NORTH CRE VENTURE 2010-2
 

LIMITED LIABILITY COMPANYINTERESTSALE AND ASSIGNMENT
 

AGREEMENT
 

by and among
 

COLFIN MILESTONE NORTHFUNDING,LLC,
 

FEDERALDEPOSITINSURANCECORPORATION,
 

ASRECEIVER WITHRESPECT TOTHESEPARATERECEIVERSHIPSFOR
 

EACH OFTHE VARIOUSFAILED FINANCIALINSTITUTIONS LISTED ON
 

SCHEDULEI HERETO
 

and
 

NORTH CRE VENTURE2010-2,LLC
 

Dated as ofDecember 15,2010
 

NorthCRE Venture 2010-2
 

LLC Interest Sale and Assignment
 

EXECUTION VERSION
 
LIMITED LIABILITY COMPANYINTEREST
 

SALE AND ASSIGNMENT AGREEMENT
 

THIS LIMITED LIABILITY COMPANYINTEREST SALEAND ASSIGNMENT
 

AGREEMENT(this"A~reement")is made as ofDecember 15,2010,by and among ColFin
 

Milestone North Funding,LLC,a limited liability company organized and existing underthe
 

laws ofDelaware(the "Private Owner"),and the Federal Deposit Insurance Corporation(in
 

any capacity,the"FDIC"),in its separate capacities as receiver with respect to the separate
 

receiverships for each ofthe various failed financial institutions listed on Schedule I hereto
 

(including its successors and assigns thereto)(collectively,the"Initial Member"),and North
 

CRE Venture 2010-2,LLC,a limited liability company organized and existing under the laws
 

ofDelaware(the"Comnanv"). Capitalized terms used and not defined in this Agreement shall
 

have the respective meanings set forth in the North CRE Venture 2010-2 Structured
 

Transaction-Agreement ofCommon Definitions entered into on the Closing Date by and
 

amongthePrivate Owner,the Initial Member,the FDIC and the Company,among others(the
 

"AgreementofCommon Definitions").
 

RECITALS
 

WHEREAS,theFDIC has separately been appointed receiver for each ofthe various
 

failed financial institutions listed on Schedule I hereto(individually or collectively,the"Failed
 

Bank");and
 

WHEREAS,the Initial Memberformed the Company by causing the Certificate of
 

Formation ofthe Companyto befiled with the Secretary ofState ofthe State ofDelaware on
 

December 1,2010,and holds the sole limited liability company interest(as such term is defined
 

in the Act)in the Company(an"LLCInterest'),and has entered into that certain Original LLC
 

Operating Agreement;and
 

WHEREAS,pursuantto the Contribution Agreementthe Initial Member has contributed
 

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

to the Assets; and
 

WHEREAS,after conducting a sealed bid sale for a forty percent(40%)LLC Interest
 

(the"Transferred LLCInterest"),the FDIC selected Colony Capital Acquisitions,LLC(the
 

"Sponsor")as the successful bidder pursuant to the bid form submitted by it(the"Bid Form")
 

and,in accordance withthe instructions governing the sealed bid sale,the Sponsor has deposited
 

$1,100,579.00(the"EarnestMoneyDeposit")with the FDIC;and
 

WHEREAS,following its selection as the successful bidder, the Sponsorformed the
 

Private Owner as a Qualified Transferee;and
 

WHEREAS,the Initial Member desires to transfer the Transferred LLCInterest to the
 

Private Owner upon which the Initial Member will retain a sixty percent(60%)percent LLC
 

North CRE Venture 2010-2
 

LLC Interest Sale and Assignment
 

EXECUTION VERSION
 
Interest and enter into the LLC Operating Agreement,the form of which is attached hereto as
 

Exhibit A and the Private Owner desires to acquire the Transferred LLCInterest and enter into
 

the LLC Operating Agreement;and
 

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

the Company pro rata in accordance their proportionate LLC Interests(after giving effectto the
 

transfer ofthe Transferred LLCInterest),to fund the Working Capital Reserve with an aggregate
 

amount of$4,000,000(such sum,the"WCR AccountDeposit"); and
 

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

$2,400,000(the"Initial Member WCRAccountDeposit")and Private Owner's pro rata share
 

ofsuch WCRAccountDepositis $1,600,000(the"Private Owner WCR AccountDeposit");
 

and
 

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

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

sufficiency ofwhich are hereby acknowledged,the Initial Member,the Private Owner and the
 

Company hereby agree as follows:
 

1. Sale and Assisnment;Purchase Price; Funding of Working Capital Reserves
 

Closing•
 

(a) Sale and Assignment. Subject to theterms and conditions ofthis
 

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

purchases from the Initial Member,all ofthe Initial Member'sright, title and interestin and to
 

the Transferred LLC Interest for a purchase price of$11,005,792.00(the"Transferred LLC
 

Interest Sale Price"). Onthe date hereof,in satisfaction ofits obligation to pay the Transferred
 

LLC Interest Sale Price, the Private Owner shall(i)remitto the Initial Member,by wire transfer
 

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

amount(the"Purchase PricePayment")equal to the positive difference (if any)between(x)
 

the Transferred LLC Interest Sale Price and(y)thesum of(A)the Earnest Money Deposit and
 

(B)theInitial Member WCR Account Deposit,and (ii)(x)remit,on behalfofthe Initial
 

Member,by wire transfer ofimmediately available funds,an amountequal to the Initial Member
 

WCR AccountDepositto the Paying Agentfor credit to the Working Capital Reserve Account,
 

and(y)remit,on its own behalf, by wire transfer ofimmediately available funds,an amount
 

equal to the Private Owner WCR Account Deposit to the Paying Agentfor credit to the Working
 

Capital Reserve Account.
 

(b) Closing Procedure. Upon(i)thereceipt by theInitial Member of(x)the
 

Purchase Price Payment,(y)evidence ofthe establishment ofthe Working Capital Reserve
 

Account in accordance with the provisions ofSection 3.6 ofthe Custodial and Paying Agency
 

Agreement,and(z)confirmation ofreceipt ofthe Initial Member WCR Account Deposit and the
 

Private Owner WCR Account Deposit by the Paying Agent,(ii)the delivery ofthe executed LLC
 

Operating Agreement by the parties thereto(as required by Section 2,(iii)the delivery ofthe
 

Additional Security(as required by Section 3),(iv)the delivery ofthe completed Asset Value
 

Schedule,in theform attached hereto as Exhibit B allocating the Transferred LLC Interest Sale
 

3
 

North CRE Venture2010-2
 

LLC Interest Sale and Assigmnent
 

EXECUTION VERSION
 
Price among the Assets(the"Asset Value Schedule"), which shall be appended to the
 

Contribution Agreement as the Asset Value Schedule thereunder,(v)the delivery ofthe executed
 

Transferee Acknowledgment and Certification,in the form attached hereto as Exhibit C,and(vi)
 

the delivery ofthe executed Joinder and Consent Agreement,in the form attached hereto as
 

ExhibitD,the sale and assignment ofthe Transferred LLCInterestto the Private Owner and the
 

closing ofthe other transactions contemplated hereby(collectively,the"Closin ")shall be
 

effective.
 

2. LLC Operating A~reernent. Contemporaneously with the execution and
 

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

Initial Member the LLC Operating Agreement.
 

3. Additional Security. Contemporaneously with the execution ofthis Agreement
 

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

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

establish the Private OwnerPledged Account. The Private Owner shall deliver(or cause to be
 

delivered)the Additional Security in the aggregate amount of$2,500,000,in the form ofone or
 

more Qualifying Letters ofCredit and/or a cash deposit.
 

4. Representations and Warranties ofPrivate Owner. ThePrivate Owner hereby
 

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

(a) The Private Owner is a"Qualified Transferee,"as such term is defined in
 

the LLC Operating Agreement,and as such,represents and warrants that each item included in
 

such definition is true and correct in all respects as ofthe date hereofas ifset forth herein.
 

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

agents by or on behalfofthe Private Owner or any Affiliate thereof(including the Sponsor)in
 

connection with this Agreement and the transactions contemplated hereby,including,but not
 

limited to,the Purchaser Eligibility Certification,the Bid Certification,the Structured
 

Transaction Qualification Request,the Bidder Qualification Request and the Structured
 

Transaction Confidentiality Agreement,are true and correct in all respects as ofthe date hereof
 

and do not fail to state any fact necessary to makethe information contained therein not
 

misleading.
 

5. Exclusivity ofRepresentations. THETRANSFERRED LLCINTEREST IS
 

SOLD"ASIS"AND"WITH ALL FAULTS,"WITHOUT ANYREPRESENTATION,
 

WARRANTY,GUARANTY OR RECOURSE WHATSOEVER,INCLUDING AS TO ITS
 

VALUE(OR THE VALUE,COLLECTABILITY OR CONDITION OF THE ASSETS HELD
 

BY THE COMPANY OR ANY OFTHECOLLATERALFORSUCH ASSETS),FITNESS
 

FOR ANYPARTICULAR PURPOSE,MERCHANTABILITY,FITNESS FOR A SPECIFIC
 

PURPOSE OR ANY OTHER MATTER,WHETHEREXPRESS ORIMPLIED ORBY
 

OPERATION OFLAW OR OTHERWISE,ANDTHEINITIAL MEMBER SPECIFICALLY
 

DISCLAIMS ANY WARRANTY,GUARANTY ORREPRESENTATION,ORAL OR
 

WRITTEN,PAST ORPRESENT,EXPRESS ORIMPLIED,CONCERNINGTHE
 

TRANSFERRED LLC INTEREST,THE ASSETS,ORTHE COLLATERAL SECURING THE
 

North CREVenture 2010-2
 

LLCInterest Sale and Assigmnent
 

EXECUTION VERSION
 
ASSETS,
 

6. Assignment. This Agreementand all ofthe provisions hereofshall be binding
 

uponand inure to the benefit ofthe parties hereto and their respective heirs(in the case ofany
 

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

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

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

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

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

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

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

8. Waivers and Amendments. No amendmentor waiver ofany provision ofthis
 

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

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

9. Failure to Consummate Transaction. Iffor any reason,withoutfault ofthe
 

Initial Member,the Private Owner fails to consummatethe purchase ofthe Transferred LLC
 

Interest,upon the terms and conditions set forth in this Ageement,the Initial Member's
 

liquidated damages,and sole and exclusive remedy,shall beto retain the Earnest Money
 

Deposit. The Private Ownerand the Initial Member agree that the failure or refusal ofthe Initial
 

Memberto alter or modify,in any way,the terms or conditions ofthis Agreement,the LLC
 

Operating Agreement or any Transaction Documentshall not constitute fault onthe part ofthe
 

Initial Member. The Private Owner shall not be liable for any ofthe foregoing damages ifthe
 

Private Owner is forced to withdraw its bid made pursuant to the Bid Form after award as the
 

result ofa supervisory directive given by the FDIC or any other federal or state financial
 

regulatory agency,provided that the Initial Member shall be satisfied that such supervisory
 

directive is legally effective. In such event,the Initial Member shall refund the Earnest Money
 

Deposit.
 

10. Governing Law. EACHPARTY 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 OFTHE
 

STATEOFNEW YORK,EXCLUDING ANY CONFLICT-OF-LAWS RULE ORPRINCIPLE
 

THATMIGHTREFER THE GOVERNANCE OR THE CONSTRUCTION OFTHIS
 

AGREEMENTTOTHELAW OF ANOTHER JURISDICTION AND EACHPARTYTO
 

THIS AGREEMENT UNCONDITIONALLY ANDIRREVOCABLY WAIVESANY CLAIM
 

TO ASSERTTHATTHELAWS OF ANYOTHER JURISDICTION GOVERN THIS
 

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

party hereto.
 

11. Jurisdiction; Venue and Service.
 

North CREVenture 2010-2
 

LLCInterest Sale and Assignment
 

EXECUTION VERSION
 
(a) Each ofthe Private Owner and the Company,in each case on behalfof
 

itselfand its Affiliates, hereby irrevocably and unconditionally:
 

(i) consents to the jurisdiction ofthe United States District Courtfor
 

the Southern District ofNew York and to thejurisdiction ofthe United States District Courtfor
 

the District ofColumbia for any suit, action or proceeding against it or any ofits Affiliates
 

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

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

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

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

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

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

District Court for the Southern District ofNew York or the United States District Courtfor the
 

District ofColumbia; or
 

(C) assert that the United States District Courtfor the Southern
 

District ofNew York or the United States District Courtfor the District ofColumbia is an
 

inconvenient forum;
 

(ii) consents to thejurisdiction ofthe Supreme Court ofthe State of
 

NewYork,County ofNew York,for any suit, action or proceeding against it or any ofits
 

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

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

waives any right to:
 

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

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

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

State ofNew York,County ofNew York;or
 

(C) assert that the Supreme Court ofthe State ofNew York,
 

County ofNew York is an inconvenientforum;
 

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

Affiliates againstthe Initial Member arising out of,relating to, or in connection with this
 

Agreement or any Transaction Document(other than the LLC Operating Agreement)in only the
 

United States District Courtfor the Southern District ofNew York orthe United States District
 

Court for the District ofColumbia,and waives any right to remove or transfer such suit, action or
 

proceeding to any other court or dispute-resolution forum without the consent ofthe Initial
 

Member,and agrees to consentthereafter to transfer ofthe suit, action or proceeding to either the
 

United States District Courtfor the Southern District ofNew York or the United States District
 

Courtfor the District ofColumbia at the option ofthe Initial Member;and
 

North CRE Venture2010-2
 

LLC Interest Sale and Assignment
 

EXECUTION VERSION
 
(iv) agrees, ifthe United States District Court for the Southern District
 

ofNew York and the United States District Courtfor the District ofColumbia both lack
 

jurisdiction to hear a suit,action or proceeding falling within Section 11(a)(iii),to bring that suit,
 

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

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

dispute-resolution forum without the consent ofthe Initial Member.
 

(b) Each ofthe Private Ownerand the Company,in each case on behalfof
 

itself and its Affiliates,hereby irrevocably and unconditionally agrees that any finaljudgment
 

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

in any court of.competentjurisdiction.
 

(c) Subject to the provisions ofSection 11(d),each ofthe Private Owner and
 

the Company,in each case on behalfofitself and its Affiliates, and the Initial Member,hereby
 

irrevocably and unconditionally agreesthat service ofall writs, process and summonses in any
 

suit, action or proceeding pursuant to Section 11(a)or Section 11(b)maybe effected bythe
 

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

notices pursuant to_Section 11.(with copies to such other Persons as specified therein); provided,
 

however,thatnothing contained in this Section 11(c)shall affectthe right ofany party to serve
 

process in any other manner permitted by Law.
 

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

court bythe FDIC,otherthan as expressly provided in Section 11(a)(iii) and Section 11(a)~iv), ar
 

in any waylimitthe FDIC's right to remove,transfer,seekto dismiss,or otherwise respond to
 

any suit, action,or proceeding againsttheFDICin any rorum.
 

12. Waiver ofJury Trial. EACH OFTHEPRIVATEOWNER ANDTHE
 

COMPANY,FORITSELF ANDITS AFFILIATES,AND THEINITIAL MEMBER,HEREBY
 

IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVETO A
 

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

AGREEMENTANDAGREESTHAT ANY SUCHDISPUTE SHALLBETRIED BEFORE A
 

JUDGE SITTING WITHOUT A JURY.
 

13. Notices. All notices,requests,demands and other communicationsrequired or
 

permitted to be given or delivered under or by reason ofthe provisions ofthis Ageement shall
 

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

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

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

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

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

receipt(or refusal thereofl by the relevant party hereto and (ii)(A)ifdelivered b y hand orby
 

nationally recognized courier service, when signed for(or refused)by or on behalfofthe
 

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

by electronic mail(which form ofdelivery is subject to the provisions ofthis paragraph),when
 

delivered and capable ofbeing accessed from the recipient's office computer,provided that any
 

notice,request,demand or other communication that is received other than during regular
 

7
 

NorthCRE Venture2010-2
 

LLCInterest Sale and Assignment
 

EXECUTION VERSION
 
business hours ofthe recipient shall be deemed to have been given at the opening ofbusiness on
 

the next Business Dayofthe recipient. In no event shall a voice mail message be effective as a
 

notice, communication or confirmation hereunder. From time to time,any party may designate a
 

new address for purposes ofnotice to it hereunder by notice to such effect to the other parties
 

hereto in the mannersetforth in this Section 13.
 

Ifto the Initial Member,to:
 

Assistant Director for Structured Transactions -Resolutions &Receiverships
 

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
 

Ifto the Private Owner or to the Company,to:
 

2450Broadway,6th Floor
 

Santa Monica,California 90404
 

Attention: Paul A.Fuhrman
 

E-mail Address:
 

with a copy to:
 

Colony Capital,LLC
 

660 Madison Avenue
 

New York,New York 10065
 

Attention; Ron
 

E-mail Address:
 

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

numberofcounterparts, each ofwhichshall be an original and all of.which shall together
 

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

8
 

North CRE Venture 2010-2
 

LLC Interest Sale and Assignment
 

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

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

as an original agreementand shall be considered to have the same binding legal effect as ifit
 

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

shall raise the use ofa 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 ofa
 

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

contract and each such Person forever waives any such defense,
 

15. Headings. Paragraph titles or captions contained in this Agreementare inserted
 

only as a matter ofconvenience and for reference and in no way define,limit, extend or describe
 

the scope ofthis Agreement or the intent ofany provisions hereof. All Section and paragraph
 

references contained herein shall refer to Sections and paragraphs in this Agreementunless
 

otherwise specified.
 

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

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

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

hereunder. Section 1.2 ofthe Contribution Agreement(Construction)is hereby incorporated by
 

reference into this Agreement.
 

[REMAINDER OFPAGEINTENTIONALLY LEFT BLANK]
 

9
 

North CRE Venture 2010-2
 

LLC Interest Sale and Assignment
 

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

executed as ofthe date first written above.
 

PRIVATE OWNER:
 

COLFIN MILESTONE NORTHFUNDING,
 

LLC
 

C
 

Name:
 

Title:
 

INITIAL MEMBER:
 

FEDERALDEPOSITINSURANCE
 

CORPORATION,IN ITSSEPARATE
 

CAPACITIES A5RECEIVER WITH
 

RESPECT TOTHESEPARATE
 

RECEIVERSHIPS FOREACHOFTHE
 

VARIOUSFAILED FINANCIAL
 

INSTITUTIONSLISTED ONSCHEDULEI
 

HERETO
 

By:
 

Name: Heidi Silverberg
 

Title: Attorney-in-Fact
 

[SIGNATUREPAGE TOLIMITED LIABILITY COMPANY INTEREST SALE
 

AGREEMENT]
 

[Signature Page m 
 Limited Liability Company Interest Sale and Assignment Agreement)


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

executed as ofthe date $rst written.above.
 

ORNATE OWNER:
 

COLFIN MI~,ESTONE NO'l~TH FUNDING,
 

LL
 

By
 

Tale: ~u-t~~~i~~ ,~es~~.~u~-.­

tNiTIAL M~+MBER•
 

FEDERALDEPOSIT1NSURANCE
 

CORPORATION,IN TTSSEPARATE
 

CAPACITIES AS RECEIVER WITH
 

RESPECTTOTHESEPARATE
 

RECEIVERSHIPS FOR EAC~IOFTHE
 

VAR10U'SFAILED FINANCIAL
 

INSTITUTIONS LISTED ONSCHEDUT.,E Y
 

HERETO
 

By;
 

Name; Heidi Silverberg
 

Title; Attorney-in-F~ct
 

jSCGNATUREPARETO~,IMITED LIABILITY C~l'vIPANY A~1T~REST SALE
 

AGREBM~NTJ
 

[Si~oaturo Page to Umita!Liability CompanyIntemt Sate and Asaigmnent Agro~ent] 

No►th GRE Vrntwe24t0.2 

LLCIntcrcst Sakand Assignment 

EXECU'f10N VERSION 
COMPANY:
 

NORTH CRE VENTURE2010-2,LLC
 

By; Federal Deposit Insurance Corporation,in its
 

Separate Capacities as Receiver with respect to the
 

Separate Receiverships for each ofthe Various
 

Failed Financial Institutions listed on Schedule I
 

hereto
 

By:
 

Name: Heidi Silverberg
 

Title: Attorney-in-Fact
 

[SIGNATUREPAGETOLIMITED LIABILITY COMPANYINTEREST SALE
 

AGREEMENT]
 

North CRE2010-2 1l
 

EXECUTION VERSION
 
SCHEDULEI
 

C~ Closin
 

Citizens State Bank New Baltimore MI 10162 12/18/2009 

Bank ofLeeton Leeton MO 10174 1/22/2010 

Broadway Bank ~ Chicago IL 10219 4/23/2010 

Citizens Bank &Trust Company ofChicago Chicago IL 10220 4/23/2010 

CF Bancorp(Citizens First) Port Huron ' MI 10226 ~ 4/30/2010 

Arcola Homestead Savings Bank Arcola IL 10246 ~ 6/04/2010 

North CRE Venture2010-2
 

LLCInterest Sale and Assigmnent
 

EXECUTION VERSION
 
Exhibit A
 

Form ofLLC Uperatin~ Agreement
 

13
 

North CRE Venture 2010-2
 

LLCInterest Sale and Assignment
 

EXECUTION VERSION
 
North CRE Venture 2010-2 Structured Transaction
 

AMENDED AND RESTATED
 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT
 

NORTH CRE VENTURE 2010-2,LLC
 

DATED AS OFDECEMBER 15,2010
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION
 
TABLE OF CONTENTS
 

Page
 

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

1,1 Definitions........................................................................................................ 2
 

Construction...................................................................................................10
 

ARTICLEII ORGANIZATION OFTHE COMPANY........................................................ 11
 

1.2
 

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

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

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

2,4 Registered Office; ChiefExecutive Office.................................................... 12
 

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

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

2.7 Ratification ofCertain Actions...................................................................... 15
 

ARTICLE III MANAGEMENT AND OPERATIONS OFTHECOMPANY...................16
 

3.1 Managementofthe Company's Affairs......................................................... 16
 

3.2 Removal ofthe Manager................................................................................ 19
 

3.3 Employees and Services ................................................................................ 19
 

3.4 Restrictions on Manager and Private Owner................................................. 20
 

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

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

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

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

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

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

3.11 No Bankruptcy Filing .................................................................................... 23
 

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

3.13 Remedies Upon an Event ofDefault; Security Interest................................. 24
 

3.14 Purchase Right ofthe Initial Member............................................................ 28
 

3.15 NoERISA Plan Assets................................................................................... 30
 

ARTICLEIV MEMBERSHIPINTERESTS;RIGHTS AND DUTIES OF,AND
 

RESTRICTIONS ON,MEMBERS............................................................ 30
 

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


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


4.3
 Filings; Duty ofMembersto Cooperate ........................................................ 31
 

4.4
 Certain Restrictions and Requirements.......................................................... 3I
 

4.5
 Liability ofthe Initial Member ...................................................................... 32
 

Noiih CRE Venture 2010-2,LLC _i_
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION
 
TABLE OFCONTENTS
 

(continued)
 

Page
 

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

ARTICLE V CAPITAL CONTRIBUTIONS;DISCRETIONARY FUNDING
 

ADVANCE;EXCESS WORKING CAPITAL ADVANCE....................36
 

5,1 Capital Contributions..................................................................................... 36
 

5.2 Working Capital Reserve Account ................................................................ 37
 

5.3 Discretionary Funding Advance .................................................................... 37
 

5.4 Excess Working Capital Advances................................................................ 38
 

ARTICLE VI CAPITAL ACCOUNTS;ALLOCATIONS;PRIORITY OF
 

PAYMENTS;DISTRIBUTIONS............................................................... 38
 

6.1 Capital Accounts............................................................................................ 38
 

6.2 Allocations to Capital Accounts .................................................................... 39
 

6.3 Tax Allocations.............................................................................................. 41
 

6.4 Determinations by Tax Matters Member....................................................... 41
 

6.5 Priority ofPayments ...................................................................................... 42
 

6.6 Distributions...................................................................................................
 

ARTICLE VII ACCOUNTING,REPORTING AND TAXATION..................................... 44
 

7.1 Fiscal Year ..................................................................................................... 44
 

7.2 Maintenance ofBooks and Records .............................................................. 44
 

7.3 Financial Statements...................................................................................... 45
 

7.4 Additional Reporting and Notice Requirements............................................ 46
 

7.5 Designation ofTax Matters Member............................................................. 48
 

7.6 Tax Information ............................................................................................. 49
 

7.7 Business Plans................................................................................................ 50
 

ARTICLE VIII RESTRICTIONS ON DISPOSITION OFLLCINTERESTS.................. 52
 

8.1 Limitations on Disposition ofLLC Interests ................................................. 52
 

8.2 Change of Control.......................................................................................... 52
 

8.3 Additional Provisions Relating to Permitted Dispositions............................ 52
 

8.4
 Effect ofPermitted Dispositions.................................................................... 53


8.5
 Effect ofProhibited Dispositions................................................................... 54


8.6
 Distributions After Disposition...................................................................... 54


8.7
 Transfers Bythe Initial Member.................................................................... 54


8.8
 Resignation; Dissolution................................................................................ SS


8.9
 Applicable Law Withdrawal.......................................................................... 55


North CRE Venture 2010-2,LLC
 

Amended and Restated Operating A6neement
 

EXECUTION VERSION 11
 
TABLE OF CONTENTS
 

(continued)
 

Page
 

ARTICLEIX DISSOLUTION AND WINDING-UP OFTHE COMPANY....................... 56
 

9.1
 Dissolution.....................................................................................................56


9.2
 Winding-Up Procedures................................................................................. 56


9.3 Termination ofthe Company......................................................................... 57
 

ARTICLE X QUALIFIED TRANSFEREES.......................................................................... 57
 

10.1 Qualified Transferees..................................................................................... 57
 

ARTICLEXIMANAGER LIABILITY.................................................................................. 61
 

11.1 Liability ofManager...................................................................................... 61
 

ARTICLE XII SERVICING OFASSETS..............................................................................61
 

12.1 Servicing ........................................................................................................ 62
 

12.2 Servicing Standard ......................................................................................... 65
 

12.3 Servicing ofthe Loans................................................................................... 67
 

12.4 Removalofthe Servicer................................................................................. 71
 

12.5 Interim ManagementFee and Interim Servicing Fee;Management Fee....... 75
 

12.6 ~ Servicing Expenses........................................................................................ 75
 

12.7
 Use ofAsset Proceeds.................................................................................... 76


Collection Account........................................................................................ 76
 

Distribution Account...................................................................................... 76
 

12.8
 

12.9
 

12.10 Defeasance Account....................................................................................... 76
 

12.11 Working Capital Reserve Account................................................................ 76
 

12,12 Certain Servicing and Asset Administration Decisions................................. 77
 

12.13 Management and Disposition ofCollateral ................................................... 78
 

12.14 Acquisition ofCollateral................................................................................ 78
 

12.15 Administration ofAcquired REO Properties................................................. 78
 

12.16 Releases ofCollateral .................................................................................... 80
 

12.17 Clean-Up Call Rights..................................................................................... 80
 

12.18 Certain Transfer Obligations.......................................................................... 81
 

12.19 Seller Financing ............................................................................................. 81
 

ARTICLE XIII MISCELLANEOUS....................................................................................... 82
 

13.1 Waiver ofRights ofPartition and Dissolution............................................... 82
 

13.2 Entire Agreement; Other Agreements ........................................................... 82
 

13.3 Third Party Beneficiaries............................................................................... 83
 

13.4 Expenses ........................................................................................................ 83
 

13.5
 Waivers and Amendments............................................................................. 84


North CRE Venture 2010-2,LLC
 

Amended and Resla~ed Operating Agreement
 

EXECUTION VERSION 
 111

TABLE OFCONTENTS
 

(continued)
 

Page
 

13.6 Notices ........................................................................................................... 85
 

13.7 Counterparts; Facsimile Signatures ............................................................... 87
 

13.8 Successors and Assigns.................................................................................. 87
 

13.9 Compliance with Law;Severability............................................................... 87
 

13.10 PowerofAttorney.......................................................................................... 88
 

13.11 Governing Law .............................................................................................. 88
 

13.12 Jurisdiction; Venue and Service..................................................................... 89
 

13.13 Waiver ofJury Trial....................................................................................... 91
 

North CRE VcnWre 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 1V
 
NORTH CRE VENTURE 2010-2,LLC
 

AMENDED AND RESTATED
 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT
 

THIS AMENDED ANDRESTATED LIMITED LIABILITY COMPANY OPERATING
 

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

the terms 1 "A~reemenY'),is made and entered into as ofthe 15th day of December,
 

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

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

hereto, the "Initial Member"), Co1Fin Milestone North Funding, LLC, a Delaware limited
 

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

limited liability company(the"Company").
 

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

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

WHEREAS, on December 1, 2010, the Initial Member formed the Company as a
 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Assets and the Collateral; and
 

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

Capital Reserve Accountto provide the Company with capital to fund Working Capital Expenses
 

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

Reserve Account;and
 

WHEREAS, following closing of the transactions contemplated by the Contribution
 

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

agreed, pursuant to the terms ofthat certain Transferred LLC Interest Sale Agreement, to sell to
 

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

(40%)equity interest in the Company;and
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 1
 
WHEREAS,after giving effect to the transactions contemplated by the Transferred LLC
 

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

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

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

will own an LLCInterest representing athirty-five percent(35%)equity interest in the Company
 

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

interest in the Company;and
 

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

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

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

operated;
 

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

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

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

ARTICLE I
 

Certain Definitions
 

1.1 Definitions. This Agreement constitutes the "limited liability company
 

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

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

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

meanings and definitions hereinafter respectively set forth.
 

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

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

giving effect to the following adjustments:
 

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

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

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

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

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

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

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

consistently therewith.
 

"A~reemenY'shall have the meaning given in the preamble.
 

"Agreement of Common Definitions" shall mean the North CRE Venture 2010-2
 

Structured Transaction-Agreement of Common Definitions, dated as of the date hereof, by and
 

among the Initial Member, the Company, the Private Owner, the Purchase Money Notes
 

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

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION
 
"Book Value" shall mean,(i) with respect to contributed property,the initial Fair Market
 

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

such asset for federal income Tax purposes; provided, however, that the Book Values of all
 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

7.7.
 

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

Member pursuantto Section 3.14(al.
 

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

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

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

"Buy-Out Valuation Date"shall have the meaning given in Section 3.14(a~.
 

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

Member's outstanding LLC Interests, as adjusted to account for allocations ofNet Income(and
 

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

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

"Capital Contribution" shall mean a contribution to the capital ofthe Company made,
 

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

Contribution Agreement,or this Agreement.
 

"Certificate" .all have the meaning given in 2.1(a).
 

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

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

North CRE Venture 2010-2, LLC
 

Amended and Restaffed Operating Agreement
 

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

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

Member pursuantto the Contribution Agreement.
 

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

"Covered Persons"shall havethe meaning given in Section 4.d(fl.
 

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

direct ownership interest in such Person.
 

"Discretionary Funding Advance"shall have the meaning given in Section 5.4.
 

"Disposition" shall mean any sale, assignment, alienation, gift, exchange, conveyance,
 

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

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

foregoing by operation ofLaw(including any merger into, or any consolidation with,any other
 

Person). For the avoidance ofdoubt,it is understood and agreed that a statutory conversion of a
 

Person into another form ofPerson does not constitute a Disposition. The term "DiSpOSQ" shall
 

meanto make or consummate a"Disposition."
 

"Dispute Resolution Procedure" shall mean the following procedure solely for the
 

purpose ofdetermining a particular amount;
 

Each Member shall submit to the other, within five (5)Business Days of referral to this
 

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

time period, then the amount shall be the single proposal provided. Ifthe higher ofthe two(2)
 

proposals is not greater than one hundred ten percent(110%)of the lower proposal, then the
 

amountshall be the average ofsuch two(2)proposals. Ifthe higher ofsuch two (2) proposals is
 

greater than one hundred ten percent(110%)ofthe lower amountthen the Members shall, within
 

seven (7) days of their submission of such proposals, jointly select a nationally recognized
 

investment banking firm which shall, within fifteen (15) days of its appointment, select the
 

proposed amount previously submitted by the Members pursuant to this procedure that in its
 

opinion more closely reflects the amount being determined as described in this Agreement,and
 

the proposal thus selected shall be considered the amount for purposes of this Agreement. Ifthe
 

Members fail to agree on such investment banking firm within such seven (7)day period, then
 

each Member shall nominate, within such seven (7) day period, a nationally recognized
 

investment banking firm that is not an Affiliate thereofand the investment banking firm that is to
 

make such determination shall be chosen by the two (2) nominated firms promptly after the
 

expiration of such seven (7) day period; provided, that if either Member shall fail to nominate
 

such an investment banking firm within such seven (7) day period, such determination shall be
 

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

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

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

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

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

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 4
 
"Dissolution Event" shall mean, with respect to any specified Person,(i)in the case of a
 

specified Person that is a partnership or limited partnership or a limited liability company, the
 

dissolution and commencement ofwinding up ofsuch partnership,limited partnership or limited
 

liability company,(ii)in the case of a specified Person that is a corporation, the filing of a
 

certificate of dissolution, or its equivalent,for the corporation or the revocation of its charter and
 

the expiration of ninety (90) days after the date of notice to the corporation of such revocation
 

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

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

statutory conversion of a Person into another form of Person does not constitute a "Dissolution
 

Event."
 

"Distributable Cash"shall have the meaning given in Section 6.5,
 

"Embargoed Person" shall mean any Person subject to trade restrictions under United
 

States Law,including, without limitation, the International Emergency Economic Powers Act,
 

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

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

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

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

September 21,2001 Blocking Property and Prohibiting Transactions With Persons who Commit,
 

Threaten to Commit or Support Terrorism(66 Fed.Reg.49079(2001))or 31 C.F.R. §594.101,et
 

seq.) with the resultthat a purchase ofassets or any other transaction entered into with respect to
 

any assets (including, without limitation, any investment in any structured transaction), whether
 

directly or indirectly, is prohibited by or in violation ofLaw,
 

"Event of Default" shall mean any one ofthe 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 anyjudgment,decree or order of any court or any order, rule or
 

regulation ofany administrative or governmental body):
 

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

that an Event of Default under and as defined in the Reimbursement, Security and Guaranty
 

Agreement has occurred (unless such an Event ofDefault has not actually so occurred};or
 

(b) the occurrence of any Insolvency Event (without any cure period
 

other than as may be provided for in the definition ofInsolvency Event or in clause (ii))(i) with
 

respect to any of(x)the Company,or(y)the Private Owner;or (ii) with respect to any Servicer
 

or any Subservicer; provided, that such Insolvency Event under this clause ii (that is not
 

otherwise an Insolvency Event under clause i hereof) shall not be an Event of Default
 

hereunder (but shall in all events be a default under the applicable Servicing Agreement or
 

Subservicing Agreement) so long as the Manager shall have fully replaced (or caused the
 

replacement ofl such affected Servicer or Subservicer within thirty(30)days after the occurrence
 

of such Insolvency Event; or (iii) the occurrence of any Dissolution Event with respect to the
 

Private Owner;or
 

(c) any failure of the Company to pay any Working Capital Expense
 

when due in accordance with Section 12.6 of this Agreement, which failure continues
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 5
 
unremedied for a period ofthirty(30)days after the date on which written notice ofsuch failure
 

requiring the same to be remedied shall have been given by the Initial Member to the Company;
 

or
 

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

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

material respect with the provisions ofthis Agreement,,which continues unremedied for a period
 

ofthirty (30)days after the date on which written notice ofsuch failure requiring the same to be
 

remedied shall have been given by the Initial Membertothe Private Owner;or
 

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

any material respect its obligations under the Servicing Agreement, which continues unremedied
 

for a period ofthirty(30)days after the date on which written notice ofsuch failure requiring the
 

same to be remedied shall have been given by the Manager (in its individual capacity) or the
 

Initial Member to the Servicer, or (ii) a failure by the Manager (in its individual capacity) to
 

replace the Servicer upon the occurrence of either (x) an Event of Default under the
 

Reimbursement,.Security and Guaranty Agreement as a result ofthe Servicer's acts or omissions
 

or(y)a material breach ofor event ofdefault under the Servicing Agreement by the Servicer,in
 

either case which continues unremedied for a period ofthirty (30)days after the date on which
 

written notice ofsuch failure requiring the same to be remedied shall have been given by the
 

Initial Member to the Manager(in any capacity); or
 

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

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

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

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

remains unremedied for a period ofthirty(30)days after the date on which written notice ofsuch
 

failure requiring the same to be remedied shall have been given by the Initial Member or, as
 

applicable,the Custodian or the Paying Agent,to the Manager(in any capacity)or the Company,
 

as applicable; or
 

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

than a manager appointed subsequent to the Closing Date) or there shall occur a Change of
 

Control with respect to the Private Owner(other than as expressly permitted pursuant to Section
 

8_2), or the Manager (other than a manager appointed subsequent to the Closing Date) or any
 

transfer of any direct or indirect ownership interest in the Private Owner or the Manager (other
 

than a manager appointed subsequent to the Closing Date) or any transaction with a similar
 

effect or any Restricted Servicer Change ofControl; provided,that, any such Restricted Servicer
 

Change ofControl shall not be an Event ofDefault hereunder(but shall in all events be an event
 

of default under the applicable Servicing Agreement) so long as the Manager shall have fully
 

replaced (or caused the replacement ofl such affected Servicer within thirty (30)days after the
 

occurrence ofsuch Restricted Servicer Change ofControl; or
 

(h) the failure of the Company to remit or cause to be remitted all
 

Asset Proceeds to the Paying Agent (or to the applicable account maintained with the Paying
 

Agent)as and whenrequired; or
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION
 
(i) the failure ofthe Manager to cause the Company to repay (or remit
 

available funds for the repayment ofl Discretionary Funding Advances to the full extent Asset
 

Proceedsfrom the applicable Asset are available for such repayment;or
 

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

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

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

Credit.
 

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

"Fair Market Value" shall mean, with respect to any Asset on a given date, the gross
 

fair market value ofsuch asset, unreduced by any liability, on such date as determined in good
 

faith by the Manager after consultation with the Initial Member or, in the case of a Buy-Out,in
 

accordance with Section 3.14(b)below; provided, however,that the initial Fair Market Value for
 

each Asset shall be the value thereof as set forth on the Asset Value Schedule; and, provided;
 

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

Market Value of the Capital Contribution made by the Initial Member shall be based on the
 

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

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

Members as ofthe Closing Date.
 

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

"Ground lease"shall have the meaning given in Section 12.50).
 

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

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

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

"Indemnified Parties" shall have the meaning given in Section 4.6(a).
 

"Initial Member"shall have the meaning given in the preamble.
 

"Initial Member Capital Contribution" shall have the meaning given in
 

Section 2.3(a)(il.
 

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

applicable Issuing Bank.
 

"LC Reissuance/Extension Failure" shall mean, with respect to any Qualifying Letter
 

ofCredit,(i)any failure ofIssuing Bank to be and remain a Qualified Issuer, or(ii)any failure of
 

such Qualifying Letter of Credit to be automatically renewed (for an additional year) at least
 

sixty (60) days prior to the then-scheduled expiry of such Qualifying Letter of Credit, or the
 

receipt by the Initial Member ofany notice to the effect that such Qualifying Letter ofCredit will
 

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

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 7
 
ten (10)days ofthe occurrence ofsuch failure or the Initial Member's receipt ofsuch notice, as
 

the case may be, the Private Owner shall have fully replaced such Qualifying Letter of Credit
 

with a new Qualifying Letter of Credit issued by a Qualified Issuer (in conformance with all of
 

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

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

Qualifying Letter ofCredit.
 

"Manager"shall have the meaning given in Section 3.1(a).
 

"Maturity Date Report"shall have the meaning given in Section 7.4(b),
 

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

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

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

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

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

"member"as such term is defined in the Act.
 

"Member Schedule" shall mean the schedule attached hereto (and hereby incorporated
 

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

time to time.
 

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

(1 +Annualized Yield Threshold)~(1 + 0.25~~~12 - I, where the Annualized Yield
 

Threshold is 25%.
 

"NetIncome and NetLoss"shall mean,for each Fiscal Year or other period,the taxable
 

income or loss ofthe Company, or particular items thereof, determined in accordance with the
 

accounting method used by the Company for federal income Tax purposes with the following
 

adjustments:(a)all items ofincome,gain,loss, deduction or expense specially allocated pursuant
 

to this Agreement(including pursuant to Sections 6.2(b)(il through iv)shall not be taken into
 

account in computing such taxable income or loss; (b)any income of the Company that is
 

exempt from federal income taxation and not otherwise taken into account in computing the
 

taxable income of the Company shall be added to such taxable income or loss;(c)if the Book
 

Value ofany asset differs from its adjusted Tax basis for federal income Tax purposes, any gain
 

or loss resulting from a disposition ofsuch asset shall be calculated with reference to such Book
 

Value;(d)upon an adjustment to the Book Value ofany asset pursuant to the definition ofBook
 

Value, the amount of the adjustment shall be included as gain or loss in computing such Net
 

Income or Net Loss;(e) if the Book Value of any asset differs from its adjusted Tax basis for
 

federal income Tax purposes, the amount of depreciation, amortization or cost recovery
 

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

be an amount which bears the same ratio to such Book Value as the federal income Tax
 

depreciation, amortization or other cost recovery deductions bears to such adjusted Tax basis
 

rovided that if the federal income Tax depreciation, amortization or other cost recovery
 

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

determining depreciation, amortization or other cost recovery deductions in calculating Net
 

Income or Net Loss); and (fl except for items in(a)above,any expenditures ofthe Company not
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION g
 
deductible in computing taxable income or loss, not properly capitalizable and not otherwise
 

taken into account in computing Net Income or Net Loss pursuant to this definition, shall be
 

treated as deductible items.
 

"Permitted Disposition" shall have the meaning given in Section 8.1.
 

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

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

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

"Purchaser Eli~ibility Certification" shall mean,(i) with respect to the Private Owner,
 

the Purchaser Eligibility Certification delivered by the Private Owner to the Receiver on or about
 

the Closing Date, and, (ii) with respect to any Permitted Disposition (and the applicable
 

transferee in connection therewith), a Purchaser Eligibility Certification in substantially the form
 

of the Purchaser Eligibility Certification referenced in item (i), with such changes as the Initial
 

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

maintained by the FDIC.
 

"Oaali~ed Issuer" shall mean any FDIC-insured depository institution that is "well
 

capitalized" as defined in 12 U.S.C. § 18310 (b)(1)(A), is in the business of issuing letters of
 

credit and maintains offices in either or both of New York City, NY and Washington, D,C.
 

where presentation and drawings on such letters ofcredit can be duly made.
 

"pualified Transferee" shall have the meaning given in Section 10.1.
 

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

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

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

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

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

D.C., and having an initial term of one (1) year with automatic renewals thereafter (without
 

amendment except for extension of the then current expiry date by an additional year) until the
 

Initial Member has delivered written notice to the Issuing Bank to the effect that such Qualifying
 

Letter ofCredit is being released in its entirety.
 

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

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

"Secured Assets"shall have the meaning given in
 

"Servicing Obligations"shall have the meaning gi 12.1(a).
 

"Servicing Standard"shall have the meaning give (a),
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION
 
"Successor" shall mean,(i) with respect to a Member, any future Member which is a
 

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

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

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

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

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

Disposition,merger,consolidation or otherwise)ofany ofthe Initial Member's rights or interests
 

underthis Agreement or any other Transaction Document.
 

"Tax Allocation Report"shall have the meaning given in Section 7.6(b).
 

"Tax Matters Member"shall havethe meaning given in Section 7.5.
 

"Third Party Claim"shall havethe meaning given in Section 4.6(a).
 

"Threshold Increase Amount"as ofany Distribution Date shall be equal to the product
 

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

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

"Treasury Regulations" shall mean the regulations promulgated by the United States
 

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

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

provisions ofsucceeding,substitute,proposed orfinal Treasury Regulations.
 

"Unreimbursable Expense"shall havethe meaning given in Section 4.6(e).
 

1.2 Construction,
 

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

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

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

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

(b) References to Persons Exclusive. References to "Affiliates" or
 

"Subsidiaries" ofa specified Person refer to,and include, only other Persons which from time to
 

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

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

ceased to be,"Affiliates," or "Subsidiaries," as the case may be, ofsuch specified Person, except
 

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

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

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

stockholder or member ofor partner in a Member,or other Person).
 

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

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

any amendment,modification or replacementto such Law.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECllT10N VERSION I O
 
(e) Use ofAccounting Terms. Accounting terms used herein shall have the
 

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

which they refer,
 

(~ References to Documents. References to any document, instrument or
 

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

attachments thereto and all documents, instruments or agreements issued or executed in
 

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

thereof, as amended, modified and supplemented from time to time in accordance with its terms
 

and as the same is in effect at any given time.
 

(g) Use of "Herein." Unless otherwise specified, the words "hereof,"
 

"herein" and "hereunder"and words ofsimilar import when used in this Agreement shall refer to
 

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

(h) Use of"Including:" The words"include" and "including" and words of
 

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

followed by the words "without limitation," whether or not they are in fact followed by such
 

words.
 

(i) Use of"During." The word "during" when used in this Agreement
 

with respect to a period oftime shall be construed to mean commencing at the beginning ofsuch
 

period and continuing until the end ofsuch period.
 

ARTICLEII
 

Organization of the Company
 

2.1 Formation• Continuation and Admission ofMembers.
 

(a) On December 1,20.10, the Receiver caused the Certificate ofFormation
 

ofthe Company,in the form attached as Exhibit A hereto (the "Certificate"), to be filed in the
 

office of the Secretary of State ofthe State of Delaware. The Certificate shall not be amended
 

except to change the registered agent or office ofthe Company.
 

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

Actand in accordance with the further terms and provisions ofthis Agreement.
 

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

agrees to be, and is, admitted as a member ofthe Company such that, as ofthe Closing Date,the
 

Initial Member and the Private Owner are the only members of the Company. Until .the
 

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

under Section 13.5,the Company shall at all times have two(2),and only two(2), members.
 

2.2 Name.
 

(a) The name ofthe Company shall be North CRE Venture 2010-2,LLC.
 

North CRE Vemure 2010-2, LLC
 

Amended and Restaffed Operating Agreement
 

EXECUTION VERSION I I
 
(b) The Business shall be conducted only under the name of the Company
 

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

time to time.
 

2.3 Organizational Contributions and Related Actions.
 

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

Contribution Agreement,the Initial Member:
 

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

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

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

from the Initial Member,Assets (other than that portion ofthe Assets comprising
 

the Initial Member Capital Contribution) and assumed the Obligations in
 

exchange for the Purchase Money Notes.
 

(b) Contemporaneously with the execution ofthis Agreement,pursuant to the
 

terms ofthe Transferred LLC Interest Sale Agreement,the Private Owner is acquiring from the
 

Initial Member an LLC Interest representing a forty percent (40%) limited liability company
 

interest in the Company for the Transferred LLC Interest Sale Price in accordance with the terms
 

thereof.
 

(c) Upon the consummation of the transactions contemplated in
 

Sections 2.3(a)and ~and prior to the occurrence ofthe Incentive Threshold Event as described
 

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

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

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

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

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

LLC Interests.
 

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

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

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

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

in Delaware shall be, and the name and address ofthe Company's registered agent in Delaware
 

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

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

Company's registered agent, The chiefexecutive office ofthe Company shall be located at 2450
 

Broadway,6~' Floor, Santa Monica,California 90404,or such other place as shall be determined
 

by the Managerfrom time to time.
 

2,5 Purpose; Duration.
 

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

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

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

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 
 12

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

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

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

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

ofthe Companyor consistent withthe furtherance thereof.
 

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

perpetually. 

2.6 Sinpurpose Entity; Limitations on Company's Activities. Except to the extent 

expressly permitted by this Agreement or the other Transaction Documents,the following shall
 

govern for so long as the Company is in existence:
 

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

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

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

(i) maintain financial statements separate from any Affiliate;
 

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

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

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

consolidated financial statements of its parent or ultimate parent in accordance
 

with GAAP;
 

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

from the Members and any other Person;
 

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

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

(iv) except as contemplated hereby or by the other Transaction
 

Documents,segregate its Assets and not commingle its Assets with Assets ofany
 

other Person;
 

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

organizational formalities to maintain its separate legal existence;
 

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

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

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

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

unrelated Person;
 

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

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

employees,ifany,in light ofits contemplated operation ofthe Business;
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 13
 
allocate, fairly and reasonably, shared expenses, including any
 

overhead for shared office space;
 

(ix) 


(x) use separate stationery, invoices and checks;
 

(xi) correct any known misunderstanding regarding its separate
 

identity; and
 

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

purpose,transactions and liabilities, ifany.
 

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

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

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

Manager nor the Private Owner may,without the written consent ofthe Initial Member,cause or
 

permit the Company or any ofits Subsidiaries to:
 

(i) except as contemplated hereby or by the other Transaction
 

Documents, hold out its credit or assets as being available to satisfy the
 

obligations ofothers,or become bound by any Guarantee of,or otherwise obligate
 

itself with respect to,the Debts ofany other Person,including any Affiliate;
 

(ii) except as contemplated hereby or by the other Transaction
 

Documents (including the Purchase Money Notes (and any promissory note
 

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

Agency Agreement),the Guaranty Agreement,and the Reimbursement, Security
 

and Guaranty Agreement), pledge its assets for the benefit of any other Person,
 

make any loans or advances to any other Person, or 
 encumber or permit any Lien


to be placed onthe Assets,the Collateral, or the proceeds therefrom;provided that
 

the Company may (x) invest its funds in interest bearing accounts held by any
 

bank that is not its Affiliate and otherwise in accordance with the terms of this
 

Agreement and the Custodial and Paying Agency Agreement(y)make advances
 

in accordance with Article XII;
 

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

Business;
 

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

Notes(and any promissory note reissued in respect thereofpursuantto Section 2.8
 

of the Custodial and Paying Agency Agreement), any Discretionary Funding
 

Advance, any Excess Working Capital Advance or as otherwise expressly
 

permitted hereby or by the other Transaction Documents to which the Initial
 

Member is a party;
 

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

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

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

the Transaction Documents and may make any advance required or expressly
 

NorthCREVenture2010-2,LLC
 

Amended and Restaffed Operating Agreement
 

EXECUTION VERSION 14
 
permitted to be made pursuant to any provisions of Article XII or the other
 

Transaction Documents and permit the same to remain outstanding in accordance
 

with such provisions;
 

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

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

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

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

domesticate or continue the Company or any Subsidiary ofthe Company pursuant
 

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

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

provided in the limited liability company agreement of such limited liability
 

company)required by the Act;
 

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

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

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

activities are expressly permitted pursuant to any provision of this Agreement or
 

the other Transaction Documents(and subject to obtaining any approvals required
 

hereunder or thereunder,as applicable);
 

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

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

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

purpose ofholding Assets for the benefit ofthe Company;or
 

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

agreements contained in any ofthe Transaction Documents.
 

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

comply with any ofthe foregoing covenants or any other covenants contained in this Agreement
 

shall not affect the status ofthe Company as a separate legal entity or the limited liability ofthe
 

Members.
 

2,7 Ratification of Certain Actions. Prior to the Closing Date, the Company
 

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

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

including without limitation the execution and performance of this Agreement and the other
 

Transaction Documents (the "Previously AUproved Matters"). The Previously Approved
 

Matters, and all actions taken by the Company in furtherance of the Previously Approved
 

Matters, are hereby ratified, approved and confirmed in their entirety by each Member and the
 

Manager is hereby authorized and directed to execute and deliver, for and on behalf of the
 

Company, any and all documents as may now or hereafter be reasonably required in order to
 

effect the Previously Approved Matters.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION IS
 
ARTICLEIII
 

Management and Operations of the Company
 

3.1 Management ofthe Company's Affairs.
 

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

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

as the "Manager"ofthe Company(the "Manager"), which Manager may,but is not required to
 

be, a Member. Effective as ofthe Closing Date, the Private Owner is hereby appointed as the
 

Manager. Subject to the terms and conditions ofthis Agreement,the Manager shall have full and
 

exclusive power and discretion to, and shall, manage the business and affairs ofthe Company in
 

accordance with this Agreement. The Private Owner may not resign as the Manager, may not
 

Dispose ofor delegate, in whole or in part, its rights, responsibilities or duties as the Manager to
 

any other Person, and shall serve as Manager until such time as (i)the Private Owner's LLC
 

Interest is Disposed of in accordance with the terms of this Agreement and the transferee is
 

admitted as a member of the Company and Successor to the Private Owner,in which case the
 

transferee Member shall, effective upon such Disposition, be appointed as the "Manager"to the
 

extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private
 

Owner is removed as Manager by the Initial Member or the Purchase Money Notes Guarantor
 

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

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

terms ofthis Agreement. The Manager shall devote such time to the affairs ofthe Company as is
 

necessary to manage the Company as set forth in this Agreement. Without limitation of the
 

foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as
 

reasonably requested by the Tax Matters Member,from time to time, in connection with the Tax
 

Matters Member's performance of its obligations under this Agreement. The Private Owner(and
 

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

role as the Manager,this Agreement constitutes a personal services contract between the Private
 

Owner and the Company,and(y)except as may be otherwise expressly specified herein, it shall
 

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

with respect to its service as the Manager hereunder (including with respect to the Manager's
 

Asset servicing and management obligations under Article XII),
 

(b) Except as otherwise specifically provided in this Agreement and
 

without limitation ofthe powers expressly granted to the Manager under any other provision of
 

this Agreement,the authority, duties (including fiduciary duties) and functions ofthe Manager
 

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

of directors and the officers ofa corporation organized under the Delaware General Corporation
 

Law (and not electing to be governed by subchapter XIV thereofl. The Manager shall have no
 

authority to take or authorize the taking ofany action in contravention ofany express term ofthis
 

Agreement.
 

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

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

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

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

circumstances bearing upon the existence ofsuch authority. Without limitation ofthe foregoing,
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 16
 
any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed
 

by the Manager as to:
 

(i) the identity ofthe Members;
 

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

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

the affairs ofthe Company;
 

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

any instrument or document ofor on behalfofthe Company;or
 

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

whatsoever involving the Company or the Members.
 

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

the parties hereto acknowledge and agree that:
 

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

similar obligation owed by or on behalfofthe Initial Member;
 

(ii) the Private Owner and the Company each hereby expressly waives
 

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

Memberto the Private Owner or the Company;and
 

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

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

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

Owner or the Company.
 

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

provision hereof or pursuant to a Related Party Agreement or any Transaction Document, the
 

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

Company or any Memberfor,any expenses or costs incurred after the formation ofthe Company
 

by the Manager and/or its Affiliates on behalfofor for the benefit ofthe Company.
 

(fl Notwithstanding Section 12.5, Manager shall have the right to delegate
 

to Colony AMC Milestone North, LLC ("Colony AMC") all or any portion of Manager's
 

management duties under this Agreement and direct payment to Colony AMC of all or any
 

portion of the Interim Management Fee and the Management Fee subject to the following
 

requirements,limitations, representations and warranties.
 

(i) Any such delegation or direction shall not relieve the Private
 

Owner ofany ofits obligations or duties(including its fiduciary duty)as Manager
 

under this Agreement. Any breach or failure to perform any obligation or duty by
 

Colony AMC shall be deemed to be and shall constitute a breach or failure to
 

perform such obligation or duty by Manager. All acts or failures to act by Colony
 

AMC shall be imputed to Manager as if Manager had taken such action or failed
 

North CRE VeNure 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 17
 
to take such action itself. All rights and remedies provided to the Initial Member,
 

the Collateral Agent,the Purchase Money Notes Guarantor,the Paying Agent and
 

the Custodian against the Manager or Private Owner under any Transaction
 

Document shall remain in full force and effect and be exercisable against Private
 

Owner and Manager regardless ofany such delegation or direction ofpayment.
 

(ii) Manager may delegate its duties under Section 12.3(a) provided
 

that Colony AMC's agreement with any servicer has to be subject to the FDIC's
 

rights under this Agreement.
 

(iii) Except as expressly provided in this Section 3.1(fl, no additional
 

delegation by Manager of any of its management duties shall be permitted and
 

Manager shall prevent Colony AMCfrom further delegating such duties.
 

(iv) In no event shall Colony AMC be deemed to be a third-party
 

beneficiary to or under this Agreement.
 

(v) Except for Servicing Expenses, Pre-Approved Charges, and as
 

otherwise expressly provided in the Transaction Documents,none ofthe expenses
 

or costs incurred to perform or related to the duties and obligations of the
 

Manager (including any such costs or expenses as may be incurred by Colony
 

AMC)shall be charged to the Company or deducted from Asset Proceeds in any
 

way, directly or indirectly, other than Servicing Expenses and Pre-Approved
 

Charges reimbursed to the.Servicer retained pursuant to Section 12.3.
 

(vi) The Manager represents that Colony AMC is under common
 

control with the Private Owner. If at any time the Private Owner and Colony
 

AMC are not under common control, the delegation to Colony AMC of any
 

management duties and redirection of the Management Fee and the Manager's
 

right to delegate any ofits management duties and its right to redirect payment of
 

any portion ofthe Management Fee to Colony AMC shall terminate immediately
 

and,thereafter,the Management Fee shall be paid directly to Manager.
 

(vii) Upon the occurrence of any Insolvency Event with regard to
 

Colony AMC, the delegation to Colony AMC of any management duties and
 

redirection ofthe Management Fee and the Manager's right to delegate any ofits
 

management duties and its right to redirect payment of any portion of the
 

Management Fee to Colony AMC shall terminate immediately and,thereafter,the
 

Management Fee shall be paid directly to Manager.
 

(viii) Manager certifies, represents and warrants with respect to Colony
 

AMC (referred to as "it") that (i) neither it nor any of its Affiliates or Direct
 

Owners is an Embargoed Person;(ii) neither it nor any of its Affiliates or Direct
 

Owners engages in any dealings or transactions, or is otherwise "associated with"
 

(as defined in 31 C.F.R. 594.101,et seq.), any Embargoed Person; and (iii) if and
 

to the extent it or any of its Affiliates are required by Law to maintain an anti-


money laundering compliance program under applicable anti-money laundering
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 1 g
 
Laws and regulations, including without limitation, the Uniting and Strengthening
 

America by Providing Appropriate Tools Required to Intercept and Obstruct
 

Terrorism Act of 2001 (Public Law 107-56)) such compliance programs are
 

currently being maintained. The foregoing certifications, representations and
 

warranties are based upon a due inquiry and investigation; provided, however,
 

that for purposes ofdetermining whether any ofthe same with respect to indirect
 

ownership are true,the undersigned shall not be required to make an investigation
 

into the ownership of publicly-traded securities (including securities of open-end
 

investment companies registered under the Investment Company Act) or the
 

ownership ofassets by a collective investment fund that holds assets for employee
 

benefit plans or retirement arrangements.
 

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

Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3_4, 3~8, 8_l,
 

8.2, 8.$ a , 9_l, 12.3 12.7 b , 12.12, 12.15, 13.5 and 13.12. Any purported action by the
 

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

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

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

Owner is then the Manager), any of the Required Consenting Parties may remove the Private
 

Owner as the Manager and appoint a successor Manager in the sole discretion of any of the
 

Required Consenting Parties in accordance with Section 12.4, whereupon such successor
 

Manager shall immediately succeed to all, or such portion as the Required Consenting Parties
 

and successor Manager agree, of the rights, powers, duties and obligations of the "Manager"
 

hereunder, and the predecessor Manager shall promptly take such actions as may be reasonably
 

requested by any ofthe Required Consenting Parties to facilitate the transition to such successor
 

Manager.
 

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

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

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

Manager and for the day-to-day operation ofthe Business, including the Manager's employees,
 

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

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

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

provide for the servicing ofthe Assets through a Servicer under contract with the Manager(in its
 

individual capacity) in accordance with Article XII and the safekeeping of the Notes and other
 

Asset Documents by a Custodian under contract with the Company in accordance with the
 

provisions of Section 3,7 below. Notwithstanding anything to the contrary contained in this
 

Section 3.3,(a)the Company shall not have any employees,(b)no employees of the Manager or
 

any third party (including any Affiliate) shall be deemed to be employees of the Company,(c)
 

any contractual relationships entered into by the Manager to provide employees, facilities or
 

support services to the Company shall be relationships between the third parties (or Affiliates)
 

and the Manager(and not the Company)and shall not relieve such Manager ofits obligations or
 

any liability hereunder, and (d) no expenses incurred to secure or maintain employees (or
 

independent contractors performing relevant services for the day-to-day operation of the
 

Company in lieu of performance ofthe same by such employees), facilities or support services
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 19
 
shall be an expense ofthe Company unless the same is expressly reimbursable by the Company
 

pursuant to the provisions of Article XII below or is otherwise expressly set forth in this
 

Agreement or in any other Transaction Documents to be an expense ofthe Company.
 

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

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

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

action in contravention ofany Law,or(y)take any ofthe following actions on behalfof, or with
 

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

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

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

Member's sole and absolute discretion:
 

(i) admitting additional or substitute Members of the Company,
 

except in accordance with Article VIII;
 

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

liability company;
 

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

other than a partnership for federal Tax purposes;
 

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

ordinary business ofthe Company;
 

(v) conducting Bulk Sales during either ofthe first two(2)successive
 

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

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

month period) in excess of (x) ten percent (10%) of the aggregate Unpaid
 

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

Schedule and(y)ten percent(10%)ofthe aggregate Unpaid Principal Balance of
 

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

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

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

remaining Collateral (including any Acquired REO Property or other Acquired
 

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

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

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

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

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

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

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

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

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

disposition ofthe Acquired Property(including any Acquired REO Property)held
 

directly or indirectly by such Ownership Entity;
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 2~
 
(vi) incurring any liability on behalf of the Company (other than
 

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

liabilities as may be permitted by this Agreement or any other Transaction
 

Document);
 

(vii) possessing or transferring Company Property for other than
 

Company purposes;
 

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

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

(ix) selling or otherwise transferring any Asset, Collateral or Acquired
 

Property(or any portion thereofl to the Manager,the Private Owner,any Servicer,
 

any Subservicer,or any Affiliate ofany ofthe foregoing or ofthe Company;
 

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

Acquired Property(or any portion thereof);
 

(xi) selling any Asset, Collateral or Acquired REO Property (or any
 

portion thereofl in a transaction that provides for any recourse (other than
 

customary and commercially reasonable contractual obligations agreed to as part
 

ofthe sale transaction,including customary post-closing pro-rations);
 

(xii) against the Company, the Initial Member or the FDIC, in any
 

capacity, or against the LLC Interest held by the Initial Member or any share of
 

the Asset Proceeds allocable to the Initial Member;
 

(xiii) disbursing or causing the disbursement of funds from the
 

Collection Account, the Working Capital Reserve Account, the Distribution
 

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

Paying Agency Agreement or any Servicing Agreement other than in accordance
 

with(and without violation ofany requirement contained in)the provisions ofthis
 

Agreement, the Custodial and Paying Agency Agreement, the applicable
 

Servicing Agreementand the Reimbursement,Security and Guaranty Agreement;
 

(xiv) advancing additional funds that would increase the Unpaid
 

Principal Balance of any Asset, other than(A)Funding Draws or (B)Servicing
 

Expenses to the extentthat capitalizing such Servicing Expenses is or would have
 

been, prior to the conversion ofsuch Loan to Acquired REO Property, permitted
 

under the applicable Asset Documents;
 

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

Agreement, reimbursing the Manager for any expense or cost (other than
 

Servicing Expenses and Pre-Approved Charges) incurred by (or paid by) any
 

Affiliate of any of the Company,the Private Owner or the Manager,the Servicer
 

or any Subservicer;
 

North CRE Venture 2010-2,LLC
 

Amended and Raslated Operating Agreement
 

EXECUTION VERSION 21
 
(xvi) taking any action or omitting to take any action that causes the
 

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

contained herein or in any other Transaction Document(for avoidance of doubt,
 

nothing in this clause xv shall require the Private Owner or the Manager to make
 

any capital contribution or advances which are not otherwise required of it under
 

the express terms ofthis Agreement or any other Transaction Document);or
 

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

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

limited liability company agreement of such limited liability company)required
 

by the Act.
 

3.5 Related PartX Agreements. Neither the Company nor any ofits Subsidiaries shall
 

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

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

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

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

the Purchase Money Notes or any promissory note reissued in respect thereof in accordance with
 

Section 2,8 ofthe Custodial and Paying Agency Agreement or as may otherwise be expressly
 

provided herein or in any other Transaction Document to which the Initial Member is a party or
 

as maybe approved by both Members.
 

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

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

Section 12.14 and the relevantterms ofthe Servicing Agreement.
 

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

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

such Custodian shall at all times have custody and possession of the Notes and other Custodial
 

Documents (subject to the applicable provisions herein and in such custodial agreement with
 

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

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

which Paying Agent shall receive and distribute Asset Proceeds in accordance with the Custodial
 

and Paying Agency Agreement. Such Custodian and Paying Agent shall be(and shall remain)a
 

Qualified Custodian and Paying Agent shall otherwise be acceptable to and approved by the
 

Initial Member,such approval not to be unreasonably withheld, delayed or conditioned. Except
 

as may be determined by the Initial Member in connection with an exercise ofits rights under
 

Section 13.5 below,the Custodian and the Paying Agent shall be the same;and the custodial and
 

paying agency functions shall be performed on the terms set forth in the Custodial and Paying
 

Agency Agreement. At no time shall the Company have more than one(1)Custodian or one(1)
 

Paying Agent, who may be the same Person. The fees and expenses paid to the Custodian and
 

Paying Agent shall be no more than the market rate and the Custodian and Paying Agent maybe
 

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

Custodial and Paying Agency Agreement. For purposes ofclarification,the parties acknowledge
 

that, as of the Closing Date, the Custodial and Paying Agency Agreement delivered on the
 

Closing Date is acceptable to the Initial Member,including as to the fees and expenses expressly
 

set forth therein. In the event that the Manager removes, or causes the Company (or any
 

North CRE Vemure 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 22
 
Servicer) to remove, any Notes or other Custodial Documents from the possession of the
 

Custodian (which shall be done only in accordance with the relevant Custodial and Paying
 

Agency Agreement), (i)any loss or destruction of or damage to such Notes or Custodial
 

Documents shall be the personal liability of the Manager (who, along with the relevant
 

Servicer(s), shall be responsible for safeguarding such Notes and Custodial Documents when not
 

in possession ofthe Custodian),and (ii) such Notes shall be returned to the Custodian within the
 

time provided under the applicable Uniform Commercial Code to maintain the perfection ofthe
 

secured party's security interest therein by possession. If any Notes or other Custodial
 

Documents are removed in connection with the modification, restructuring, or foreclosure of a
 

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

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

restructuring, modification, or foreclosure (and, in any event, in accordance with clause (ii) of
 

the immediately preceding sentence). Notwithstanding the foregoing if any Notes or other
 

Custodial Documents are retained by the applicable court, such Notes and other Custodial
 

Documents shall be returned to the Custodian as soon as possible after they are released by such
 

court. The Manager shall ensure that the Initial Member receives a copy of each demand,notice
 

or other communication given under the Custodial and Paying Agency Agreement at the time
 

that such notice or other communication is given thereunder,
 

3.8 Relationships with Borrowers,etc. Except as otherwise consented to by the Initial
 

Member, none of the Private Owner,the Manager or any Affiliate of either shall, at any time,
 

(a)be an Affiliate ofor a partner or joint venturer with any Borrower or Obligor,(b)be an agent
 

ofany Borrower or Obligor, or allow any Borrower or Obligor to be an agent ofthe Manager or
 

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

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

Obligor or other obligor with respect to any Asset or any ofthe Collateral.
 

3.9 No Conflictin~Obligations. The Manager shall cause the Company to comply
 

with the Transaction Documents in accordance with their terms, and shall not,at any time, enter
 

into or become a party to any agreement that would conflict with the terms ofthis Agreement.
 

3.10 Compliance with Law. The Manager shall, and shall cause the Company to, at all
 

times, comply with applicable Law in connection with the performance or exercise ofits rights,
 

powers, duties or obligations under this Agreement,be duly authorized and qualified to transact
 

any and all business to be conducted by it in any state in which an Asset is located and comply
 

with the doing business laws of any such state, to the extent necessary to ensure its ability to
 

manage the Assets in accordance with the terms of this Agreement and to perform any of its
 

other obligations under this Agreement in accordance with the terms hereof.
 

3.11 No Bankruptcy Filing. Neither the Manager nor the Private Owner may cause or
 

permit the Company to;(a)file a voluntary petition for bankruptcy,(b)file a petition or answer
 

seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or
 

similar relief under any Law, (c) make an assignment for the benefit of creditors, (d)seek,
 

consent or acquiesce in the appointment of a trustee, receiver or liquidator or of all or any
 

substantial part of its properties, (e) file an answer or other pleading admitting or failing to
 

contest the material allegations of(i)a petition filed against it in any proceeding described in
 

clauses (a)through (d), or (ii)any order adjudging it a bankrupt or insolvent or for relief against
 

Nar(h CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 23
 
it in any bankruptcy or Insolvency Proceeding, or (f) allow itself to become unable to pay its
 

obligations as they become due.
 

3.12 No Liens. The Manager shall not cause the Company to place, or voluntarily
 

permit or involuntarily permit to be placed, any Lien on any ofthe Assets, the Collateral, the
 

Asset Documents, or the Asset Proceeds,except,in the case of Collateral, such Liens caused or
 

permitted by the Manager (i) as permitted under the Asset Documents where the applicable
 

Borrower is not in default thereunder and (ii) as permitted by the terms of the Reimbursement,
 

Security and Guaranty Agreement; and the Manager shall not take any action to interfere with
 

the Collateral Agent's rights as a secured party with respect to Assets, the Collateral and the
 

Asset Proceeds.
 

3.13 Remedies Upon an Event ofDefault; Security Interest.
 

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

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

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

pursuant to Sections 3.2 and 12.4,(ii)remove the Private Owner as a Member in connection with
 

the exercise by the Initial Member of its remedial rights under (and subject to the terms and
 

conditions ofl this Section 3.13(a), (iii) purchase (or cause a designee to purchase) the LLC
 

Interest of the Private Owner pursuant to Section 3.14,(iv)designate itself or any applicable
 

transferee Member as the Manager hereunder, and/or (v) with or without notice to or demand
 

upon the Private Owner (except as may be required by Law), exercise any or all rights and
 

remedies with respect to the Secured Assets and any Qualifying Letter of Credit, specifically
 

including the right(A)to foreclose on the LLC Interest held by the Private Owner and transfer
 

such LLC Interest to a third party (it being agreed that none ofthe Private Owner,the Manager
 

or any oftheir Affiliates shall participate in any sale ofthe Private Owner's LLC Interest without
 

the written consent of the Initial Member);(B) to draw upon any or all Qualifying Letters of
 

Credit by presenting to the applicable Issuing Bank one or more drafts or demands and any other
 

necessary documents, and to receive (in a lump sum or in several sums from time to time at the
 

sole and absolute discretion of the Initial Member) any or all amounts available for drawing
 

under each such Qualifying Letter of Credit and/or (C)to exercise any rights under the Private
 

Owner Pledged Account Control Agreement (or otherwise) with respect to the Private Owner
 

Pledged Account, including the right to assume exclusive control over the Private Owner
 

Pledged Account and to cause the funds therein to be remitted (in a lump sum or in several sums
 

from time to time at the sole discretion ofthe Initial Member)to or at the direction ofthe Initial
 

Member. The removal of the Private Owner as Member pursuant to this Section 3.13. shall be
 

subject to Section 8.4.
 

(b) For the avoidance of doubt, in the event that the Initial Member
 

determines to exercise its remedies against any Secured Assets or any Qualifying Letter of
 

Credit, it shall have the absolute right to deduct from the proceeds of such exercise of remedies
 

(including proceeds ofany foreclosure sale with respect to the LLC Interests, any drawing on a
 

Qualifying Letter of Credit, and any receipt offunds the Private Owner Pledged Account), any
 

Indemnified Losses arising out of or resulting from such Event of Default incurred by the
 

Indemnified Parties, together with all costs and expenses (including, without limitation,
 

attorneys' fees and disbursements) incurred by the Initial Member in connection with enforcing
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 24
 
its rights and remedies hereunder and under the other Transaction Documents; and any Private
 

Owner Obligations then due and payable(in each case in such order as the Initial Member may
 

determine in its sole discretion); provided that the Initial Member may,in its sole discretion, hold
 

any such proceeds as additional security for any existing or future Private Owner Obligations.
 

Without limitation ofthe foregoing,in no event shall the Initial Member have any obligation(but
 

it shall at all times have the right in its sole and absolute discretion)to use or apply any proceeds
 

ofthe Secured Assets toward payment ofany Private Owner Obligations owing to the Company
 

(whether or not the same are due and payable), and the Private Owner shall remain fully
 

obligated to pay and perform all such Private Owner Obligations owing to~ the Company
 

notwithstanding any such election by the Initial Member to so refrain from applying such
 

proceeds toward payment ofthe same;and,in the event that, for any reason any such proceeds of
 

the Secured Assets are used for payment of any Private Owner Obligations owing to the
 

Company,any and all rights of the Private Owner to payments,reimbursements or distributions
 

from the Company on account of any such payment to the Company (including rights to any
 

repayment of any deemed Excess Working Capital Advances, to the extent any such proceeds
 

are used to fund the same), shall be considered as part of the Secured Assets and shall, to the
 

extent paid or payable by the Company, be paid directly to the Initial Member(and the Initial
 

Member shall have the right to direct the Paying Agent to so remit to the Initial Member any
 

applicable distributions or payments by the Paying Agent with respect thereto) to be held and
 

applied by the Initial Member as part ofthe proceeds ofthe Secured Assets(as collateral for the
 

Private Owner Obligations). Any Secured Assets or proceeds thereof as held by the Initial
 

Member may be commingled with the Initial Member's own funds, without any need to pay
 

interest or income thereon. Upon indefeasible payment and performance in full all ofthe Private
 

Owner Obligations (following the dissolution of the Company), any remaining unapplied
 

proceeds (from an exercise of remedies by the Initial Member against the rights ofthe Private
 

Owner to the Secured Assets or any Qualifying Letter of Credit)so held by the Initial Member,
 

shall be released to the Private Owner (or such other Person as may have applicable rights
 

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

for any deficiency in payment ofthe Private Owner Obligations.
 

(c) This Agreement shall constitute a security agreement under applicable
 

Law for the benefit ofthe Initial Member and,in furtherance thereof, the Private Owner(in all of
 

its capacities) and the Company(as applicable) shall be deemed to have granted, and each does
 

hereby grant, to the Initial Member,for itself (and its assignees) a valid and continuing first
 

priority Lien on and security interest in all ofthe Private Owner's right, title and interest in, to
 

and under, the Secured Assets, whether now owned or existing, or hereafter acquired and arising
 

in, to and under the Secured Assets and all ofthe proceeds ofthe foregoing, as security for the
 

payment and performance (when due) by the Private Owner (including in its roles as the
 

Manager and the Tax Matters Member)ofthe Private Owner Obligations. For the avoidance of
 

doubt, the parties acknowledge that the Secured Assets are not, pursuant to the foregoing,
 

collateral for the separate payment obligations ofthe Company except to the extentthat,pursuant
 

to this Agreement or the other Transaction Documents, the Private Owner, in any capacity, is
 

required to pay(or advance applicable funds to pay)or• otherwise bear such obligations(and in
 

such case, such Secured Assets secure such obligations of the Private Owner to the Company
 

and,if applicable,the Initial Member and the Indemnified Parties only,and not any such separate
 

obligations ofthe Company to any other Persons),such that the Secured Assets do not secure the
 

Company's payment obligations under the Purchase Money Notes. For purposes of this
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 25
 
Agreement, the term "Secured Assets" shall mean (x) all right, title and interest of the Private
 

Owner in and to the Private Owner Pledged Account (and all funds therein and related rights
 

thereto as more specifically described in the Private Owner Pledged Account Control
 

Agreement),(y)the LLC Interest held by the Private Owner and all other rights of the Private
 

Owner (in any capacity) under this Agreement and the other Transaction Documents(including
 

rights to any distributions or payments on account of any Excess Working Capital Advances or
 

Discretionary Funding Advances made by or on behalf of the Private Owner), and (z) all
 

proceeds of any ofthe foregoing at any time(including distributions thereon or other income in
 

respect thereof.
 

(d) As additional security for the Private Owner Obligations (and, as
 

applicable, as part of the Secured Assets), the Private Owner shall deliver on the Closing Date
 

and at all times thereafter cause to be maintained the additional collateral (the "Additional
 

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

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

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

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

greater than the Private Owner Pledged Amount. In the event that the Private Owner determines
 

to fulfill its obligation to provide the Additional Security by issuance of a Qualifying Letter of
 

Credit, the Private Owner shall cause the issuance and delivery to the Initial Member, on the
 

Closing Date, of a single Qualifying Letter of Credit in the full amount of such Additional
 

Security. For the avoidance ofdoubt,during the term ofthe Transaction,the Private Owner may
 

make aone-time substitution ofthe form of the Additional Security by substituting, as the case
 

may be, either(x)a Qualifying Letter ofCredit for Qualifying Cash Collateral,or(y)Qualifying
 

Cash Collateral for a Qualifying Letter of Credit; provided,however,that at all times the amount
 

of the Additional Security is equal to or greater than the Private Owner Pledged Amount; and
 

provided,further, however,the Private Owner shall be solely responsible for any incurred costs
 

of the Initial Member, the Company,the Purchase Money Notes Guarantor, and the Collateral
 

Agent associated with- any such substitution ofthe form ofthe Additional Security as referenced
 

in this sentence. The Initial Member shall have the unilateral right to draw on any such
 

Qualifying Letter of Credit and to provide instructions to the Paying Agentfor the disposition of
 

the Qualifying Cash Collateral in the Private Owner Pledged Account,in each case without any
 

requirement for any further consent, confirmation or instructions from the Private Owner;
 

provided, however, that as between the Initial Member and the Private Owner (and without
 

creating any right or obligation ofthe Paying Agent or any Issuing Bank to refuse tohonor, or
 

inquire as to the accuracy or sufficiency of, any applicable instructions from the Initial Member),
 

the Initial Member agrees that (i) it shall not exercise such rights to so draw on any such
 

Qualifying Letter of Credit unless there shall have occurred an Event ofDefault(whether or not
 

relating to any Qualifying Letter of Credit)or an LC Reissuance/Extension Failure(with respect
 

to such Qualifying Letter of Credit), and (ii) it shall not exercise such rights to so unilaterally
 

direct the disposition ofthe Qualifying Cash Collateral from the Private Owner Pledged Account
 

unless there shall have occurred an Event ofDefault.
 

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

to provide the Private Owner Pledged Amount in cash or otherwise), the Private Owner shall
 

establish the Private Owner Pledged Account with the Paying Agentfor the exclusive purpose of
 

holding Qualifying Cash Collateral (including in the form of any proceeds from a drawing on
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 26
 
any or all Qualifying Letters of Credit at any time deposited in the Private Owner Pledged
 

Account in accordance herewith). The Private Owner Pledged Account (and all funds and
 

financial assets therein) shall be subject to the security interest granted herein for the benefit of
 

the Initial Member pursuant to the terms of this Agreement, the Custodial and Paying Agency
 

Agreement and the Private Owner Pledged Account Control Agreement, Funds in the Private
 

Owner Pledged Account may be invested at the direction ofthe Private Owner from time to time
 

in Permitted Investments in accordance with the Custodial and Paying Agency Agreement;
 

provided, however, that the Private Owner is authorized to instruct the Custodian and Paying
 

Agent to release that portion of the proceeds in the Private Owner Pledged Account which
 

exceed the required Private Owner Pledged Amount,all in accordance with Section 3.'7(b) ofthe
 

Custodial and Paying Agency Agreement.
 

(f) Upon the occurrence of any LC Reissuance/Extension Failure, the
 

Initial Member shall have the right (but not the obligation) to draw on all or any part of the
 

undrawn amount of any Qualifying Letter of Credit subject to such LC Reissuance/Extension
 

Failure; and in such case the funds received by the Initial Member as a result ofany such draw
 

shall be deposited in the Private Owner Pledged Account (as Qualifying Cash Collateral) and
 

such LC Reissuance/Extension Failure shall not be deemed an Event of Default hereunder, in
 

each case only so long as (i) there shall not have occurred any Event of Default(other than such
 

LC Reissuance/Extension Failure), (ii) the Private Owner Pledged Account shall then be and
 

remain open and subject to the Private Owner Pledged Account Control Agreement, and (iii)
 

upon such deposit in the Private Owner Pledged Account(of the funds received by the Initial
 

Member from such draw), the aggregate amount ofthe Additional Security (disregarding such
 

affected Qualifying Letter of Credit) shall be in an amount not less than the Private Owner
 

Pledged Amount,it being understood that, in the event the foregoing conditions are not satisfied,
 

the Initial Member shall have the right to hold and apply such funds pursuant to Section 3.13(b)
 

above.
 

(g) The Private Owner hereby authorizes the filing by the Initial Member
 

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

Member or its assignees deem appropriate (in their sole and absolute discretion) to perfect and
 

continue their first priority Lien and security interest with respect to the Secured Assets. The
 

Private Owner shall deliver to the Initial Member an assignment and assumption agreement with
 

respect to the LLC Interest held by it, in the form attached hereto as Exhibit C, endorsed in
 

blank, and executed by the Private Owner. The Initial Member may use the assignment and
 

assumption agreement to effect the assignment ofthe LLCInterest held by the Private Owner at
 

any time if an Event of Default occurs and is continuing. The Initial Member's election to
 

exercise any remedy under this Section 3.13 shall in no way limit the Initial Member's rights
 

under any other Transaction Document,
 

(h) After all of the obligations secured by the Secured Assets have been
 

indefeasibly paid and performed in full (following the dissolution of the Company),the Initial
 

Member shall, upon the request of Private Owner, release any then outstanding Qualifying
 

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

Agreement.
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 27
 
(i) The Initial Member's rights and remedies under this Agreement, any
 

other Transaction Document or otherwise are cumulative and may be exercised singularly (and
 

in such order as the Initial Member may determine in its sole and absolute discretion) or
 

concurrently. Neither any failure nor delay on the part of the Initial Member to exercise any
 

other right or remedy shall operate as a waiver thereof, nor shall any single or partial exercise of
 

any right or remedy preclude any other or further exercise thereofor ofany other right or remedy
 

howsoever arising. In no event shall the Initial Member have any obligation to seek or exhaust
 

any particular remedy prior to exercising any other remedy, and the Private Owner hereby
 

waives any and all right to require the marshalling of assets in connection with any exercise by
 

the Initial Member of its remedies hereunder or under any other Transaction Document, Under
 

no circumstances shall the Initial Member be deemed or construed to have waived its right to
 

draw upon any Qualifying Letter of Credit to proceed against the Private Owner Pledged
 

Account,to foreclose upon the LLC Interest ofthe Private Owner or to exercise any ofits other
 

rights or remedies unless such waiver is in writing and executed by a duly authorized
 

representative ofthe Initial Member. A waiver ofany right or remedy on any one occasion shall
 

not operate as a waiver of such right or remedy on any future occasion or as a waiver of any
 

other right or remedy.
 

3.14 Purchase Right of the Initial Member. Without prejudice to the rights of the
 

Initial Member to foreclose on the LLC Interest of the Private Owner in accordance with
 

Section 3.13:
 

(a) Upon the occurrence and during the continuance ofan Event ofDefault,
 

the Initial Member may at any time, by notice (a "Buy-Out Notice") to the Private Owner,
 

elect to purchase(or cause one or more designees to purchase)the Private Owner's LLC Interest
 

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

(determined, if necessary, in accordance with Section 3.14(b (iv)) as of a date (the "Buv-Out
 

Valuation Date") selected by the Initial Member in its discretion between the date of the
 

Buy-Out Notice and the closing ofsuch purchase(the"Buv-Out Closing"),less(y)any amounts
 

owed by the Private Owner pursuant Section 3.14(b)(v), and less(z) any distributions paid by the
 

Company to or for the account of the Private Owner between the date ofthe Buy-Out Valuation
 

Date and the Buy-Out Closing.
 

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

shall be consummated as follows:
 

(i) The Buy-Out Closing shall be held at the principal offices of the
 

Company on a day selected by the Initial Member, which day shall, subject to
 

Section 3.14(b1(iv~, be no later than six (6) months after the Buy-Out Notice was
 

delivered to the Private Owner or at such other place or on such other date as the
 

parties may agree(the"BuY-Out Closing Date").
 

(ii) The Initial Member shall purchase (and/or cause one or more
 

designees to purchase in the aggregate) all but not less than all of the of the
 

Private Owner's LLC Interest for the consideration set forth in Section 3.14(a~,
 

and against delivery of such consideration, the Private Owner shall deliver all
 

such documents and instruments as are necessary to transfer to the Initial Member
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXEC(1TION VERSION 2g
 
(and/or its designee(s)), and in any event shall be deemed to have transferred, and
 

to have represented and warranted to the Initial Member(and/or its designee(s))
 

that it has transferred, to the Initial Member(and/or its designee(s)), good title to
 

(and, in any event, all right, title and interest ofthe Private Owner in and to)the
 

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

those created by this Agreement and the other Transaction Documents.
 

(iii) The Private Owner shall obtain all material consents, approvals or
 

waivers(including expiration or termination ofa specified waiting period)ofany
 

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

purchase and sale of the Private Owner's LLC Interest (other than any such
 

consent, approval or waiver which has, if permitted by Law,been waived by the
 

Initial Member).
 

(iv) In the event of the delivery of a Buy-Out Notice, the Members
 

shall attempt to agree on the fair market value of the Private Owner's LLC
 

Interest as ofthe Buy-Out Valuation Date. Ifthe Members are unable to agree on
 

such value within fifteen (15) days after the date of delivery of the Buy-Out
 

Notice (or, if sooner, by the Buy-Out Closing Date), then such value shall be
 

determined immediately thereafter in accordance with the Dispute Resolution
 

Procedure, and, if applicable, the Buy-Out Closing Date shall be delayed until
 

such date(after completion ofthe applicable valuation)as may be selected by the
 

Initial Member. For the avoidance ofdoubt,in no event shall the right under this
 

Section 3.14 or any valuation resulting from a Dispute Resolution Procedure
 

create any obligation with respect to, or otherwise limit the rights of the Initial
 

Member in connection with, any concurrent or subsequent foreclosure(or sale)of
 

the Private Owner's LLC Interest pursuant to Section 3.13, and/or exercise of
 

relevant rights under the Uniform Commercial Code or otherwise, and the Private
 

Owner acknowledges and agrees that any foreclosure and sale pursuant to Section
 

3.13 and relevant rights under the Uniform Commercial Code or otherwise may
 

result in a sale price for the LLC Interest that is significantly lower than a Buy-


Out Purchase Price potentially (or having actually been) determined pursuant to
 

this Section or other price set out in any Buy-Out Notice.
 

(v) All out-of-pocket costs and expenses incurred by the Initial
 

Member in connection with the exercise ofits rights under this Section 3.14 and
 

the sale of the LLC Interest by the Private Owner (including fees of any
 

investment banking firm retained in connection with the Dispute Resolution
 

Procedure and legal fees and expenses incurred in connection with obtaining any
 

necessary consents, approvals or waivers(including expiration or termination ofa
 

specified waiting period) of Governmental Authorities) shall be borne by the
 

Private Owner and may be deducted from the purchase price otherwise payable by
 

the Initial Member(or its designee(s))for the Private Owner's LLC Interest.
 

(c) The failure of the Initial Member to exercise its rights under this
 

Section 3.14 in connection with any Event of Default shall in no way affect or limit the exercise
 

ofsuch rights in connection with any otherEvent ofDefault by the Private Owner.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 29
 
(d) At any time prior to the Buy-Out Closing,the Initial Member may elect
 

not to proceed with the Buy-Out Closing(without any liability or further obligation with respect
 

thereto), and the Private Owner shall remain responsible for amounts owed under
 

Section 3.14(b)(v)notwithstanding any such election by the Initial Member.
 

(e) Any distributions payable by the Company to the Private Owner after
 

the Buy-Out Valuation Date shall, at the option ofthe Initial Member,be paid to and held by the
 

Initial Member (or, if permitted by the Paying Agent, held by the Paying Agent in the
 

Distribution Account)and,at the Buy-Out Closing or a reasonable time thereafter, be released to
 

the Private Owner less, without duplication,any amounts owed by the Private Owner pursuantto
 

this Agreement(including costs and expenses pursuant to Section 3.14(b)(v)). For the avoidance
 

ofdoubt,neither the Initial Member nor the Paying Agent shall have any obligation to segregate,
 

or pay interest or other income in respect of,any sums held pursuantto this Section 3.14(e),
 

3.15 No ERISA Plan Assets. The Manager shall use its reasonable best efforts to
 

ensure that the Company's Assets are not deemed to be "plan assets" within the meaning of
 

Section 3(42)ofERISA and the Plan Asset Regulation.
 

ARTICLEIV
 

Membership Interests; Rights and Duties of,and Restrictions on,Members
 

4.1 General. The membership of the Company shall consist of the Members listed
 

from time to time in the Annex I(the Member Schedule), and such substituted Members as may
 

be admitted to the Company pursuant to Article VIII. The Manager shall cause Annex I (the
 

Member Schedule)to be amended from time to time to reflect the admission of any additional
 

Members, additional Capital Contributions of the Members, the issuance of additional limited
 

liability company interests, transfers ofLLC Interests, repurchases,redemptions or cancellations
 

ofLLC Interests, the cessation or withdrawal of a Member for any reason or the receipt by the
 

Company ofnotice ofany change ofname or address ofa Member.
 

4.2 LLC Interests.
 

(a) Creation and Issuance. The Company is only authorized to issue the
 

LLC Interests that exist as ofthe date hereof, and the Company may not hereafter create or issue
 

any limited liability company interest; provided that nothing in this sentence restricts the
 

Disposition of any outstanding LLC Interest by any Member•(which matter is governed by
 

Article VIII). The Company's LLC Interests shall be uncertificated. The LLC Interests shall
 

have the relative rights, powers, duties and obligations specified in this Section 4.2. As of the
 

Closing Date,the LLC Interests are owned by the Initial Member and the Private Owner, as set
 

forth in Annex I (the Member Schedule). Other than as set forth in this Agreement, each LLC
 

Interest shall be identical in all respects to each other outstanding LLC Interest.
 

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

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

(c) No Retirement Fund or Conversion. The LLC Interests shall not be
 

subject to the operation of a retirement or sinking fund to be applied to the purchase or
 

Noah CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 3O
 
redemption thereof for retirement and shall not be convertible into any other class of limited
 

liability company interests,
 

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

expressly provided in this Agreement,the holders ofthe LLC Interests shall be entitled to vote
 

on all matters upon which the Members have the right to vote as set forth in this Agreement or
 

provided in the Act. Except as expressly set forth elsewhere in this Agreement (including
 

Section 3.1 and Section 3.4), the voting rights ofeach holder ofLLC Interests shall be based on
 

such holder's Percentage Interest.
 

4.3 Filings; Duty of Members to Cooperate. The Manager shall promptly cause to be
 

executed, delivered, filed, recorded or published, as appropriate, and the Private Owner will, as
 

requested by the Manager from time to time, execute and deliver,(a)all certificates, documents
 

and other instruments that the Manager deems necessary or appropriate to form, qualify or
 

continue the existence or qualification ofthe Company as a limited liability company in the State
 

of Delaware or as a foreign limited liability company in all other jurisdictions in which the
 

Company may, or may desire to, conduct business or own Company Property, (b)any
 

amendment to the Certificate or any instrument described in clause (a)required because of, or in
 

order to effectuate, an amendment to this Agreement, or any change in the membership ofthe
 

Company, in accordance with the terms hereof, (c)all certificates, documents and other
 

instruments (including conveyances and a certificate of cancellation) that the Manager deems
 

necessary or appropriate to reflectthe dissolution and liquidation ofthe Company pursuant to the
 

terms ofthis Agreement, and (d)such other certificates, documents and other instruments as are
 

required by Law or by any Governmental Authority to be executed by them in connection with
 

the Business as conducted or proposed to be conducted by the Company from time to time. As
 

soon as reasonably practical after the date hereof,the Manager shall cause the Company to apply
 

for, and thereafter use its reasonable best efforts to obtain, as quickly as possible, and maintain,
 

all such licenses as are required to conduct the Business, including qualifications to conduct
 

business in jurisdictions other than Delaware and licenses to purchase, own or manage the
 

Assets, if the failure to so obtain such licenses would reasonably be expected to result in the
 

imposition of fines, penalties or other liabilities on the Company, claims and defenses being
 

asserted against the Company (including counterclaims and defenses asserted by any Borrower
 

under the Assets), or materially adversely affect the Company or the Company's ability to
 

foreclose on the Collateral securing any Loan or otherwise realize the full value of any Asset or
 

Acquired Property.
 

4.4 Certain Restrictions and Requirements.
 

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

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

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

pursuant to authority expressly granted herein or pursuantto authority granted by the Manager in
 

accordance with the terms hereof.
 

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

a member ofthe Company except pursuant to and in accordance with Article VIII hereof.
 

Noah CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 3I
 
Each Member,other than the Initial Member,.shall at all times meetthe
 

qualifications ofa Qualified Transferee.
 

(c) 


4.5 LiabilitX of the Initial Member. Neither the Initial Member nor its successors or
 

assigns shall be liable, responsible or accountable, whether directly or indirectly, in contract or
 

tort or otherwise, to the Company, any other Person in which the Company has a direct or
 

indirect interest or any Member (or any Affiliate of any of the foregoing), for any Damages
 

asserted against, suffered or incurred by the Company,any Person in which the Company has a
 

direct or indirect interest or any Member(or any Affiliate ofany ofthe foregoing)arising out of,
 

relating to or in connection with this Agreement any act or failure to act pursuant to this
 

Agreement or otherwise with respect to:
 

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

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

Affiliates (including, without limitation, actions taken or not taken by the Initial Member as an
 

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

Affiliates ofsuch Person);
 

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

(including the LLCInterests) or the issuance ofPurchase Money Notes; and
 

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

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

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

(i) activities in the conduct ofthe Business,and
 

(ii) activities in the conduct ofother business engaged in by the Initial
 

Member which might involve a conflict ofinterest vis-a-vis the Company or any
 

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

any oftheir respective Affiliates) or in which the Initial Member realizes a profit
 

or has an interest;
 

except, in each case that this sentence does not apply to Damages resulting from acts or
 

omissions of such Initial Member which were taken or omitted which constituted fraud, gross
 

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

Transaction Document,
 

4.6 Indemnification.
 

(a) The Private Owner shall indemnify,defend and hold harmless the Initial
 

Member and the Initial Member's Affiliates, and their respective officers, directors, employees,
 

partners, principals, agents and contractors (all of the foregoing, collectively the "Indemnified
 

Parties"), from and against any Indemnified Losses, arising out o
 

breach after the Closing Date,by(x)the Company(during any perioc
 

the Manager, and subject to the clarification set forth below in this _ 4.6(a)), the Private
 

Owner(in-any capacity, including as the Manager)or any oftheir respective Affiliates or(y)any
 

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

North CREVenture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 32.
 
Person described in sub-clause (x), of the obligations of the Company or the Private Owner(in
 

any capacity, including as the Manager) under, or any other covenants, agreements or other
 

terms and conditions contained in,this Agreement or any other Transaction Document(including
 

Indemnified Losses relating to(1)the Company's obligations with respect to litigation referred
 

to in Section 4.5 of the Contribution Agreement to the extent provided therein, (2) the
 

Company's obligations under Sections 3,1. and 3_2 ofthe Contribution Agreement(including all
 

costs and expenses of the Initial Member in completing any applicable transfers pursuant to
 

exercise ofrights under such section), and (3)any claim asserted by the Initial Member against
 

the Company or the Private Owner(in any capacity, including as the Manager)to enforce its
 

rights hereunder or by any third party), or any third-party allegation or claim based upon facts
 

alleged that, iftrue, would constitute such a breach;(ii) any gross negligence, bad faith or willful
 

misconduct (including any act or omission constituting theft, embezzlement, breach of trust or
 

violation of any Law)on the part of any Person described in sub-clause(i)(x) or (i)(y); or (iii)
 

any Indemnified Losses with respect to which the Initial Member wasreleased,or with respect to
 

which the Company should have obtained a release from the applicable Borrowers or other
 

Obligors, in accordance with Section 4.17(b) of the Contribution Agreement. Such indemnity
 

shall survive the termination ofthis Agreement. Each Indemnified Party shall deliver notice ofa
 

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

Claim"),to the Private Owner promptly after receipt by such Indemnified Party of written notice
 

ofthe Third Party Claim, describing in reasonable detail the facts giving rise to any claim for
 

indemnification hereunder,the amount ofsuch claim (if known)and such other information with
 

respect thereto as is available to the Indemnified Party and as the Private Owner may reasonably
 

request. The failure or delay to provide such notice, however, shall not release the Private
 

Owner from any ofits obligations under this Section 4,6 except to the extent that it is materially
 

prejudiced by such failure or delay. The Private Owner acknowledges and agrees that it shall
 

have no recourse against the Company for any amounts the Private Owner is required to pay
 

pursuant to this Section 4.6. For the purposes ofthis Section 4.6, the term "Initial Member"
 

shall be deemed to include any Person at any time constituting the "Initial Member" hereunder
 

(other than for purposes ofthis Section 4.6)and(without limitation ofthe foregoing) any Person
 

at any time holding all or any portion ofthe LLC Interest initially held by the Initial Member
 

immediately after the Closing, in each case even ifsuch Person has since ceased to be a Member
 

ofthe Company or to hold any limited liability company interest in the Company. For purposes
 

of clarification, with respect solely to the obligations of the Private Owner under this Section
 

4.6(a)in connection with a breach by the Company(during any period when the Private Owner
 

is the Manager),the Private Owner shall not be responsible for any Indemnified Losses arising
 

out of or resulting from any failure by the Company to pay its separate payment obligations
 

(including such payment obligations under the Purchase Money Notes), to the extent that all of
 

the following are satisfied: (1) such failure is the result of the Company having insufficient
 

available funds notwithstanding the servicing ofthe Assets and management ofthe Company by
 

the Manager (and, as applicable, the Servicer and any Subservicers) in accordance with this
 

Agreement and the other Transaction Documents (including through exercise of any
 

discretionary authority with respect to incurrence of payment obligations and maintenance and
 

application of applicable reserves in a manner so as to reasonably avoid any such breach),(2)
 

such failure and resulting Indemnified Losses are not attributable in whole or in part to any
 

breach(or other action or omission in violation ofthe Servicing Standard or any provision ofthis
 

Agreement or any other Transaction Document)by the Private Owner(in any capacity,including
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 33
 
as Manager) or any of its Affiliates (other than the Company), or by any of the respective
 

officers, directors, employees, partners, principals, agents or contractors of any ofthe foregoing,
 

and(3)the Private Owner(in any capacity)is notrequired to pay(or advance applicable funds to
 

the Company for payment ofl or otherwise bear such payment obligations pursuant to the terms
 

ofthis Agreement or any other Transaction Document.
 

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

or insufficient to hold harmless the Indemnified Parties,the Private Owner shall contribute to the
 

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

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

Indemnified Parties, on the one hand, and the Private Owner (in any capacity, including as the
 

Manager)(including the Servicer or any Subservicer), on the other hand, in connection with the
 

mattersthat are the subject ofsuch Indemnified Losses.
 

(c) Ifthe Private Owner confirms in writing to the Indemnified Party within
 

fifteen (15) days after receipt of a Third Party Claim the Private Owner's responsibility to
 

indemnify, defend and hold harmless the Indemnified Party therefor, the Private Owner may
 

elect to assume control over the compromise or defense of such Third Party Claim at the Private
 

Owner's sole expense and with counsel selected by the Private Owner, which counsel must be
 

reasonably satisfactory to the Indemnified Party; provided, however, that (i)the Indemnified
 

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

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

Private Owner shall keep the Indemnified Party advised ofall material events with respect to any
 

Third Party Claim; (iii)the Private Owner shall obtain the prior written approval of the
 

Indemnified Party before ceasing to defend against any Third Party Claim or entering into any
 

settlement, adjustment or compromise ofsuch Third Party Claim involving injunctive or similar
 

equitable relief being imposed upon the Indemnified Party or any of its Affiliates; and (iv)the
 

Private Owner will not, without the prior written consent of the Indemnified Party, settle or
 

compromise or consent to the entry of any judgment in any pending or threatened action in
 

respect ofwhich indemnification maybe sought hereunder(whether or not any such Indemnified
 

Party is a party to such action), unless such settlement, compromise or consent by its terms
 

obligates the Private Owner to satisfy the full amount of the liability in connection with such
 

Third Party Claim and includes an unconditional release of such Indemnified Party from all
 

liability arising out ofsuch Third Party Claim.
 

(d) Notwithstanding anything contained herein to the contrary, the Private
 

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

control over)the defense, settlement, adjustment or compromise of(but the Private Owner shall
 

nevertheless be required to pay all Indemnified Losses incurred by the Indemnified Party in
 

connection with such defense, settlement or compromise):(i)any Third Party Claim that seeks
 

an order,injunction or other equitable relief against the Indemnified Party or any ofits Affiliates;
 

(ii)any action in which both the Private Owner (in any capacity, including as the Manager)or
 

any Affiliate ofthe Private Owner, on one hand, and the Indemnified Party, on the other hand,
 

are named as parties and either the Private Owner(or such Affiliate) or the Indemnified Party
 

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

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

interest between such parties may exist in respect of such action; and (iii)any matter that raises
 

North CRE Venture 2010-2, LI.0
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 34
 
or implicates any issue relating to any power,right or obligation of the FDIC under any Law. If
 

the Private Owner elects not to assume the compromise or defense against the asserted liability,
 

fails to timely and properly notify the Indemnified Party of its election as herein provided, or,at
 

any time after assuming such defense,fails to diligently defend against such Third Party Claim in
 

good faith, the Indemnified Party may pay, compromise or defend against such asserted liability
 

(but the Private Owner shall nevertheless be required to pay all Indemnified Losses incurred by
 

the Indemnified Party in connection with such defense, settlement or compromise). In
 

connection with any defense of a Third Party Claim (whether by the Private Owner or the
 

Indemnified Party), all ofthe parties hereto shall, and shall cause their respective Affiliates to,
 

cooperate in the defense or prosecution thereof and to in good faith retain and furnish such
 

records, information and testimony, and attend such conferences, discovery proceedings,
 

hearings, trials and appeals, as may be reasonably requested by a party hereto in connection
 

therewith.
 

(e) In the event the Company is reimbursed for or uses the Working Capital
 

Reserve Account or Excess Working Capital Advances to pay costs or expenses of the type
 

referred to in clause (v) or (vi) of the definition of Servicing Expenses and it is subsequently
 

determined that the Company was not entitled to reimbursement for (or to use the Working
 

Capital Reserve Account or Excess Working Capital Advances to pay) all or any portion ofsuch
 

costs and expenses because the Company did not satisfy the requirements of Section 4.6(c) or
 

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

"Unreimbursable Expenses"), the Manager shall, in addition to any other Indemnified Losses
 

for which the Manager may be liable with respect to the claim to which such costs and expenses
 

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

Member's Percentage Interest as set forth below, except to the extent such Unreimbursable
 

Expenses were funded through Excess Working Capital Advances that remain outstanding (in
 

which case the portion of any such outstanding Excess Working Capital Advance that was so
 

used for Unreimbursable Expenses shall itself become unreimbursable and be deemed forgiven
 

with no further right ofthe Manager to collect or receive the same), Any such reimbursement by
 

the Manager pursuant to the foregoing shall be as follows: within ten(10)Business Days after
 

written demand therefor from either Member, the Manager shall pay each Member by wire
 

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

to such Member's Percentage Interest (as ofthe later of(x) the date ofsuch demand or (y)the
 

date ofsuch payment)multiplied by the amount ofall such Unreimbursable Expenses.
 

(fl The Company shall indemnify, defend and hold harmless each Member
 

and each Member's respective officers, directors, employees and members(all ofthe foregoing
 

collectively, the "Covered Persons") for any Indemnified Losses incurred by such Covered
 

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

Person in connection with the exercise or performance ofthe rights, powers, responsibilities and
 

obligations of such Covered Person (or, if such Covered Person is other than a Member, of the
 

Member in respect ofwhich such Covered Person so constitutes a Covered Person)regarding the
 

Company except for (i)any Third Party Claim or Indemnified Losses resulting from fraud, gross
 

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

Transaction Document by such Covered Person (or if such Covered Person is other than a
 

Member, by the Member in respect of which such Covered Person so constitutes a Covered
 

Person),and (ii)in the case ofthe Private Owner(in any capacity,including as the Manager),(x)
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 35
 
any claim or demand by any Servicer or Subservicer (or, for the avoidance of doubt, any
 

Indemnified Losses arising out of or related to such claim or demand)and (y)any Third Party
 

Claim or Indemnified Losses that is in whole or in part covered by or subject to an
 

indemnification obligation of the Private Owner (in any capacity, including as the Manager)
 

under any provision of this Agreement or any other Transaction Document, including the
 

foregoing provisions ofSection 4.6(a).
 

(g) Tax Liability of Ownership Entity. Notwithstanding anything to the
 

contrary contained herein, if any Ownership Entity is not apass-through entity with no entity-


level income Tax obligations, distributions to the Initial Member pursuant to Section 6.6
 

(including for the purposes ofSection 9.2(c))shall be allocated before accrual or payment ofany
 

income Tax payable by such Ownership Entity, and the Private Owner (or its successors or
 

assigns) shall indemnify and hold harmless the Initial Memberfrom and against any liability for
 

any income Taxes payable by the Ownership Entity; provided, however, that the foregoing
 

special allocation and indemnity shall not apply if (i) the Private Owner (and each of its
 

successors and assigns) has taken all steps necessary to secure pass-through treatment of the
 

Ownership Entity and (ii)the liability for income Taxes payable by the Ownership Entity arises
 

solely as a result ofa change in Law applicable to pass-through entities occurring after the date
 

hereof and not as a result of action (or inaction) by the Private Owner (or its successors or
 

assigns),
 

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

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

connection with a breach hereunder or the occurrence of an Event ofDefault(including relating
 

to a breach of Section 4.6), all costs and expenses (including reasonable attorneys' fees and
 

litigation and similar costs, and other out-of-pocket expenses incurred in investigating,
 

defending, asserting or preparing the defense or assertion of any claim) incurred by the Initial
 

Member with respect thereto may be offset by the Initial Member against any payment or
 

distribution otherwise payable to the Private Owner(including any Interim Management Fee or
 

the Management Fee), whether in its capacity as a Member or as the Manager (in each case
 

except to the extent such breach or Event of Default is attributable exclusively to a Manager
 

having been appointed by the Initial Member following removal of the Private Owner in such
 

capacity, or to any applicable Servicer (and any of Subservicers) having been engaged by the
 

Initial Member,the Company or the applicable replacement Manager following such removal of
 

the Private Owner as the Manager, in each case that is not an Affiliate of the Private Owner),
 

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

shall be disregarded for purposes ofcalculations with respect to the Incentive Threshold Event,
 

ARTICLE V
 

Capital Contributions; Discretionary Funding Advance;Excess Working Capital Advance
 

5.1 Capital Contributions.
 

(a) Members' Contribution. Pursuant to the Contribution Agreement, the
 

Initial Member made a Capital Contribution to the Company in an amount equal to the Initial
 

Member Capital Contribution. In connection with the Transferred LLC Interest Sale Agreement,
 

Private Owner acquired from the Initial Member the Transferred LLC Interest representing a
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operalin~ Agreement
 

EXECUTION VERS]ON 36
 
forty percent(40%)equity interest in the Company in exchange for the Transferred LLC Interest
 

Sale Price. After giving effect to the foregoing transactions (and to the Capital Contributions
 

referenced in Section 5.2 below), the respective Capital Accounts ofthe Initial Member and the
 

Private Owner as ofthe Closing Date are as set forth in the Annex I(the Member Schedule).
 

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

below), the Members shall have no obligation to make any additional Capital Contributions to
 

the Company.
 

5.2 Working Capital Reserve Account. On the Closing Date,the Initial Member and
 

the Private Owner shall fund, as Capital Contributions to the Company,the Working Capital
 

Reserve Account in accordance with the provisions ofSection 12.11,hereof and Section 1 ofthe
 

Transferred LLC Interest Sale Agreement, which funds shall be used for payment of Working
 

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

pursuant to the Custodial and Paying Agency Agreement.
 

5.3 Discretionary Funding Advance.
 

(a) In the event there are insufficient funds in the Collection Account and
 

no funds in the Working Capital Reserve Account to make Funding Draws with respect to
 

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

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

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

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

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

than Funding Draws. The proceeds ofDiscretionary Funding Advances shall be deposited into
 

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

Draws. All Discretionary Funding Advances,together with a detailed statement of the sources
 

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

thereof) and description of the allocation to the Assets for which such Discretionary Funding
 

Advance was made,shall be reflected in the Monthly Report with respect to the calendar month
 

during which the relevant Discretionary Funding Advance was made,
 

(b) Discretionary Funding Advances shall bear interest on the outstanding
 

principal amount thereof at a rate per annum equal to the thirty(30)day LIBOR Rate in effect
 

from time to time, plus 3.0%. Interest shall be calculated on the basis of a 360 day year and
 

actual days elapsed. Interest shall accrue on each Discretionary Funding Advance for the day on
 

which the Discretionary Funding Advance is made, and shall not accrue on a Discretionary
 

Funding Advance, or any portion thereof, for the day on which the Discretionary Funding
 

Advance or such portion is paid. Each Discretionary Funding Advance, including interest
 

accrued with respect thereto, shall be repaid in accordance with Sections 3.1. and 5_1 of the
 

Custodial and Paying Agency Agreement, only out of the Asset- Proceeds from the Asset in
 

respect of which such Discretionary Funding Advance was made,it being agreed that, as to any
 

specific amounts to be so applied to the repayment of one or more Discretionary Funding
 

Advances relating to the same Asset, such amounts shall be applied first to outstanding interest
 

on such Discretionary Funding Advances (on a pro rata basis as among such Discretionary
 

Funding Advances, if applicable) and then to the principal amount(on a pro rata basis as among
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 37
 
such Discretionary Funding Advances, if applicable). The Manager may not assign, sell,
 

transfer, participate, pledge,or hypothecate,in whole or in part, its interest in any Discretionary
 

Funding Advances withoutthe consent ofeach ofthe Required Consenting Parties.
 

5.4 Excess Working Capital Advances. In the event there are insufficient funds in the
 

Collection Account and insufficient available funds in the Working Capital Reserve Account
 

(including, as applicable, by a permitted release of such funds to the Collection Account or as
 

otherwise permitted in the Custodial and Paying Agency Agreement) to pay any Working
 

Capital Expenses or to fund the Defeasance Account by such amount as may be required to cure
 

a Purchase Money Notes Trigger Event or if there are insufficient funds in the Defeasance
 

Account on any Purchase Money Note Maturity Date to satisfy in full any maturing Purchase
 

Money Note,then the Manager(x)shall, except as otherwise provided in Section 12.6, make an
 

advance of its own funds to the Company to be used by the Company for payment of such
 

permitted(or required, as applicable) Working Capital Expenses and(y)may(but shall not have
 

an obligation to) make an advance of its own funds to the Company to be used by the Company
 

for such funding ofthe Defeasance Account(any such advance to the Company pursuant to the
 

foregoing, an "Excess Working Capital Advance"). In no event may Excess Working Capital
 

Advances be used for the making of any Funding Draws. No Excess Working Capital Advance
 

shall accrue any interest thereon. Excess working Capital Advances shall be repaid in
 

accordance with Section 5.1. of the Custodial and Paying Agency Agreement. The proceeds of
 

Excess Working Capital Advances for payment of Working Capital Expenses shall be deposited
 

into the Collection Account for disbursement therefrom for the payment of such permitted
 

Working Capital Expenses. The proceeds of any Excess Working Capital Advance for an
 

applicable funding ofthe Defeasance Account shall be deposited into (and the Manager shall
 

remit such proceeds to the Paying Agent for such deposit into)the Defeasance Account. To the
 

extent multiple Working Capital Expenses(payment ofwhich is permitted to be made using such
 

Excess Working Capital Advance)are outstanding, any funding or use by the Manager ofExcess
 

Working Capital Advances for payment of all or any of the same shall follow the relevant
 

priorities as set forth in the Priority ofPayments and in Section 3.1_ ofthe Custodial and Paying
 

Agency Agreement, as applicable. All Excess Working Capital Advances, together with a
 

detailed statement ofthe sources and uses thereof(which shall be broken out by the reimbursable
 

and unreimbursable portions thereofl,shall be reflected in the Monthly Report with respect to the
 

calendar month during which (or, as applicable the Distribution Date for which) the relevant
 

Excess Working Capital Advance was made. The Manager may not assign, sell, transfer,
 

participate, pledge, or hypothecate, in whole or in part, its interest in any Excess Working
 

Capital Advances without the consent ofeach ofthe Required Consenting Parties.
 

ARTICLE VI
 

Capital Accounts; Allocations; Priority ofPayments;Distributions
 

6.1 Capital Accounts. A Capital Account shall be established and maintained for
 

each Member to which shall be credited the Capital Contributions made by such Member and
 

such Member's allocable share of Net Income (and items thereofl, and from which shall be
 

deducted distributions to such Member of cash or other Company Property and such Member's
 

allocable share of Net Loss (and items thereof. As to the Private Owner,the initial Capital
 

Account shall correspond to that portion of the Capital Account of the Initial Member that is
 

attributable to the Transferred LLC Interest acquired by the Private Owner pursuant to the
 

North CRE Venture 20I~-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 3S
 
Transferred LLC Interest Sale Agreement, together with the Private Owner WCR Account
 

Deposit made pursuant to the Transferred LLC Interest Sale Agreement. A Member's Capital
 

Account also shall be adjusted for items specially allocated to such Member under this Article
 

VI. The Capital Accounts of the Members generally shall be adjusted and maintained in
 

accordance with Treasury Regulations Section 1.704-1(b)(2)(iv); provided, however, that such
 

adjustments to, and maintenance of, the Capital Accounts shall not adversely affect the manner
 

in which distributions are to be made to the Membersunder Section 6.6.
 

6.2 Allocations to Cauital Accounts. Allocation ofNet Income and Net Loss shall be
 

made as provided in this Article VI.
 

(a) Except as otherwise provided in this Agreement, Net Income and Net
 

Loss(and,to the extent necessary,individual items ofincome, gain, loss, deduction or credit) of
 

the Company shall be allocated amongthe Members in a manner such that, after giving effect to
 

the special allocations set forth in Section 6.2(b), the Capital Account balance of each Member,
 

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

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

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

were satisfied (limited with respect to each nonrecourse liability to the Tax basis of the assets
 

securing such liability), and the net assets ofthe Company were distributed, in accordance with
 

Section 9.2(c), to the Members immediately after making such allocation, minus (ii) such
 

Member's share of"partnership minimum gain" and "partner nonrecourse debt minimum gain"
 

(as such terms are used in Treasury Regulations Section 1.704-2),computed immediately prior to
 

the hypothetical sale of assets.
 

(b) Allocations in Special Circumstances. The following special
 

allocations shall be made in the following order:
 

(i) Minimum Gain Chargeback. Notwithstanding any other provision
 

ofthis Article VI, ifthere is a net decrease in minimum gain (as it corresponds to
 

the definition of "partnership minimum gain" in Treasury Regulations
 

Section 1.704-2(b)(2) and (d)) during any Fiscal Year, the Members shall be
 

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

if necessary, subsequent Fiscal Years)in an amount equal to the portion ofsuch
 

Member's share ofthe net decrease in minimum gain, determined in accordance
 

with Treasury Regulations Section 1.704-2(f) and (g). This Section 6.2(bl(i)is
 

intended to comply with the "minimum gain chargeback" requirement in such
 

section of the Treasury Regulations and shall be interpreted consistently
 

therewith.
 

(ii) Member Minimum Gain Chargeback. Notwithstanding any other
 

provision of this Article VI other than Section 6.2(b)(i), ifthere is a net decrease
 

in minimum gain att~'ibutable to a Member nonrecourse debt(as it corresponds to
 

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

Regulations Section 1.704-2(i)) during any Fiscal Year, each Member shall be
 

specially allocated items ofCompany income and gain for such Fiscal Year(and,
 

if necessary, subsequent Fiscal Years)in an amount equal to the portion ofsuch
 

North CRE Venture 2010-2, LLC ,
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 39
 
Member's share of the net decrease in such minimum gain attributable to such
 

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

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

minimum gain chargeback" requirement in such section of the Treasury
 

Regulations and shall be interpreted consistently therewith.
 

(iii) QualifiedIncome Offset. In the event any Member,for any reason,
 

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

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

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

Regulations, such Adjusted Capital Account Deficit as quickly as possible;
 

provided that an allocation pursuant to this Section 6.2(bl(iii) shall be made only
 

ifand to the extent that such Member would have such Adjusted Capital Account
 

Deficit after all other allocations provided for in Section 6.2 have been tentatively
 

made as if this Section 6.2(b~(iii) were not in this Agreement. This
 

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

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

interpreted consistently therewith.
 

(iv) Nonrecourse Deductions. Any nonrecourse deductions attributable
 

to a Member nonrecourse debt (as described in Treasury Regulations
 

Section 1.704-2(i))shall be allocated to the Member who bears the economic risk
 

ofloss with respect to such nonrecourse debt. Otherwise,nonrecourse deductions
 

shall be allocable in accordance with the Members' respective Percentage
 

Interests.
 

(v) LossAllocation Limitation. No allocation ofNet Loss(or any item
 

thereof shall be made to,any Member to the extent that such allocation would
 

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

allocation ofNet Loss(or any item thereofl, less than all Members would have an
 

Adjusted Capital Account Deficit as a result ofsuch allocation,then any Net Loss
 

(or item thereofl not allocable to any such Members) as a result of such
 

limitation shall be allocated (subject to such limitation)to the other Member so as
 

to allocate the maximum permissible Net Loss to each Member under Treasury
 

Regulation Section 1.704-1(b)(2)(ii)(d).
 

(vi) Curative Allocations. The .allocation prop
 

Section 6.2(b) are intended to comply with certain requirement:
 

Regulations. Notwithstanding any other provisions of this VI,
 

allocation effected pursuant to this Section 6.2(b~ shall be taker
 

allocating NetIncome and Net Loss among the Members such th.
 

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

so that the Capital Account balances correspond to the amounts distributable to
 

the Members.
 

(c) Transfer of or Change in LLC Interests. The Tax Matters Member is
 

authorized to adopt any convention or combination ofconventions likely to be upheld for federal
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 
 4O
 
income Tax purposes regarding the allocation ofitems ofCompany income, gain, loss, deduction
 

and expense with respect to a Transferred LLC Interest. A transferee of an LLC Interest in the
 

Company shall succeed to the Capital Account ofthe transferor Member to the extent it relates to
 

the Transferred LLC Interest.
 

6.3 Tax Allocations.
 

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

Fiscal Year,items ofCompany income,gain, loss, deduction and expense shall be allocated, for
 

federal, state and local income Tax purposes among the Members in the same manner as the Net
 

Income(and items thereofor Net Loss(and items thereofl of which such items are components
 

were allocated pursuant to Section 6.2.
 

(b) Section 704(c)ofthe Code. Income, gains, losses and deductions with
 

respect to any property (other than cash) contributed or deemed contributed to the capital ofthe
 

Company shall, solely for income Tax purposes, be allocated among the Members so as to take
 

account ofany variation between the Company's adjusted basis ofsuch property, with respect to
 

each member ofthe Company for federal income Tax purposes and its Fair Market Value at the
 

time of the contribution or deemed contribution in accordance with Section 704(c) of the Code
 

and the Treasury Regulations promulgated thereunder. Such allocations shall be made in such
 

manner and utilizing such permissible Tax elections as determined in good faith by the Tax
 

Matters Member,following consultation with the Initial Member. In the event of a revaluation
 

of Company Property pursuant to the definition of Book Value, subsequent allocations of
 

income,gains,losses or deductions with respect to such Company Property shall take account of
 

any variation between the Book Value and Fair Market Value ofsuch Company Property, as so
 

determined from time to time, in accordance with Section 704(c) ofthe Code and the Treasury
 

Regulations promulgated thereunder. Such allocations shall be made in such manner and
 

utilizing such permissible Tax elections as determined in good faith by the Tax Matters Member,
 

following consultation with the Initial Member.
 

(c) Capital Accounts Not Affected. Allocations pursuant to this Section 6.3
 

are solely for federal, state and local Tax purposes and shall not affect, or in any way be taken
 

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

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

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

aware ofthe Tax consequences of the allocations made by this Section 6.3, and hereby agree to
 

be bound by the provisions of this Section 6.3, in reporting their respective shares of items of
 

Company income, gain, loss, deduction and expense.
 

6.4 Determinations by Tax Matters Member. All matters concerning the computation
 

of the Capital Accounts,the allocation of items of Company income, gain, loss, deduction and
 

expense and the adoption of any accounting procedures not expressly provided for by the terms
 

of this Agreement shall be determined by the Tax Matters Member in good faith, following
 

consultation with the Initial Member. Following such consultation, such determinations shall be
 

final and conclusive as to all the Members. Without in any way limiting the scope of the
 

foregoing, if and to the extent that, for income Tax purposes, any contribution to or distribution
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 41
 
by the Company or any payment by any Member or by the Company is recharacterized, the Tax
 

Matters Member may, in good faith following consultation with the Initial Member, specially
 

allocate items of Company income, gain, loss, deduction or expense and/or make correlative
 

adjustments to the Capital Accounts of the Members in a manner so that the net amount of
 

income, gain, loss, deduction and expense realized by each relevant party (after taking into
 

account such special allocations) and the net Capital Account balances of the Members (after
 

taking into account such special allocations and adjustments)shall, as nearly as possible, achieve
 

the fundamental purpose ofSection 6.2(a), such that the Capital Account balances correspond to
 

the amounts distributable to the Members,as ifsuch recharacterization had not occurred.
 

6.5 Priority of Payments. Each calendar month the amounts deposited in the
 

Distribution Account under the Custodial and Paying Agency Agreement shall be distributed by
 

the Paying Agent in the order of the Priority of Payments; provided, however, that for the
 

avoidance of doubt, to the extent amounts are available for distribution to the Members with
 

respect to their respective LLC Interests (such available amounts, the "Distributable Cash"),
 

such Distributable Cash shall be distributed to the Members in accordance with Section 6.6
 

below.
 

6.6 Distributions.
 

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

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

except as expressly provided in this Agreement.
 

(b) Ordinary Distributions.
 

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

Members on a monthly basis by thePaying Agent out ofthe Distribution Account
 

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

however, that the Manager shall instruct the Paying Agent as to how such
 

distributions are to be allocated as between the Initial Member and the Private
 

Owner based on Section 6.6(b)(ii) below (which instructions shall be included in
 

one or more reports to be provided to Paying Agent in accordance with
 

Section 7.4(b)).
 

(ii) Distributions of Distributable Cash. Each distribution of
 

Distributable Cash shall be made to the Members as follows:
 

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

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

Threshold Event occurs; and
 

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

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

For the avoidance ofdoubt, distributions to the Members occurring on the
 

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

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

North CRE VeNure 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUT[ON VERSION 
 42

Threshold Event, be allocated without regard to the occurrence ofsuch Incentive
 

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

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

Incentive Threshold Event.
 

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

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

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

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

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

zero.
 

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

determined as follows:
 

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

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

amount o£ the Private Owner WCR pursuant to Section 12.11(b) (the
 

"Incentive Threshold Base Amount");and
 

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

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

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

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

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

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

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

clause(B)(2)ofthis Section 6.6(b~(iv) is greater than the amount referred
 

to in clause(B)(1)ofthis Section 6.6(b,~(iv), then the applicable Incentive
 

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

subsequent Distribution Dates.
 

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

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

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

ofany Governmental Authority then applicable to the Company.
 

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

the Manager is authorized to take any action that it determines to be necessary or appropriate to
 

cause the Company to comply with any foreign or United States federal, state or local
 

withholding requirement with respect to any allocation, payment or distribution by the Company
 

to any Member or other Person. All amounts so withheld shall be treated as distributions to the
 

applicable Members under the applicable provisions ofthis Agreement. If any such withholding
 

requirement with respect to any Member exceeds the amount distributable to such Member under
 

the applicable provisions of this Agreement, or if any such withholding requirement was not
 

satisfied with respect to any amount previously allocated or distributed to such Member, such
 

Member and any successor or assignee with respect to such Member's LLC Interest hereby
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 43
 
agrees to indemnify and hold harmless the Manager and the Company for such excess amount or
 

such withholding requirement,as the case may be.
 

(e) Record Holders. Any distribution of Company Property, whether
 

pursuant to this Article VI or otherwise, shall be made only to Persons that, according to the
 

books and records of the Company, were the holders of record of LLC Interests on the date
 

determined by the Manager as of which the Members are entitled to any such distribution.
 

(fl Final Distribution. The Final Distribution shall be made in accordance
 

with the provisions ofSection 9.2,
 

ARTICLE VII
 

Accounting,Reporting and Taxation
 

7.1 Fiscal Year. The books and records ofthe Company shall be kept on an accrual
 

basis and the fiscal year ofthe Company shall commence on January 1 and end on December 31
 

(the "Fiscal Year").
 

7.2 Maintenance ofBooks and Records.
 

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

continuance of the Company,the Manager shall cause to be kept and maintained (including by
 

the Servicer and any Ownership Entity and including records transferred by the Receiver to the
 

Company in connection with its conveyance of the Assets to the Company under the
 

Contribution Agreement), at all times, at the Company's chief executive office referred to in
 

Section 2.4, a complete and accurate set offiles, books and records regarding the Assets and the
 

Collateral, and the Company's and the relevant secured parties' interests in the Assets and the
 

Collateral, including records relating to the Collection Account, the Escrow Accounts, the
 

Working Capital Reserve Account, any liquidity reserve account(if permitted),the Defeasance
 

Account,and the disbursement ofall Asset Proceeds. This obligation to maintain a complete and
 

accurate set of records shall encompass all files in the Manager's or Company's custody,
 

possession or control pertaining to the Assets and the Collateral, including(except as required to
 

be held by the Custodian pursuant to the Custodial and Paying Agency Agreement)all original
 

and other documentation pertaining to the Assets and the Collateral, all documentation relating to
 

items ofincome and expense pertaining to the Assets and the Collateral,and all ofthe Manager's
 

(and the Servicer's and any Subservicer's) internal memoranda pertaining to the Assets and the
 

Collateral. The books of account shall be maintained in a manner that provides sufficient
 

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

specific authorization of the Manager consistent with the provisions of this Agreement; and
 

(b)transactions of the Company are recorded in such form and manner as will; (i)permit
 

preparation offederal, state and local income and franchise Tax returns and information returns
 

in accordance with this Agreement and as required by Law; (ii) permit preparation of the
 

Company's financial statements in accordance with GAAP and as otherwise set forth herein and
 

the provisions ofthe reports required to be provided hereunder; and (iii) maintain accountability
 

for the Company's Assets..
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 44
 
(b) Retention of Books and Records. The Manager shall cause all such
 

books and records to be maintained and retained until the date that is the later often(10) years
 

after the Closing Date and three(3)years after the date on which the Final Distribution is made.
 

All such books and records shall be available during such period for inspection by the Initial
 

Member, the FDIC or any of their respective representatives (including any Governmental
 

Authority) and agents at the Company's chief executive office referred to in Section 2.4 at all
 

reasonable times during business hours on any Business Day (or, in the case of any such
 

inspection after the term hereof, at such other location as is provided by notice to the Initial
 

Member and the FDIC), in each instance upon two (2) Business Days' prior notice to the
 

Manager. Upon request by the Initial Member or the FDIC,the Manager shall promptly send
 

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

requesting Person or its designee. The Manager shall provide the Initial Member and the FDIC
 

with reasonable advance notice of the Manager's intention to destroy or dispose of any
 

documents or files relating to the Assets and, upon the request of the Initial Member or the
 

FDIC, shall allow such requesting Person to recover the same (or copies thereof from the
 

Company and in the case both the Initial Member and the FDIC so request the same, the FDIC
 

shall have the right to recover such documents or files, but the Initial Member shall have the
 

right to make copies ofsuch applicable documents or files so long as such copies are made while
 

such documents files remain with the Manager or the Company (and prior to recovery of the
 

same by the FDIC). The Manager shall also maintain complete and accurate records reflecting
 

the status ofTaxes, ground leases or other recurring charges which could become a Lien on any
 

Collateral. Any expense incurred by Initial Member or the FDIC and any reasonable out-ofpocket expense incurred by the Company in connection with the exercise by the Initial Member
 

or the FDIC of its respective rights in this Section 7.2(b) to recover or make (or otherwise
 

receive)copies ofbooks,records,documents or files shall be borne by such Person so exercising
 

such rights; provided, however,that any expense incident to the exercise ofsuch rights pursuant
 

to this Section 7.2(b) as a result of or during the continuance of an Event of Default shall in all
 

cases be borne by the Private Owner(except to the extent such Event of Default is attributable
 

exclusively to a Manager having been appointed by the Initial Member following removal ofthe
 

Private Owner in such applicable capacity, or to any applicable Servicer (and its Subservicers)
 

having been engaged by the Initial Member, the Company or the applicable replacement
 

Manager following such removal ofthe Private Owner as the Manager,in each case that is not an
 

Affiliate ofthe Private Owner).
 

7.3 Financial Statements.
 

(a) Annual Financial Statements. As soon as practicable following, but no
 

later than ninety (90) days immediately after, the end of each Fiscal Year (commencing with
 

respect to the 2010 Fiscal Year), the Manager shall prepare and deliver to the Initial Member an
 

audited consolidated balance sheet of the Company and the Ownership Entities as at the end of
 

such Fiscal Year, and audited consolidated statements of operations and cash flow of the
 

Company and the Ownership Entities for such Fiscal Year, each prepared in accordance with
 

GAAP and accompanied by the Accountants' report thereon, which shall be certified in the
 

customary manner by the Accountants.
 

(b) Quarterly Financial Information. As soon as practicable following, but
 

no later than forty-five (45)days immediately after, the end of each quarter ofeach Fiscal Year
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 4S
 
(other than the last quarter of such Fiscal Year, and commencing with the calendar quarter
 

ending on or about March 31,2011),the Manager shall prepare and deliver to the Initial Member
 

unaudited consolidated balance sheet ofthe Company and the Ownership Entities as at the end of
 

such calendar quarter, and unaudited consolidated statements ofoperations and cash flow ofthe
 

Company and the Ownership Entities for such calendar quarter (and, for the first such report,
 

also covering the period from the Closing Date through the end of such calendar quarter), each
 

prepared in accordance with GAAP.
 

7.4 Additional Reporting and Notice Requirements,
 

(a) Manager's Duty to Initial Member and Secured Parties; Delivery of
 

Certain Notices. In addition to such other reports and access to books,records and reports as are
 

required to be provided under this Agreement, the Manager shall cause to be delivered to each
 

Required Consenting Party such information as is specified in Exhibit B (in addition to the
 

Monthly Report)and such other information relating to the Assets,the Collateral, the Company,
 

the Servicers and any Subservicers as such Required Consenting Parties may reasonably request
 

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

promptly advised, in writing, of any matter of which the Manager, any Servicer or any
 

Subservicer becomes aware relating to the Assets, the Collateral, the Collection Account, the
 

Escrow Accounts, the Working Capital Reserve Account, the Defeasance Account, or any
 

Borrower or Obligor that materially and adversely affects the interests of any Required
 

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

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

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

the Initial Member or the Purchase Money Notes Guarantor requests information which is
 

dependent upon obtaining such information from a Borrower, Obligor or other third party, the
 

Manager shall cause to be made commercially reasonable efforts to obtain such information but
 

it shall not be a breach by the Manager of this Agreement if the Manager fails to cause such
 

information to be provided to the Initial Member or the Purchase Money Notes Guarantor
 

because a Borrower, Obligor or other Person has failed to provide such information after such
 

efforts have been made.
 

(b) Monthly Reports. On or prior to the day which is five (5) Business
 

Days prior to the Distribution Date for each month, commencing on the Distribution Date
 

following the calendar month in which the Closing Date occurs, the Company shall deliver or
 

cause the Manager to deliver to the Paying Agent and any Required Consenting Party the
 

Monthly Report (in the form set forth in Exhibit B hereto) with respect to the relevant Due
 

Period, which Monthly Report shall include the Distribution Date Report specifying the amounts
 

and recipients of all funds to be distributed by the Paying Agent and the Purchase Money Notes
 

Guarantor on such Distribution Date; provided, however, that (unless the Company and the
 

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

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

Report) on behalf of the Company for ail Due Periods ending on or before the last day of the
 

month in which the final Servicing Transfer Date occurs, unless otherwise agreed between the
 

parties. Following receipt by the Paying Agent of the Monthly Report (including the
 

Distribution Date Report)with respect to a given Due Period,the Paying Agent shall prepare and
 

deliver the Custodian and Paying Agent Report with respect to such Due Period in accordance
 

North CRE Venture 201-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 46
 
with the terms of the Custodial and Paying Agency Agreement. For the Distribution Date
 

immediately preceding the Maturity Date for each Class ofPurchase Money Notes,the Manager
 

shall also deliver to the Paying Agent, the Initial Member and the Purchase Money Notes
 

Guarantor an additional report (the "Maturity Date Report"), which report shall include the
 

amount on deposit in the Defeasance Account to pay such Class ofPurchase Money Notes as of
 

the Maturity Date. Each Monthly Report(including the Distribution Date Report and Maturity
 

Date Report,as applicable)prepared and delivered by the Manager shall be certified by the chief
 

financial officer (or an equivalent officer) ofthe Manager. Each Monthly Report prepared and
 

delivered by the Manager shall also include a certification ofthe Manager that all withdrawals by
 

the Manager from the Collection Account during such Due Period were made in accordance with
 

the terms ofthis Agreement and the Custodial and Paying Agency Agreement.
 

(c) Annual Compliance Certificates. The Manager shall, and shall cause
 

the Servicer and any Subservicer to, deliver to each Required Consenting Party on or before
 

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

signer thereof, that (i) a review of such party's (in the case ofthe Manager,for the avoidance of
 

doubt, in any capacity under this Agreement) activities during the preceding Fiscal Year (or
 

other applicable period as set forth below in this.Section 7.4(c) and ofits performance under this
 

Agreement (or, as applicable, the Servicing Agreement or any Subservicing Agreement) has
 

been made under such officer's supervision, and (ii) to the best of such officer's knowledge and
 

belief, based on such review,such party (in the case ofthe Manager,for the avoidance ofdoubt,
 

in any capacity under this Agreement) has fulfilled all of its obligations under this Agreement
 

(or, as applicable, the Servicing Agreement or Subservicing Agreement)in all material respects
 

throughout such year (or other applicable period as set forth below in this Section 7.4(c)) or, if
 

there has been a failure to fulfill any such obligation in any material respect, specifying each
 

such failure and the nature and status thereof: The first such officer's certificate shall, with
 

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

each Asset, include relevant information with respect thereto for the period commencing on the
 

Servicing Transfer Date for such Asset) and continuing through the end ofthe 2011 Fiscal Year.
 

In the event a Servicer or any Subservicer was terminated, resigned or otherwise performed in
 

such capacity for only part ofa year (or other applicable period, as the case may be, with respect
 

to the period commencing, with respect to any Asset, on the applicable Servicing Transfer Date
 

through the end of the 2011 Fiscal Year), such party shall provide an officer's certificate
 

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

period).
 

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

commencing in the year 2011,the Manager shall cause each Servicer and Subservicer to provide
 

to each ofthe Paying Agent and the Required Consenting Parties, the annual reports (including
 

the independent accountant report) for the prior Fiscal Year (or other applicable period as set
 

forth below) required under Section 1122 of Regulation AB (regardless of whether any such
 

requirements apply, by their terms, only to companies registered or required to file reports with
 

the Securities and Exchange Commission) with respect to the relevant servicing criteria
 

provisions of Section 1122(d)(1) of Regulation AB that are applicable to the servicing being
 

conducted under this Agreement(and the Servicing Agreement) pursuant to Section 12.3(d)
 

below. The first such reports shall cover the period commencing on the Closing Date(and for
 

Noah CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreemem
 

EXECUTION VERSION 47
 
each Asset, covering the period from the applicable Servicing Transfer Date) and continuing
 

through the end ofthe 2011 Fiscal Year•.
 

(e) Audits. Until the later ofthe date that is ten(10)years after the Closing
 

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

cause each Servicer and Subservicer to, (i)provide any representative of the Initial Member
 

(including any Governmental Authority),during normal business hours and on reasonable notice,
 

with access to all of the books of account, reports and records relating to the Assets or any
 

Collateral,the Servicing Obligations,the Collection Account,the Escrow Accounts,the Working
 

Capital Reserve Account, any account created under the Servicing Agreement,the Defeasance
 

Account, disbursements under the Custodial and Paying Agency Agreement, distributions
 

hereunder or any other matters relating to this Agreement or the rights or obligations hereunder
 

or under the other Transaction Documents;(ii) permit such representatives to make copies ofand
 

extracts from the same,(iii) allow the Initial Member to cause such books to be audited by
 

accountants selected by the Initial Member, and (iv)allow the Initial Member's representatives
 

to discuss the Company's, the Manager's and the Servicer's and any Subservicer's affairs,
 

finances and accounts, as they relate to the Assets,the Collateral,the Servicing Obligations,the
 

Collection Account, the Escrow Accounts, the Working Capital Reserve Account, the
 

Defeasance Account, or any other matters relating to this Agreement, the other Transaction
 

Documents, or the rights or obligations hereunder and thereunder, with its officers, directors,
 

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

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

Servicers and Subservicers, and attorneys. Any expense incurred by the Initial Member and any
 

reasonable out-of-pocket expense incurred by the Company in connection with the exercise by
 

the Initial Member of its rights in this Section 7.4(e) shall be borne by the Initial Member;
 

provided, however,that any expense incident to the exercise by the Initial Member of its rights
 

pursuant to this Section 7.4(e) as a result of or during the continuance of an Event of Default
 

shall in all cases be borne by the Private Owner (except to the extent such Event of Default is
 

attributable exclusively to a Manager having been appointed by the Initial Member following
 

removal of the Private Owner in such capacity, or to any applicable Servicer (and its
 

Subservicers) having been engaged by the Initial Member, the Company or the applicable
 

replacement Manager following such removal of the Private Owner as Manager, in each case
 

that is not an Affiliate ofthe Private Owner).
 

(fl In addition to the foregoing, the Manager shall provide or cause to be
 

provided to the Initial Member•, all reports, information (financial or otherwise), certificates and
 

other documents required to be provided by the Company pursuant to the Reimbursement,
 

Security and Guaranty Agreement,and by the Servicer under the Servicing Agreement.
 

(g) The rights afforded to the Members under this Section 7.4 are in
 

addition to, and not in limitation of, the rights ofthe Members under Section 18-305(a) ofthe
 

Act. Section 18-305(c)ofthe Actshall not apply in relation to the Initial Member.
 

7.5 Designation of Tax Matters Member. The Private Owner is hereby designated as
 

the"Tax Matters Member"under Section 6231(a)(7)ofthe Code and under other similar Laws
 

ofother relevantjurisdictions, to manage,in consultation with the Initial Member,administrative
 

Tax proceedings conducted at the Company level by the Internal Revenue Service or other Tax
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 4g
 
authorities with respect to Company matters. Each Member expressly consents to such
 

designation and agrees that, upon the request of the Tax Matters Member, it will execute,
 

acknowledge,deliver,file and record at the appropriate public offices such documents as may be
 

necessary or appropriate to evidence such consent. The Tax Matters Member is specifically
 

directed and authorized to take whatever steps the Tax Matters Member in its sole and absolute
 

discretion deems necessary or desirable to perfect such designation, including, without
 

limitation, filing any forms or documents with the Internal Revenue Service (or other Tax
 

authorities) and taking such other action as may from time to time be required under the Code,
 

Treasury Regulations or other Laws. The Tax Matters Member shall keep the other Members
 

fully informed as to any Tax audits of the Company, including promptly providing the other
 

Members with copies ofany correspondence from any Taxing authority and permitting the other
 

Member to participate in any conferences or meetings with any Taxing authority and in any
 

subsequent administrative or judicial proceedings. The Tax Matters Member shall have the
 

authority,following consultation with the Initial Member,to make any Tax elections on behalfof
 

the Company permitted to be made, including the election pursuant to Section 754, under any
 

section ofthe Code or the Treasury Regulations promulgated thereunder or under other Laws. In
 

the event the Company may be deemed to be a "small partnership" as described in
 

Section 6231(a)(1)(B), each Member consents to the Company's electing to be treated as a
 

partnership to which the provisions ofCode Section 6221 et. seq. apply(thereby electing to have
 

Code Section 6231(a)(1)(B)(i)not apply). The Initial Member may, at any time following the
 

occurrence and during the continuation ofan Event of Default, remove the Private Owner as the
 

Tax Matters Member, appoint itself(or any other willing Member at the time)as the Tax Matters
 

Member, and serve (or cause such other Member to so serve) in such capacity; provided that
 

such removal shall not relieve the Private Owner as Tax Matters Member of any obligations or
 

liabilities under this Agreement or any other Transaction Document arising, relating to,
 

occurring, or required to have been paid or performed by, the Private Owner as the Tax Matters
 

Member in its capacity as such.
 

7.6 Tax Information.
 

(a) Within ninety (90) days after the end of each Fiscal Year, the Tax
 

Matters Member shall send, or cause to be sent to, each Person who was a Member at any time
 

during the Fiscal Year then ended a Schedule K-1 and such Company Tax information as the Tax
 

Matters Member reasonably believes shall be necessary for the preparation by such Person ofits
 

United States federal, state and local Tax returns in accordance with any Law. Such information
 

shall include a statement showing such Person's share of distributions, income, gain, loss,
 

deductions and expenses and other relevant items of the Company for such Fiscal Year.
 

Promptly upon the request ofany Member(or any former Member,for Tax years during which
 

such Person was a Member),the Tax Matters Member will furnish to such Member (or former
 

Member):
 

(i) United States federal, state and local income Tax returns or
 

information returns,if any,filed by the Company;and
 

(ii) atthe sole cost and expense ofthe requesting Member,such other
 

information as such Member may reasonably request for the purpose of applying
 

for refunds ofwithholding Taxes.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 49
 
(b) For each Due Period, no later than three(3)Business Days prior to the
 

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

deliver to the Initial Member a report which shall specify the information with respect to each
 

Asset that is sold or otherwise disposed of by the Company so as to enable the Company (and
 

each Member)to comply with allocation provisions ofSection 704(c)ofthe Code,as determined
 

as ofthe close of business on the applicable Determination Date and certified by an authorized
 

representative(who shall be the chieffinancial officer (or an equivalent officer)) ofthe Company
 

(the"Tax Allocation Report").
 

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

time periods provided(and,as applicable, with current information as ofthe month most recently
 

ended prior to delivery thereofl the Manager shall deliver to the Initial Member written plans
 

(each,a"Business Plan")detailing the strategy to be used by it in managing and disposing ofthe
 

Assets ofthe Company and the Ownership Entities in respect of all ofthe Assets for achieving
 

the Company's purposes with respect thereto, in conformance with the Servicing Standard,
 

based, to the extent appropriate, on information gathered by the Company with respect to the
 

Assets, which shall include (i) individual Borrower-Business Relationship Business Plans for
 

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

Balance as of the Cut-Off Date(determined by aggregating those Assets held by or in favor of
 

Persons or entities under Common Control or Affiliated with each other as set forth on the Asset
 

Schedule (the "Borrower-Business Relationship Business Plans")); provided,that the Manager
 

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

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

Business Plan covering all Assets (a "Consolidated Business Plan"). Such initial Borrovver-


Business Relationship Business Plans shall be delivered not more than sixty (60)days after the
 

Closing Date,and such initial Consolidated Business Plan(including updated Borrower-Business
 

Relationship Business Plans) shall be delivered not more than one hundred twenty (120) days
 

after the Closing Date. With respect to the first such Business Plans,the Manager shall meet with
 

the Initial Member as reasonably requested by the Initial Member from time to time during the
 

thirty (30) Business Days following the Initial Member's receipt of the same, to review and
 

discuss such Business Plans,including changes thereto suggested by the Initial Member. Within
 

thirty(30)Business Days following expiration ofsuch review period,the Manager will deliver to
 

the Initial Member a final version ofsuch Business Plans reflecting such changes as the Manager
 

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

period. The Manager shall thereafter review and revise each Business Plan as the circumstances
 

may require,and in any event provide periodic updates to such Business Plans(and for each such
 

update to the Borrower-Business Relationship Business Plan, the same shall cover the fifteen
 

(15) largest borrower business relationships based on their Unpaid Principa1 Balance as of the
 

time ofsuch update to the Borrower-Business Relationship Business Plan)to the Initial Member,
 

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

April 30 ofsuch year)ofeach year, commencing in July 2011, with each such periodic update to
 

be delivered as part ofthe Monthly Reports due at such time pursuant to 7.4(b). (Jpon
 

reasonable notice by the Initial Member,the Company shall make its personnel who are familiar
 

with such Business Plans available during normal business hours for the purposes of discussing
 

such Business Plans with representatives of the Initial Member and responding to questions
 

therefrom.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION SO
 
(a) Each Business Plan (including any update thereto) will set forth a
 

strategy for the disposition ofthe Assets addressed thereby which strategy may consist of one or
 

more of the following: (i) the pay-off of Assets at a discount;(ii) modifications of the related
 

note and/or mortgage, including reductions in the mortgage loan interest rate, reductions in the
 

principal balance and rescheduling principal payments; (iii) foreclosure upon the related
 

Collateral(or acquisition thereof by deed in lieu offoreclosure) and subsequent sale thereof;(iv)
 

assumptions of Assets by new borrowers; (v) repairs to and, if applicable, completion of
 

construction ofthe related Collateral, with a view towards selling such Collateral or the Asset
 

secured thereby;(vi)sale ofan Asset, either singly or in pools, before or after restructuring; and
 

(vii) any other method of work-out,rehabilitation and disposition consistent with the Servicing
 

Standard and other general duties ofthe Company specified in this Agreement.
 

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

for the disposition ofeach related Acquired Property which strategy may consist ofone or more
 

ofthe following: (i)the sale or leasing ofthe Acquired REO Property in whole or in parts, or in
 

pools;(ii) making repairs to and,ifapplicable, completion ofconstruction the Acquired Property
 

or making changes to the Acquired Property so that it may be used for uses other than its current
 

use, with a view toward selling the Acquired Property;(iii) rehabilitation or improvement and,if
 

applicable, completion of construction ofthe Acquired Property, with a view toward selling the
 

Acquired Property;(iv) continued leasing or sales activity with respect to the Acquired Property
 

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

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

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

Company's estimate (or determination, if applicable) of(i) the present value of the net amount
 

that is recoverable with respect to each related Asset (including with respect to all related
 

Acquired Property the Net Fair Value thereofl, (ii) with respect to all Acquired Property and
 

Mortgaged Property included in any Asset covered by such Business Plan, in the event such
 

Acquired Property or Mortgaged Property includes more than one parcel of real property (or
 

would otherwise potentially be sold by the Company in severable parts), the applicable Release
 

Price for each such parcel (or other severable part) ofsuch Acquired Property and Mortgaged
 

Property, and (iii) projected Working Capital Expenses with respect thereto, and, in reasonable
 

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

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

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

thereto, include an Excel model of projected cash flows by month,as of June 30 and December
 

31 of each year (or, in the case of the initial Consolidated Business Plan, as of the date of
 

preparation and delivery thereofl and covering the period through the Final Purchase Money
 

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

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

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

Draws, projected Working Capital Reserve levels, projected net monthly cash available for
 

deposit into the Defeasance Account, and the amount and allocation of any projected
 

distributions to the Initial Member and the Private Owner.
 

(d) Each Business Plan (and updates thereto)shall include descriptions and
 

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

North CRE VenWre 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 51
 
explanations shall include changes in capital expenditures for Acquired REO Property, protective
 

advances, internal rates ofreturn, strategy for the disposition ofthe Assets, actual principal and
 

interest income and other collection proceeds, cash flows, and projected distributions to the
 

Members,and other changes in strategy or other relevant matters as compared to the previously
 

reported corresponding Business Plan,
 

ARTICLE VIII
 

Restrictions on Disposition ofLLC Interests
 

8.1 Limitations on Disposition ofLLC Interests. Except as otherwise provided in this
 

Article VIII, the Private Owner shall not, directly or indirectly, Dispose of or permit to be
 

Disposed of, all or any part of its LLC Interest or any of its rights or interests under this
 

Agreement,(including its rights to any distributions or other payments); provided, however,the
 

Private Owner may make a direct, outright transfer ofits entire(but not less than its entire) LLC
 

Interest if, and only if,(a)(i)the transferee is a single Person that is a Qualified Transferee,(ii)
 

such .transferee delivers to the Initial Member a Purchaser Eligibility Certification and the
 

representations and warranties made by such transferee therein shall be true and correct both
 

before and after giving effect to such transfer of the LLC Interest, and (iii)the Private Owner
 

first obtains the prior written consent of each Required Consenting Party to such transfer, or
 

(b)such Disposition is done by or at the direction ofthe Initial Member pursuantto Sections 3.13.
 

or 3.14; provided, further, any indirect Disposition ofthe Private Owner Interest is permitted so
 

long as such Disposition does not result in a Change of Control. The Private Owner may not
 

under any circumstances Dispose of less than all of its LLC Interest. Transfers by the Private
 

Owner satisfying the foregoing criteria are hereinafter referred to as"Permitted Dispositions."
 

8.2 Change of Control. The Private Owner will not permit any Change of Control to
 

occur with respect to the Private Owner unless(i)it first obtains the prior written consent ofeach
 

Required Consenting Party,and (ii)following such Change of Control,the Private Owner would
 

be a Qualified Transferee; provided, however, any indirect Disposition of the Private Owner
 

Interest is permitted as long as such indirect Disposition does not result in a Change of Control.
 

Without limitation ofthe preceding sentence,the Private Owner will provide the Initial Member
 

with immediate notice at the address specified in Section 13.6 ofthe occurrence of any Change
 

of Control with respect to the Private Owner. Furthermore,the Private Owner may not directly
 

or indirectly sell or pledge (or engage in any transaction with a similar effect) any interest in the
 

Private Owner without the prior written consent ofthe Initial Member,and if a Purchase Money
 

Note is outstanding, the Purchase Money Notes Guarantor; provided, further, any indirect
 

transfer or pledge of the Private Owner Interest is permitted so long as such transfer does not
 

result in a Change ofControl.
 

8.3 Additional Provisions Relating to Permitted Dispositions. Except as otherwise
 

expressly provided in this Section 8.3, the following provisions shall apply to each Permitted
 

Disposition under this Article VIII:
 

(a) In the event the Private Owner proposes to make a Permitted
 

Disposition,the Private Owner shall be required to pay any and all filing and recording fees,fees
 

of counsel and accountants and other out-of-pocket costs and expenses reasonably incurred by
 

the Initial Member and/orthe Company in connection with such Permitted Disposition.
 

Noah CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 52
 
(b) The transferee in a Permitted Disposition shall deliver to the Company,
 

with a copy to the Initial Member, an agreement, in form and substance reasonably satisfactory
 

to the Initial Member,by,which such transferee shall (i) agree to become a party to and be bound
 

by this Agreement as the "Private Owner," (ii) agree (if the transferor Member, prior to such
 

transfer, also was the Manager)to be appointed as the "Manager",and without limitation ofthe
 

generality of the foregoing, agree to be bound by the other terms of Section 8.4 hereof,
 

(iii) assume and agree to perform when due all of the obligations ofthe Private Owner and the
 

Manager (if the transferor Member, prior to such transfer, also was the Manager) under this
 

Agreement, and (iv)represent and warrant that it complies with the requirements set forth in
 

Article X.
 

(c) In connection with each Permitted Disposition, the Private Owner and
 

the transferee shall deliver to the Company and the Initial Member such other documents and
 

instruments as the Initial Member reasonably may request and which are required to effect the
 

Permitted Disposition and substitute the transferee as a Member.
 

8.4 Effect ofPermitted Dispositions.
 

(a) Upon consummation ofany Permitted Disposition:
 

(i) the transferee shall be admitted as a Member ofthe Company and
 

be deemed to be a party to this Agreement as the "Private Owner" and, if the
 

transferor Member, prior to such transfer, also was the Manager,such transferee
 

shall be appointed as the Manager(in the place ofthe transferor Member);
 

(ii) the Transferred LLC Interest shall continue to be subject to all the
 

provisions of this Agreement, and the transferee Member shall have the same
 

status as the Private Owner had at the time of consummation of such Permitted
 

Disposition and, without limiting the generality ofthe foregoing, any outstanding
 

breach, misrepresentation, violation or default(with respect to this Agreement or
 

any other Transaction Document) by any direct or indirect predecessor to the
 

transferee as the Member, or by any Affiliate of any such predecessor Member,
 

shall be deemed to constitute an outstanding breach, misrepresentation, violation
 

or default as the case may be,by the transferee Member;and
 

(iii) subject to Section 8.4(bl and the last sentence of Section 13.8, the
 

transferor Member shall cease to be a member of the Company(and accordingly,
 

except as expressly otherwise provided in Section 8.4(b) or the last sentence of
 

Section 13.8, shall cease to be responsible for the payment or performance ofany
 

ofthe obligations or liabilities under this Agreement ofthe Private Owner,in any
 

capacity hereunder).
 

(b) No Permitted Disposition(and no resulting withdrawal or resignation of
 

the transferor Memberfrom the Company)shall:
 

(i) relieve the transferor Member of any of the obligations or
 

liabilities ofthe transferor Member,in any capacity, under this Agreement or any
 

Transaction Document required to have been paid or performed prior to the
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 53
 
consummation of such Permitted Disposition (or of any liability it may have
 

arising out ofany breach, misrepresentation, violation or default by the transferor
 

Member prior to such consummation);
 

(ii) result in the termination of, relieve the transferor Member(or any
 

ofits Affiliates) of, or otherwise affect, any ofthe obligations or liabilities of the
 

transferor Member, in any capacity, or its Affiliates under, any Related Party
 

Agreement(such Related Party Agreements to continue in effect in accordance
 

with their respective terms), except to the extent expressly provided in such
 

Related Party Agreement;or
 

(iii) ~ dissolve the Company.
 

8.5 Effect ofProhibited Dispositions. Any attempted or purported Disposition ofthe
 

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

terms ofthis Agreement shall be void ab initio and ofno force or effect whatsoever. The Private
 

Owner shall not be entitled, and hereby specifically waives any right, to receive Company
 

distributions during (i) the period between any attempted or purported Disposition of the LLC
 

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

this Agreement and the express rescission bf such attempted or purported.Disposition by the
 

Private Owner and (ii) during any period when a Member is in violation of Section 8.2, provided
 

that all such omitted Company distributions shall (subject to Section 8.6) be made to the Private
 

Owner(without interest)forthwith after the end ofthe relevant suspension period.
 

8,6 Distributions After Disposition. Distributions with respect to an LLC Interest
 

made on or after the effective date of the Permitted Disposition of such LLC Interest shall be
 

made to the transferee Member with respect to such LLC Interest, regardless of when such
 

distributions accrued on the books ofthe Company.
 

8.7 Transfers By the Initial Member. Notwithstanding anything to the contrary
 

contained in this Agreement,except as provided by applicable Law,there shall be no restriction
 

on the Initial Member's ability to Dispose of the Initial Member LLC Interest, directly or
 

indirectly, to any Person and the Private Owner shall have no right to purchase or right-of-firstrefusal in connection with any such sale; provided, however, that, the Initial Member may not
 

assign the consent and voting rights associated with the Initial Member LLC Interest to more
 

than one (1) Person (for the avoidance of doubt, except as expressly provided above, the
 

foregoing restriction shall not otherwise limit the Initial Member's right to Dispose of any
 

interest associated with the Initial Member LLC Interest) and provided,further, that in the event
 

the Initial Member determines to sell the LLC Interest held by it through an auction process,the
 

Private Owner shall be entitled to participate in such auction on the same terms that apply
 

generally to other participants in the auction. At the election ofthe Person then constituting the
 

"Initial Member"under this Agreement,the transferee in any direct Disposition ofany portion of
 

the Initial Member LLC Interest shall, upon delivery to the Company, with a copy to the Private
 

Owner,ofan agreement by which such transferee shall agree to become a party to and be bound
 

by this Agreement as the "Initial Member," be admitted as a Member of the Company and be
 

deemed to be a party to this Agreement as the "Initial Member",and thereupon, subject to last
 

sentence of Section 13.8, the transferor Member shall cease to be a Member of the Company
 

No~ih CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION S4
 
(and accordingly;except as expressly otherwise provided in last sentence of Section 13.8, shall
 

cease to be responsible for the payment or performance of any of the obligations or liabilities
 

under this Agreementofthe Initial Member).
 

8.8 Resignation; Dissolution.
 

(a) The Private Owner may not withdraw or resign from the Company,
 

except (i)in connection with a Permitted Disposition made in accordance with the applicable
 

provisions ofthis Article VIII or (ii) withthe prior written consent ofthe Initial Member.
 

(b) The Private Owner covenants that it shall not allow a Dissolution Event
 

to occur with respect to itself.
 

(c) Section 18-304 of the Act shall not apply to the Company. Nothing in
 

this Section 8.8(c)shall limit the terms ofSection 9.1 hereof.
 

(d) Except as is otherwise expressly provided in this Agreement, no
 

Member shall be entitled to receive any payment pursuantto Section 18-604 ofthe Act.
 

8.9 Applicable Law Withdrawal, If, as a result of applicable Law,the ownership of
 

an LLC Interest by a Member becomes illegal or is likely to become illegal or the applicable
 

Law more likely than not requires divestiture ofsuch Member's LLC Interest, or the applicable
 

Law would require the Company to register as an investment company under the Investment
 

Company Act, then the Manager and the Member shall use their respective commercially
 

reasonable efforts to avoid a violation ofany such applicable Law by a Member or the need for
 

the Company to register as an investment company. These steps may include, depending on the
 

provisions of such applicable Law,(i) arranging for the sale ofthe Member's LLC Interest to a
 

third party upon terms reasonably satisfactory to the Member in a transaction that complies with
 

Articles VIII and X; (ii) making any appropriate applications to the relevant Governmental
 

Authority, (iii) prohibiting such Member from making further Capital Contributions, and
 

converting its LLC Interest into a special interest with no voting or similar rights but with only
 

an economic right (identical to its prior rights as a Member), or (iv)permitting the Member to
 

withdraw from the Company in exchange fora "payment"to such Member equal to the value of
 

its LLC Interest at the time ofwithdrawal,such value to be determined by a third party appraiser
 

mutually agreeable to the Manager and all Members. The aforesaid "payment"shall be made in
 

cash unless the Manager determines that the payment in cash would be economically detrimental
 

to the Company, in which case such payment may be made in kind, subject to the applicable
 

Law. The timing of any such withdrawal must be mutually agreeable to the Member and the
 

Manager taking proper account of the effective date of the applicable Law or registration
 

requirement that is the basis for the withdrawal or other remedy provided herein and the need of
 

the Manager for a reasonable period oftime to find a solution to the illegality or requirement for
 

divestiture or renegotiation. Such illegality, divestiture or registration requirement must be
 

established by (x)an opinion ofcounsel(which counsel shall be reasonably satisfactory to the
 

Manager and the Initial Member) substantially to the effect that the ownership of the LLC
 

Interest more likely than not will result in such illegality or requirement for registration or
 

divestiture or(y)upon a ruling or order from a Governmental Authority.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION SS
 
ARTICLEIX
 

Dissolution and Winding-Up ofthe Company
 

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

ofthe following:
 

(a) the agreement by all Members to dissolve the Company (it being
 

understood and agreed that neither Member, acting alone, shall have the right unilaterally to
 

dissolve the Company);
 

(b) the sale of all or substantially all of the Company Property (other than
 

cash and cash equivalent instruments),including as an entirety or substantially as an entirety; or
 

(c) notice to such effect to the Private Owner from the Initial Member at
 

any time after the occurrence of a Dissolution Event or an Insolvency Event with respect to the
 

Private Owner or any Person that Controls the Private Owner;or
 

(d) exercise of the Clean-Up Call and liquidation of all remaining Assets
 

and Acquired Property ofthe Company in accordance with Section 12.17.
 

9.2 Windin~p Procedures. Ifa dissolution ofthe Company pursuant to Section 9.1
 

occurs, subject to the Company's compliance with its obligation under the other agreements to
 

which it is a party, the other terms and conditions of this Agreement or the Transaction
 

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

Company in an orderly and businesslike manner. A final accounting shall be made by the
 

Manager. As part ofthe winding up ofthe affairs ofthe Company,the following steps will be
 

taken;
 

(a) The assets ofthe Company shall be sold except to the extent that some
 

or all ofthe assets ofthe Company are retained by the Company for distribution to the Members
 

as hereinafter provided.
 

(b) The Company shall comply with Section 18-804(b)ofthe Act.
 

(c) Distributions of the assets of the Company after dissolution of the
 

Company shall be conducted as follows:
 

(i) first, to creditors, but excluding Members who are creditors (other
 

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

Notes)),to the extent otherwise permitted by Law(and,to the extent permitted, in
 

accordance with the Priority of Payments), in satisfaction of liabilities of the
 

Company (whether by payment or the making of reasonable provision for
 

payment thereof;
 

(ii) second,to Members or former Members who are creditors, to the
 

extent otherwise permitted by Law,in satisfaction of liabilities of the Company
 

(whether by payment or the making ofreasonable provision for payment thereofl
 

other than liabilities for which reasonable provision for payment has been made
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 56
 
and liabilities for distributions to Members and former Members under
 

Section 18-601 ofthe Act;
 

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

liabilities(ifany)for distributions under Section 18-601 ofthe Act;and
 

(iv) finally,to the Membersin the manner set forth in Section 6.6(b),
 

(d) Upon dissolution, the Manager, may, with the consent of all Members,
 

(i)liquidate all or a portion ofthe Company Assets and apply the proceeds ofsuch liquidation in
 

the manner set forth in Section 9.2(c)and/or (ii) hire independent appraisers to appraise the value
 

ofCompany Assets not sold or otherwise disposed ofor determine the Fair Market Value ofsuch
 

assets, and allocate any unrealized gain or loss determined by such appraisal to the Members'
 

respective Capital Accounts as though the properties in question had been sold on the date of
 

distribution and, after giving effect to any such adjustment, distribute said assets in the manner
 

set forth in Section 9.2(c), provided that the Manager shall in good faith attempt to liquidate
 

sufficient Company assets to satisfy in cash the debts and liabilities described in Section 9.2. If a
 

Member shall, upon the advice of counsel, determine that there is a reasonable likelihood that
 

any distribution in kind ofan asset would cause such Member to be in violation ofany Law,such
 

Member and the Manager shall each use its best efforts to make alternative arrangements for the
 

sale or transfer into an escrow account ofany such distribution on mutually agreeable terms.
 

9.3 Termination ofthe Company.
 

Upon the dissolution of the Company and the completion of the winding up process set
 

forth in Section 9.2, the Manager (or such other Person or Persons as the Act may require or
 

permit) shall cause the cancellation of the Certificate and any filings made as provided in
 

clause(c) of Section 4.3 and shall take (or cause to be taken) such other actions as may be
 

necessary to terminate the Company.
 

ARTICLE X
 

Qualified Transferees
 

10.1 Qualified Transferees. Each Member,other than the Initial Member (including,
 

for the avoidance of doubt, its Successors and transferees), shall at all times be in compliance
 

with the following (and any proposed transferee of any LLC Interest in compliance with the
 

following shall be deemed a "Qualified Transferee"):
 

(a) Organization; Good Standing; Licenses. Such Member (i)is a Single
 

Purpose Entity duly organized, validly existing and in good standing under the Laws ofthe state
 

of its organization, (ii) has qualified or will qualify to do business as a foreign corporation,
 

partnership or other entity and will remain so qualified, and is and will remain in good standing,
 

in each jurisdiction in which the character of its properties or the nature of its activities makes
 

such qualification necessary and in which failure to so qualify would have a material adverse
 

effect upon such Member or its ability to perform its obligations hereunder,(iii)has full power to
 

own its property,to carry on its business as presently conducted,and to enter into and perform its
 

obligations under this Agreement,(iv) has all licenses or other governmental approvals necessary
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION S7
 
to perform its obligations hereunder and (v)in the case ofthe Private Owner, as of the Closing
 

Date,is, directly or indirectly,atleast 50.1% owned,and is Controlled by its Specified Parent.
 

(b) Authorization; No Violation. The execution and delivery by such
 

Member ofthis Agreement and the consummation ofthe transactions contemplated hereby have
 

been duly and validly authorized by all necessary action. Neither the execution and delivery of
 

this Agreement, nor the consummation ofthe transactions herein contemplated, nor compliance
 

with the provisions hereof, will conflict with or result in a breach of, or constitute a default
 

under,(i)any of the provisions of any Law binding on such Member or its properties, (ii) the
 

constituent documents ofsuch Member,or (iii) any ofthe provisions ofany indenture, mortgage,
 

contract or other instrument to which such Member is a party or by which it is bound or result in
 

the creation or imposition ofany Lien upon any ofits property pursuant to the terms ofany such
 

indenture, mortgage,contract or other instrument.
 

(c) Governmental Approvals. All actions, approvals, consents, waivers,
 

exemptions, variances,franchises, orders, permits, authorizations, rights and licenses required to
 

be taken, given or obtained, as the case may be, by or from any Governmental Authority or
 

agency that are necessary in connection with the execution and delivery by such Member ofthis
 

Agreement and the consummation ofthe transactions contemplated hereby and the performance
 

of its obligations hereunder, have been duly taken, given or obtained, as the case may be, are in
 

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

judicial or otherwise) and either the time within which any appeal therefrom may be taken or
 

review thereof may be obtained has expired or no review thereof may be obtained or appeal
 

therefrom taken.
 

(d) No Litigation. On the date such Member becomes a party to this
 

Agreement, there is no action, suit, proceeding or investigation pending or threatened against
 

such Member before any Governmental Authority.
 

(e) No Violation of Orders, Decrees, etc. Such Member is not in default
 

with respect to any order or decree ofany Governmental Authority or in violation ofany Law.
 

(~ Third Party Consents. No consents, approvals, waivers or notifications
 

ofstockholders, creditors, lessors or other nongovernmental Persons are required to be obtained
 

by such Member in connection with the execution and delivery of this Agreement and the
 

consummation of all the transactions herein contemplated and the performance ofits obligations
 

hereunder.
 

(g) Owners Accredited Investors. All ofthe equity owners ofsuch Member
 

are "accredited investors," as that term is defined in Rule 501 under the Securities Act.
 

(h) Knowledge and Experience. Such Member, either by itself or through
 

its advisers and principals, has such knowledge and experience in the origination,servicing,sale
 

and/or purchase of performing and non-performing or distressed loans, including construction
 

loans and loans secured by residential and commercial properties, as well as financial and
 

business matters, as to enable such Member to utilize the information made available to it with
 

respect to the LLC Interest acquired by it and the Assets to evaluate the merits and risks of a
 

Nodh CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION S S
 
purchase ofthe LLC Interest acquired by it and,indirectly, the Assets, and to make an informed
 

decision with respect thereto.
 

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

representsthat it is able to bear the economic risks associated with the acquisition and ownership
 

ofthe LLC Interest acquired by it and,indirectly,the Assets, including the risk ofa total loss of
 

its investment in the Company and, indirectly, the Assets and/or the risk that it may be required
 

to hold the LLC Interest and,indirectly,the Assets for an indefinite period oftime.
 

(j) No Representations. Such Member hereby acknowledges that, except
 

as is otherwise expressly provided in this Agreement, the Transferred LLC Interest Sale
 

Agreement, or the Contribution Agreement, none of the Initial Member or the FDIC or any
 

Affiliate ofeither, or any oftheir respective officers, directors, employees,agents or contractors,
 

makes or has made any representation or warranty regarding the Company,the LLC Interests or
 

the Assets or the value ofany Collateral.
 

(k) Due Diligence. Such Member acknowledges and agrees that, whether
 

or not information is available with respect to the LLC Interests or the Assets and whether or not
 

it chooses to review any information that is or was made available to it regarding the LLC
 

Interest orthe Assets,such Member,by itself or through its advisers or principals,has the ability
 

and.shall be responsible for making its ownindependent investigation and evaluation ofthe LLC
 

Interests and the Assets and the economic,credit or other risks involved in an acquisition ofthe
 

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

Agreement, none of the Initial Member or the FDIC or any Affiliate of either, or any of their
 

respective officers, directors, employees, agents or contractors, makes or has made any
 

representation or warranty as to the completeness or accuracy ofany information provided.
 

(1) No Securities. Such Member acknowledges and agrees that (i)neither
 

the offer nor the sale ofthe Private Owner LLC Interest (and,indirectly, the Assets) is intended
 

to constitute an offer or sale of a "security" within the meaning of the Securities Act or any
 

applicable federal or state securities Laws,(ii) no inference that any of the LLC Interests or the
 

Assets is a "security" under such federal or state securities Laws shall be drawn from any ofthe
 

certifications, representations or warranties made by any Person in this Agreement,(iii) it is not
 

contemplated that any filing will be made with the Securities and Exchange Commission or
 

pursuant to the "blue sky" or securities Laws of any jurisdiction, and (iv)if any of the LLC
 

Interests or the Assets is a security, such may not be resold or otherwise transferred by such
 

Member except in accordance with any and all applicable securities and blue sky Laws.
 

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

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

meaning ofthe Securities Act.
 

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

pledge,sell or otherwise dispose ofthe LLCInterest(or any interest therein)or any Asset(or any
 

interest therein or evidence thereof)to, or (ii) solicit any offer to buy or accept a transfer, pledge
 

or other disposition of the LLC Interest (or any interest therein) or any Asset(or any interest
 

therein or evidence thereofl from, or (iii) otherwise approach or negotiate with respect to the
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 59
 
LLC Interest (or any interest therein) or any Asset(or any interest therein or evidence thereof
 

with, any Person or entity in any manner, or take any other action, that would(A)not comply
 

with Article VIYI, or(B)render thetransfer to such Member ofthe LLC Interest or any interest in
 

any Asset a violation of any Law relating to the issuance, regulation, registration or disposition
 

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

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

evidence thereof).
 

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

the LLC Interest and the resulting investment in the Assets will comply with all applicable Laws,
 

including any and all Laws and/or restrictions imposed on resale of the LLC Interest and the
 

Loans by federal and state securities or blue sky Laws.
 

(p) Independent Evaluation. Such Member has made an independent
 

evaluation ofthe Company and its Assets(including the Assets and related Asset files and/or any
 

electronic data made available to it pertaining to the Assets held by the Company). Such
 

Member also has conducted such other investigations as it deems appropriate,including searches
 

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

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

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

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

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

and the performance of any obligations under any of the Assets in any jurisdiction. Such
 

Member further acknowledges that no officer, director, employee, agent, representative or
 

contractor of the Initial Member or any of its Affiliates has been authorized to make any
 

statements or representations. other than those specifically contained in this Agreement or the
 

Contribution Agreement.
 

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

that(i) no consideration that such Member or any ofits Affiliates contributes hereunder or under
 

the Transaction Documents in connection with any transaction regarding any assets will have
 

been derived from or related to any activity that is deemed criminal under United States Law;
 

(ii) neither it nor any of its Affiliates or Direct Owners is an Embargoed Person; (iii) neither it
 

nor any ofits Affiliates or Direct Owners engages in any dealings or transactions, or is otherwise
 

"associated with"(as defined in 31 C.F.R. 594.101, et seq.), any Embargoed Person; and (iv)if
 

and to the extent such Member or any ofits Affiliates are required by Law to maintain an anti-


money laundering compliance program under applicable anti-money laundering Laws and
 

regulations, including without limitation, the Uniting and Strengthening America by Providing
 

Appropriate Tools Required to Intercept and Obstruct Terrorism Act of2001 (Public Law 107­

56)) such compliance programs are currently being maintained. The foregoing certifications,
 

representations and warranties, such certifications, representations and warranties shall be based
 

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

whether any ofthe same with respect to indirect ownership are true, the undersigned shall not be
 

required to make an investigation into the ownership of publicly-traded securities (including
 

securities of open-end investment companies registered under the Investment Company Act) or
 

the ownership of assets by a collective investment fund that holds assets for employee benefit
 

plans or retirement arrangements.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECCITION VERSION GO
 
(r) ERISA Plan Asset. The assets of such Member(including any successor
 

to or transferee of such Member) are not deemed to be "plan assets" within the meaning of
 

Section 3(42)ofERISA and the "plan asset" regulations set forth in 29 C.F.R. Section 2510.3­

101 as promulgated under ERISA,modified to the extent applicable by Section 3(42)ofERISA
 

(the"Plan Asset Regulation").
 

(s) Purchase Eligibility. Each of such Member and any Person that,
 

together with its Affiliates, directly or indirectly holds twenty-five percent(25%)or more ofthe
 

equity interests ofsuch Member is and remains capable oftruthfully making the representations
 

and warranties in the Purchaser Eligibility Certification.
 

(t) Qualified Purchaser. Such Member is a "qualified purchaser" within
 

the meaning ofSection 3(c)(7)ofthe Investment Company Act.
 

ARTICLE XI
 

Manager Liability
 

11,1 Liability ofManager.
 

(a) Except as otherwise specifically provided in this Agreement(including
 

in the other subsections of this Section 11.1), the duties (including fiduciary duties) and
 

obligations owed to the Company and the Initial Member by the Manager shall be as provided in
 

Section 3.1(b)hereof.
 

(b) The Manager may rely, and shall be protected in acting or refraining
 

from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice,
 

request, consent,order, bond,debenture or other paper or document reasonably believed by it to
 

be genuine and to have been signed or presented by the proper party or parties.
 

(c) The Manager may consult with legal counsel, accountants, appraisers,
 

management consultants, investment bankers and other consultants and advisers selected by it,
 

and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to
 

matters that the Manager reasonably believes to be within such Person's professional or expert
 

competence shall be conclusively presumed to have been done or omitted in good faith and in
 

accordance with such opinion.
 

(d) The Manager shall not be liable to the Company or the Members for its
 

good faith reliance on the provisions ofthis Agreement.
 

(e) The limitations and exculpation afforded by each provision of this
 

Section 11.1 are cumulative and not exclusive. Nothing inthis Section 11.1 is intended, or shall
 

be deemed,to permit conduct that would otherwise constitute misappropriation of a trade secret
 

of the Company under applicable Law or conduct that, even disregarding the terms hereof
 

otherwise would be actionable by the Company or any Member.
 

ARTICLE XII
 

Servicing ofAssets
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 6I
 
12.1 Servicing.
 

(a) Appointment and Acceptance as Servicer. Effective as of the Closing
 

Date,but subject to Section 3.3 ofthe Contribution Agreement(with which the Manager agrees
 

to comply), the Manager is hereby appointed (and hereby accepts the appointment) with full
 

authority and responsibility, in its own name, to act as the servicer for the Assets and .any
 

Collateral. Until such time as the Company is dissolved and liquidated pursuant to Article IX,
 

and except as otherwise provided in Section 12,4 and subject to the interim servicing being
 

provided by or on behalf of the Initial Member pursuant to Section 3.3 of the Contribution
 

Agreement,the Manager shall, with respect to each Asset or Group of Assets,from and after the
 

Servicing Transfer Date with respect thereto, be responsible for (and hereby assumes
 

responsibility for) servicing, administering, managing and disposing of the Assets and the
 

Collateral in accordance with the standards (collectively, "Servicing Standard")set forth in
 

Section 12.2 (such obligations referred to collectively h. "Servicing Obligations")
 

and the other provisions of this Article XII, including the provisions of Section 12.3 (which
 

require that servicing be performed through one or more Qualified Servicers). Without in any
 

way limiting the foregoing, but subject to Section 3.3 of the Contribution Agreement, the
 

Manager shall cause the Assets (including, for all purposes under this Article XII, the related
 

Collateral)to be serviced as follows:(a)such Asset shall, except as provided in the immediately
 

following subsection(b) be serviced by the Manager or the Servicer(s) appointed in accordance
 

with Section 12.3 below, and(b)following the replacement of the Manager or the Servicer, or
 

both, as a result ofan Event ofDefault,the Assets shall be serviced by the Servicer appointed by
 

the Initial Member in accordance with Section 12.4 below. All servicing of Assets following the
 

Closing Date shall be performed in accordance with the terms of the Contribution Agreement
 

and this Article XII.
 

(b) Servicing and Subservicing Agreement Requirements. Except as is
 

otherwise agreed in writing by the Initial Member, each Servicing Agreement (and any
 

Subservicing Agreement with any Subservicer)shall, among other things,
 

(i) provide for the servicing of the Assets and management of the
 

Collateral by the Servicer (or any Subservicer) in accordance with the Servicing
 

Standard and the other terms ofthis Agreement;
 

(ii) be terminable upon no more than thirty(30)days prior notice if an
 

Event of Default or any default under the Servicing Agreement(or Subservicing
 

Agreement)has occurred;
 

(iii) provide that the Manager(in its individual capacity) and the Initial
 

Member(and, in the case of any Subservicing Agreement, the Servicer) shall be
 

entitled to exercise termination rights under the relevant Servicing Agreement or
 

Subservicing Agreement (it being understood that the Initial Member shall only
 

exercise such termination rights as contemplated or permitted in this Agreement);
 

(iv) provide that the Servicer(or any Subservicer) and the Manager(in
 

its individual capacity) acknowledge that the Servicing Agreement (or
 

Subservicing Agreement) constitutes a personal services agreement between the
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 62
 
Manager (in its individual capacity)and the Servicer(or between the Servicer and
 

the Subservicer, as applicable);
 

(v) provide that(A)each ofthe Company,the Purchase Money Notes
 

Guarantor, and the FDIC are third party beneficiaries thereunder to the extent of
 

any rights expressly granted to such Person under the Servicing Agreement or
 

Subservicing Agreement and is entitled to enforce the Servicing Agreement or
 

Subservicing Agreement, as applicable, with respect to such rights,(B)the Initial
 

Member and, in the case of any Subservicing Agreement, the Manager (in its
 

individual capacity) is a third party beneficiary thereunder; and further provide
 

that in no event shall any amendment or waiver to any such Servicing Agreement
 

or Subservicing Agreement limit or affect any rights of any such third party
 

beneficiary thereunder without the express written consent of such third party
 

beneficiary;
 

(vi) provide that (A) upon the removal of the Private Owner as the
 

Manager or the occurrence of an Event of Default, the Initial Member (and any
 

successor Manager) may exercise all ofthe rights ofthe Manager thereunder and
 

cause the termination or assignment of the same to any other Person, without
 

penalty or payment ofany fee, and (B)upon the occurrence of any default under
 

the Servicing Agreement, the Initial Member(and any successor Manager) may
 

exercise all ofthe rights of(1)the Manager under such Servicing Agreement and
 

cause the termination or assignment of the same to any other Person, without
 

penalty or payment of any fee, and (2) the Servicer under the Subservicing
 

Agreement and cause the termination or assignment of the Subservicing
 

Agreement to any other Person, without penalty or payment ofany fee (it being
 

understood that the Initial Member shall only exercise the foregoing rights as
 

contemplated or permitted in this Agreement);
 

(vii) provide thatthe Initial Member,the Manager,the Purchase Money
 

Notes Guarantor (if a Purchase Money Note is outstanding) and the Company
 

(and each of their respective representatives) shall each have access to and the
 

right to review, copy and audit the books and records of each Servicer and any
 

Subservicers and that all Servicers and all Subservicers shall make available their
 

respective officers, directors, employees, accountants and attorneys to answer the
 

Initial Member's,the Manager's,the Purchase Money Notes Guarantor's and the
 

Company's(and each of their respective representatives') questions or to discuss
 

any matter relating to the Servicer's or Subservicer's affairs, finances and
 

accounts, as they relate to the Assets, the Collateral, the Collection Account or
 

any other accounts established or maintained pursuant to this Agreement, the
 

Custodial and Paying Agency Agreement, the Servicing Agreement or any
 

Subservicing Agreement, or any matters relating to the Servicing Agreement or
 

any Subservicing Agreement or the rights or obligations thereunder;
 

(viii) provide that all Asset Proceeds are to be deposited into the
 

Collection Account on a daily basis (without reduction or setoffl within two(2)
 

Business Days of receipt and that under no circumstances are funds, other than
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 63
 
Asset Proceeds and interest and earnings thereon and the proceeds of Excess
 

Working Capital Advances and Discretionary Funding Advances, to be
 

commingled in the Collection Account;
 

(ix) provide that the Servicer or any Subservicer shall not sell, transfer
 

or assign its rights under the Servicing Agreement or Subservicing Agreement,as
 

applicable, other than Servicer's rights to delegate to Subservicers certain
 

responsibilities thereunder as and to the extent permitted by this Agreement,and
 

that any prohibited sale, transfer or assignment shall be void ab initio;
 

(x) provide that(A)the Servicer or any Subservicer consents to the
 

immediate termination of the Servicer or Subservicer, as applicable, upon the
 

occurrence of a termination event under the Servicing or Subservicing
 

Agreement, as applicable, and upon the occurrence ofany Insolvency Event with
 

respect to the Servicer or any Subservicer or any of their respective Related
 

Parties, as applicable, and (B)the occurrence of any Restricted Servicer Change
 

of Control with respect to the Servicer or ofany Insolvency Event with respect to
 

the Servicer or any Subservicer or any Related Party thereof constitutes a default
 

under the Servicing Agreement or Subservicing Agreement, as applicable;
 

provided, that, in the case of the Servicing Agreement, the occurrence of an
 

Insolvency Event with respect to a Subservicer or Related Party thereof(which is
 

not an Related Party of the Servicer) may, at the election of the Manager, be
 

subject to a cure period of not more than thirty (30) days for replacement of the
 

affected Subservicer(in a manner that will permit the Manager to comply with its
 

obligations hereunder);
 

(xi) provide that there shall be no right of setoff on the part of the
 

Servicer or any Subservicer against the Asset Proceeds(or the Company);
 

(xii) provide for such other matters as are necessary or appropriate to
 

ensure that the Servicer or any Subservicer is obligated to comply with the
 

Servicing Obligations ofthe Manager hereunder;
 

(xiii) provide a full release and discharge of the Initial Member, the
 

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

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

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

respective officers, directors, employees, agents, attorneys, contractors and
 

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

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

a "Prior Servicer" and collectively, the "Prior Servicers"), from any and all
 

claims (including any counterclaim or defensive claim), demands, causes of
 

action,judgments or legal proceedings and remedies of whatever kind or nature
 

that the Servicer had, has or might have in the future, whether known or
 

unknown, which are related in any manner whatsoever to the servicing of the
 

Assets by the Prior Servicers prior to the applicable Servicing Transfer Date
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 64
 
(other than due to gross negligence, violation of Law or willful misconduct of
 

such Prior Servicer);
 

(xiv) provide that, to the extent required under Section 12.30) hereof,
 

all Loans registered on the MERS~ System shall remain registered unless default,
 

foreclosure or similar legal or MERS requirements dictate otherwise;
 

(xv) provide that none ofthe Servicer, any Subservicer or any Affiliate
 

ofthe Servicer or any Subservicer may,at any time,(A)be or become a partner or
 

joint venturer with any Borrower or Obligor,(B)be or become an agent of any
 

Borrower or Obligor, or allow any Borrower or Obligor to be an agent of such
 

Servicer or any Subservicer or ofany Affiliate ofthe Servicer or any Subservicer,
 

or (C) have any interest whatsoever in any Borrower or Obligor, and shall
 

immediately notify the Manager and the Initial Member upon becoming aware of
 

any ofthese occurrences;
 

(xvi) provide that the Servicer shall immediately notify the Manager and
 

the Initial Member ofthe occurrence ofany Change of Control with respect to the
 

Servicer; and
 

(xvii) not conflict with the Servicing Standard or any other terms or
 

provisions ofthis Agreement,the Custodial and Paying Agency Agreement or any
 

of the other Transaction Documents insofar as such other terms or provisions
 

hereof or thereof are required to be imposed by the Manager (in its individual
 

capacity) on the Servicer (or any Subservicers) in the Servicing Agreement (or
 

Subservicing Agreements). Nothing contained in any Servicing Agreement or
 

any Subservicing Agreement shall alter any obligation ofthe Manager under this
 

Agreement and, in the event of any inconsistency between the Servicing
 

Agreement (or any Subservicing Agreement) and the terms of this Agreement,
 

among the Parties to this Agreementthe terms ofthis Agreement shall control.
 

12,2 Servicing Standard, The Manager shall perform(or cause the performance ofl the
 

Servicing Obligations: (i) in the best interests and for the benefit of the Members and the
 

Company,(ii) in accordance with the terms ofthe Assets (and related Asset Documents),(iii) in
 

accordance with the terms of this Agreement and the other Transaction Documents, (iv) in
 

accordance with all applicable Law,and(v) to the extent consistent with the foregoing terms, in
 

the same manner in which a prudent servicer would service and administer similar loans and in
 

which a prudent servicer would manage and administer similar properties for its own portfolio or
 

for other Persons, whichever standard is higher, but using no less care and diligence than would
 

be customarily employed by a prudent servicer following customary and usual standards of
 

practice ofprudent mortgage lenders,loan servicers and asset managers servicing,managing and
 

administering similar loans and properties on an arms' length basis, provided, however, that,
 

with respect to each Asset and related Collateral, in the absence of a customary and usual
 

standard of practice, the Company shall comply with the applicable Fannie Mae Guidelines, if
 

any, with respect to similar loans and properties in similar situations. The Manager shall cause
 

its Servicing Obligations with respect to the Assets and the Collateral to be performed without
 

regard to(w)any relationship that the Company,the Manager,or any Servicer or Subservicer, or
 

North CRE Venture 201-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 65
 
any oftheir respective Affiliates may have to any Borrower, Obligor or other obligor, or any of
 

their respective Affiliates, including any other banking or lending relationship, (x) the
 

Company's,the Manager's, or any Servicer's or Subservicer's, obligation to make disbursements
 

and advances with respect to the Assets and Collateral,(y)any relationship that the Servicer or
 

any Subservicer may have to each other or to the Company, the Manager or any of their
 

respective Affiliates, or any relationship that any of their respective Affiliates may have to the
 

Company, the Manager or any of their respective Affiliates (other than the contractual
 

relationship evidenced by this Agreement or the Servicing Agreement or any Subservicing
 

Agreement), and (z) the Manager's, or any Servicer's or Subservicer's, right to receive
 

compensation(including the Management Fee and any Interim ManagementFee)for its services
 

under this Agreement, the Servicing Agreement or any Subservicing Agreement. Without
 

limiting the generality of the foregoing, the Manager's Servicing Obligations hereunder shall
 

include the following;
 

(a) discharging in a timely manner each and every obligation which the
 

Asset Documents provide is to be performed by the lender thereunder, on its oven behalf and on
 

behalf ofthe Company and the Initial Member and in the case of Acquired REO Property, which
 

the Asset Documents that were applicable to the Collateral. before it became Acquired REO
 

Property provided were to be performed by the Borrower thereunder in respect ofsuch Collateral
 

(not including payment of debt service under the applicable Asset Documents), together with
 

such additional obligations as are required of the Company under this Agreement or the
 

Servicing Agreementin respect ofsuch Acquired REO Property;
 

(b) incurring costs (including Servicing Expenses (or Interim Servicing
 

Expenses) and Pre-Approved Charges) in accordance with the provisions of the Asset
 

Documents,and in the case ofAcquired REO Property,in accordance with the Asset Documents
 

that were applicable to the Acquired REO Property before it became Acquired REO Property
 

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

accordance with the Reimbursement, Security and Guaranty Agreement;
 

(c) causing insurance to be maintained on the Collateral (including any
 

Acquired Property) with respect to each Asset with respect to which an Ownership Entity or the
 

Borrower has failed to maintain required insurance with extended coverage as is customary in
 

the area in which the Collateral is located and in such amounts and with such deductibles as the
 

Manager may,in the exercise of its reasonable discretion, determine are prudent and as required
 

under this Agreement and the Reimbursement,Security and Guaranty Agreement;
 

(d) diligently seeking compliance by each insurer under any hazard policy
 

and preparing and presenting claims under any policy in a timely fashion in accordance with the
 

terms ofthe policy;
 

(e) supervising and coordinating the construction, ownership, management,
 

leasing and preservation of the Acquired Property as well as all other matters involved in the
 

administration, preservation and ultimate disposition ofthe Acquired Property as would be taken
 

by a prudent asset manager managing properties similar to the Acquired Property and as required
 

of the Company under this Agreement and the Reimbursement, Security and Guaranty
 

Agreement;
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 66
 
(f) administering the making of advances to Borrowers under Loans
 

pursuantto and in accordance with the provisions herein and in the Custodial and Paying Agency
 

Agreement governing the making ofFunding Draws;
 

(g) to the extent consistent with the foregoing, seeking to maximize the
 

timely and complete recovery ofprincipal and interest on the Assets and otherwise to maximize
 

the value ofthe Assets and the Collateral;
 

(h) except as otherwise set forth in this Agreement, making decisions
 

under, and enforcing and performing in accordance with, the Asset Documents all Asset
 

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

administration and managementofthe Assets and the Collateral;
 

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

remain upto date and in force,including Uniform Commercial Code financing statements; and
 

(j) ensuring that each Borrower(or in the case ofAcquired REO Property,the
 

applicable Ownership Entity) is diligently performing all permitted applicable construction work
 

using all commercially reasonable efforts in accordance with the requirements of the applicable
 

Asset Documents;and
 

(k) providing the Servicers and any Subservicers with copies of such
 

Transaction Documents (or portions thereof as are necessary for the Servicers or any
 

Subservicers to be familiar with in order to perform their respective obligations provided for in
 

this Agreement,the Servicing Agreements or the Subservicing Agreements,as applicable.
 

12.3 Servicing ofthe Loans.
 

(a) Appointment of Servicers. The Manager(in its individual capacity)has
 

entered into one or more Servicing Agreements dated the date hereofto provide for the servicing
 

and administration and management of the Assets and Collateral by the Qualified Servicer
 

named therein. Each Servicer, at all times during which it acts as Servicer, shall continue to
 

satisfy the definition of Qualified Servicer. Subject, with respect to the Interim Servicing Period,
 

to the provisions of Section 3.3, ofthe Contribution Agreement, each Asset shall at all times be
 

serviced (and any Collateral managed) by or through at least one (1) Servicer (including any
 

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

Servicers (including any Subservicers permitted hereunder). Subject to the other terms and
 

conditions of this Agreement, any Servicer may be an Affiliate of the Private Owner or ofthe
 

Manager. Each Servicer may engage or retain one(1)or more Subservicers,including Affiliates
 

of the Private Owner or of the Manager, to perform certain of its duties under the Servicing
 

Agreement, as it may deem necessary and appropriate, by entering into a Subservicing
 

Agreement with each such Subservicer, provided, however,that any Subservicer meets(and at
 

all times continues to meet)the requirements set forth in the definition of Qualified Servicer and
 

the terms of the applicable Subservicing Agreement comply with the terms of this Agreement
 

and the applicable Servicing Agreement. The costs and fees of the Servicers (and any
 

Subservicers) shall be borne exclusively by the Manager in its individual capacity without any
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 67
 
right of reimbursement from the Company or the Initial Member (it being understood that the
 

Manager will receive the Interim Management Fee and Management Fee in accordance with
 

Section 12.5 hereof). Under no circumstances shall the Manager transfer, or permit to be
 

transferred, to any Servicer or any other Person any ownership interest in the servicing rights
 

with respects to the Assets or any right to transfer or sell the servicing to the Assets(other than in
 

connection with the sale of any Asset), and no Servicer shall be permitted to assign, pledge or
 

otherwise transfer to any Subservicer or other Person or purport to assign, pledge or otherwise
 

transfer any interest in the servicing rights with respect to the Assets (other than in connection
 

with the sale ofany Asset),and any purported assignment, pledge or other transfer in violation of
 

this provision shall be void ab initio and ofno effect.
 

(b) Manager Liable for Servicer and Subservicers. Notwithstanding
 

anything to the contrary contained herein,the use of any Servicer(or any Subservicer) shall not
 

release the Manager from any of its Servicing Obligations or other obligations under this
 

Agreement, and the Manager shall remain responsible and liable for all acts and omissions of
 

each Servicer(and each Subservicer ofeach Servicer)as fully as if such acts and omissions were
 

those ofthe Manager. All actions ofeach Servicer (or any Subservicer) performed pursuant to
 

the Servicing Agreement(or any Subservicing Agreement)shall be performed as an agent ofthe
 

Manager(or,in the case ofSubservicers,the Servicer).
 

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

executed Servicing Agreements and Subservicing Agreements, including all supplements and
 

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

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

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

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

Section 1122(d)(1),of Regulation AB that are applicable and relate to the servicing being
 

conducted under this Agreement, and (ii) provide to the Manager, at the Servicer's (and any
 

Subservicer's)expense the annual reports(including the independent accountant report)required
 

pursuant to Section 7.4(d) above; provided, however,that the following Regulation AB criteria
 

shall not be deemed relevant to the servicing being conducted under this Agreement (or the
 

Servicing Agreement): Section 1122(d)(1)(iii) regarding backup servicer requirements; Sections
 

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

external credit enhancement.
 

(e) Servicer and Subservicer Fees. No Servicer or Subservicer shall be paid
 

any fees or indemnified out of any Asset Proceeds (or funds in the Collection Account, the
 

Working Capital Reserve Account or any other Company account), it being understood that all
 

fees and related costs ofliabilities(other than Servicing Expenses and Pre-Approved Charges)of
 

the Servicers and Subservicers shall be the sole responsibility ofthe Manager(without any right
 

ofreimbursementfrom the Company or the Initial Member•).
 

(f) Fidelity Bond;E&O Insurance. The Servicer and each Subservicer
 

shall maintain each ofthe following types ofinsurance coverage having such limits as described
 

below:
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 6g
 
(i) Errors & Omissions Liability with limits of not less than
 

$10,000,000 per claim and $10,000,000 in the aggregate. The Manager shall be
 

notified immediately upon the reduction of or potential reduction offifty percent
 

fifty percent(50%)ofthe limits. The Manager may require that the Servicer and
 

each Subservicer purchase additional limits to provide back to the required limits
 

as stated above. "Potential reduction of fifty percent (50%)" shall mean any
 

knowledge by the Servicer or Subservicer, as applicable, that a claim or the sum
 

ofall claims,current or initiated after effective date ofpolicy which would reduce
 

the limits by fifty percent(50%).
 

(ii) Directors & Officers Liability with limits of not less than
 

$10,000,000 each claim and $10,000,000 in the aggregate.
 

(iii) Crime Insurance or a Fidelity Bond in an amount of not less than
 

$10,000,000 per claim and $10,000,000 in the aggregate covering employee theft,
 

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

coverage shall insure all employees or any other Persons authorized by the
 

Servicer or any Subservicer to handle any funds, money, documents and papers
 

relating to any Asset, and shall protect the Servicer or Subservicer, as applicable,
 

against losses arising out oftheft, embezzlement,fraud, misplacement, and other
 

similar causes. The Manager and the Company shall each be named as a-loss
 

payee with respect to claims arising out of Assets handled under this Agreement
 

or any applicable Servicing Agreement or Subservicing Agreement.
 

(iv) General Liability with limits of not less than $1,000,000 each
 

occurrence, $2,000,000 in the aggregate, including coverage for
 

products/completed operations, advertising and personal injury. The Manager
 

and the Company shall each be named as additional insured. The policy shall
 

include a waiver ofsubrogation in favor ofthe Manager and the Company.
 

(v) Auto Liability with a combined single limit of not less than
 

$1,000,000 to provide coverage for any owned,hired,or non-owned vehicles.
 

(vi) Workers Compensation in such amount as required by the states in
 

which the Servicer or Subservicer, as applicable, operates, including coverage for
 

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

include a waiver ofsubrogation in favor ofthe Manager and the Company.
 

(vii) Umbrella Liability in an amount of not less than $10,000,000 each
 

occurrence and in the aggregate.
 

All such policies shall be written with carriers having a minimum insurer rating of A- VIII from
 

A.M. Best and A from Standard & Poor's. All such policies shall have a minimum notice of
 

cancellation of thirty (30) days, except for non-payment of premium whereby a ten (10) day
 

notice of cancellation is acceptable. Certificates shall show each of the Manager and the
 

Company as certificate holder, or as otherwise designated by the language in clauses i -vii
 

above.
 

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Amended and Restated Operating Agreement
 

EXECUTION VERSION 69
 
The Manager shall provide (or shall cause each Servicer and Subservicer to provide) the
 

Required Consenting Parties with certificates evidencing all such policies on the Closing Date
 

(and, with respect to each Asset,on or before the applicable Servicing Transfer Date with respect
 

thereto) and each anniversary ofthe Closing Date thereafter, and otherwise upon request of any
 

Required Consenting Party. Copies of fidelity bonds and insurance policies required to be
 

maintained pursuant to this Section 12:3(fl shall be made available to the Purchase Money Notes
 

Guarantor, and the Initial Member or their respective representatives on the Closing Date(and,
 

with respect to each Asset, on or before the applicable Servicing Transfer Date with respect
 

thereto), and shall otherwise be made available to any ofthe Required Consenting Parties and
 

their respective representative upon request.
 

(g) MERSO Requirements. In the event that any ofthe Loans are (or are
 

required by the terms hereof to be) registered on the MERSO System, and unless and until no
 

Loan so remains registered on the MERS~ System in accordance herewith,(i)the Manager shall
 

cause the applicable Servicer to be (or become) a member of MERSO on or before the initial
 

Servicing Transfer Date, and maintain itself as a MERSO member in good standing(including
 

paying all dues and other fees required to maintain its membership and complying with MERSO
 

policies and procedures), and (ii)the Servicer shall maintain (or register, as applicable) such
 

Loan on the MERSO System and execute and deliver on behalf ofthe,Company (including, as
 

applicable, on behalfofthe Manager,in turn on behalf ofthe Company)any and all instruments
 

ofassignment and other comparable instruments with respect to such assignment or re-recording
 

ofa mortgage securing a Loan in the name of MERSO,solely as nominee for the Company and
 

its successors and assigns. With respect to each Loan that is registered on the MERSO System,
 

(x) the Servicer shall be designated as the "servicer" and the "investor" with respect to such
 

Loan, and, if applicable, the Manager may cause or permit an applicable Subservicer to be
 

designated as the "subservicer" with respect to such Loan(provided, that the Manager may,as
 

determined in accordance with the Servicing Standard and so long as each applicable designee is
 

and remains a MERS member in good standing,(1) designate the Company as the "investor"
 

with respect to any such Loan, and (2) designate the Manager as the "servicer" with respect to
 

any such Loan,in which case the Servicer shall be designated as the "subservicer" with respect
 

thereto), and (y) no other Person shall be identified on the MERSOO System as having any
 

interest in such Loan unless otherwise consented to by the Initial Member (or required pursuant
 

to the Electronic Tracking Agreement). All Loans registered on the MERSOO System shall
 

remain registered on the MERSOO System unless default, foreclosure or similar legal or MERS
 

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

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

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

MERS~System,the Manager shall have the right to cause such removal so long as, with respect
 

to any such Loan to be so removed,(A)the applicable mortgage(or other Collateral Document)
 

and rights to Collateral for such Loan that are so registered in the name of MERS~ are duly
 

transferred and assigned to the Company(with all applicable recordings or filings with respect
 

thereto being duly made)so as to cause the Company to have the full benefit of its applicable
 

security (or other)interest in all such Collateral, and(B)for any such removal occurring on or
 

before the applicable Servicing Transfer Date,the same is accomplished in accordance with the
 

applicable requirements (and delivery of the applicable notice) in Section 3.1(c) of the
 

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

Defeasance Date,the Company shall have duly delivered to the Collateral Agentsuch documents
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 7O
 
and otherwise taken such actions(including execution and recordation ofapplicable assignments
 

in accordance with the Reimbursement,Security and Guaranty Agreement), in each case so as to
 

cause all such Collateral to be and remain subject to the first priority security interest granted
 

under the Reimbursement, Security and Guaranty Agreement. The Servicer shall provide the
 

Manager and the Initial Member with such reports from the MERSOO System as the Manager or
 

the Initial Member,from time to time, may request, including to allow the Manager and the
 

Initial Member to verify the Persons identified on the MERSO System as having any interest in
 

any ofthe Loans and to confirm that the Loans required to be registered on the MERSO System
 

are so registered. For so long as any Loans remain registered with MERS~,the same shall be
 

subject to an Electronic Tracking Agreement in the form of Exhibit B to the Servicing
 

Agreement, and,to the extent any such Loans are so registered with MERSO as ofthe Closing
 

Date,the Servicer,the Manager,the Collateral Agent and the Initial Member shall execute such
 

Electronic Tracking Agreement on the Closing Date and deliver the same to MERSO. Without
 

limiting the foregoing,upon the request ofthe Manager or the Initial Member,the Servicer shall
 

cause MERS to run a query with respect to any and all specified fields on the MERSO System
 

with respect to any or all ofthe Loans registered on the MERSO System and provide the results
 

to the Manager and the Initial Member and,ifrequested by the Manager or the Initial Member
 

(and subject to any applicable provisions of the Electronic Tracking Agreement), shall cause
 

MERSOto change the information in such fields,to the extent MERSO will do so in accordance
 

with its policies and procedures,to reflect its instructions.
 

12.4 Removal ofthe Servicer.
 

(a) Removal ofthe Servicer. Upon the occurrence of an Event ofDefault,
 

in addition to any other rights it may have pursuant to this Agreement, any other Transaction
 

Document or applicable Law(including the Uniform Commercial Code), whether at Law or in
 

equity and whether pursuant to statute or regulation or otherwise, the Initial Member shall have
 

the right to take, at the Initial Member's sole and absolute discretion and the Manager's expense;
 

one or more ofthe following actions;(i) upon notice in writing to the Manager(effective at such
 

time as is specified in such notice), to act on behalf ofthe Manager(in its individual capacity)to
 

terminate the existing Servicer(and any Subservicers)and to cause the Manager(in its individual
 

capacity) to enter into a new Servicing Agreement with a servicer (a "successor Servicer")
 

selected by the Initial Member(in its sole and absolute discretion), and (ii) upon notice in writing
 

to the Manager (effective at such time as is specified in such notice), to remove the Private
 

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

Initial Member)in the sole and absolute discretion of the Initial Member,whereupon (without
 

limitation of Section 13.5), such successor Manager shall immediately succeed to all, or such
 

portion as the Initial Member and successor Manager agree, ofthe rights and obligations of the
 

Private Owner as the Manager of the Company, and, in such case, the Initial Member shall
 

further have the right(A)to terminate the Servicer(in its sole and absolute discretion),and cause
 

or permitthe successor Manager selected by the Initial Member(and/or the Company directly, as
 

determined by the Initial Member in its sole and absolute discretion) to enter into a Servicing
 

Agreement with a successor Servicer, such Servicing Agreement to be between the applicable
 

successor Manager (and/or the Company) and the successor Servicer chosen by the Initial
 

Member,or(B)to retain the existing Servicer and cause or permit the successor Manager(and/or
 

the Company directly, as determined by the Initial Member in its sole discretion) to enter into a
 

new Servicing Agreement between such successor Manager (and/or the'Company) and the
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 7I
 
Servicer (or to effect an assignment of the existing Servicing Agreement from the existing
 

Manager•(in its individual capacity)to such successor Manager(and/or the Company). None of
 

the Initial Member,any successor Manager or the Company shall have any obligation to assume
 

any obligations or liabilities of the removed Manager (in its individual capacity) under or in
 

connection with any Servicing Agreement. Notwithstanding the foregoing, the Initial Member
 

shall not exercise its rightto terminate a Servicer that is not an Affiliate ofthe Manager or ofthe
 

Private Owner in the absence of(1)an Event of Default attributable in whole or in part to the
 

failure by the Servicer or any of its Subservicers to perform any material obligation under its
 

applicable Servicing Agreement or Subservicing Agreement, (2) an Event of Default as
 

described in clause(b)or clause(g)ofthe definition thereof with respect to the Servicer or any
 

Related Party thereof or any of its Subservicers or any Related Party thereof,(3) an Event of
 

Default resulting from the failure ofthe Servicer or any of its Subservicers at any time to meet
 

the criteria of a Qualified Servicer,(4) an Event of Default as described in clause (e) of the
 

definition thereof, to the extent relating to such Servicer or any of its Subservicers, or (5) any
 

other Event of Default that consists of a breach of a servicing obligation under this Agreement.
 

Subject to the foregoing, the Manager hereby consents to the immediate termination of the
 

Servicer upon the occurrence ofany Event ofDefault. For the avoidance ofdoubt,the rights of
 

the Initial Member in this Section 12.4 are in addition to, and can be exercised independently of
 

the rights ofthe Initial Member in Sections 3.2, 3_2, 3.13, and 3.14; and in any event all rights
 

and remedies ofthe Initial Member under this Agreement with respect to or following an Event
 

of Default shall be cumulative, and any or all thereof may be exercised instead of or in addition
 

to each other or any other remedies available to the Initial Member, whether under this
 

Agreement, any Transaction Document or otherwise. Notwithstanding the foregoing, if any
 

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

rights under this Section 12.4(a) as the Initial Member.
 

(b) Appointment ofSuccessor Servicer. Ifthe Initial Member exercises its
 

right to act on behalfofthe Manager(in its individual capacity)to appoint a successor Servicer,
 

the costs and expenses associated with such successor Servicer (including any servicing fees)
 

shall be borne by the Manager(and not the Company or the Initial Member),and no termination
 

or other fee shall be due to the Manager or the Servicer or any Subservicer in connection with or
 

as a result of any such action; provided, however, that, if the Initial Member or the Purchase
 

Money Notes Guarantor has also exercised its right to remove the Manager (such that such
 

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

fees ofsuch successor Servicer(but not costs and expenses in connection with the replacement
 

of the Servicer with such successor Servicer) such removed Manager shall be responsible only
 

for the portion of such fees that, as of any particular Distribution Date, are in excess of the
 

Management Fee payable to the successor Manager on such Distribution Date.
 

(c) Removal of Manager; Management Fee. If the Initial Member
 

exercises its right pursuant to this Section 12.4 to remove the Private Owner as the Manager and
 

appoint a successor Manager,(i) the successor Manager selected by the Initial Member shall
 

immediately succeed to all, or such portion as the Initial Member and successor Manager agree,
 

of the rights and obligations of the Private Owner as the Manager of the Company, and all
 

references in this Agreement to the Private Owner,in its capacity as Manager ofthe Company,
 

shall be deemed to be references to the successor Manager so appointed by the Initial Member,
 

(ii) without limitation ofSection 13.5,the Initial Member shall have the right to determine,in its
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 72
 
sole and absolute discretion, the extent, terms and conditions of the appointment of any such
 

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

Company),indemnification by the Company,term of appointment and removal rights,~ in each
 

case without the necessity for any consent from the Private Owner or any other Person,and (iii)
 

the successor Manager appointed by the Initial Member shall be entitled to be paid the Interim
 

Management Fee or Management Fee (or, in each case, such portion thereof as the Initial
 

Member and the successor Manager agree)in accordance with the terms ofthis Agreement and
 

the Custodial and Paying Agency Agreement. Theremoval ofthe Private Owner as the Manager
 

shall not relieve the Private Owner of(x)any ofthe liabilities and/or obligations ofthe Private
 

Owner as Manager to the extent required under the terms ofthis Agreement to have been paid
 

and/or performed prior to such removal or(y)any liability the Private Owner may have arising
 

out ofany act or omission by the Private Owner as Manager. No successor to the Private Owner
 

as Manager shall have any liability or obligation for any ofthe matters described in clause(x)or
 

(y)ofthe preceding sentence,except as may be otherwise specified pursuant to any modification
 

to this Agreement pursuant to Section 13.5. In connection with any such removal of the
 

Manager,the Initial Member and any successor Manager selected by the Initial Member are each
 

hereby authorized and empowered, as attorney-in-fact or otherwise, to execute and deliver, on
 

behalf of and at the expense ofthe removed Manager (in its individual capacity), any and all
 

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

effect the termination and replacement of such Manager and the Servicer and, in the event the
 

Initial Member decides to retain a new Servicer, to enter into a new Servicing Agreement
 

between the successor Manager (and/or the Company) and the Servicer or to effect an
 

assignment of the existing Servicing Agreement from the removed Manager (in its individual
 

capacity)to the successor Manager(and/or the Company). Notwithstanding the foregoing,ifthe
 

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

rights underthis Section 12.4(c)as the Initial Member.
 

(d) Cooperation To Facilitate Transfer. In the event any ofthe Manager,a
 

Servicer or a Subservicer is terminated pursuant to the provisions of this Article XII, the
 

Manager (in its individual capacity)shall, and shall cause any Servicer(and any Subservicer)to,
 

provide the Initial Member and any successor Manager or Servicer in a timely manner with all
 

documents,records and data(including electronic documents,records and data)requested by the
 

Initial Member or any successor Manager or Servicer to enable such Person to assume the
 

responsibilities as Manager under this Agreement and any applicable Servicing Agreement, and
 

to cooperate withthe Initial Member in effecting the termination ofany Servicer (or Subservicer)
 

or the Manager's rights as "Manager" under this Agreement,including, in each case subject to
 

applicable requirements in the Custodial and Paying Agency Agreement and the Reimbursement,
 

Security and Guaranty Agreement,(x)the transfer within one(1)Business Day to such account
 

as the Initial Member may specify of all cash amounts which,at the time, shall be or should have
 

been credited'to the Collection Account or are thereafter received with respect to any Assets or
 

Acquired Property, and (y)the transfer of all lockbox accounts with respect to which payments
 

or other amounts with respect to the Assets are directed or the redirection of all such payments
 

and other amounts to such account as the Initial Member may specify, and(z)the assignment to
 

the Initial Member(or the applicable successor Manager or Servicer as indicated by the Initial
 

Member) of the right to access all such lockbox accounts, the Collection Account, any
 

Defeasance Account, and any other account into which Asset Proceeds or Borrower escrow
 

payments are deposited or held. The Manager (in its individual capacity) shall be liable for all
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 73
 
costs and expenses incurred by the Initial Member or the Company (x)associated with the
 

complete transfer of the servicing data, (y)associated with the completion, correction or
 

manipulation of servicing data as may be required to correct errors or insufficiencies in the
 

servicing data to enable the Initial Member and any successor Manager and successor Servicer
 

(and Subservicers) to service the Assets and Acquired Property properly and effectively, and
 

(z)to retain and maintain the services of a successor Manager and/or successor Servicer(and any
 

Subservicers), it being understood that, as to the compensation to be paid to the successor
 

Manager (and servicing fees due and payable to any Servicer or Subservicer engaged by or
 

through such successor Manager),the removed Manager shall be responsible only for the portion
 

of such compensation and fees that, as of any particular Distribution Date, are in excess ofthe
 

Management Fee payable to the successor Manager on such Distribution Date. Within a
 

reasonable time after receipt of a written request ofthe Manager (in its individual capacity) for
 

the same,the Initial Member shall provide reasonable documentation evidencing such costs and
 

expenses, but the Initial Member's right to reimbursement of such costs and expenses (and to
 

exercise offset rights under Section 4.6(h) on account thereof) shall not be subject to or
 

contingent uponthe provision ofsuch documentation.
 

(e) Power of Attorney. The Company hereby irrevocably constitutes and
 

appoints the Initial Member and any officer or agent thereof, with full power ofsubstitution, as
 

its true and lawful attorney-in-fact for the purposes of this Agreement and allowing the Initial
 

Member to perfect, preserve the validity, perfection and priority of,and enforce any Lien granted
 

by this Agreement and, after the occurrence and during the continuance of any Event ofDefault,
 

to exercise its rights, remedies and powers and privileges under this Agreement. This
 

appointment as attorney-in-fact is irrevocable and coupled with an interest until this Agreement
 

is terminated and the security interests created hereby are released. Without limiting the
 

generality of the foregoing, but subject at all times to the rights of a secured party under the
 

Reimbursement, Security and Guaranty Agreement,the Initial Member shall be entitled under
 

this Section_12.4(e) to do any of the following if an Event of Default has occurred and is
 

continuing:(i)ask, demand,collect, sue for, recover, receive and give receipt and discharge for
 

amounts due and to become due under and in respect of any or all of the Assets; (ii) file any
 

claims or take any action or proceeding in any court oflaw or equity that the Initial Member may
 

reasonably deem necessary or advisable for the collection or other enforcement of all or any part
 

ofthe Assets, defend any suit, action or proceeding brought against the Company with respect to
 

any Assets, and settle, compromise or adjust any such suit, action or proceeding;(iii) execute,in
 

connection with any sale or disposition ofthe Assets, any endorsements, assignments, bills of
 

sale or other instruments ofconveyance or transfer with respect to all or any part ofthe Assets;
 

(iv)enforce the rights ofthe Company under any provision of any Servicing Agreement to the
 

extent permitted thereunder and under the terms ofthis Agreement;(v)pay or discharge Taxes
 

and Liens levied or placed on the Assets; (vi) generally, sell, transfer, pledge and make any
 

agreement with respect to or otherwise deal with any ofthe Assets as fully and completely as
 

though the Initial Member were the absolute owner thereof for all purposes; and (vii)do, at the
 

Initial Member's option and the Company's expense, at any time and from time to time, all acts
 

and things that the Initial Member reasonably deems necessary to protect, preserve, or realize
 

upon the Assets and the Initial Member's security interests in any Secured Assets and to effect
 

the intent ofthis Agreement,all as fully and effectively as the Company might do. Anything in
 

this Section 12.4(e) to the contrary notwithstanding, the Initial Member agrees that it shall not
 

NordiCRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 74
 
exercise any right under the power of attorney provided for in this Section 12.4(e) unless an
 

Event ofDefault shall have occurred and be continuing.
 

12.5 Interim Mana e~ ment Fee and Interim Servicing Fee• Management Fee. (a)(i) For
 

each Due Period commencing after the Closing Date (and as determined separately for each
 

Group ofAssets), with respect to any Group ofAssets for which the Servicing Transfer Date has
 

not occurred as of the First aay or such true rerioa, the Lompany snail pay the Interim
 

Management Fee to the Manager and (ii) for each Due Period commencing after the Cut-Off
 

Date (and as determined separately for each Group of Assets for which the Servicing Transfer
 

Date has not occurred as ofthe first day ofsuch Due Period), the Company shall pay the Interim
 

Servicing Fee to the Initial Member,and (b)for each Group of Assets for which the Servicing
 

Transfer Date has occurred as of(or occurs on)the first day of such Due Period,the Company
 

shall pay the Management Fee to the Manager. Each such payment of any Interim Servicing
 

Fee,Interim ManagementFee and Management Fee shall be made in the manner described in the
 

Custodial and Paying Agency Agreement (and, as applicable, on the Distribution Date with
 

respect to the applicable Due Period). In the event the Manager is removed and replaced by the
 

Initial Member or the Purchase Money Notes Guarantor in accordance with Section 12.4 above,
 

the Management Fee and Interim Management Fee shall thereafter be payable to the Initial
 

Member or the Purchase Money Notes Guarantor or successor Manager, as determined by the
 

Initial Member pursuant to such Section 12.4. The Manager may not assign its right to receive
 

the Management Fee without the prior written consent of the Initial Member or the Purchase
 

Money Notes Guarantor, which consent may be withheld in the sole and absolute discretion of
 

theInitial Member or the Purchase Money Notes Guarantor.
 

12.6 Servicing Expenses. Subject to Section 3.3 ofthe Contribution Agreement(with
 

respect to the Interim Servicing Period including as to any Interim Servicing Expenses), from
 

and after the Closing Date(and,with respect to each Asset,from and after the Servicing Transfer
 

Date with respect thereto), the Manager shall cause the Company to pay, from available
 

Company funds (in the Collection Account,the Working Capital Reserve Account or any other
 

applicable Company'account the funds of which may be used for such purpose or otherwise
 

through Excess Working Capital Advancesfunded bythe Manager)all amounts due as Servicing
 

Expenses (or, as applicable, Pre-Approved Charges) in a timely manner, and in each case in
 

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

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

to the contrary herein or in any other Transaction Agreementnotwithstanding;the Manager shall
 

not have an obligation to fund Excess Working Capital Advances for purposes ofthe payment by
 

the Company of(i)any Pre-Approved Charges, or (ii) any specific Servicing Expense relating to
 

an Asset to the extent that the Manager has reasonably determined in accordance with the
 

Servicing Standard that such Servicing Expense, if so paid, when combined with all
 

unreimbursed previous Servicing Expenses, Funding Draws and Pre-Approved Charges with
 

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

servicing ofsuch Assets during the Interim Servicing Period pursuant to 2.3,^
24and 3_l


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

for such Asset. All Servicing Expenses(and Excess Working Capital Advances for the funding
 

of the same) shall be reimbursed in accordance with the Custodial and Paying Agency
 

Agreement.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 75
 
12.7 Use ofAsset Proceeds.
 

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

Proceeds shall be utilized and distributed in the manner set forth in the Custodial and Paying
 

Agency Agreementfollowing receipt by the Paying Agent from the Manager ofthe Distribution
 

Date Report required to be provided under Section 7.4(b).
 

(b) Costs That Are Not Reimbursable. Notwithstanding anything else to
 

the contrary contained herein or in any Transaction Document, without the prior written consent
 

of the Initial Member(which may be withheld, conditioned or delayed in the Initial Member's
 

sole and absolute discretion),in no event may the Manager deduct,from the Asset Proceeds, or
 

otherwise use Asset Proceeds to reimburse itself or any Servicer or Subservicer or pay for, any
 

Excluded Expenses (all ofwhich shall be borne by the Manager in its individual capacity).
 

12.8 Collection Account. On the Closing Date,the Manager shall cause the Company
 

to establish and maintain the Collection Account with the Paying Agent in accordance with the
 

Custodial and Paying Agency Agreement. The Collection Account(and all funds therein) shall
 

be subject to the security interest granted under the Reimbursement, Security and Guaranty
 

Agreement and to the Account Control Agreement under the Custodial and Paying Agency
 

Agreement.
 

12.9 Distribution Account, On the Closing Date, the Manager shall cause the
 

Company to establish the Distribution Account with the Paying Agent in accordance with the
 

Custodial and Paying Agency Agreement. The Distribution Account(and all funds therein)shall
 

be subject to the security interest granted under the Reimbursement, Security and Guaranty
 

Agreement and to the Account Control Agreement under the Custodial and Paying Agency
 

Agreement.
 

12.10 Defeasance Account. On the Closing Date,the Manager shall cause the Company
 

to establish the Defeasance Account with the Paying Agent in accordance with the Custodial and
 

Paying Agency Agreement. The Defeasance Account (and all funds therein) shall be subject to
 

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

12.11 Workin~Capital Reserve Account.
 

(a) Establishment of Working Capital Reserve Account. On the Closing
 

Date,the Manager shall cause the Company to establish the Working Capital Reserve Account
 

with the Paying Agent for the exclusive purpose of holding a reserve (the "Working Capital
 

Reserve") to cover Working Capital Expenses to the same extent, and in the same order of
 

priority, as are applicable to Asset Proceeds in accordance with the terms hereof and the
 

Custodial and Paying Agency Agreement(and, as of any date of determination,the amount of
 

the Working Capital Reserve shall be deemed to be the amount of the funds in such Working
 

Capital Reserve Account). The Working Capital Reserve Account(and all funds therein) shall
 

be subject to the security interest granted under the Reimbursement, Security and Guaranty
 

Agreement and to the Account Control Agreement under the Custodial and Paying Agency
 

Agreement.
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 76
 
(b) Funding the Working Capital Reserve Account. On the Closing Date,
 

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

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

Deposit, respectively. The Company shall fund the Working Capital Reserve Account with
 

Asset Proceeds in accordance with the terms ofthe Custodial and Paying Agency Agreement and
 

must maintain certain deposit amounts to comply with the Working Capital Reserve Cap and
 

other requirements as established under the Custodial and Paying Agency Agreement.
 

(c) Use of Working Capital Reserve. The Manager or the Initial Member
 

(in relation to its interim servicing obligations) may direct the Company to withdraw funds from
 

the Working Capital Reserve Account (including, as applicable, through release of such funds
 

into the Collection Account)only to cover Working Capital Expenses in accordance with Section
 

3.6 ofthe Custodial and Paying Agency Agreement. The Manager shall not permit withdrawals
 

from the Working Capital Reserve Account for any other purpose; rovided, that, to the extent
 

expressly permitted in the Custodial and Paying Agency Agreement,the Manager may cause the
 

release of funds from the Working Capital Reserve Account (including for purposes of
 

distributions to the Members)in accordance with, and subject to, the terms ofthe Custodial and
 

Paying Agency Agreement. With respect to any Asset, on the Servicing Transfer Date, the
 

Initial Member shall be reimbursed from the Working Capital Reserve Account for an amount
 

equal to all Working Capital Expenses (and any advance of the Initial Member that is
 

reimbursable pursuant to the Contribution Agreement) paid by~ it at any time after the Cut-Off
 

Date and on or before such Servicing Transfer Date (to the extent the same have not been
 

otherwise reimbursed pursuant to the Contribution Agreement or Custodial and Paying Agency
 

Agreement).
 

(d) Permitted Investments. The Working Capital Reserve shall be invested
 

in Permitted Investments in accordance with the Custodial and Paying Agency Agreement.
 

12.12 Certain Servicingand Asset Administration Decisions. The Manager shall have
 

full power and authority, acting alone or through any Servicer or Subservicer,to cause to be done
 

any and all things in connection with the servicing and administration of the Assets that the
 

Manager may deem necessary or desirable, and cause to be made all servicing decisions in its
 

reasonable discretion, subject to its obligation to comply with the Servicing Standard and other
 

applicable provisions herein and in the other Transaction Documents. Upon the occurrence ofan
 

event ofdefault under any ofthe Assets Documents,but subject to the other terms and conditions
 

ofthis Agreement(including the Servicing Standard),the Manager shall cause to be determined
 

the response to such default and course of action with respect to such default, including (i)the
 

selection of attorneys to be used in connection with any action, whetherjudicial or otherwise,to
 

protect the interests of the Company in the Assets and the Collateral, (ii)the declaration and
 

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

institution of proceedings to foreclose the Asset Documents securing the Asset pursuant to the
 

power of sale contained therein or through a judicial action,(iv)the institution of proceedings
 

against any Obligor,(v)the acceptance of a deed in lieu offoreclosure,(vi)the purchase of the
 

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

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

of proceedings to obtain a deficiency judgment against such Borrower or any Obligor.
 

Notwithstanding any provision to the contrary herein,the Manager shall not, and shall not cause
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 77
 
any Servicer or Subservicer to, take any action that is inconsistent with or prohibited by the
 

terms of the Reimbursement, Security and Guaranty Agreement or the Custodial and Paying
 

Agency Agreement,in each case,withoutthe prior written consent ofthe Initial Member.
 

12.13 Management and Disposition of Collateral. Subject to the other terms and
 

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

Security and Guaranty Agreement,the Manager shall have full power and authority,acting alone
 

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

with the Manager's management ofany Collateral or Acquired Property, that the Manager may
 

deem necessary or desirable, and cause to be made all asset management decisions in its
 

reasonable discretion.
 

12.14 Acquisition ofCollateral.
 

(a) If title to any Collateral that constitutes real property is to be acquired
 

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


Uniform Commercial Code,or otherwise,title to such Acquired REO Property shall be taken and
 

held in the name of an Ownership Entity; provided, however, that for any Acquired REO
 

Property with respect to which there exists any Environmental Hazard,the Ownership Entity that
 

holds such Acquired REO Property may hold title only to the relevant Acquired REO Property
 

with respect to which the Environmental Hazard exists.
 

(b) Nothing in this Article XII or anything else in this Agreement shall be
 

deemed to affirmatively require the Manager to cause the Company to acquire all or any portion
 

of any Acquired REO Property with respect to which there exists any Environmental Hazard.
 

Prior to acquisition oftitle to any Acquired REO Property(whether by foreclosure, deed in lieu
 

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

otherwise), the Manager shall cause to be commissioned with respect to such Acquired REO
 

Property either (i) a Transaction Screen Process consistent with ASTM Standard E 1528-06, by
 

an environmental professional or (ii)such other Site Assessment and the cost of such Site
 

Assessment shall be deemed to be a Servicing Expense as long as the costs for such Site
 

Assessment were not paid to any Affiliate ofthe Manager,or any Affiliate ofthe Servicer or any
 

Subservicer.
 

(c) The Company shall be the sole Member of any Ownership Entity. The
 

purposes ofeach Ownership Entity shall be to hold the Acquired Property pending sale Acquired
 

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

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

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

Company and the Purchase Money Notes Guarantor.
 

12,15 Administration ofAcquired REO Properties. The following terms and conditions
 

shall be binding on the Company and the Ownership Entities(and on the Manager's performance
 

of its obligations hereunder) with respect to any Acquired REO Properties, in addition to any
 

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

any ofthe other Transaction Documents:
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 7g
 
(a) Insurance. With respect to each Acquired REO Property', the Manager
 

shall cause the applicable Ownership Entity to maintain, with financially sound and reputable
 

insurers,insurance (including, as applicable, public liability insurance, property insurance, flood
 

insurance, boiler and machinery insurance, business interruption or rent insurance and other
 

insurance), in such amounts, with such deductibles, covering such risks and otherwise on such
 

terms and conditions, in each case as are customarily maintained by property owners for other
 

real property and buildings similar to such Acquired REO Property in the area in which such
 

Acquired REO Property is located, all as determined by the Manager in accordance with the
 

Servicing Standard and the provisions of this Agreement and the Transaction Documents. All
 

insurance policies shall name the Collateral Agent, the Manager and the Company as an
 

additional insured, loss payee or mortgagee thereunder, as applicable, as its interest may appear.
 

Each policy shall provide that such policy may not be cancelled or materially changed except
 

upon thirty(30)days' prior written notice to the Company and to the Collateral Agent, and shall
 

further provide that no act or thing done by the applicable Ownership Entity shall invalidate any
 

policy as against the Collateral Agent.
 

(b) Leasing Covenants. With respect to each Acquired REO Property, the
 

Manager shall cause the applicable Ownership Entity to (i) perform the obligations that such
 

Ownership Entity is required to perform under the leases to which it is a party in all material
 

respects and (ii) enforce, in accordance with commercially reasonable practices for properties
 

similar to the applicable Acquired REO Property,the material obligations to be performed by the
 

tenants under such leases.
 

(~) Zoning. The Manager shall not permit any Ownership Entity to initiate
 

or consent to any zoning reclassification of any portion ofthe Acquired REO Property owned by
 

such Ownership Entity, or use or permit the use ofany portion of an Acquired REO Property in
 

any manner that could result in such use(taking into account any applicable variance obtained in
 

accordance with the Servicing Standard) becoming anon-conforming use under any zoning
 

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

the Initial Member and the Collateral Agent.
 

(d) No Joint Assessment. The Manager shall not permit any Ownership
 

Entity to suffer, permit or initiate the joint assessment of Acquired REO Property (i) with any
 

other real property constituting a Tax lot separate from such Acquired REO'Property, and (ii)
 

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

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

such personal property shall be assessed or levied or charged to such Acquired REO Property.
 

(e) Maintenance, Repairs and Alterations. From and after the completion
 

of any buildings or other improvements at an Acquired REO Property, the Manager shall cause
 

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

condition and repair(subject to such alterations as the Manager may from time to time determine
 

to be appropriate in accordance with the Servicing Standard and applicable requirements herein
 

and in the Transaction Documents)and in accordance with applicable Law.
 

(f) Property Management. All property managers with respect to any
 

Acquired REO Property shall, in their respective property management agreements or by
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 79
 
separate agreement; subordinate their rights under such agreements (including their right to
 

receive management fees)to the rights and interest 'ofthe Collateral Agent under the applicable
 

REO Mortgage.
 

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

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

the applicable Ownership Entity to (i) pay all rents ana other sums required to be paid by the
 

tenant under and pursuant to the provisions ofthe applicable ground lease as and when such rent
 

or other charge is payable, and (ii) diligently and timely perform and observe all of the terms,
 

covenants and conditions binding on the tenant under the ground lease. The Manager shall not
 

permit the applicable Ownership Entity to subordinate or consent to the subordination of any
 

ground lease to any mortgage, lease or other interest on or in the ground lessor's interest in the
 

applicable Acquired REO Property without the prior consent ofthe Collateral Agent unless such
 

subordination is required under the provisions ofsuch ground lease.
 

(h) [Intentionally Omitted.]
 

(i) Acquired REO Property Generally. Notwithstanding any other
 

provision ofthis Section 12.15,to the contrary,(i) in operating, managing,leasing or disposing of
 

any Acquired REO Property,the Manager shall act in the best interests ofthe Company,and the
 

Members and creditors of the Company (including the FDIC in its various capacities) and in
 

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

elsewhere in this Agreement or any Transaction Document,the Manager shall not be required to
 

act in accordance with a specific provision ofthis Section 12.15 if such action is(A)not in the
 

best interests of the Company and the Members and creditors of the Company (including the
 

FDIC in its various capacities), as determined by the Manager in the exercise of its reasonable
 

discretion, or(B)notin accordance with the Servicing Standard.
 

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

Money Notes Guarantor so long as the Purchase Money Notes are outstanding and the Collateral
 

Agent such reports regarding the construction, leasing and sales efforts of or relating to the
 

Acquired REO Property as the Initial Member, the Collateral Agent or the Purchase Money
 

Notes Guarantor shall reasonably request.
 

12.16 Releases of Collateral. The Manager is authorized to cause the release or
 

assignment ofany Lien granted to or held by the Company on any Collateral upon payment of
 

any Asset in full and satisfaction in full ofall ofthe secured obligations with respect to an Asset,
 

upon receipt ofa discounted payoff as payment in full ofan Asset,or upon a sale ofthe Assetto
 

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

Security and Guaranty Agreement.
 

12.17 Clean-Up Call Rights.
 

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

have been paid in full, and all reimbursement and other obligations to the FDIC under the
 

Reimbursement,Security and Guaranty Agreement have been satisfied in fiill, or with consent of
 

the Required Consenting Parties, the Initial Member shall have the right, exercisable in its sole
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 80
 
and absolute discretion, to require the liquidation and sale, for cash consideration, of any
 

remaining Assets held by the Company or any Ownership Entity (the "Clean-Up Call") at any
 

time after the earlier to occur of(i)theseventh(7th)anniversary ofthe Closing Date and (ii) the
 

date on which the then Unpaid Principal Balance is ten percent(10%) or less of the Unpaid
 

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

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

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

setting forth the date by which the remaining Assets are to be liquidated by the Company,which
 

date shall be no less than one hundred and fifty(150)calendar days after the date ofsuch notice.
 

(c) The Manager shall proceed expeditiously to cause to be commenced the
 

liquidation of the remaining Assets and Acquired Property by means of sealed bid sales to
 

Persons other than Affiliates of the Company,the Servicer or any Subservicer, or Affiliates of
 

the Servicer or any Subservicer. The selection ofany financial adviser or other Person,broker or
 

sales agent retained for the liquidation of the remaining Assets pursuant to this Section 12.17
 

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

withheld, delayed or conditioned as long as the fees to be charged by such financial adviser or
 

other Person, broker or sales agent are reasonable and such Person is not an Affiliate of the
 

Manager or any Servicer or Subservicer. In the event the remaining Assets are not liquidated by
 

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

Initial Member shall be entitled to liquidate the remaining Assets in its discretion and the
 

Manager shall, and shall cause the Company to, cooperate and assist with such liquidation to the
 

extent reasonably requested by the Initial Member. In the event the Manager or any Affiliate
 

thereofdesires to bid to acquire the remaining Assets, then the Initial Member shall be entitled to
 

liquidate the remaining Assets in its discretion. In the event the Initial Member undertakes to
 

liquidate the remaining Assets pursuant to this Section 12.17(cl, all costs and expenses incurred
 

by it shall be deducted from the Asset Proceeds and retained by the Initial Member and the
 

remaining Asset Proceeds shall be distributed in accordance with Section 9.2.
 

12.18 Certain Transfer Obli actions. Without limitation of other obligations of the
 

Manager with respect to the Contribution Agreement,the Manager agrees to cause the Company
 

to comply with its obligations under the Contribution Agreement with respect to preparing,
 

furnishing, executing and recording transfer documents with respect to the Assets (including
 

special warranty deeds to convey the real property subject to any contract for deed and any
 

Acquired Property to the Company). Any title curative work with respect to such real property,
 

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

12.19 Seller Financing. The Manager may propose to the Initial Member that the
 

Company provide one or more seller financed loans("Seller Financed Loans")to purchasers of
 

Acquired Property (or any portion thereof (any borrower with respect to any such seller
 

financed loan is referred to herein as an"SFL Borrower"and any guarantor,indemnitor or other
 

Person having any obligations under the applicable Seller Financed Loan documents is referred
 

to herein as an"SFL Obligor)). In such case,the Manager shall submit to the Initial Member at
 

least sixty (60) days prior to the proposed closing date of such Seller Financed Loan for the
 

Initial Member's approval (in its sole and absolute discretion), a written proposal (the "SFL
 

Proposal") to offer such seller financing by the Company to an SFL Borrower, which SFL
 

North CRE Venture 2~t0-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION gI
 
Proposal shall identify all material terms and conditions of the proposed Seller Financed Loan,
 

including without limitation,(i) the interest rate, (ii) the loan term,(iii) the loan-to-value ratio,
 

(iv) the underwriting criteria for establishing the creditworthiness for any SFL Borrowers and
 

SFL Obligors,(v)the form of Seller Financed Loan documents, which forms shall be similar to
 

those ofother prudent lenders financing collateral ofsimilar type and size ofthe Seller Financed
 

Loans collateral(the"SFL Collateral"), and including a form loan commitmentletter specifying
 

the conditions ofmaking such Seller Financed Loan,(vi)the identity ofthe proposed servicer(if
 

other than the Servicer; provided,that in such case,such servicer executes a servicing agreement
 

in the form as the Servicing Agreement and which complies with the Servicing Standard, this
 

Agreement, and the terms ofthe other Transaction Documents),(vii) the amount and source of
 

payment of any applicable servicing fee, and (viii) any other term or condition that the Initial
 

Member may determine in its reasonable discretion is necessary for it to approve or disapprove
 

such SFL Proposal. If the Initial Member shall, in its sole and absolute discretion, approve the
 

proposed Seller Financed Loan; each such Seller Financed Loan shall be evidenced by a
 

promissory note (a "Seller Financed Loan Note")payable to the order of the Company that is
 

secured by a mortgage, or a deed oftrust, as applicable, in either case in recordable form for the
 

jurisdiction in which the SFL Collateral is located,to secure the Seller Financed Loan Note. The
 

Manager shall, or shall cause the Company to, promptly deliver the original Seller Financed
 

Loan Note and the other original Seller Financed Loan documents to the Custodian. The Initial
 

Member shall have thirty (30) days from the time the SFL Proposal is delivered by the Manager
 

according to Section 13.6 hereof to approve or disapprove such SFL Proposal. If the'Initial
 

Member shall not have provided a response within such thirty (30) day period, such SFL
 

Proposal shall be deemed disapproved bythe Initial Member.
 

ARTICLE XIII
 

Miscellaneous
 

13.1 Waiver of Rights of Partition and Dissolution. Each Member (other than the
 

Initial Member) hereby irrevocably waives all rights it may have at any time to maintain any
 

action for division or sale of the Company Property as now or hereafter permitted under any
 

applicable Law. Each Member(other than the Initial Member)hereby waives and renounces its
 

rights to seek a court decree ofdissolution or to seek the appointment of a court receiver for the
 

Company as now or hereafter permitted under any applicable Law.
 

13.2 Entire Agreement; Other Agreements.
 

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

Transaction Documents (and any other agreements expressly contemplated hereby or thereby),
 

constitutes the entire agreement and understanding, and supersedes all other prior agreements
 

and understandings, both written and oral, between the Members or~their respective Affiliates or
 

any of them and the Company with respect to the subject matter hereof; provided, that any
 

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

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

this Agreement and the Transaction Documents shall remain in full force and effect to the extent
 

provided therein, except that the Company's rights under Article VI of the Contribution
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION S2.
 
Agreement shall not be deemed a repurchase option for purposes of Section 2 of any such
 

Confidentiality Agreement. The Members acknowledge that certain agreements or other
 

instruments are being (or were)executed by the Company,the Members and/or Affiliates ofthe
 

Members simultaneously or otherwise in connection with the execution of this Agreement and
 

that notwithstanding anything to the contrary contained in the foregoing sentence of this
 

Section 13.2,such agreements shall be effective and binding on the parties thereto in accordance
 

with the terms thereof.
 

(b) By executing this Agreement, the Manager agrees to be bound by the
 

terms ofthe Transaction Documents pursuant to which the Manager is expressly required to take
 

or omit from taking certain actions, as in each case, with the same effect as if the Manager were
 

a party to such Transaction Document.
 

13.3 Third Party Beneficiaries. Each of the FDIC, the Purchase Money Notes
 

Guarantor and the Initial Member is hereby constituted an express third party beneficiary ofthis
 

Agreement with respect to those provisions of this Agreement which expressly grant rights to
 

such Person, and, as such,each is entitled to enforce such provisions ofthis Agreement as if such
 

Person were a party hereto; provided that, with respect to each Person (other than the Initial
 

Member)that is a Required Consenting Party upon occurrence of the Purchase Money Notes
 

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

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

forth herein with respect to consents/approvals, exercise remedies following an Event ofDefault
 

and receipt of reports and other information with respect to the continued operation of the
 

Business, in each case (i)to the extent relating exclusively to the period following such date on
 

which such Person so ceases to be a Required Consenting Party, and (ii) with respect to the
 

Purchase Money Notes Guarantor and the Initial Member. Purchase Money Notes Defeasance
 

Date, and (ii) except as to any rights or remedies relating to (or the exercise or non-exercise of
 

which rights or remedies would affect)the Defeasance Account or the repayment ofthe Purchase
 

Money Notes in accordance with the terms hereof and of the Transaction Documents, as
 

determined by the Purchase Money Notes Guarantor in its sole discretion. Each Person ceasing
 

to constitute the "Initial Member"under this Agreement(as a result ofa Disposition ofits LLC
 

Interest) shall remain athird-party beneficiary ofthis Agreement with respect to Section 4.6 and,
 

as such is entitled to enforce ,Section 4.6 as if such Person remained a party hereto. For the
 

avoidance ofdoubt, in furtherance and without limitation ofthe preceding sentence,each Person
 

comprising the "Initial Member" pursuant to the last sentence ofSection 4,6(a) may enforce the
 

provisions ofSection 4.6,with respect to itself and/or any other Indemnified Party(ies) in relation
 

to itself (in its own name and/or in the name of and/or otherwise on behalf of such other
 

Indemnified Party(ies)). Subject to Section 11.1, and to the immediately preceding sentence,
 

(i)this Agreement is for the benefit solely of, and shall inure solely to the benefit of, the
 

Members and the Company,and (ii) this Agreement is not enforceable by any Person (including
 

any creditor ofthe Company or ofany Member)other than the Members and the Company.
 

13.4 Expenses. Except as may otherwise be expressly provided herein or in any
 

Transaction Document, each Member shall pay its own expenses (including legal, accounting
 

investment banker, broker or finder's fees) incident to the negotiation and execution of this
 

Agreement and the Transaction Documents,the consummation ofthe transactions contemplated
 

by Section 2.3 hereofand the performance ofits obligations hereunder.
 

Norih CRE Venture2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION g3
 
13.5 Waivers and Amendments.
 

(a) This Agreement may be amended or modified, and the terms hereof
 

may be waived, only by a written instrument signed by all Members, rovided, however, that,
 

following an Event of Default,from time to time this Agreement may be amended or modified
 

and/or the terms hereof may be waived,in each case,by a written instrument signed only by the
 

Initial Member as long as such amendment,modification or waiver would not(i) adversely affect
 

the Private Owner's or the Company's limited liability status; (ii) adversely affect the Private
 

Owner's share of the Company's distributions, income, gains or losses; (iii) impose on the
 

Private Owner any additional obligations or (iv) amend Section 3.13 or this Section 13.5;
 

provided, further, that in no event shall any amendment, modification or waiver limit or
 

otherwise adversely affect the rights expressly granted in this Agreement to (x) any Person
 

comprising the "Initial Member"pursuant to the last sentence ofSection 4.6~a)(and/or any other
 

Indemnified Party(ies) in relation to such Person) without the express written consent of such
 

Person so comprising the"Initial Member"or(y)a third party beneficiary ofthis Agreement(to
 

the extent such third party beneficiary is, and remains, a third party beneficiary pursuant to
 

Section 13.3. above)without the express written consent ofsuch third party beneficiary. Except
 

where a specific period for action or inaction is provided herein, no failure on the part of a
 

Member to exercise, and no delay on the part of a Member in exercising, any right, power or
 

privilege hereunder shall operate as a waiver thereof; nor shall any waiver on the part of such
 

Member ofany such right, power or privilege, or any single or partial exercise ofany such right,
 

power or privilege, preclude any other or further exercise thereof or the exercise of any other
 

right, power or privilege.
 

(b) Notwithstanding anything to contrary contained elsewhere in this
 

Agreement (including without limitation the foregoing Section 13,5(a)) or in any other
 

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

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

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

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

sale ofthe Purchase Money Notes(or any reissuance, restructuring or sale ofany such Purchase
 

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

Agreement),the FDIC, without the consent ofthe Private Owner or the Company, may at any
 

time thatthe FDIC is the holder ofone hundred percent(100%)ofany Class ofPurchase Money
 

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

Money Notes and make related changes, modifications or amendments to this Agreement and the
 

other Transaction Documents, in each case subject to the applicable limitations set forth in
 

Section 8.4 of the Contribution Agreement and Section 2.8 ofthe Custodial and Paying Agency
 

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

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

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

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

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

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

any advances, contributions or payments from, the Private Owner or its Affiliates or any
 

permitted successor or assign pursuant to this Agreement or any other Transaction Document or
 

otherwise; and provided,further that such changes, amendments or modifications shall not(x)in
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION g4
 
the determination of the Purchase Money Notes Guarantor, adversely affect in any material
 

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

any interest therein, Prior to effecting any such changes, amendments or modifications, the
 

FDIC shall notify each of the Private Owner and the Company of any such contemplated
 

changes,amendments or modifications. Each ofthe Private Owner and the Company agrees that
 

it will cooperate in good faith with the FDIC in effectuating all such changes, amendments and
 

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

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

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

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

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

Money Notes) shall constitute Reimbursable Company Administrative Expenses. For the
 

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

amendments to documents requested by the Private Owner shall constitute Reimbursable
 

Company Administrative Expenses.
 

(c) Notwithstanding anything to contrary contained elsewhere in this
 

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

Transaction Documents), this Agreement may be amended or modified by a written instrument
 

signed only by the Initial Member to the extent determined by the Initial Member in good faith to
 

be necessary or desirable in order to facilitate any Disposition by the Initial Member of only a
 

portion of its LLC Interest, or a Disposition by the Initial Member of its entire LLC Interest to
 

more than one(1)Person, including to provide for more than two(2)Persons being members of
 

the Company, provided that no such amendment or modification shall (i) adversely affect the
 

Private Owner's or the Company's limited liability status; (ii) adversely affect the Private
 

Owner's share of the Company's distributions, income, gains or losses; (iii) impose on the
 

Private Owner any additional obligations or(iv)amend Section 3.13.(other than to the extentthat
 

such amendment or modification amends or modifies which member or members of the
 

Company shall constitute the "Initial Member"hereunder)or this Section 13.5.
 

(d) Reasonable attorneys' fees actually incurred in connection with the
 

preparation of legal opinions and the review of certificates, closing documents and any
 

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

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

reissuance or sale of the Purchase Money Notes shall constitute Reimbursable Company
 

Administrative Expenses.
 

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

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

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

hand or by nationally recognized courier service, or by electronic mail (followed up by a hard
 

copy delivered through an alternate manner permitted under this Section 13.6), in each case
 

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

manner provided in, this Section 13.6. All such notices, requests, demands and other
 

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

receipt (or refusal thereofl 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
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION g5 '
 
relevant party heieto, and(B)if delivered by electronic mail(which form of delivery is subject to
 

the provisions of this paragraph), when delivered and capable of being accessed from the
 

recipient's office computer, provided, however, that any notice, request, demand or other
 

communication that is received other than during regular business hours ofthe recipient shall be
 

deemed to have been given at the opening of business on the next Business Day. In no event
 

shall a voice mail message be effective as a notice, communication or confirmation hereunder.
 

From time to time, any party may designate a new address for purposes ofnotice to it hereunder
 

by notice to such effect to the other parties hereto in the manner set forth in this Section 13.6.
 

Ifto the Company,to:
 

North CRE Venture 2010-2,LLC
 

2450 Broadway,6`h Floor
 

Santa Monica,California 90404
 

Attenti
 

E-mail
 

with a copy to:
 

Colony Capital, LLC
 

660 Madison Avenue
 

New York,New York 10065
 

Attn: Ronald M.Sanders
 

E-mail: ■■■
 

Ifto the Initial Member,to:
 

Assistant Director,Structured Transactions-Resolutions and Receiverships
 

c/o Federal DepositInsurance Corporation
 

550 17th Street, NW(Room F-7014)
 

Washington,D.C.20429-0002
 

Attention: Ralph Malami
 

Email Address: RMalami@FDIC.gov
 

with a copy to:
 

Senior Counsel
 

FDIC Legal Division
 

Litigation and Resolutions Branch,Receivership Section
 

Special Issues Unit
 

3501 Fairfax Drive(Room E-7056)
 

Arlington, VA 22226
 

Attention: David Gearin
 

Email Address: DGearin@FDIC.gov
 

Ifto the Private Owner(including in its role as Manager and/or Tax Matters
 

Member),to:
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION g6
 
Co1Fin Milestone North Funding,LLC
 

2450Broadway,6th Floor
 

Santa Monica,California 90404
 

Attention:Paul A.Fuhrman
 

E-mail:
 

with a copy to:
 

Colony Capital,LLC
 

660 Madison Avenue
 

New York,New York 10065
 

Attn: Ronald M.Sanders
 

E-mail:
 

13.7 Counteroarts:Facsimile Signatures.
 

(a) This Agreement may be executed in any number of counterparts, each
 

of which shall be an original and all of which shall together constitute one and the same
 

instrument. It shall not be necessary for any counterpart to bear the signature of all parties
 

hereto.
 

(b) This Agreement and any amendments hereto, to the extent signed and
 

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

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

original signed version thereof delivered in Person. No signatory to this Agreement shall raise
 

the use ofa 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 ofa facsimile machine
 

or other electronic means as a defense to the formation or enforceability of a contract and each
 

such Person forever waives any such defense.
 

13.8 Successors and Assigns. Except as otherwise specifically provided in this
 

Agreement (including in Article VIII), this Agreement shall be binding upon and inure to the
 

benefit of the Members and the Company and their respective successors and assigns. Without
 

limitation ofSection 8.4, this Agreement, as in effect on the date that any particular Person shall
 

cease to be a Member,shall continue to bind such Person in relation to the period during which it
 

was a Member.
 

13.9 Compliance with Law;Severability.
 

(a) Compliance with Law. Except as otherwise specifically provided
 

herein, each party to this Agreement shall obey and comply with all applicable Laws, as they
 

may pertain to such party's performance ofits obligations hereunder.
 

(b) Severability. Any provision of this Agreement which is prohibited or
 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as
 

follows: (i)if such provision is prohibited or unenforceable in such jurisdiction only as to a
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION g7
 
particular Person or Persons and/or under any particular circumstance or circumstances, such
 

provision shall be ineffective, but only in such jurisdiction and only with respect to such
 

particular Person or Persons and/or under such particular circumstance or circumstances, as the
 

case may be;(ii) without limitation ofclause (i), such provision shall in any event be ineffective
 

only as to such jurisdiction and only to the extent ofsuch prohibition or unenforceability, and
 

such prohibition or unenforceability in such jurisdiction shall not invalidate or render
 

unenforceable such provision in any other jurisdiction; and (iii) without limitation of clauses
 

(i)or (ii), such ineffectiveness shall not invalidate any of the remaining provisions of this
 

Agreement. Without limitation ofthe preceding sentence, it is the intent of the parties to this
 

Agreement that in the event that in any court proceeding, such court determines that any
 

provision of this Agreement is prohibited or unenforceable in any jtu•isdiction (because of the
 

duration or scope (geographic or otherwise) of such provision, or for any other reason) such
 

court shall have the power to, and shall,(x)modify such provision (including without limitation,
 

to the extent applicable, by limiting the duration or scope of such provision and/or the Persons
 

against whom,and/or the circumstances under which,such provision shall be effective in such
 

jurisdiction) for purposes of such proceeding to the minimum extent necessary so that such
 

provision, as so modified, may then be enforced in such proceeding and (y)enforce such
 

provision, as so modified pursuant to clause (x), in such proceeding. Nothing in this
 

Section 13.9(b) is intended to, or shall, limit (1)the ability of any party to this Agreement to
 

appeal any court ruling or the effect of any favorable ruling on appeal or(2)the intended effect
 

ofSection 13.11.
 

13.10 Power ofAttorney.
 

(a) The Private Owner does hereby constitute and appoint the Manager as
 

its true and lawful representative and attorney-in-fact, in its name, place and stead to make,
 

execute, sign, acknowledge, deliver or file any certificate, document or other instrument that the
 

Private Owner is required to execute and deliver pursuant to clause (a), (b), (c) or (d)of
 

Section 4.3 hereof. The foregoing notwithstanding,the Manager shall not have any right, power
 

or authority to amend or modify this Agreement. The power of attorney granted hereby is
 

coupled with an interest and shall (i)survive and not be affected by the subsequent death,
 

incapacity, disability, dissolution, termination or bankruptcy of the Private Owner granting the
 

same or the transfer of all or any portion ofthe Private Owner's LLC Interest and (ii)extend to
 

the Private Owner's successors, assigns and legal representatives.
 

(b) The Company hereby grants to the Manager a limited power ofattorney
 

to execute all documents on its behalf in accordance with the Servicing Standard set forth above
 

and as may be necessary to effectuate the Manager's obligations under Article XII until such
 

time as the Company revokes said limited power ofattorney. Revocation ofthe limited power of
 

attorney shall take effect upon (i)the receipt by the Manager of written notice thereof from the
 

Initial Member,or (ii) removal of the Manager in accordance with the terms of this Agreement;
 

provided, however,in the event of such removal,the power of attorney granted hereunder shall
 

thereafter automatically be vested in the successor or replacement Manager appointed in
 

accordance with this Agreement.
 

13.11 Governing.Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE
 

CONSTRUED 1N ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION g g
 
EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER
 

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAWS
 

OF ANOTHER JURISDICTION AND EACH PARTY TO THIS AGREEMENT
 

UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT
 

THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS AGREEMENT. In the event
 

of a direct conflict between the provisions ofthis Agreement and any mandatory, non-waivable
 

provision ofthe Act,such provision ofthe Act shall control to the extent necessary to eliminate
 

such direct conflict, Nothing in this Agreement shall require any unlawful action or inaction by
 

any Person.
 

13.12 ,Jurisdiction; Venue and Service.
 

(a) Each ofthe Private Owner(for the avoidance ofdoubt,in any capacity,
 

including as a Memberand/or as the Manager)and the Company,in each case on behalfofitself
 

and its Affiliates, hereby irrevocably and unconditionally:
 

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

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

District Court for the District of Columbia for any suit, action or proceeding
 

against it (in the case ofthe Private Owner and for the avoidance of doubt,in any
 

capacity, including as a Member and/or as the Manager) or any of its Affiliates
 

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

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

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

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

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

the Initial Member;
 

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

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

District Courtfor the District ofColumbia;or
 

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

District ofNew York or the United States District Court for the District of
 

Columbia is an inconvenientforum.
 

(ii) consents to the jurisdiction ofthe Chancery Court of the State of
 

Delaware for any suit, action or proceeding against it (in the case ofthe Private
 

Owner and for the avoidance of doubt, in any capacity, including as a Member
 

and/or as the Manager)or any of its Affiliates commenced by the Initial Member
 

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

Transaction Document,and waives any right to:
 

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

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

Member);
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Ageement
 

EXECUTION VERSION g9
 
(B) assert that venue is improper in the Chancery Court of the
 

State ofDelaware;or
 

(C) assert that the Chancery Court of the State of Delaware is
 

an inconvenientforum.
 

(iii) agrees to bring any suit, action or proceeding by it (in the case of
 

the Private Owner and for the avoidance ofdoubt, in any capacity,including as a
 

Member and/or as the Manager)or any ofits Affiliates against the Initial Member
 

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

Transaction Document in only the United States District Court for the Southern
 

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

Columbia, and waives any right to remove or transfer such suit, action or
 

proceeding to any other court or dispute-resolution forum without the consent of
 

the Initial Member,and agrees to consent thereafter to transfer ofthe 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 ofthe Initial Member;and
 

(iv) agrees,if the United States District Court for the Southern District
 

of New York and the United States District Court for the District of Columbia
 

both lack jurisdiction to hear a suit, action or proceeding falling within
 

Section 13.12(a~(iii), to bring that suit, action or proceeding in only the Chancery
 

Court ofthe State of Delaware, and waives any right to remove or transfer such
 

suit, action or proceeding to any other court or dispute-resolution forum without
 

the consent ofthe Initial Member.
 

(b) Each of the Private Owner (in any capacity, including as a Member
 

and/or as the Manager) and the Company, in each case on behalf of itself and its Affiliates,
 

hereby irrevocably and unconditionally agrees that any final judgment entered against it in any
 

suit, action or proceeding falling within Section 13.12(a) may be enforced in any court of
 

competentjurisdiction;
 

(c) Subject to the provisions ofSection 13.12(d), each ofthe Private Owner
 

(in any capacity, including as a Member and/or as the Manager)and the Company,in each case
 

on behalf of itself and its Affiliates, and the Initial Member, hereby irrevocably and
 

unconditionally agrees that service of all writs, process and summonses in any suit, action or
 

proceeding pursuant to Section 13.12(a) or Section 13.12(b) may be effected by the mailing of
 

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

pursuant to Section 13.6 (with copies to such other Persons as specified therein); provided,
 

however, that nothing contained in this Section 13.12(c) shall affect the right of any party to
 

serve process in any other manner permitted by Law;
 

(d) Nothing in this Section 13.12 shall constitute consent to jurisdiction in
 

any court by the FDIC(in any capacity, including as the Initial Member),other than as expressly
 

provided in Section 13.12(a)(iii) and Section 13.12(a)(iv), or in any way limit the FDIC's (in any
 

capacity,including as the Initial Member)right to remove,transfer,seek to dismiss, or otherwise
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 
 9O
 
respond to any suit, action, or proceeding against it (in any capacity, including as the Initial
 

Member)in any forum.
 

13.13 Waiver of Jury Trial. EACH OF THE PRIVATE OWNER AND THE
 

COMPANY,FOR ITSELF AND ITS AFFILIATES,AND THEINITIAL MEMBER,HEREBY
 

IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
 

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

AGREEMENT OR THE TRANSACTION DOCUMENTS AND AGREES THATANYSUCH
 

DISPUTE SHALL BE TRIED BEFORE A JUDGESITTING WITHOUT A JURY.
 

[REMAINDER OFPAGEINTENTIONALLY LEFT BLANK]
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 
 9I
 
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by
 

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

FEDERALDEPOSITINSURANCE
 

CORPORATION,IN ITS SEPARATE
 

CAPACITIES ASRECEIVER WITH
 

RESPECT TOTHESEPARATE
 

RECEIVERSHIPS FOR EACH OFTHE
 

VARIOUS FAILED FINANCIAL
 

INSTITUTIONS LISTED ON SCHEDULEI
 

HERETO
 

By:
 

Name:Heidi Silverberg
 

Title: Attorney-in-Fact
 

NORTH CRE VENTURE 2010-2,LLC
 

By: 	Federal Deposit Insurance Corporation,in its
 

separate capacities as receiver with respect to
 

the separate receiverships for each ofthe
 

various failed financial institutions listed on
 

Schedule I hereto
 

By:
 

Name:Heid~Silverberg
 

Title: Attorney-in-Fact
 

COLFIN P~ILESTONE NORTHFUNDING,
 

LLC
 

Name:
 

Title:
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION
 
IN W[TNBSS WHEREOF,the parties have caused this Agreement to be executed by
 

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

FEDERAL DEPOSITINSURANCE
 

CORPORATION,IN ITS SEPARATE
 

CAPACITIES AS RECEIVER WITH
 

RESPECT TOTHESEPARATE
 

RECEIVERSHIPSFOR EACH OFTHE
 

VARIOUSFAILED FINANCIAL
 

INSTITUTIONSLISTED ONSCHEDULEI
 

HERETO
 

Name;Heidi Silverberg
 

Title; Attorney-in-Fact
 

NORTHCREVENTURE2010-2,LLC
 

By:	Federal DepositInsurance Corporation,in its
 

separate capacities asreceiver with respect to
 

the separate receiverships for each ofthe
 

various failed financial institutions listed on
 

Schedule I hereto
 

By:
 

Name; Heidi Silverberg
 

Title; Attorney-in-fact
 

North CRSVtnture ZOIOJ,LLC
 

Amended and Reafatcd Opaaline A~ramrnl
 

EXECUTION VERSIpN
 
Annex I 

MemberSchedule 

Member Percentage Interests Capital 

Contributions to 

Working Capital 

Reserve Account 

Other Capital 

Contributions) 

Initial Member 60% $2,400,000 $16,508,688.00 

Private Owner 40% $1,600,000 $11,005,792.00 

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

Account.
 

North CRE Venture2010-2,LLC
 

Amended and Restated Opera~in~; Agreement
 

EXECUTION VERSION I-I
 
F.XNiRTT A
 

FORM OF
 

CERTIFICATE OFFORMATION
 

OF
 

NORTHCRE VENTURE2010-2,LLC
 

Pursuant to and in accordance with the provisions of Section 15-201 of the Delaware
 

Limited Liability Company Act,the undersigned hereby certifies that;
 

FIRST,the name ofthe limited liability company is North CRE Venture 2010-2, LLC
 

(the"Company").
 

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

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

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

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

the Company on this 1st day ofDecember,2010.
 

By; /s/ Heidi Silverberg
 

Name:Heidi Silverberg
 

Title: Attorney-in-Fact
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION A—I
 
EXHIBITB
 

INFORMATION;FORM OF MONTHLYREPORT
 

[See Attached]
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Ab~eement
 

EXECUTION VERSION B—1
 
Multibank Transactions 

North CRE Venture 2010-2, LLC 

EXHIBIT B-FORM OF MONTHLY REPORT 

Cashflow and Distribution Report 

For Due Period Ending[insert date] 

COLLECTIONS 

(+)'Principal collections 

(+) Interest collections 

(+) Loan sale proceeds, including short sales 

(+) Mortgage insurance claim proceeds 

(+) REO liquidation proceeds 

(+) Servicing Expenses and Interim Servicing Expenses Recovered 

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

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

and Security Agreement 

(+) Indemnity Pa ments made under Custodial Agreement 

(+) Interest and earnings from Collection Account 

GROSS COLLECTIONS 

TOTAL 

_ 

_ 

_ 

_ 

_ 

_ 

_ 

_ 

_ 

Other deposits to Collection Accoun# 

(+) Transferred from Working Capital Reserve Account 

(+) Excess Working Capital Advances made by Manager 

(+) Discretionary Funding Advances made by Manager 

_ 

_ 

-

GROSS FUNDS AVAILABLE _ 

(-) 

(­

(-) 

(-) 

Less authorized disbursements from Collection Account 

Repayment of Discretionar Funding Advances made by Manager 

Servicing Expenses aid 

Pre-Approved Charges 

Funding Draws 

_ 

_ 

-

(1) 

NET FUNDS AVAILABLE 

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

the Determination Date ( 

_ 

_ 

FUNDS DUE TO DISTRIBUTION ACCOUNT _ 

Distributions pursuantfo Priorif ofPayments in the Custodial Agreement 

Custodian and Paying A ent Fees and Expenses(and any indemnity 

,payments under the Custodial Agreement) 

Interim Servicing Fee to Initial Member 

Interim Management Fee to Manager 

Management Fee to Manager 

Repayment of Excess Working Capital Advances to Manager 

Replenishment of Working Capital Reserve Account 

Reimbursement due Note Guarantor 

_ 

_ 

_ 

-

_ 

_ 

~2~ 

~3~ 

~4~ 
Multibank Transactions
 

jTi
 

f.::•
 

Date) ­

TOTAL DISTRIBUTIONS DUE ­

NET DISTRIBUTABLE CASH TO MEMBERS (if positive) ~ _
 

DISTRIBUTION TO MEMBERS
 

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

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

TOTAL DISTRIBUTIONS TO MEMBERS $ ­

alcu af~on ofamounts payable pursuantto Priority ofPaymentsin
 

CustodialAgreement
 

INTERIM SERVICING FEE CALCULATION
 

Loans
 

Adjusted UPB, beginning of Due Period (with respect to Loans in any Group
 

of Assetsfor which Servicing Transfer Date has not occurred as of first day I
 

in Due Period) I $ ­

Times interim servicing fee rate ~ 0.25%
 

Times number of days in Due Period/360 -


Porfion ofinterim servicing fee with respectfo Loans ~ $ ­

Acquired Property
 

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

any Group of Assets for which Servicing Transfer Date has not occurred as
 

of first day in Due Period) $ ­

Times interim servicing fee rate 0.25%
 

Times number ofdays in Due Period/360 -


Porfion ofinterim servicing fee with respect to Acquired Property $ ­

Portion of interim servicing fee with respect to Loans ~ $ ­

(+) Portion of interim servicing fee with respect to Acquired Property ­

TOTAL INTERIM SERVICING FEE DUE TO INITIAL MEMBER $
 

INTERIM MANAGEMENT FEE CALCULATION ~
 

Loans
 

Adjusted UPB, beginning of Due Period (with respect to Loans in any Group
 

~ of Assets for which Servicing Transfer Date has not occurred as of first day
 

'in Due Period) $
 

Times 50% of the Management Fee rate 

Times number of days in Due Period/360 

Portion ofinterim managementfee with respectfo Loans $ 

0,25% 

-

-

Acauired Property 
Multibank Transactions
 

North CRE Venture 2010-2, LLC
 

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

any Group of Assetsfor which Servicing Transfer Date has not occurred as
 

of first day in Due Period) $
 

Times 50% of the Management Fee rate 0.25%
 

Times number of days in Due Period/360 -


Porfion ofinterim managementfee with respect to Acquired Property $ ­

Portion of interim managementfee with res ect to Loans $ -

(+) Portion of interim mans ementfee with res ect to Ac uired Pro ert 

TOTAL INTERIM MANAGEMENT FEE DUE TO MANAGER $ - (3) 

MANAGEMENT FEE CALCULATION
 

Loans
 

Adjusted PB,beginning of Due Period (with respect to Loans in any Group
 

of Assets for which Servicing Transfer Date has occurred as of first day in
 

Due Period) $ ­

Times Management Fee rate 0.50%
 

Times number of days in Due Period/360 ­

Portion of managementfee with respect to Loans $ ­

Acquired Property
 

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

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

first day in Due Period $ ­

Times Management Fee rate 0.50%
 

Times number ofdays in Due Period/360 ­

Portion of managementfee with respectfo Acquired Property $ - ~g~
 

Portion of managementfee with res ect to Loans $ ­

(+) Portion of managementfee with respect to Acquired Property
 

TOTAL MANAGEMENT FEE DUE TO MANAGER $ ­

(1) ~ Repayment only to the extent of Asset Proceedsfrom the Asset with respect to which the Advance was made.
 

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

'day immediately following the Cutoff Date.
 

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

(4) Applicable to Due Periods following the Interim Servicing Period with respectto a Group ofAssets.
 

(5 With res ect to an Ac uired Pro ert ,the Mana ement Fee is a able for a maximum ofthree ears
 

after title has passed to the Compan , or three years from the Closin Date if title had transferred
 

by the Receivership prior to the Closing Date.
 
Multibank Transactions
 

North CRE Venture 2010-2,LLC
 

Loan &REO Rollforward Report
 

For Due Period Ending[insert date]
 

For the Period from
 

[Insert Date Range]
 

LOANS	 #ASSETS AMOUNT
 

Unpaid principal balance, [insert date] - $ , 

(-) Payments received (regular and curtailments) 

(-) Paid-in-full loans -

(­ Short sale proceeds -

() ~ Mortgage insurance proceeds 

rUP6, transfers to REO -

(+) Balance ca italized on loan modifications 

(+) Commitmentsfunded 

~_~ Principal charge-offs -

Unpaid principal balance,[insert date] - $ 

ACQUIRED PROPERTY(REO)	 #ASSETS AMOUNT (1}
 

UPB of REO properties, [insert date]	 - $
 

(+) UPB on REO transfers in ­

(+/-)Adjustments to Net Fair Value
 

(+) Capitalized post-acquisition costs
 

(-) Net liquidation proceeds - ­

(+/-) Realized Gain (Losses) - ­

UPB of REO properties, [insert date] - $ _
 

TOTAL ASSETS,end of Due Period	 - $
 

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

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

famil residence], less the direct sales costs .
 
Multibank Transactions
 

North CRE Venture 2010-2, LLC
 

~— ~ 

Recoverable Servicing Expenses(Advances) 

Monthly Rollforward For Due Period Ending[insert date] 

_ 

Balance, [insert date) $ 

Tax and 

Insurance 

Advances 

-

Other 

Recoverable 

Servicing 

Advances 

$ - $ 

Total 

Recoverable 

Servicing 

Advances 

-

3 

Non-Recoverable 

Expenses Paid 

1) 

Total 

Servicing 

Ex enses Paid 

+) Payments/Advances 

(­ Advance Recoveries -

-

-

-

-

- -

Balance, jinsert date] $ 

(2) 

- $ 

2) 

- $ 

(2? 

-

~1) Servicing Expenses, as defined in the A reement of Common Definitions, are authorized to 

be aid by withdrawal offunds from the Collection Account. For re orting purposes,Servicing 

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

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

(2) Loan servicing system should include fields to capture and report balances in each category, 

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

as ofeach month-end. 

(3 Nan-Recoverable Expenses Paid reflects payments of authorized Servicing Expenses which are 

deemed not recoverable from borrowers and are not re orted at asset level on the senricin s stem. 
Multibank Transactions
 

North CRE Venture 2010-2, LLC
 

Working Capital Reserve Account
 

Monthly Roll Forward
 

For Due Period Ending [insert date]
 

Balance after activity for previous Due Period $ ­

(+) Interest and earnings on Working Capital Reserve Account
 

Transfers to Collection Account Burin the Due Period:
 

(-) Payment of Working Capital Ex enses
 

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

Custodial and Pa in A enc A reement
 

Balance, as of the Determination Date ­

Settlements for Due Period, paid after month-end; ~
 

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

(+~-)i Replenishment(release)of Working Capital Reserve Accountfunds ~—
 

_Ifroml(to)Collection Account, based on Determination Date _ I ~
 

Balance after activity for this Due Period $ ­

Working Capital Reserve Floor $ 4,000,000.00 (2)
 

Working Capital Reserve Cap $ 5,000,000.00 (3)
 

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

iPre-A proved Charges, Funding Draws, Mana ement Fee, Interim Management Fee, Interim
 

Servicing Fee, or fees of the Custodial and Payin A enc A reement.
 

(2) The minimum amount to be maintained in the Workin Ca ital Reserve Account at any oint in time,
 

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

Working Capital Reserve Account are required, so long as the balance is restored to the
 

Working Capital Reserve Floor as soon as practicable thereafter.
 

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

which is the lesser of $5,000,000 or 3.00% of the UPB of the Assets as of the Determination Date.
 

Calculation of Workin Ca ital Reserve Ca
 

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

Times 3.00°/a
 

UPB Limitation on Cap I [A) $ ­

Working Capital Reserve Cap, before limitation (B) $ ­

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

Calculation of Required Working Capital Reserve Account Replenishment(Release)
 

Working Ca ital Reserve Account Cap T$ ­

Working Capital Reserve Account Balance prior to replenishment(release)
 

Required Working Capital Reserve Account replenishment
 

(release) I I $
 
Multibank Transactions
 

North CRE Venture 2010-2, LLC
 

Excess Working Capital Advances
 

Monthly Roll Forward
 

For Due Period Endin [insert date
 

Balance, beginning of Due Period $ ­

Advanced by Manager to Collection Accountfor
 

payments of
 

~+~ Working Capital Expenses(other than Fund(ng
 

Draws) ­

Advanced by Manager to Defeasance Account for
 

payments:
 

{+~ As required to cure a Purchase Money Notes
 

Trigger Eveni ­

(-) Relmbursemenisfrom Cash Flow
 

Balance,end of Due Period ~
 

Discretionary Funding Advances ~ 

Monthly Roll Forward 

For Due Period Ending[insert date 

Total - Detail Advances bV Asset Number 

~ All Advances Asset A AssetB 

Balance,beginning of Due Period $ - $ - $ -

(+) Funding Draws Advanced by Manager to Collection 

Account - - -

+)Interest Due 30-da LIBOR + 3.00°~,actual/360 

- Reimbursements from Asset Proceeds 1) - - -

Balance,end of Due Period $ - $ - $ ­

(1) Re ayment only to the extent of Asset Proceeds from the Asset with respect to which
 

the Advance was made.
 

Private Owner Pled ed Account
 

Mont ly Roll Forward
 

For Due Period Ending[insert date]
 

Balance,be inning of Due Period $
 

+) Proceeds from draw on Letter of Credit
 

andfor
 

+) Quali ing Cash Collateral de osit
 

(-},Payment of expenses in connection with Event_
 

of Default
 

Balance,end of Due Period $ ­

Funding Draws ~
 

Monthly Report --'
 

For Due Period Ending[insert date]
 

~ Amount funded
 

Amountof ~ Current Unfunded b Discretionary
 

Loan Number/Purpose of Fund(n4 Draw ~ Fundin4 Oraw UPB Commit ent Fundin Advance
 

— — $— —
 

—r
 

Total Funding Draws,month ended [insert dated $ ­
Multibank Transactions
 

North CRE Venture 2010-2, LLC
 

~_ _ — ~ ~ ~—
 

Purchase Money Notes and Defeasance Account
 

Mont y Roll Forward ~—
 

For Due Period Ending [insert date]
 

Class A-1 Class A-2 

Purchase Money Notes Monthly Roli ~ atal ~ Maturity _ Maturity 

{+) qri final Agc,~regate Principal Amount $ - ~ - ~ $

(-) Payment from Defeasance Account - - -

purchase Money litotes baiance,end of Dus Period $ - $ - $
 

Defeasauce Account Monthly Roll
 

Balance after deposit for previous Due Period ~$ -~­

Additions from Cash Fiow for this Due Period _
 

(+) Investment Income
 

-) Release to Purchase Money Notes ­

Defeasance Account balance after deposit for this '—`
 

Due Period ______~~ ~_
 

Note Guarantor Paymentsi 1
 

Balance, beginning of Due Period ~ $ ­

{+) Draws,current month ­

~(+) Interest Due,current month T
 

(-} Repayments from cash flow for this Due Period ­

V Balance after repaymentfor this Due Period $
 

Purchase Money Note'friager Even#
 

A Purchase Money Note Trigger Event will be deemed to have occurred if, as of any time during the periods set forth
 

below,(a)the total amountthen on deposit in the Defeasance Account, plus the sum of the aggregate amoun#from
 

the Defeasance Account previously paid by the Debtor to ail Noteholders to repay any Purchase Money
 

Note and the aggreg to reimbursements to the Purchase Mone Notes Guarantor, divided by ~
 

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

4th anniversary of the Closing Date, or any time before the 5th anniversary ofthe Closing bate: 50°l0
 

- 5th anniversary ofthe Closing Date, or any time before the 6th anniversary of the Closing Date: 67%
 

- 6th anniversary of the Closing Date, or any time before the 7th anniversary ofthe Closing date: 83%
 

~~ - 7th anniversary of the Closing Date: { T~~s 900%
 
Muitibank Transactions
 

Incentive Threshold Tracking Report 

For Due Period Ending (insert date) 

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

(+) Current month distribution to Private Ownerpursuantto Priority of Payments 

$ 

-

Aggregate Cash Distributions to Private Owner,as ofthe current Distribution Date $ _ 

Incentive Threshold Base Amount 

Transferred LAC Interest Sale Price 

Amountfunded into Working Capital Reserve Account by Private Owner at Closing 

$ 

_ 

-

-

INCENTIVE THRESHOLD EVENT 

Occurs as ofa Distribution Date if.' 

(a the aggregate distributions made to the Private Ownerpursuant to the Priority of 

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

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

Aggregate cash distributions to Private Owner 

Incentive Threshold Base Amount* 2 

$ _ 

Distributions Remaining to Incentive Threshold Event $ -

Incentive Threshold,as ofthe preceding Distribution Date 

(+) Threshold Increase Amount(1.8769%) 

~_~ Current distributions to Private Owner pursuant to the Priority of Payments 

Incentive Threshold,as of the current Distribution bate 

~ 

$ 

_ 

_ 

_ 

Incentive Threshold Event met? Y/N 
Multibank Transactions 

North CRE Venture 2010-2, LLC 

Additional Security Report 

For Due Period Ending[insert date] 

Amountof Additional Security(in each case as ofthe end ofthe Due Period) 

Undrawn Amount under Qualifying Letters of Credit: 

[and/or] 

Balance in Private Owner Pledged Account: 

Additional Security amount equal to or in excess of $2,500,000? Y 1 N 

In the evenl of any Additional Security consisting of a Qualifying Letter of 

Credit, for each such Qualifying Letter of Credit: 

A. Capital category of Issuing Bank as of the end of the Due Period pursuant 

to the standards in 12 U.S.C.§ 18310(b)(1), or applicable replacement 

legislation: 

B. Is such Issuing Bank a Qualified Issuer? Y / N (1) 

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

referenced above. 
Multibank Transactions
 

North CRE Venture 2010-2, LLC
 

Other Reports
 

For Due Period Ending[insert date]
 

,Withdrnwnls,(ront Collection Accortnt
 

Manager hereby certifies that all withdrawals by the Manager from the Collection Account during the relevant
 

Due Period were made in accordance with the terms ofthe Amended and Restated Limited Liability Company
 

Operating Agreement and the Custodial Agreement: Yl N
 

Delingt[ency Report
 

# and $ by delinquency classification: Current,30-59 days,60-89 days,90+ days, in foreclosure, in bankruptcy,
 

REO
 

Breakout of> 60 day delinquencies by collateral type,#and $
 

Breakout of> 60 day delinquencies by state,#and $
 

REOReport
 

Listing of REO properties held to include original loan number,date ofownership,description,collateral type,
 

address, UPB(ofthe loan prior to foreclosure), net book value, listing date, estimated sale date, appraisal
 

amount, original list price, current ]ist price, cumulative Servicing Expenses allocable, broker name,and
 

comments
 

Modification Report
 

Listing ofloans modified,to include borrower name,loan balance and terms before modification, loan balance
 

and terms after modification. Show amounts of principal forgiven, if any,and principal forbearance amounts,if
 

any.
 

Liquitlrrlion Report
 

Listing of loans and REO properties liquidated, to include borrower name,UPB,net I iquidation proceeds,
 

cumulative Servicing Expenses,realized loss amount
 

ShortSale Report
 

Listing of loans for which short sales were accepted,to include borrower name,UPB,payoffaccepted, realized
 

loss amount
 

JudgmentReUort
 

Listing of Judgments obtained, to include borrower name,Judgment amount,current month and cumulative
 

payments received,remaining balance
 

Si~nzfcahtL~ti~ation Report
 
Multibank Transactions
 

North CRE Venture 2010-2, LLC
 

Provide a litigation summary report describing any claim or counterclaim("claim")filed against the Company
 

and/or Servicer with respect to assets subject to this Agreement,the.actions taken to defend such claim, and an
 

estimate ofthe projected exposure for: a)any claim in which the Company or Servicer expects to incur more than
 

$10,000 in Servicing Expenses to defend such claim, b)any claim in which multiple plaintiffs havejoined in
 

fil ing an action against the Company and/or Servicer or the same law firm has filed individual claims on behalf
 

of more than one plaintiff, and c)any claims)regardless ofthe dollar amount naming:(i) any Failed Bank,or
 

(ii)FDIC(in any capacity)as defendant(s). Activity should be updated quarterly.
 

EnvironmentalExposure Repor[
 

Provide a report identifying any assets in which the Site Assessment identified an Environmental Hazard together
 

with information on the nature ofthe hazard, additional tests performed,and the cost ofcorrecting the hazard
 

identified in the Site Assessment.
 

Bank Statements
 

For accounts held at the Custodian, provide bank statements showing activity and ending balance for the current
 

Due Period.
 

MONTHLY LOAN-LEVEL DETAIL REPORTS
 

Monthly Loan TrinlBalnnce nnciActivity Report
 

PROVIDE A MONTHLY LOAN-LEVEL REPORT
 

IN EXCEL WITH THE FOLLOWING FIELDS:
 

Current Loan Number
 

Prior Servicer Loan Number
 

P&I Constant
 

Note Rate
 

Next Due or Paid-Thru Date
 

Payoff Date (if applicable)
 

Principal Balance, end of prior month
 

Principal collections -regular
 

Principal collections -payoffs
 

Principal proceeds —loan sales
 

Principal Write-Off Amount
 

Other Non-Cash Principal Adjustment
 

Transfer to REO
 

Principal Balance, end of current month
 

Escrow balance
 

Other Advances Balance
 

Interest collections -regular
 

Interest collections -payoffs
 

Interest collections —loan sales
 

Non-Cash Interest Adjustment
 

Late Charges
 

Pre-Payment Penalty Paid
 

Other Fee Income
 

Servicing System Datn Downlond — To Initin!1t~ember
 
Multibank Transactions
 

North CRE Venture 2010-2, LLC
 

FDIC for LLCreporting. This specification and template may be modified from time to time by the Initial
 

Member.
 

The LLC data specification and template maybe accessed at the following link:
 

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

SEMIANNUAL REPORT— TOINITIALlY1EMBER(in Jnnunry and July ofeach year)
 

Proiecte~l Cnsh Flows
 

Excel model of projected cash flows by month,as ofJune 30 and December 31 ofeach year, in format
 

substantially consistent with the Cashflow and Distribution Report included in this Monthly Report.
 

The projection should carry through to the termination date ofthe LLC,providing monthly projections for
 

the first 24 months and quarterly projections thereafter. The projection should include projected cash
 

inflows,outflows,and net distributable funds to the equity holders.
 

ANNUALREPORT— TOINITL4L MEMBER
 

BusinessPlnn
 

Updated Consolidated Business Plan and individual Borrower-Business Relationship Business Plans for 15
 

largest Assets as required pursuant to Section 7.7 ofthe LLC Operating Agreement.
 

ASAVAILABLE— TOINITIAL MEMBER
 

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

Agreement)from the Custodian/Paying Agent,as provided to the Company.
 
EXHIBIT C
 

FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
 

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

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

limited liability company ("Transferor"}, and a 

("Transferee"). 

RECITALS
 

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

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

company(the"Compan_y");
 

WHEREAS,the LLC Interest represents a forty percent(40%)"Percentage Interest" in
 

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

Operating Agreement, effective as of December 15, 2010, by and among the Federal Deposit
 

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

"Initial Member"),Transferor and the Company(the"LLC Operating Agreement"));
 

WHEREAS,the ownership and other rights associated with the LLC Interest are set forth
 

in the LLC Operating Agreement;
 

WHEREAS, pursuant to Section 3.13. of the LLC Operating Agreement, Transferor
 

granted the Initial Member a first priority security interest in the LLC Interest in order to secure
 

certain obligations ofTransferor under the LLC Operating Agreement;
 

WHEREAS, an Event of Default (as defined in the LLC Operating Agreement) has
 

occurred and is continuing, and the Initial Member has elected, pursuant to the LLC Operating
 

Agreement; to foreclose on its security interest in the LLC Interest and effect the assignment
 

contemplated hereby;
 

NOW THEREFORE,in consideration ofthe mutual agreements contained herein and in
 

the LLC Operating Agreement, and for other good and valuable consideration, the receipt and
 

sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the
 

parties hereto agree as follows:
 

1, Assignment and Assumption. Transferor hereby assigns and transfers the LLC
 

Interest to Transferee, and Transferee hereby accepts and assumes the LLC Interest and agrees to
 

be bound by the LLC Operating Agreement, as amended from time to time, to the extent it
 

relates to such LLCInterest.
 

2. Counterparts. This Agreement may be executed in two(2)or more counterparts,
 

all of which shall be considered one and the same agreement and shall become effective when
 

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

telecopy)to the other party.
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION C—I
 
3. No Third Party Beneficiaries. This Agreement shall inure to the benefit of the
 

parties hereto and their respective successors and permitted assigns.. This Agreement is not
 

intended to confer upon any other Person any rights or remedies hereunder.
 

4. Governing Law. The laws of the State of Delaware will govern the validity,
 

performance and enforcement of this Agreement, without giving effect to the principles of
 

conflict oflaws ofthe State ofDelaware or any otherjurisdiction.
 

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

effective as ofthe date first above written.
 

TRANSFEROR:
 

By:
 

Name:
 

Title:
 

TRANSFEREE:
 

By:
 

Name:
 

Title:
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION C-2
 
EXHIBIT D
 

FORM OFLETTER OF CREDIT
 

(Bank Letterhead Stationary)
 

Federal Deposit Insurance Corporation,in its capacity as Initial Member(as defined below)
 

Assistant Director, Structured Deals
 

c/o Federal Deposit Insurance Corporation
 

550 17th Street,NW(Room F-7014)
 

Washington,D.C.20429-0002
 

Attention: Ralph Malami
 

Email Address: RMalamin FDIC.gov
 

Tel:
 

Fax:
 

RE: Irrevocable Transferable Letter ofCredit No. for
 

U,S.$ ,Dated
 

Ladies and Gentlemen:
 

We hereby issue our irrevocable transferable Letter of Credit No.
 

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

including as receiver for the Failed Banks identified pursuant to the LLC Agreement defined
 

below,in its corporate capacity or otherwise,the"FDIC"), as the Initial Member under the LLC
 

Operating Agreement defined below(including its successors,and its assigns as provided herein,
 

the "Initial Member")(such Initial Member being the beneficiary of this Letter of Credit), for
 

the account of( ~ (the "Private Owner").
 

We understand that this Letter of Credit is issued pursuant to the Amended and Restated
 

Limited Liability Company Operating Agreement dated as ofDecember 15,2010(as amended or
 

otherwise modified from time to time,the"LLC Operating A~reennenY'), by and among North
 

CRE Venture 2010-2,LLC(the"Company"),the Private Owner and the Initial Member.
 

We undertake to honor from time to time your draft or drafts presented to us in accordance
 

herewith not exceeding in the aggregate U.S. Dollars
 

(U.S.$ ). All drafts hereunder (i) must be marked "Drawn under irrevocable
 

transferable Letter of Credit No. ,dated ", (ii) must be
 

accompanied by a typewritten statement signed by a purportedly authorized representative ofthe
 

Initial Member stating that an "Event of Default" or "LC Reissuance/Extension Failure" has
 

occurred under(and as defined in)the LLC Operating Agreement,and (iii) shall include the wire
 

transfer instructions for remittance by us ofthe amount ofsuch draft.
 

Nortli CRE Venture 2010-2, LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION D-1
 
Presentation of drafts drawn hereunder, together with the required statement and
 

applicable wire transfer instructions, may be made at any time on or before the expiry date
 

hereof(i) by physical presentation of such draft at, or overnight delivery of such draft to, our
 

offices located at( ], Attention;[ ~, [or (ii) by telecopier (at telecopier
 

number L ~, Attention: ~ ~ without further need of documentation. Each
 

such drawing should be accompanied by contemporaneous telephonic notification to the
 

Attention of the [ 1• Presentation having been so made at or before 12:00 noon
 

([ ~ time) on any day other than a Saturday, Sunday or other day on which all
 

commercial banks in( 1 are authorized or required by law to be closed ("Banking
 

DaY")shall result in paymentto Initial Member in accordance herewith on the same date. Drafts
 

presented after 12:00 noon(( ~ time)or on any day other than a Banking Day,shall
 

result in payment to Initial Member in accordance herewith onthe next Banking Day.
 

This Letter of Credit shall expire at 5:00 p.m.(New York, New York time)on the date
 

that occurs one year after the date hereof L ); provided, however,that this Letter of Credit
 

will be automatically extended without amendment for additional periods of one year each (in
 

each case commencing from the expiry date hereof as then in effect), unless we elect not to
 

extent this Letter of Credit and deliver to the Initial Member written notice of such election at
 

least sixty(60) days prior to any such expiry date. Any such notice shall be in writing and shall
 

be delivered in hand with receipt acknowledged,or by certified mail(return receipt requested),to
 

the Initial Member at its address set forth above (or to such other address for any such notices
 

which Initial Member may hereafter specify in a written notice delivered to the undersigned).
 

Partial and multiple drafts are permitted, and the amount ofthis Letter of Credit will be
 

reduced by each such draft honored.
 

All our charges (including wire transfer fees in connection with any payments by us
 

hereunder and transfer charges in connection with a transfer ofthis Letter of Credit by the FDIC
 

(in any capacity), as Initial Member, to a transferee thereofl are for the account of the Private
 

Owner, and in no event shall any such charges reduce the amount of any draft or payment
 

hereunder.
 

We agree that we shall'have no duty or right to inquire as to the basis upon which Initial
 

Member has determined to present to us any draft under this Letter of Credit. We hereby waive
 

any defense based upon any allegation offraud.
 

This Letter of Credit is transferable to any transferee who has succeeded you as the Initial
 

Member under the LLC Operating Agreement, and may be successively transferred. Any
 

transfer request must be effected by presenting to us the attached form of Attachment I signed by
 

the transferor and the transferee together with the original Letter of Credit. Upon our
 

endorsement ofsuch transfer, or the issuance of an irrevocable transferable letter ofcredit in the
 

name ofthe Transferee, the transferee instead ofthe transferor shall, without necessity offurther
 

action, be entitled to all the benefits of and rights under this Letter of Credit in the transferor's
 

place;provided that,in such case,any drafts ofthe Initial Member to be provided hereunder shall
 

be signed by one who states therein that he is a duly authorized officer or agent ofthe transferee.
 

For purposes of clarification, internal transfers within the FDIC(where following such transfer,
 

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

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION D-2
 
effective without the need for notice or execution and delivery ofany such request for transfer in
 

the form ofAttachment I hereto.
 

Except as otherwise expressly stated herein, this Letter of Credit is subject to the
 

International Standby Practices, International Chamber of Commerce Publication No. 590,
 

including any amendments, modifications or revisions thereof(the"ISP 98"). As to matters not
 

covered by the ISP 98, and to the extent not inconsistent with the ISP 98, this Letter of Credit
 

shall be governed by and construed in accordance with the laws of the State of New York,
 

including without limitation the Uniform Commercial Code as in effect in the State of New
 

York,withoutregard to principals ofconflict oflaws.
 

All ofthe terms and conditions ofthis Letter ofCredit are contained herein and shall not be
 

altered except by reduction in the amount ofthis Letter ofCredit due to corresponding payments
 

in like amount in compliance with the aforementioned terms. Except as otherwise expressly set
 

forth herein,there are no conditions to this Letter ofCredit.
 

Very truly yours,
 

By:_
 

Name
 

Title:
 

North CRE Venture 2010-2, LLC
 

Amended and Restated Operating AyReement
 

EXECUTION VERS70N D-3
 
ATTACHMENTI TO LETTER OF CREDIT
 

REQUEST FOR TRANSFER
 

[Insert Bank Name and Address]
 

RE: Irrevocable Transferable Letter ofCredit No.( 1 for
 

U.S.$ 7, Dated C 1.
 

Gentlemen:
 

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

___],dated (the "Letter of Credit'), issued by you in favor of
 

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

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

assignment) all of its rights in and under the Letter of Credit to [name of Transferee] (the
 

"Transferee")and confirms that the Transferor no longer has any rights under or interest in the
 

Letter ofCredit.
 

The Letter of Credit is returned herewith and we request that you issue an irrevocable
 

transferable letter of credit in the name ofthe Transferee or endorse the transfer on the reverse
 

hereofand provide for notices to be sent to the Transferee at the address set forth below and in
 

all other respects identical to the Letter ofCredit.
 

Transferee hereby certifies that it is a duly authorized transferee under the terms ofthe Letter of
 

Credit and is accordingly entitled, upon presentation ofthe drafts (and applicable items) called
 

for therein, to receive paymentthereunder.
 

Notices under the Letter of Credit should be sent to the Transferee as follows: [Name],
 

[Address],[Attention:_~~],Email•( ~,Fax:~ ~,TeL• ~_].
 

[NAMEOFTRANSFEROR]
 

By
 

[Name and Title ofAuthorized
 

Representative ofTransferor]
 

[NAME OF TRANSFEREE]
 

By
 

[Nameand Title ofAuthorized
 

Representative ofTransferee
 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 
 D-4

SCHEDULEI 

List ofVarious Failed Financial Institutions 

North CRE Venture 2010-2 

Bank Name C~ State Fund Closing Date 

Independent Bankers' Bank Springfield IL 10166 12/18/2009 

Michigan Heritage Bank Farmington MI 10056 4/24/2009 

AmTrust Bank Cleveland OH 10155 12/4/2009 

Irwin Union Bank &Trust Company Columbus IN 10120 9/18/2009 

Irwin Union Bank F.S.B. Columbus IN 10121 9/18/2009 

Warren Bank Warren MI 10125 10/02/2009 

Citizens State Bank New Baltimore MI 10162 12/18/2009 

Bank ofLeeton Leeton MO 10174 1/22/2010 

Broadway Bank Chicago IL 10219 4/23/2010 

Citizens Bank &Trust Company ofChicago Chicago ~ IL ~ 10220 4/23/2010 

CF Bancorp(Citizens First) Port Huron ~ MI ~ 10226 4/30/2010 

Arcola Homestead Savings Bank Arcola ~ IL ~ 10246 6/04/2010 

North CRE Venture 2010-2,LLC
 

Amended and Restated Operating Agreement
 

EXECUTION VERSION 
 S-I
 
Exhibit B
 

Form ofAsset Value Schedule
 

14
 

North CRE Venture 2010-2
 

LLCInterest Sale and Assignment
 

EXECUTION VERSION
 
Exhibit C
 

FORM OF TRANSFEREE ACKNOWLEDGMENT AND CERTIFICATION
 

c-i
 

North CREVenture2010-2
 

LLCInterest Sale and Assignment
 

EXECUTION VERSION
 
TRANSFEREE ACKNOWLEDGMENT AND CERTIFICATION
 

Reference is madeto the Limited Liability Company Interest Sale and Assignment
 

Agreement dated December 15,2010(the"Transferred LLCInterest Sale Agreement")by
 

and among ColFin Milestone North Funding,LLC,a Delaware limited liability company(the
 

` Owner"),the Federal Deposit Insurance Corporation,as receiver for the various failed 

f ~ listed on Schedule I hereto(including its successors and assigns thereto,the 

` Member"),and North CRE Venture 2010-2,LLC,a Delaware limited liability company 

( "Company"). Capitalized terms used, and not otherwise defined,in this Transferee
 

Acknowledgementand Certification have the meanings given in the Transferred LLC Interest
 

Sale Agreement.
 

The undersigned,the Private Owner,hereby acknowledges and certifies to the Initial
 

Member that it hasread and understands,and is prepared to cause the Company to comply with,
 

the obligations imposed upon the Company under the Contribution Agreementand the
 

Transaction Documents(as defined in the Contribution Agreement). Without limiting the
 

foregoing,and subject to the provisions ofthe Contribution Agreement and the Transaction
 

Documents,the Private Owner is aware ofand prepared to cause the Company to comply with
 

the obligations as specified in the Contribution Agreement(i) to remove the Initial Member and
 

the Failed Bank as a party to any litigation or actions with respect to the Assets(as defined in the
 

Contribution Agreement)(including without limitation the actions on the List(as defined
 

below)),and to substitute the Company as the real party-in-interest in any such litigation or
 

actions and(ii)to take all actions necessary to file(x)proofs ofclaims in pending bankruptcy
 

cases involving any Assets for which the Initial Member or the Failed Bank has not already filed
 

a proofofclaim,and(y)all documents required by Rule 3001 ofthe Federal Rules of
 

Bankruptcy Procedure and to take all such similar actions as may be required in any relevant
 

jurisdiction in any pending bankruptcy or insolvency case or proceeding in suchjurisdiction
 

involving any Assets in orderto evidence and assertthe Company's rights,
 

[Remainder ofPage Left Blank Intentionally]
 

North CRE201Q-2
 

Transferee Acknowledgement and Certification
 

EXECUTION VERSION
 
Attached hereto as Schedule II is a list oflitigation made available with respect to the
 

Assets(the"~ls "). The undersigned acknowledges thatthe initial Membermakesno
 

representation or warranty as to the cotnp4eteness or accuracy ofthe List or the information
 

contained or referred to therein and that(without limitation oftheforegoing)there maybe
 

additional litigation oY bankruptcy actions pending againstthe Failed.Bank with respectto the
 

Assets or with respect to other parties with respect to the Assets.
 

PRIVATE OWNER:
 

COLFI~I MILESTONENORTHFUNDING,LLC
 

~sy;---- , ,.
 Ngme: vm
 

Title; ~~.~Hia~r.,L r~r~esw.h7`-a~'tc~~..~
 r
 

NoRh CRB Vcnturc 201Q-2
 

7'~nsforee Acknowledgementand Certification
 

EXECUTION VERSION
 
SCHEDULEI TO TRANSFEREE ACKNOWLEDGEMENT AND CERTIFICATION
 

LIST OFFAILED FINANCIALINSTITUTIONS 

Bank Name C~ State Fund Closing Date 

Independent Bankers'Bank Springfield IL 10166 12/18/2009 

Michigan Heritage Bank Farmington MI 10056 4/24/2009 

AmTrustBank Cleveland OH 10155 12/4/2009 

Irwin Union Bank &Trust Company Columbus IN 10120 9/18/2009 

Irwin Union Bank F.S.B. Columbus IN 10121 9/18/2009 

Warren Bank Warren MI 10125 10/02/2009 

Citizens State Bank New Baltimore MI 10162 12/18!2009 

Bank ofLeeton Leeton MO 10174 1/22/2010 ~ 

Broadway Bank ~ Chicago IL 10219 4/23/2010 

Citizens Bank &Trust Company of Chicago ~ Chicago IL 10220 4/23/2010 

CF Bancorp Citizens First Port Huron MI 10226 4/30/2010 

Arcola Homestead Savings Bank Arcola IL 10246 6/04/2010 

North CRE Venture 2010-2
 

Transferee Acknowledgement end Certification
 

EXECUTION VERSION
 
SCHEDULEII TO TRANSFEREE ACKNOWLEDGEMENT AND CERTIFICATION
 

LIST OFLITIGATION
 

The Initial Member makes no representation or warranty as to thecompleteness or accuracy of
 

this List or the information contained or referred to therein. Withoutlimitation oftheforegoing,
 

there may be additional litigation or bankruptcy actions pending againstthe Failed Bank or the
 

Initial Member with respect to the Assets or with respect to other parties with respect to the
 

Assets.
 

North CRE Venture 2010-2
 

Transferee Acknowledgement and Certification
 

EXECUTION VERSION
 
SCHEDULE II TO TRANSFEREE ACKNOWLEDGEMENT AND
 

CERTIFICATION
 

LIST OFLITIGATION
 

Attached hereto as Schedule II is a list oflitigation made available with respect to the
 

Assets(the"List . The undersigned acknowledges thatthe Initial Member makes no
 

representation or warranty as to the completeness or accuracy ofthe List or the
 

information contained or referred to therein. Withoutlimitation ofthe foregoing,there
 

may be additional litigation or bankruptcy actions pending against the Failed Bank or the
 

Initial Member with respect to the Assets or with respect to other parties with respect to
 

the Assets.
 

North CREVenture 20I0-2
 

LLCInterest Sale and Assignment
 

EXECUTION VERSION
 
Exhibit D
 

FORM OFJOINDER AND CONSENT AGREEMENT
 

n-~
 

NorthCRE Venture 2010-2
 

LLC Interest Sale and Assigmnent
 

EXECUTION VERSION
 
JOINDER AND CONSENT AGREEMENT
 

THIS JOINDER AND CONSENT AGREEMENT,dated as ofDecember 15,2010,is
 

delivered pursuant to Section 1(b)ofthe Limited Liability Company Interest Sale and
 

Assignment Agreement,dated as ofDecember 15,2010,by and among ColFin Milestone North
 

Funding,LLC,a limited liability company organized and existing under the laws ofDelaware
 

(the"Private Owner"),the Federal Deposit Insurance Corporation (in any capacity, the
 

"FDIC"),in its separate capacities as receiver with respect to the separate receiverships for each
 

ofthe various failed financial institutions listed on Schedule I hereto(including its successors
 

and.assigns thereto)(collectively,the "Initial Member"),and North CRE Venture 2010-2,LLC,
 

a limited liability company organized and existing under the laws ofDelaware(the"Company")
 

(the"Transferred LLC•Interest Sale Agreement"). Capitalized terms used herein without
 

definition are used as defined'in the Transferred LI:,C Interest Sale Agreement.
 

By executing and delivering this Joinder and Consent Agreement,the Private Owner
 

hereby becomes a party to the Contribution Agreement,dated as ofthe date ofthis Joinder and
 

Consent Agreement,by and between the Initial Member and the Company(the"Contribution
 

Agreement")with the same force and effect as iforiginall y named as a party to the Contribution
 

Agreement and,without limiting the generality ofthe foregoing, consents to and assumes all
 

obligations and liabilities imposed upon the Private Owner pursuant to the Contribution
 

Agreement. ThePrivate Owner hereby agrees to be bound for all intents and purposes as a party
 

to the Contribution Agreement.
 

[Remainder ofpage intentionally left blank)
 

North CRE Venture 2010-2
 

Joinder and Consent Agreement
 

e
 
2 

IN WITNESS WHEREOF,the Private Owner has caused this Joinder and Consent
 

Agreement to be duly executed and delivered as ofthe date first above written.
 

COLFIN 1~7lLESTONE NORTH FUNDING,LLC
 

N
 

ACKNOWLEDGED AND AGREED as ofthe date
 

first above written;
 

FEDERAL DEPOSITINSURANCE
 

CORPORATION,as receiver for Various Failed
 

Financial Institutions listed on Schedule I hereto, as
 

the Initial Member
 

By:
 

Name: Heidi Silverberg
 

Title: Attorney-in-Fact
 

NORTI3 ARE VENTURE 2010-2,LLC,
 

as the Company
 

By: 	 Federal Deposit Insurance Corporation as
 

Receiver for Various Failed Financial
 

Institutions Listed on Schedule IHereto,as Sole
 

Member and Manager
 

By:
 

Name: I-ieidi Silverberg
 

Title: Attorney-in-Fact
 

[Signature Page In.loinder and Consent Agreement]
 

North CRE Venture 2010-2
 

EXECUTION VERSION
 
IN WITNESS WHE~tEOP,the Private Owner has caused this 3oinder and Consent
 

Ageementto be duly executed and delivered as ofthe date first above written.
 

COLFIN MILESTONE NORTHFUNDING,LLC
 

B
 

Title; 	R'u.~;lipi•1~~°~- ,P~A~-~~~ri~'4~t-~
 

ACKNOWLEDGED AND AGREED as ofthe date
 

first above written;
 

FEDERALDEPOSITINSURANCE
 

CORPORATION,as receiver for Various Failed
 

Financial Institutions listed on ScheduleIhereto,as
 

the Initial Member
 

Name: kIeidi Silverberg
 

Title; Attorney-in-Fact
 

NORTH CRE'VENTURE2010-2,LLC,
 

as the Company
 

By: 	 Federal Deposit Insurance Corporation as
 

Receiver for Various Failed Financial
 

Institutions Listed on Schedule I Hereto,as Sole
 

Member and Manager
 

By:
 

Name; Heidi Silverberg
 

Title: Attorney-in-Fact
 

(5ignauuoPageto Jnindar and Convent AgRement]
 

No~tA CREYertturo2010.2
 

FXE'.CUT10N VERSIAN
 
2 

IN WITNESS WHEREOF,the Private Owner has caused this Joinder and Consent
 

Agreement to be duly executed and delivered as ofthe date first above written.
 

COLFIN MILESTONENORTHFUNDING,LLC
 

I:
 

Name:
 

Title:
 

ACKNOWLEDGED AND AGREED as ofthe date
 

first above written:
 

FEDERAL DEPOSITINSURANCE
 

CORPORATION,as receiver for Various Failed
 

Financial Institutions listed on Schedule I hereto, as
 

the Initial Member
 

By.
 

Name: Heidi Silverberg
 

Title; Attorney-in-Fact
 

NORTH CRE VENTURE2010-2,LLC,
 

as the Company
 

By: 	 Federal Deposit Insurance Corporation as
 

Receiver for Various Failed Financial
 

Institutions Listed on Schedule I Hereto,as Sole
 

Member and Manager
 

By:
 

Name: Heidi Silverberg _
 

Title: Attorney-in-Fact
 

[Signature Page to Joinder and Consent Agreement]
 

North CRE Venture 2010-2
 

EXECUTION VERSION
 
SCHEDULEI TO JOINDER AND CONSENT AGREEMENT
 

LIST OFFAILED FINANCIALINSTITUTIONS
 

Multibank Structured Transaction NORTH CRE2010-2
 

Bank Name C~ State Fund Closing Date
 

IndependentBankers'Bank Springfield IL 10166 12/18/2009
 

Michigan Heritage Bank Farmington MI 10056 4/24/2009
 

AmTrust Bank Cleveland OH 10155 12/4/2009
 

Irwin Union Bank &Trust Com an Columbus IN 10120 9/18/2009
 

Irwin Union Bank F.S.B. Columbus ( IN 10121 9/18/2009
 

Warren Bank Warren ( MI 10125 10/02/2009
 

Citizens State Bank New Baltimore ( MI 10162 12/18/2009
 

Bank ofLeeton Leeton ~ MO 10174 1/22/2010
 

Broadwa Bank Chicago IL 10219 4/23/2010
 

Citizens Bank &TrustCom an ofChica o Chicago IL 10220. 4/23/2010
 

CF Banco (Citizens First PortHuron MI 10226 4/30/2010
 

Arcola Homestead Savings Bank Arcola IL 10246 ~ 6/04/2010
 

[Signature Page to Joinder and Consent Agreement]
 

Norih CRE Venture 2010-2
 

EXECUTION VER510N