capacity as Receiver for 

various failed financial institutions listed on 

Schedule I hereto, solely for purposes of Sections 

8.19, ILl, 11.2 and I2.4(b) 

~~~
 Title: 

[SIGNATURE PAGES TO REIMBURSEMENT, SECURITY AND GUARANTY AGREEMENT]