2010-1 RADC/CADC Venture Structured Transaction 

EXECUTION COPY 

ASSET CONTRIBUTION AND SALE AGREEMENT
 

BY AND BETWEEN
 

THE FEDERAL DEPOSIT INSURANCE CORPORATION IN ITS
 

CAPACITY AS RECEIVER FOR VARIOUS FAILED FINANCIAL
 

INSTITUTIONS
 

AND
 

2010-1 RADC/CADC VENTURE, LLC
 

Dated as of August 26, 2010
 

2010-1 RADC/CADC Venture Structured Transaction 

Asset Contribution and Sale Agreement 

OHS East:160754685.5 
TABLE OF CONTENTS
	

Article I Definitions and Construction................................................................................... 2
	

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

Section 1.2 Construction. ........................................................................................................... 5
	

Article II Contribution and Sale of Assets .............................................................................. 6
	

Section 2.1 Terms and Conditions.............................................................................................. 6
	

Section 2.2 Liabilities Assumed by the Company...................................................................... 7
	

Section 2.3 Allocation of Payments; Interim Servicing Expenses and Pre-Approved Charges. 7
	

Section 2.4 Adjustments............................................................................................................. 8
	

Section 2.5 Rebates and Refunds. .............................................................................................. 9
	

Section 2.6 Interest Conveyed. ................................................................................................... 9
	

Section 2.7 Retained Claims..................................................................................................... 10
	

Section 2.8 Transfer Taxes. ...................................................................................................... 10
	

Section 2.9 Assets Subject to Existing Agreements. ................................................................ 10
	

Article III Transfer of Assets, Collateral Documents and Interim Servicing.........................10
	

Section 3.1 Delivery of Documents.......................................................................................... 10
	

Section 3.2 Recordation of Documents. ................................................................................... 14
	

Section 3.3 Transfer of Servicing. ............................................................................................ 15
	

Section 3.4 Grant of Power of Attorney by Company. ............................................................ 17
	

Article IV Covenants, Duties and Obligations of the Company............................................. 18
	

Section 4.2 Collection Agency/Contingency Fee Agreements. ............................................... 18
	

Section 4.3 Insured or Guaranteed Assets................................................................................ 18
	

Section 4.4 Reporting to or for the Applicable Taxing Authorities. ........................................ 18
	

Section 4.5 Assets in Litigation. ............................................................................................... 19
	

Section 4.6 Assets in Bankruptcy. ............................................................................................ 22
	

Section 4.7 Asset-Related Insurance. ....................................................................................... 23
	

Section 4.8 Loans with Escrow Accounts. ............................................................................... 23
	

Section 4.9 Initial Member as Lead Lender in Asset Participations. ....................................... 23
	

Section 4.10 Contracts for Deed................................................................................................. 24
	

Section 4.11 Acquired Property. ................................................................................................ 24
	

Section 4.12 Leases. ................................................................................................................... 24
	

Section 4.13 Notice to Borrowers. ............................................................................................. 24
	

Section 4.14 Notice of Claims.................................................................................................... 24
	

Section 4.15 Use of the FDIC’s Name and Reservation of Statutory Powers. ..........................24
	

Section 4.16 Prior Servicer Information..................................................................................... 25
	

Section 4.17 Release of Initial Member, FDIC and Failed Banks. ............................................ 25
	

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Article V Assets Sold “As Is” and Without Recourse ........................................................... 25
	

Section 5.1 Assets Conveyed “As Is”....................................................................................... 25
	

Section 5.2 No Warranties or Representations with Respect to Escrow Accounts..................26
	

Section 5.3 No Warranties or Representations as to Amounts of Unfunded Principal. ...........26
	

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any Asset.......... 26
	

Section 5.5 No Warranties or Representations With Regard to Information. ..........................26
	

Section 5.6 Intervening or Missing Assignments..................................................................... 27
	

Section 5.7 No Warranties or Representations as to Documents. ............................................ 27
	

Article VI Repurchase by Initial Member at Company’s Option .......................................... 27
	

Section 6.1 Repurchases at Company’s Option........................................................................ 27
	

Section 6.2 Notice to Initial Member. ...................................................................................... 29
	

Section 6.3 Re-delivery of Notes, Files and Documents. ......................................................... 30
	

Section 6.4 Waiver of Company’s Repurchase Option. ........................................................... 30
	

Article VII Notices................................................................................................................... 31
	

Section 7.1 Notices................................................................................................................... 31
	

Section 7.2 Article VI Notice. .................................................................................................. 31
	

Section 7.3 Transfer Documents. ............................................................................................. 32
	

Section 7.4 All Other Notices................................................................................................... 32
	

Article VIII Miscellaneous Provisions ...................................................................................... 33
	

Section 8.1 Severability. ........................................................................................................... 33
	

Section 8.2 Governing Law. ..................................................................................................... 34
	

Section 8.3 Cost, Fees and Expenses........................................................................................ 34
	

Section 8.4 Waivers; Amendment and Assignment. ................................................................ 34
	

Section 8.5 No Presumption. .................................................................................................... 35
	

Section 8.6 Entire Agreement................................................................................................... 35
	

Section 8.7 Jurisdiction; Venue and Service ............................................................................ 36
	

Section 8.8 Waiver of Jury Trial. ............................................................................................. 37
	

Section 8.9 Counterparts; Facsimile Signatures. ...................................................................... 37
	

Section 8.10 Headings. ............................................................................................................... 38
	

Section 8.11 Compliance with Law............................................................................................ 38
	

Section 8.12 Right to Specific Performance............................................................................... 38
	

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Attachments and Schedule 

Attachment A —		 Asset Schedule 

Attachment B —		 Asset Value Schedule 

Attachment C —		 Ownership Entity Schedule 

Attachment D —		 Affidavit and Assignment of Claim 

Attachment E —		 Allonge 

Attachment F —		 Assignment and Lost Instrument Affidavit 

Attachment G-1 —		 Assignment of Real Estate Mortgage 

Attachment G-2 —		 Assignment of Real Estate Deed of Trust 

Attachment H —		 Assignment of Assignment of Leases and Rents and Other Loan 

Documents 

Attachment I —		 Assignment and Acceptance of Limited Liability Company Interest 

Attachment J —		 Limited Power of Attorney 

Schedule I List of Failed Financial Institutions 

Schedule II List of Purchase Money Notes 

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ASSET CONTRIBUTION AND SALE AGREEMENT
	

THIS ASSET CONTRIBUTION AND SALE AGREEMENT (as the same shall be 

amended or supplemented, this “Agreement”) is made and entered into as of the 26th day of 

August, 2010 (the “Closing Date”) by and between THE FEDERAL DEPOSIT INSURANCE 

CORPORATION (acting in its several capacities, the “FDIC”) IN ITS CAPACITY AS 

RECEIVER FOR EACH OF THE FAILED FINANCIAL INSTITUTIONS LISTED ON 

SCHEDULE I (including its successors and assigns thereto, the “Initial Member”), and 2010-1 

RADC/CADC VENTURE, LLC, a Delaware limited liability company (the “Company”). 

RECITALS 

WHEREAS the FDIC has separately been appointed as receiver for each of the Failed 

Banks; and 

WHEREAS the Initial Member owns the Assets described on the Asset Schedule 

attached to this Agreement as Attachment A (the “Asset Schedule”); and 

WHEREAS the Initial Member has determined to liquidate the Assets; and 

WHEREAS the Initial Member has formed the Company and holds the sole membership 

interest in the Company; and 

WHEREAS the Initial Member desires to transfer the Assets to the Company, partly as a 

capital contribution and partly as a sale, in the manner and on the terms and conditions more 

fully set forth in this Agreement; and 

WHEREAS the Initial Member and the Private Owner agree that the transfer of each 

Asset by the Initial Member to the Company occurs partly as a sale and partly as a contribution, 

and, furthermore, the Initial Member and the Private Owner agree that 47.82% of each Asset is 

sold to the Company and 52.18% of each Asset is contributed to the Company; 

WHEREAS the Initial Member and the Company desire that, in consideration of the 

transfer of the Assets to the Company to the extent such transfer constitutes a sale, the Company 

will issue, execute and deliver to the Initial Member the Company’s Purchase Money Notes 

dated as of the Closing Date with the maturity dates and in the principal amounts set forth on 

Schedule II, which Purchase Money Notes will not at the time of initial issuance be guaranteed 

by the FDIC in its corporate capacity (the “Non-Guaranteed Purchase Money Notes”) but will 

be convertible into Purchase Money Notes guaranteed by the Purchase Money Notes Guarantor 

upon election by the Initial NGPMN Holder (with the consent of the Purchase Money Notes 

Guarantor); and 

WHEREAS if some or all of the Purchase Money Notes are converted into Guaranteed 

Purchase Money Notes, then the Company will be obligated to reimburse the FDIC for any 

guaranty payments made pursuant to the Purchase Money Notes Guaranty and such 

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reimbursement obligation will be secured by the assets of the Company, all pursuant to the 

Reimbursement, Security and Guaranty Agreement and the Collateral Documents; 

WHEREAS the Receiver has agreed to make advances to the Company pursuant to and 

in accordance with the terms of the Advance Facility Agreement and the Advance Facility 

Documents to enable the Company, among other things, to (i) pay or make, as applicable, 

Working Capital Expenditures (ii) replenish the Working Capital Reserve up to the thenapplicable Working Capital Reserve Target and (iii) make payments for Substantially Complete 

Vertical Construction, in each case subject to the terms and conditions set forth in the Advance 

Facility Agreement; and 

WHEREAS, pursuant to the Transferred LLC Interest Sale Agreement, the Initial 

Member has agreed to sell and transfer the Transferred LLC Interest to the Private Owner for the 

Transferred LLC Interest Sale Price; and 

WHEREAS the Transferred LLC Interest Sale Price has been allocated among the Assets 

by the Private Owner (such allocated amount with respect to an Asset, the “Asset Value”), as set 

forth on Attachment B to this Agreement; and 

WHEREAS the Initial Member and the Company desire to memorialize their agreement 

relating to the contribution and sale of the Assets to the Company and certain other matters as set 

forth in this Agreement; 

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

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

sufficiency of which are hereby acknowledged, the Initial Member and the Company hereby 

agree as follows: 

Article I
	

Definitions and Construction
	

Section 1.1 Definitions. For purposes of this Agreement, certain terms used in this 

Agreement shall have the meanings and definitions set forth in that certain Agreement of 

Common Definitions dated of even date herewith among the Initial Member, the Company and 

others. In addition, for purposes of this Agreement, the following terms shall have the meanings 

and definitions hereinafter respectively set forth: 

“Accounting Records” means the general ledger, supporting subsidiary ledgers and 

schedules, and loan servicing system records of the Initial Member. 

“Action” means any claim, action, suit, arbitration or proceeding, whether at law or in 

equity, before or by a Governmental Authority. 

“Adjusted Unpaid Principal Balance” means, with respect to any Asset, the Cut-Off 

Date Unpaid Principal Balance adjusted higher or lower, as appropriate, to reflect the actual 

Unpaid Principal Balance of the Asset as of the Cut-Off Date on the Accounting Records and to 

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correct errors reflected in the Cut-Off Date Unpaid Principal Balance due to (i) miscalculations, 

misapplied payments, unapplied payments, unrecorded advances of principal or other 

disbursements, or other accounting errors with respect to the period ending on the Cut-Off Date, 

(ii) the effect of any final court decree, unappealable regulatory enforcement order or other 

similar action of a legal or regulatory nature effective on or before the Cut-Off Date, (iii) a 

foreclosure sale that occurred on or before the Cut-Off Date or (iv) the portion of any 

Dishonored Check that was applied to (and reflected in) the Cut-Off Date Unpaid Principal 

Balance. 

“Adjusted Escrow Balance” means, with respect to any Loan, the Escrow Balance 

adjusted higher or lower, as appropriate, to reflect the actual balance of the Escrow Account as 

reflected on the Accounting Records as of the Cut-Off Date and to correct errors reflected in the 

Escrow Balance due to (i) miscalculations, misapplied payments, unapplied payments, 

unrecorded disbursements or other accounting errors with respect to the period ending on the 

Cut-Off Date, (ii) the effect of any final court decree, unappealable regulatory enforcement order 

or other similar action of a legal or regulatory nature effective on or before the Cut-Off Date, (iii) 

a foreclosure sale that occurred on or before the Cut-Off Date, or (iv) the portion of any 

Dishonored Check that was applied to (and reflected in) the Escrow Balance. 

“Adjustment Percentage” means, with respect to any Asset, the quotient (expressed as a 

decimal) of the Asset Value for such Asset divided by the Cut-Off Date Unpaid Principal 

Balance of such Asset. 

“Affected Asset” has the meaning given that term in Section 4.5(d)(i). 

“Affidavit and Assignment of Claim” means an Affidavit and Assignment of Claim in 

the form of Attachment D to this Agreement. 

“Agreement” has the meaning given that term in the preamble to this Agreement and 

includes all exhibits, schedules and attachments to this Agreement. 

“Asset Value” has the meaning given that term in the recitals. 

“Asset Value Schedule” means the schedule attached to this Agreement as Attachment B 

that sets forth the portions of the Transferred LLC Interest Sales Price allocated among the 

Assets by the Private Owner based upon their relative values. 

“Assignment and Acceptance of Limited Liability Company Interest” means an 

Assignment and Acceptance of Limited Liability Company Interest in the form of Attachment I 

to this Agreement. 

“Assignment and Lost Instrument Affidavit” means an Assignment and Lost 

Instrument Affidavit in the form of Attachment F to this Agreement. 

“Bankruptcy Rule” means any of the rules set forth under the Federal Rules of 

Bankruptcy Procedure, as the same might be amended from time to time. 

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“Cut-Off Date Unpaid Principal Balance” means, with respect to any Asset, the 

estimate of the Unpaid Principal Balance of the Loan as of the Cut-Off Date as stated on the 

Asset Schedule. 

“Dishonored Check” means any check or similar instrument that has been returned due 

to insufficient funds or a stop payment order. 

“Equity Asset Value” means, respect to any Asset, (i) the product of the Asset Value of 

such Asset multiplied by 2.5. 

“Escrow Balance” means, with respect to any Loan, the positive escrow balance (if any) 

in the Escrow Account with respect to that Loan, as reflected on the Asset Schedule. 

“Excess Damage Liability” has the meaning given that term in Section 4.5(d)(i). 

“Excess Principal” has the meaning given that term in Section 2.4(c). 

“Excluded Liabilities Litigation” has the meaning given that term in Section 4.5(a)(i). 

“Foreign Jurisdiction” means any jurisdiction other than the United States, and any 

subdivision of or in such other jurisdiction. 

“Foreign Asset” means an Asset with respect to which the Borrower or any of the 

Collateral is located in any Foreign Jurisdiction. 

“Limited Power of Attorney” means the Limited Power of Attorney in the form of 

Attachment J to this Agreement. 

“Obligations” means (i) all obligations and commitments of the Initial Member relating 

to an Asset and arising or due or payable after the Cut-Off Date pursuant to and in accordance 

with any of the related Notes, Collateral Documents, Asset Documents or Related Agreements, 

including specifically all obligations and commitments of the Initial Member pursuant to any 

operating or similar agreement with respect to the Ownership Entities formed by the Receiver or 

any predecessor in interest; and (ii) any obligation to pay real estate taxes, penalties, interest and 

other amounts relating to such Assets that are outstanding and/or delinquent as of the Cut-Off 

Date or become due after the Cut-Off Date in accordance with the LLC Operating Agreement, 

including without limitation the Servicing Standards. 

“Order” has the meaning given that term in Section 6.1. 

“Principal Deficiency” has the meaning given that term in Section 2.4(c). 

“Purchase Money Notes Asset Value” means, with respect to any Asset, the (i) product 

of (A) the aggregate original principal amount of the Purchase Money Notes and (B) the quotient 

(expressed as a decimal) of the Asset Value of such Asset divided by the Transferred LLC 

Interest Sale Price minus (ii) the result when the Unpaid Principal Balance of the Asset as of the 

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date of repurchase is subtracted from the Adjusted Unpaid Principal Balance of the Asset (which 

result might be a negative number). 

“Released Parties” has the meaning given that term in Section 4.17(b). 

“Repurchase Price” means, with respect to any Asset, an amount equal to the sum of (i) 

the Equity Asset Value of such Asset plus the Purchase Money Notes Asset Value of such Asset 

plus (ii) unreimbursed Servicing Expenses that have been advanced by the Company with 

respect to such Asset (excluding any expenses described in Section 12.7(a) of the LLC Operating 

Agreement) as of the date of the repurchase minus (iii) the amount of any positive Escrow 

Balance with respect to such Asset as of the date of the repurchase that is not transferred to the 

Initial Member at the time of the repurchase. 

“Transfer Documents” means the endorsements and allonges to Notes, Assignment and 

Lost Instrument Affidavits (if applicable), Mortgage Assignments, deeds, assignment of leases, 

assignments of Ownership Entity interests and other documents of assignment, conveyance or 

transfer required pursuant to any applicable Law to evidence the transfer to the Company of the 

Assets, the Collateral and the Collateral Documents and the Initial Member’s rights with respect 

to the Assets and the Collateral. The form Allonge to be used in preparation of the Transfer 

Documents is attached to this Agreement as Attachment E, the form of Assignment and Lost 

Instrument Affidavit to be used in preparation of the Transfer Documents is attached to this 

Agreement as Attachment F, the forms of Assignment of Real Estate Mortgage and Assignment 

of Real Estate Deed of Trust to be used in the preparation of the Transfer Documents are 

attached to this Agreement as Attachments G-1 and G-2, respectively, the form of the 

Assignment of Assignment of Leases and Rents and Other Loan Documents to be used in the 

preparation of the Transfer Documents is attached to this Agreement as Attachment H and the 

form of the Assignment and Acceptance of Limited Liability Company Interest to be used in the 

preparation of the Transfer Documents is attached to this Agreement as Attachment I. 

“Transfer Taxes” means any taxes, assessments, levies, imposts, duties, deductions, 

fees, withholdings or other charges of whatever nature (other than any taxes imposed on or 

measured by net income or any franchise taxes), including interest and penalties thereon, 

required to be paid to any taxing authority with respect to the transfer of the Assets, the 

Collateral and the Collateral Documents or the rights in the Collateral or the assignment and 

assumption of the Obligations thereunder. 

Section 1.2 Construction. This Agreement shall be construed and interpreted in 

accordance with the following: 

(a) References to “Affiliates” include only other Persons that from time to 

time constitute “Affiliates” of such specified Person, and do not include, at any particular time, 

other Persons that might have been, but at such time have ceased to be, “Affiliates” of such 

specified Person, except to the extent that any such reference specifically provides otherwise. 

(b) The term “or” is not exclusive. 

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

replacement to such Law. 

(d) Accounting terms have the meanings assigned to them by GAAP applied 

on a consistent basis by the accounting entity to which they refer. 

(e) References to any document, instrument or agreement (i) are 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) mean such 

document, instrument or agreement, or replacement thereto, as amended, modified and 

supplemented from time to time in accordance with its terms and as the same is in effect at any 

given time. 

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

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

provision of this Agreement. 

(g) The words “include” and “including” and words of similar import are not 

limiting and are to be construed to be followed by the words “without limitation,” whether or not 

they are in fact followed by such words. 

(h) The word “during,” when used with respect to a period of time, is to be 

construed to mean commencing at the beginning of such period and continuing until the end of 

such period. 

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

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

to include the personal pronoun of the appropriate gender. 

Article II
	

Contribution and Sale of Assets
	

Section 2.1 Terms and Conditions. The Initial Member hereby conveys to the 

Company, and the Company hereby acquires and accepts from the Initial Member, without 

recourse, as of the Closing Date, by way of a sale to the extent of the initial aggregate principal 

amount of the Purchase Money Notes and otherwise as a capital contribution, all right, title and 

interest of the Initial Member in and to: 

(a) the Assets (including all Receiver Acquired Property, equity and other 

interests in the Ownership Entities identified on Attachment C attached to this Agreement, 

Notes, the other Assets Documents and Related Agreements), including all future advances made 

with respect thereto, effective as of the Closing Date, and all rights in the Collateral pursuant to 

the Collateral Documents; 

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(b) all amounts payable to the Initial Member pursuant to the Asset 

Documents and all obligations owed to the Initial Member in connection with the Assets and the 

Asset Documents after the Closing Date; 

(c) all claims, suits, causes of action and any other right of the Initial Member, 

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

Affiliates, agents, representatives, contractors, advisors or any other Person arising pursuant to 

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

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

claims and all other claims at law or in equity arising pursuant to or in connection with the Asset 

Documents or the transactions related thereto or contemplated thereby (including any Deficiency 

Judgment Claim of the Initial Member or Receiver), excluding, however, any and all claims, 

suits, causes or action and other rights retained by the Initial Member pursuant to Section 2.7; 

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

account of the Initial Member under the Assets after the Closing Date, including all distributions 

received through redemption, consummation of a plan of reorganization, restructuring, 

liquidation or otherwise of a Borrower or Obligor pursuant to or with respect to the Assets, and 

any securities, interest, dividends or other property that might be distributed or collected with 

respect to any of the foregoing; and 

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

any of the foregoing, and the rights to receive such proceeds thereof. 

Section 2.2 Liabilities Assumed by the Company. The Company hereby assumes 

and agrees as of the Cut-Off Date to perform and pay all of the Obligations. The Initial Member 

and the Company agree that the conveyance contemplated by Section 2.1 and the other 

provisions of this Agreement is intended to be an absolute conveyance and transfer of ownership 

of the Assets in part by capital contribution and in part by sale. Notwithstanding anything to the 

contrary in this Agreement, however, it is understood and agreed that, except for the Obligations, 

the Initial Member shall not assign and the Company shall not assume or be liable for any of the 

following liabilities (the “Excluded Liabilities”):(a) any monetary claim against or 

monetary liability of the FDIC in its capacity as receiver for the Failed Banks that, was, is or will 

be subject to or is required to be asserted through the receivership administrative claims process 

administered by the FDIC in its capacity as receiver for the Failed Banks pursuant to 12 U.S.C. 

Section 1821(d)(3) through (13); and 

(b) any monetary claim against or monetary liability based on any alleged act 

or omission of a Failed Bank that is not provable or allowable, or is otherwise barred against 

FDIC as receiver for the Failed Bank under applicable Law, including claims and liabilities that 

are barred under 12 U.S.C. Sections 1821(c), (d), (e) (including Section 1821(e)(3)), (i), (j); 12 

U.S.C. Section 1822; 12 U.S.C. Section 1823; or 12 U.S.C. Section 1825. 

Section 2.3 Allocation of Payments; Interim Servicing Expenses and PreApproved Charges. 

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(a) All payments and other amounts received on account of any of the Assets 

or Collateral on or before the Cut-Off Date shall be retained by and shall belong to the Initial 

Member. Any and all Assets Proceeds received at any time after the Cut-Off Date shall be 

allocated and distributed to and shall belong to the Company. 

(b) The Initial Member shall be paid or reimbursed as soon as practicable after 

each Servicing Transfer Date for Interim Servicing Expenses and Pre-Approved Charges an 

Existing Servicer pays after the Cut-Off Date through the Servicing Transfer Date out of its own 

funds (rather than withdrawing such funds from the Collection Account or the Working Capital 

Reserve Account, requesting an advance pursuant to the Advance Facility or otherwise using 

Asset Proceeds to pay for the respective Interim Servicing Expenses or Pre-Approved Charges). 

Any such amounts for Interim Servicing Expenses or Pre-Approved Charges paid after the CutOff Date through the Servicing Transfer Date owed to but not reimbursed to the Initial Member 

on the Servicing Transfer Date for the respective Asset shall be reimbursed by the Company to 

the Initial Member on demand. 

(c) The Initial Member shall be responsible for reimbursing each third-party 

Existing Servicer for any payments made by such third-party Existing Servicer to fund Interim 

Servicing Expenses or Pre-Approved Charges with respect to an Asset, as well as for any 

advances of principal or interest or any other advances with respect to an Asset made by such 

third-party Existing Servicer. The Initial Member also shall be responsible for paying any fee 

owing to an Existing Servicer in connection with the termination of any servicing agreement 

with such Existing Servicer. 

Section 2.4 Adjustments. 

(a) The Private Owner shall, and shall cause the Servicer to, cooperate with 

the Initial Member in reconciling the amounts of advances made with respect to each Asset prior 

to the Servicing Transfer Date for such Asset to fund Interim Servicing Expenses, Pre-Approved 

Charges or otherwise. As soon as practicable after the respective Servicing Transfer Date, the 

Initial Member shall provide the Company with a statement setting forth, for each Asset that is 

the subject of such Servicing Transfer Date, the amount of all advances made with respect to 

such Loan prior to the Servicing Transfer Date for such Asset and the amount of any 

reimbursement of advances that the Initial Member has received from the respective Borrower or 

other Obligor. 

(b) As soon as practicable after each respective Servicing Transfer Date, the 

Initial Member shall provide the Company with a statement setting forth, for each Asset that is 

the subject of such Servicing Transfer Date, the Adjusted Unpaid Principal Balance, Adjusted 

Escrow Balance and the Unpaid Principal Balance as of the Servicing Transfer Date. Each such 

statement shall be accompanied by an explanation of the reasons for any adjustment to any CutOff Date Unpaid Principal Balance or Escrow Balance. 

(c) If the Adjusted Unpaid Principal Balance of any Asset exceeds the CutOff Date Unpaid Principal Balance of such Asset (such excess, the “Excess Principal”), the 

Private Owner shall be liable to the Initial Member for an amount equal to the Adjustment 

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Percentage multiplied by the Excess Principal. If the Cut-Off Date Unpaid Principal Balance of 

any Asset exceeds the Adjusted Unpaid Principal Balance of any Asset (such deficiency, the 

“Principal Deficiency”), the Initial Member shall be liable to the Private Owner for an amount 

equal to the Adjustment Percentage multiplied by the Principal Deficiency. No adjustment will 

be made for any miscalculation of interest on any Asset. 

(d) As soon as practicable after each Servicing Transfer Date, the aggregate 

amount owed by the Private Owner to the Initial Member pursuant to Section 2.4(c) (excluding 

the amount of any Interim Servicing Expenses or Pre-Approved Charges due to the Initial 

Member) shall be subtracted from the aggregate amount owed to the Private Owner by the Initial 

Member pursuant to Section 2.4(c). If the resulting amount is a positive number, the Initial 

Member shall pay such amount to the Private Owner, and if the resulting amount is a negative 

number, the Private Owner shall pay the absolute value of such amount to the Initial Member. In 

addition, an amount equal to the positive balance of any Escrow Accounts with respect to the 

relevant Group of Assets as of each Servicing Transfer Date shall be remitted to the Servicer 

(and shall not be considered to constitute Loan Proceeds pursuant to the LLC Operating 

Agreement or Custodial and Paying Agency Agreement). Any monies due to the Private Owner 

or the Initial Member pursuant to this Section with respect to a given Loan shall be paid on the 

respective Servicing Transfer Date. The Company shall adjust its records to reflect the Adjusted 

Unpaid Principal Balances, the Adjusted Escrow Balances and the Unpaid Principal Balances 

with respect to the Assets. 

Section 2.5 Rebates and Refunds. The Company is not entitled to any rebates or 

refunds from the Initial Member or the Failed Bank from any pre-computed interest Loan 

regardless of when the Note matures. Further, on pre-computed interest Loans, neither the Initial 

Member nor the Failed Bank will refund any unearned discount amounts to the Company. 

Section 2.6 Interest Conveyed. In the event a foreclosure occurs after the Cut-Off 

Date, the Initial Member shall convey to the Company the Deficiency Balance, if any, the 

Deficiency Judgment Claim, if any, and any related Underlying Loan, together with the net 

proceeds, if any, of such foreclosure sale. If the Initial Member was the purchaser at such 

foreclosure sale, the Initial Member shall convey to the Company the Deficiency Balance, if any, 

and any related Underlying Loan, together with a special warranty deed to the Receiver Acquired 

Property purchased at such foreclosure sale (unless the Receiver Acquired Property was 

purchased by an Ownership Entity, in which case the Initial Member shall convey to the 

Company all equity interests in such Ownership Entity). The Company acknowledges and 

agrees that the Company shall not acquire any interest in or to any performance or completion 

bond or letter of credit or other assurance filed with any Governmental Authority with respect to 

any Asset for the purpose of ensuring that improvements constructed or to be constructed are 

completed in accordance with any governmental regulations or building requirements applicable 

to the proposed or completed improvement to the extent that any such performance or 

completion bond or letter of credit or other assurance constitutes a promise or obligation of the 

Initial Member or the Failed Bank to make any payment or otherwise provide any performance 

or satisfaction. 

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Section 2.7 Retained Claims. Notwithstanding anything to the contrary in this 

Agreement, the Company and the Initial Member agree that the contribution and sale of the 

Assets pursuant to this Agreement will exclude the transfer to the Company of any right, title and 

interest of the Initial Member, the respective Failed Bank and any predecessors-in-interest 

thereto in and to any and all claims of any nature whatsoever that now might exist or hereafter 

might arise, whether known or unknown, that the Initial Member, the Failed Bank or 

predecessors-in-interest thereto have or had or that any might have or might have had, regardless 

of when any such claim is discovered, against any of the following: (a) officers, directors, 

employees, insiders, accountants, attorneys, other persons employed by the Initial Member, any 

Failed Bank or any of its predecessors-in-interest, underwriters or any other similar Persons who 

might have caused a loss to the Initial Member, any Failed Bank or any of its predecessors-ininterest in connection with the initiation, origination, servicing or administration of an Asset; (b) 

any appraisers, accountants, auditors, attorneys, investment bankers or brokers, loan brokers, 

deposit brokers, securities dealers or other professional individuals or Persons who performed 

services for the Initial Member, any Failed Bank or any of its predecessors-in-interest relative to 

the initiation, origination, servicing or administration of an Asset; (c) any third parties for alleged 

fraud, misrepresentation or other misconduct in connection with the initiation, origination or 

servicing of an Asset; or (d) any appraiser or other Person with whom the Initial Member, any 

Failed Bank or any of their predecessors-in-interest or any servicing agent contracted for services 

or title insurance or closing protection coverage in connection with the initiation, origination, 

insuring or servicing of an Asset; provided, however, that claims under and pursuant to a title 

insurance policy shall not constitute excluded or retained claims pursuant to this Section 2.7. 

Section 2.8 Transfer Taxes. Except as otherwise provided in this Agreement, the 

Company shall pay, indemnify and hold harmless the Initial Member from and against any 

Transfer Taxes and shall file timely any returns required to be filed with respect to such Transfer 

Taxes; provided, however, that the Initial Member shall pay (and shall not be entitled to be 

reimbursed for) any Transfer Taxes in the nature of mortgage recording taxes and shall file 

timely any returns required to be filed with respect to such Transfer Taxes. Taxes paid by the 

Company pursuant to this Section shall constitute Pre-Approved Charges. 

Section 2.9 Assets Subject to Existing Agreements. Notwithstanding any provision 

of this Agreement to the contrary, and as contemplated by the Company’s assumption of the 

Obligations pursuant to Section 2.2, the Company acknowledges and agrees that each Asset is 

conveyed, contributed and sold to the Company subject to any and all contracts and agreements 

to which the Initial Member or any predecessor-in-interest is a party with respect to such Asset, 

as of the Closing Date, including any settlement agreements, restructuring agreements or sale 

and purchase agreements, all of which contracts and agreements the Company hereby assumes 

and agrees as of the Closing Date to perform. 

Article III
	

Transfer of Assets, Collateral Documents and Interim Servicing 

Section 3.1 Delivery of Documents. The Company and the Initial Member agree to 

execute and deliver to one another the following: 

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(a) On the Closing Date, the Initial Member shall deliver such Transfer 

Documents executed by the Initial Member as the Initial Member elects to deliver to the 

Company. 

(b) Subject to the provisions of the LLC Operating Agreement, the Initial 

Member shall deliver the Notes and other Custodial Documents and Collateral Documents for 

each Asset to the Custodian as soon as is practicable after the Closing Date and shall deliver the 

Asset Files for such Asset to either the Company or the Servicer (as directed by the Company), 

in either case on or within a reasonable period of time after the Servicing Transfer Date with 

respect to such Asset. 

(c) (i) For any of the mortgages and/or other Collateral Documents 

securing the Assets that are registered on the MERS® System (collectively, the “MERS 

Registered Mortgages”), except as provided otherwise in this Section 3.1(c), the Company shall 

cause the MERS Registered Mortgages to be transferred on the MERS® System on or within a 

reasonable time after the Servicing Transfer Date with respect to the applicable Assets. To the 

extent the cost of transferring the MERS Registered Mortgages is a cost imposed by MERS on 

the transferor of an Asset, that cost shall be borne by the Initial Member. Otherwise, the costs 

imposed by MERS with respect to the transfer of the MERS Registered Mortgages shall be borne 

by the Company and all such costs shall constitute Pre-Approved Charges; provided, however, 

that any such expenses with respect to MERS Registered Mortgages as to which the Company 

has not initiated the transfer on the MERS® System (in cooperation with the applicable Existing 

Servicer during the period prior to the applicable Servicing Transfer Date) within six months of 

the Closing Date shall not constitute Pre-Approved Charges and such charges shall be borne by 

the Private Owner alone. The Company shall provide a report to the Initial Member, the 

Advance Lender, the Purchase Money Notes Guarantor and the NGPMN Agent on the progress 

and status of the transfers on the MERS® System of the MERS Registered Mortgages on the 

first day of the seventh month following the Closing Date and again on the first anniversary of 

the Closing Date. 

(ii) Notwithstanding any provision of this Agreement to the contrary, 

the Company (acting by and through the Manager in accordance with the applicable provisions 

of the LLC Operating Agreement) shall have the right to elect to remove any MERS Registered 

Mortgage from the MERS® System prior to the Servicing Transfer Date for such MERS 

Registered Mortgage, in which event the Company (A) must inform the Initial Member and the 

Existing Servicer of its decision to remove such MERS Registered Mortgage from the MERS® 

System at least two weeks prior to the Servicing Transfer Date for such MERS Registered 

Mortgage and (B) must satisfy all applicable requirements of the LLC Operating Agreement with 

respect to the removal of such MERS Registered Mortgage from the MERS® System (including 

specifically the requirements of Section 12.3(g) of the LLC Operating Agreement). If the 

Company has not notified the Initial Member and the Existing Servicer of its election to remove 

such MERS Registered Mortgage from the MERS® System at least two (2) weeks prior to the 

Servicing Transfer Date for such MERS Registered Mortgage, then such MERS Registered 

Mortgage must be transferred on the MERS® System in accordance with Section 3.1(c)(i) above. 

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(iii) Further notwithstanding any provision of this Agreement to the 

contrary, the Company (acting by and through the Manager in accordance with the applicable 

provisions of the LLC Operating Agreement) shall have the right to elect to remove any MERS 

Registered Mortgage from the MERS® System after the Servicing Transfer Date for such MERS 

Registered Mortgage and after such MERS Registered Mortgage has been transferred on the 

MERS® System, in which event the Company must satisfy all applicable requirements of the 

LLC Operating Agreement with respect to the removal of such MERS Registered Mortgage from 

the MERS® System (including specifically the requirements of Section 12.3(g) of the LLC 

Operating Agreement). 

(d) (i) In the event that the Initial Member does not deliver all the 

Transfer Documents on the Closing Date, (A) the Company will prepare on behalf of the Initial 

Member, within the period specified in Section 3.1(d)(iii), all such Transfer Documents not 

delivered by the Initial Member to the Company on the Closing Date and (B) on or within a 

reasonable time following the Closing Date, the Initial Member will grant a Limited Power of 

Attorney to selected representatives of the Company for the purpose of executing on behalf of 

the Initial Member such Transfer Documents prepared by the Company pursuant to Section 

3.1(d)(i)(A). The Limited Power of Attorney will be in the form attached to this Agreement as 

Attachment J. Reasonable and customary expenses paid to third parties actually incurred by the 

Company (or the Manager or Servicer for the benefit of the Company) in complying with the 

obligations set forth in the preceding sentences shall constitute Pre-Approved Charges; provided, 

however, that any such expenses with respect to a Transfer Document that is not properly 

prepared and submitted for recordation or filing within six months of the Closing Date (as such 

time period may be extended pursuant to the immediately following sentence) shall not 

constitute Pre-Approved Charges and shall be borne by the Private Owner alone. Such sixmonth period for the preparation and submission of a Transfer Document for recordation shall be 

extended if the delay is due to a matter noted as an “Exception” on the “Collateral Certificate,” 

provided that the Private Owner is working diligently to locate the missing information or 

otherwise take such steps as might be necessary or appropriate to complete and submit the 

Transfer Documents. All Transfer Documents prepared by the Company shall be in appropriate 

form suitable for filing or recording (if applicable) in the relevant jurisdiction and otherwise 

subject to the limitations set forth in this Agreement, and the Company shall be solely 

responsible for the preparation, contents and form of such documents. The Company hereby 

releases the Initial Member from any loss or damage incurred by the Company due to the 

contents or form of any documents prepared by the Company pursuant to this Section 3.1(d) (the 

form of which was not provided by the Initial Member) and the Private Owner shall indemnify, 

defend and hold harmless the Initial Member from and against any claim, action or cause of 

action asserted by any Person, including the Company, arising out of the contents or form of any 

Transfer Document (the form of which was not provided by the Initial Member), including any 

claim relating to the adequacy or inadequacy of any such document or instrument for the 

purposes thereof, and the use (or purported use) by the Company of the Limited Power of 

Attorney in any way not expressly permitted by its terms. 

(ii) The Company shall use the forms set forth in Attachment D to 

Attachment I, inclusive, in preparing the Transfer Documents. All documents of assignment, 

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conveyance or transfer (not including special warranty deeds to the Receiver Acquired Property, 

which shall contain the special warranty included therein but no other warranties or 

representations, but including all other Transfer Documents) shall contain the following 

sentence: “This assignment is made without recourse, and without representation or warranty, 

express or implied, or by operation of law of any kind and nature whatsoever by the Federal 

Deposit Insurance Corporation in its capacity as Receiver for [name of Failed Bank].” 

(iii) The Company will complete all Transfer Documents, and record or 

file them if and as appropriate in accordance with Section 3.2, as soon as is practicable following 

the Closing Date but in any event within six months after the Closing, except if the delay is due 

to a matter noted as an “Exception” on the “Collateral Certificate” (as such terms are defined in 

the Custodial and Paying Agency Agreement), provided that the Private Owner is working 

diligently to locate the missing information or otherwise take such steps as might be necessary or 

appropriate to complete and submit the relevant documentation. The Company shall provide a 

report to the Initial Member, the Advance Lender, the Purchase Money Notes Guarantor and the 

NGPMN Agent on the progress and status of the preparation, execution, recording and/or filing 

and delivery of the original documents to the Custodian as required by this Agreement promptly 

following a request therefor from the Initial Member and in any event upon the first day of the 

seventh month following the Closing Date and again on the first anniversary of the Closing Date. 

(e) As to Foreign Assets (if any), the Company, at its own expense, must 

retain counsel licensed in the Foreign Jurisdictions involved with the Foreign Assets. Such 

foreign counsel must draft the documents necessary to assign the Foreign Assets to the 

Company. Reasonable and customary expenses paid to third parties and actually incurred by the 

Company (or the Manager or the Servicer for the benefit of the Company) in complying with the 

obligations set forth in the preceding sentence shall constitute Pre-Approved Charges for 

purposes of this Agreement. Documents presented to the Initial Member to assign Foreign 

Assets to the Company must be accompanied by a letter on the foreign counsel’s letterhead, 

signed by the foreign counsel preparing those documents, certifying that those documents 

conform to the Law of the Foreign Jurisdiction. Each such document and instrument shall be 

delivered to the Initial Member in the English language; provided, however, that any document 

required for its purposes to be executed by the Initial Member in a language other than the 

English language shall be delivered to the Initial Member in such language, accompanied by a 

translation thereof in the English language, certified as to its accuracy by an executive officer or 

general counsel of the Company and, if such executive officer or general counsel shall not be 

fluently bilingual, by the translator thereof. 

(f) Nothing contained in this Section 3.1 or elsewhere in this Agreement shall 

require the Initial Member to make any agreement, representation or warranty or provide any 

indemnity in any such document or instrument or otherwise (except with respect to the special 

warranty contained in a special warranty deed to any Receiver Acquired Property), nor is the 

Initial Member obligated to obtain any consents or approval to the sale or transfer of the Assets 

or the related servicing rights, if any, or the assumption by the Company of the Obligations. 

(g) The Initial Member agrees to execute any additional documents required 

by applicable Law or necessary to effectively transfer and assign all of the Initial Member’s 

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right, title and interest in and to any and all Assets to the Company (subject to the rights of the 

Initial Member pursuant to the LLC Operating Agreement). The Initial Member shall have no 

obligation to provide, review or execute any such additional documents unless the same shall 

have been requested of the Initial Member within 365 calendar days after the Closing Date. 

(h) Notwithstanding any provision of this Agreement to the contrary, the 

Initial Member grants to the Manager, acting only by and through a duly authorized officer of the 

Manager, the limited authority and agency to endorse to the Company any checks or the 

instruments made payable to the Initial Member or the Failed Bank if such checks or other 

instruments evidence or relate to amounts otherwise payable to the Company pursuant to this 

Agreement; provided, however, that any such endorsement must be made to the Company (as is 

provided elsewhere in this Agreement) without any representation, warranty or recourse of the 

Initial Member or the Failed Bank whatsoever in a form similar to the form set forth in 

Attachment E. 

Section 3.2 Recordation of Documents. 

(a) With respect to all recordable Transfer Documents prepared by the 

Company pursuant to Section 3.1(d), the Company shall promptly submit all such Transfer 

Documents for recordation or filing in the appropriate land, chattel, Uniform Commercial Code 

and other records of the appropriate county, state or other jurisdictions (including any Foreign 

Jurisdiction) to effect the transfer of the Assets to the Company. All Transfer Documents shall 

provide that all recorded documents be returned to the Custodian at its notice address set forth in 

Section 7.3, as such address might be modified in the manner provided in the Custodial and 

Paying Agency Agreement. The Company shall be responsible for diligently and promptly 

following up with respect to any non-conforming Transfer Documents that are returned and not 

recorded, gaps in the chain of title and the like to ensure that each and all of the Transfer 

Documents are properly filed or recorded as appropriate. The Company shall include in the 

reports described in and required pursuant to Section 3.1(d)(iii) all required information 

concerning the recording and/or filing and return of all recordable Transfer Documents. 

(b) Reasonable and customary expenses paid to third parties and actually 

incurred by the Company (or the Manager or the Servicer for the benefit of the Company) in 

complying with the obligations set forth in this Section 3.2 shall constitute Pre-Approved 

Charges; provided, however, that any such expenses with respect to a Transfer Document that is 

not properly prepared and submitted for recordation or filing within six months of the Closing 

Date shall not constitute Pre-Approved Charges and shall be borne by the Private Owner alone. 

Such six-month period for the preparation and submission of a Transfer Document for 

recordation shall be extended if the delay is due to a matter noted as an “Exception” on the 

“Collateral Certificate” (as such terms are defined in the Custodial and Paying Agency 

Agreement), provided that the Private Owner is working diligently to locate the missing 

information or otherwise take such steps as might be necessary or appropriate to complete and 

submit the Transfer Document(s). The Initial Member shall, if such is affirmatively required 

under the applicable Law of a relevant Foreign Jurisdiction, take such actions as are necessary in 

such Foreign Jurisdiction to effect the purposes of this Article III. 

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Section 3.3 Transfer of Servicing. 

(a) The Assets are conveyed to the Company on a servicing-released basis as 

of the Closing Date. From and after the Closing Date, all rights, obligations, liabilities and 

responsibilities with respect to the servicing of the Assets shall inure to the benefit of and be 

assumed by the Company, and the Initial Member shall be discharged from all responsibility and 

liability therefore, including any liability arising from any interim servicing provided by the 

Initial Member pursuant to this Section 3.3. Without limiting the generality of the foregoing, the 

Company shall assume on and as of the Closing Date all obligations with respect to special 

servicing and asset management of the Assets, including any Funding Draws, any advances from 

the Working Capital Reserve, any advances pursuant to the Advance Facility Documents, any 

Development Contributions or any permitted development of any Asset; provided, however, that 

if the Company fails to provide to the Initial Member or any Existing Servicer necessary or 

appropriate direction with respect to any special servicing or asset management of the Assets, the 

Initial Member shall have the right to proceed in compliance with the Initial Member’s usual and 

customary servicing and asset management standards and procedures, which servicing and asset 

management standards and procedures the Company consents to, acknowledges and accepts. 

(b) To provide for the orderly transfer of the servicing to the Company, the 

Initial Member will (except with respect to the management of any Acquired Property which as 

provided in clause (h) of this section 3.3 will transfer immediately on the Closing Date) provide 

interim servicing of the Assets, or will maintain agreements with third-party Existing Servicers 

to provide interim servicing of the Assets, on the Company’s behalf for such Asset during the 

Interim Servicing Period, including provisions requiring that the Existing Servicers continue: (i) 

to receive payments and post them to the system of record; (ii) to maintain records reflecting 

payments received; (iii) to provide the Company, on request, a schedule of payments processed; 

(iv) to make payments (whether from its own funds or otherwise) to fund Interim Servicing 

Expenses and Pre-Approved Charges; and (v) to provide payoff information to the Company and 

the Servicer regarding particular Assets, as applicable. The foregoing shall not limit the actions 

that the Initial Member may take with respect to any Asset prior to the respective Servicing 

Transfer Date, and absent necessary or appropriate direction from the Company with respect to 

the servicing of the Assets, the Initial Member may take such actions with respect to any Asset 

prior to the respective Servicing Transfer Date as is in compliance with the Initial Member’s 

usual and customary servicing standards and procedures, which servicing standards and 

procedures the Company consents to, acknowledges and accepts. In addition, unless the 

Company and the Initial Member agree otherwise, the Initial Member shall prepare and deliver 

the Monthly Reports (including the Distribution Date Reports) in accordance with the LLC 

Operating Agreement and the Custodial and Paying Agency Agreement for all Due Periods 

ending on or before the last day of the calendar month in which the last Servicing Transfer Date 

occurs. The Initial Member may engage agents of the Initial Member’s own choosing to perform 

such interim servicing. Each Existing Servicer shall be (and hereby is) authorized by the 

Company to use and withdraw funds from the Collection Account, the Working Capital Reserve 

Account and the Escrow Accounts and to request advances from the Advance Facility and 

Excess Working Capital Advances (if necessary) in the performance of the interim servicing 

duties pursuant to this Section 3.3 during the Interim Servicing Period if it so chooses (including 

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with respect to the payment and satisfaction of any Interim Servicing Expenses or Pre-Approved 

Charges in full if the amount of Asset Proceeds it has collected and is retaining is insufficient to 

pay and satisfy such Interim Servicing Expenses or Pre-Approved Charges in full) for the same 

purposes that the Private Owner and the Servicer will be so permitted after the corresponding 

Servicing Transfer Date. Subject to the provisions of Sections 4.5(a) and Section 4.6, the Initial 

Member’s performance of this interim servicing shall cease with respect to each Group of Assets 

on the Servicing Transfer Date for such Group of Assets. For the Due Period in which the 

Servicing Transfer Date with respect to each Group of Loans occurs, the Initial Member will 

provide (or will cause the applicable Existing Servicer to provide) the Company with a statement 

setting forth for the period beginning on the first day of the Due Period and ending on the 

applicable Servicing Transfer Date (i) the amount of payments and other amounts received for 

each Asset to which such Servicing Transfer Date relates and (ii) the amount of payments made 

to fund Interim Servicing Expenses made but not reimbursed by the applicable Borrower or 

Obligor (including payments made from the applicable Existing Servicer’s own funds), which 

amounts are to be reimbursed in accordance with Section 2.3(b). Each such statement also shall 

include any amounts to be paid to the Initial Member on the respective Servicing Transfer Date 

pursuant to Sections 2.3 and 2.4. This statement will be provided as soon as is reasonably 

practicable after the Servicing Transfer Date, but in no event later than the due date for the 

regular Monthly Report for the month in which the Servicing Transfer Date occurs. 

(c) To facilitate communication among the Company, the Initial Member and 

the Existing Servicers, on the Closing Date (i) the Company shall designate (and the Private 

Owner shall cause the Company to designate) a principal contact person to whom the Initial 

Member and the Existing Servicers will be authorized to contact with inquiries and requests for 

guidance or direction concerning the Initial Member’s and the Existing Servicers’ interim 

servicing responsibilities and (ii) the Initial Member shall designate one or more principal 

contact persons whom the Company and the Servicer will be authorized to contact with inquiries, 

guidance or directions concerning the Initial Member’s and the Existing Servicers’ interim 

servicing responsibilities. 

(d) The Initial Member shall cause all Asset Proceeds received during or after 

the Interim Servicing Period (including any recoveries of advances) remaining after 

reimbursement or payment of Interim Servicing Expenses and Pre-Approved Charges to be 

remitted to the Collection Account on a monthly basis not later than two Business Days prior to 

the Distribution Date (as such term is defined in the Custodial and Paying Agency Agreement) 

for such month. The Existing Servicers shall be (and hereby are) authorized by the Company to 

use Asset Proceeds with respect to any Group of Assets for which the Servicing Transfer Date 

has not occurred, prior to the time Asset Proceeds are required to be remitted to the Collection 

Account for payment or reimbursement of Interim Servicing Expenses and Pre-Approved 

Charges (including for the reimbursement of any advances that the Initial Member might make 

during the Interim Servicing Period for payment of Servicing Expenses and Pre-Approved 

Charges). 

(e) In consideration of the services provided by the Initial Member with 

respect to each Group of Assets pursuant to this Section 3.3, the Company shall pay the Interim 

Servicing Fee to the Initial Member for each Due Period in which the Initial Member provides 

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interim servicing with respect to such Group of Assets (including the Due Period in which the 

Servicing Transfer Date with respect to such Group of Assets occurs) in the manner described in 

the Custodial and Paying Agency Agreement. The Interim Servicing Fee with respect to each 

Group of Assets will be calculated, earned and due as of the first day of each Due Period in 

which the Initial Member provides interim servicing with respect to such Group of Assets and 

will be payable on each Distribution Date pursuant to the provisions of the Custodial and Paying 

Agency Agreement. For the avoidance of doubt, any such Interim Servicing Fee payable prior to 

the last Servicing Transfer Date shall be net of any servicing fees payable to Existing Servicers 

and offset by them against Asset Proceeds. 

(f) The Company hereby ratifies any and all actions taken by the Initial 

Member in performance of interim servicing activities and functions prior to the Closing Date, 

including any oversight of the Existing Servicers and in connection with its role of Existing 

Servicer with respect to a Group of Assets. The Company acknowledges and agrees that the 

Initial Member is performing interim servicing functions for the Company as an accommodation 

to the Company and that the Initial Member shall not have any liability for any acts or omissions 

taken in connection therewith (other than to correct calculation, allocation or distribution errors). 

Except for amounts for which the Company may be reimbursed as provided in the LLC 

Operating Agreement and the Custodial and Paying Agency Agreement, the Company hereby 

releases and forever discharges the Initial Member, the FDIC, the Failed Bank and their 

predecessors-in-interest and all of their respective officers, directors, employees, agents, 

attorneys, contractors and representatives and all of their respective successors, assigns and 

Affiliates, 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 Company had, has or might have in the future, whether known or unknown, that are related 

in any manner whatsoever to the servicing of the Assets at any time prior to the last Servicing 

Transfer Date. 

(g) The Initial Member and the Private Owner shall cooperate in their efforts 

to cause all Servicing Transfer Dates to occur prior to the date sixty days from the Closing Date 

to the extent reasonably practicable, unless a later date is consented to by the Initial Member or 

unless the Initial Member and the Company agree upon an earlier Date. 

(h) Notwithstanding the interim servicing provisions set forth above in this 

Section 3.3, the Company will assume full responsibility for property management of any 

Receiver Acquired Property immediately on the Closing Date. With respect to such property 

management, the Servicing Transfer Date shall, in all cases, be the Closing Date. 

Section 3.4 Grant of Power of Attorney by Company. The Company hereby 

irrevocably appoints the Initial Member its lawful attorney-in-fact, with full authority in the 

place and stead of the Company and in the name of the Company, the Initial Member or 

otherwise, and with full power of substitution in the premises (which power of attorney, being 

coupled with an interest, is irrevocable for so long as the Company is in existence), from time to 

time in the Initial Member’s discretion, following a failure by the Company to satisfy promptly 

its obligations pursuant to Section 3.1, Section 3.2, Section 4.10, Section 4.11 or Section 4.12 as 

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they relate to the preparing, furnishing, executing and/or recording of any of the Transfer 

Documents or any other relevant matter set forth in any such provision to prepare, furnish, 

execute and/or record all relevant Transfer Documents and other documents as might be 

reasonably necessary to satisfy the transfer and recording obligations of the Company pursuant 

to Section 3.1, Section 3.2, Section 4.10, Section 4.11 or Section 4.12. 

Article IV
	

Covenants, Duties and Obligations of the Company
	

Section 4.1 Servicing of Assets. From and after the Servicing Transfer Date, the 

Company shall service the Assets in compliance with the LLC Operating Agreement. 

Section 4.2 Collection Agency/Contingency Fee Agreements. The Company 

acknowledges and agrees that it accepts and acquires the Assets subject to any agreements with 

collection agencies or contingency fee agreements with attorneys (in either case that are 

outstanding and in effect as of the Servicing Transfer Date) that relate only to the Assets (or any 

of them) and are assignable, and assumes and agrees to fulfill all Obligations of the Initial 

Member and the Failed Bank thereunder. 

Section 4.3 Insured or Guaranteed Assets. If any Assets being transferred pursuant 

to this Agreement are insured or guaranteed by any Governmental Authority, and such insurance 

or guaranty is not being specifically terminated by the Initial Member, the Company 

acknowledges and agrees that such Assets must be serviced by a servicer, lender or mortgagee 

approved by such Governmental Authority, if such approval is required. The Company further 

acknowledges and agrees that, upon assumption of the Obligations with respect to the Assets, it 

assumes full responsibility for determining whether or not any such insurance or guarantees are 

in effect on the date of this Agreement and, with respect to those Assets with respect to which 

any such insurance or guarantee is in effect on the date of this Agreement, the Company 

acknowledges and agrees that, upon assumption of the Obligations with respect to the Assets, it 

assumes full responsibility for taking any and all actions as might be necessary to insure such 

insurance or guarantees remain in full force and effect. The Company acknowledges and agrees 

that, upon assumption of the Obligations with respect to the Assets, it assumes and agrees to 

fulfill all of the Initial Member’s and the Failed Banks’ Obligations under the contracts of 

insurance or guaranty. Any out-of-pocket fees due to any insurer or guarantor incurred by the 

Company (or the Manager or the Servicer for the benefit of the Company) to fulfill its 

obligations set forth in the preceding sentence shall constitute Pre-Approved Charges. 

Section 4.4 Reporting to or for the Applicable Taxing Authorities. With respect to 

each Asset, the Initial Member shall be responsible for submitting all tax information returns 

with all applicable Governmental Authorities for all applicable periods prior to the respective 

Servicing Transfer Date, and the Company shall be responsible for submitting all tax information 

returns with all applicable Governmental Authorities for all applicable periods commencing with 

the respective Servicing Transfer Date. Information returns include reports on Internal Revenue 

Service Forms 1098 and 1099. The Company shall be responsible for submitting all information 

returns required under applicable Law of any Foreign Jurisdiction, to the extent such information 

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returns are required to be filed by the Company or the Initial Member under such Law, relating 

to the Assets, for the calendar or tax year in which the Closing Date falls and thereafter. 

Section 4.5 Assets in Litigation. 

(a) (i) With respect to any Asset that is the subject of any type of pending 

litigation as of the Closing Date that consists solely of claims or actions based upon, arising out 

or involving Excluded Liabilities (“Excluded Liabilities Litigation”), the Company shall have 

no obligation to substitute its counsel to represent the Company’s interests in the Excluded 

Liabilities Litigation. In such case, the Initial Member shall retain all rights and obligations, and 

shall remain the real party-in-interest, with respect to and shall retain control over the Excluded 

Liabilities Litigation. With respect to any Asset that is the subject of any type of pending 

litigation that consists of both Excluded Liabilities Litigation and other claims or actions, that 

portion of any litigation that consists of Excluded Liabilities Litigation shall be bifurcated from 

such other claims or actions, with the Initial Member retaining all rights and obligations, and 

remaining the real party-in-interest, with respect to and shall retain control over the Excluded 

Liabilities Litigation and the Company substituting itself as the real party in interest and taking 

control of the remaining claims in the litigation as is provided otherwise in this Section 4.5. The 

Initial Member shall pay all of the costs and expenses incurred by it in connection with any such 

Excluded Liabilities Litigation, including all legal fees and expenses and court costs. The Initial 

Member’s determination whether or not pending litigation consists of Excluded Liabilities 

Litigation and the extent to which pending litigation consists of both Excluded Liabilities 

Litigation and other claims or actions shall be conclusive and binding for all purposes with 

respect to this Agreement. 

(ii) With respect to any Asset that is the subject of any type of pending 

litigation as of the Closing Date other than pending litigation that consists entirely of Excluded 

Liabilities Litigation, the Company shall notify the FDIC’s Regional Counsel, 1601 Bryan 

Street, Dallas, Texas 75201-4586, within fifteen Business Days before the respective Servicing 

Transfer Date or such other date as is agreed to by the Initial Member and the Company, of the 

name of the attorney selected by the Company to represent the Company’s interests in the 

litigation. Before such date, the Company shall notify the clerk of the court or other appropriate 

official and all counsel of record that ownership of the Asset was transferred from the Initial 

Member to the Company. Subject to the provisions of Sections 4.5(c) and 4.5(d), the Company 

shall have its attorney file appropriate pleadings and other documents and instruments with the 

court or other appropriate body before the respective Servicing Transfer Date, substituting the 

Company’s attorney for the Initial Member’s attorney, removing the Initial Member and the 

Failed Bank as a party to the litigation and substituting the Company as the real party-in-interest. 

Nothing contained in this Agreement shall preclude the Company from retaining the same 

attorney retained by the Initial Member (or the Failed Bank) to handle such litigation with 

respect to the Assets, provided that, with respect to litigation referred to in Section 4.5(c), the 

Company shall not retain the same counsel that represents the Initial Member in connection with 

such litigation unless the FDIC’s Regional Counsel (referred to above) agrees in writing to such 

dual representation. Subject to the provisions of Section 4.5(b) (and the Company’s compliance 

with its obligations therein) and Section 4.5(d), in the event the Company fails, prior to the 

respective Servicing Transfer Date, to remove the Initial Member and the Failed Bank as parties 

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to the litigation and substitute the Company as the real party-in-interest, (i) the Initial Member 

may, but shall have no obligation to, continue to pursue or defend such litigation on behalf of the 

Company and (ii) in the event the Initial Member does continue to pursue or defend such 

litigation, the Company shall be liable for and hereby agrees to pay all costs and expenses 

incurred by the Initial Member in connection therewith, which expenses shall constitute 

Servicing Expenses. 

(b) If the Company is unable, as a matter of applicable Law or due to delays 

in court procedures and practices outside the control of the Company, to cause the Initial 

Member and the Failed Bank to be replaced by the Company as party-in-interest in any pending 

litigation as required by Section 4.5(a), the Company shall so notify the FDIC’s Regional 

Counsel, at the address specified above, no less than five Business Days before the respective 

Servicing Transfer Date and shall provide such evidence to such effect and stating the reasons 

for such failure. In any such event, (i) the Company shall cause its attorney to conduct such 

litigation at the Company’s expense, which expense shall constitute Servicing Expenses; (ii) the 

Company shall cause the removal of the Initial Member and the Failed Bank and substitution of 

the Company as party-in-interest in such litigation at the earliest time possible under applicable 

Law; (iii) the Company shall use commercially reasonable efforts to cause such litigation to be 

resolved by judgment or settlement in as reasonably efficient a manner as practical; (iv) the 

Initial Member shall cooperate with the Company and the Company’s attorney as reasonably 

required in the Initial Member’s sole judgment to bring such litigation or any settlement relating 

thereto to a reasonable and prompt conclusion; and (v) no settlement shall be agreed upon by the 

Company or its agents or counsel without the express prior written consent of the Initial 

Member, unless such settlement includes an irrevocable and complete waiver and release of any 

and all potential claims against the Initial Member and the Failed Bank (and any predecessor 

thereto) in relation to such litigation or the subject Loans or Obligations by any Person asserting 

any claim in the litigation and any Borrower, and any and all losses, liabilities, claims, causes of 

action, damages, demands, taxes, fees, costs and expenses relating thereto shall be paid by the 

Company without recourse of any kind to the Initial Member or the Failed Bank (other than to 

the extent the same constitute Servicing Expenses). The Company shall provide to the Initial 

Member no later than twenty Business Days following the Closing Date a report showing the 

status of each pending litigation with respect to the replacement of the Company as the party-ininterest. The Company shall pay all of the costs and expenses incurred by it in connection with 

the actions required to be taken by it pursuant to Section 4.5(a) and this Section 4.5(b) (which 

expenses shall constitute Servicing Expenses), including all legal fees and expenses and court 

costs (which expenses shall constitute Servicing Expenses), and shall reimburse the Initial 

Member, upon demand, for all legal expenses the Initial Member incurs on or after the Cut-Off 

Date with respect to any such litigation, including costs incurred with the dismissal thereof or 

withdrawal therefrom (which costs incurred by the Initial Member shall constitute Servicing 

Expenses for purposes of the Custodial and Paying Agency Agreement). 

(c) In the event that there exists or is asserted against the Company after the 

Closing Date any Excluded Liability (and such claim or action is not based upon and does not 

arise out of any act or omission of or on behalf of the Company, the Private Owner or the 

Servicer), (i) the Company shall (A) notify the Initial Member, in writing in accordance with the 

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notice provisions of Article VII, of such claim or action and (B) subject to the rights of the Initial 

Member set forth below, be responsible for and control and assume the investigation and/or 

defense of such claim or action on behalf of the Company and the Company’s interest in the 

Assets, at the Company’s expense and with counsel appointed by the Company; and (ii) the 

Initial Member shall be responsible for and control and assume any investigation and/or defense 

of the Initial Member and the Failed Bank, at the Initial Member’s own expense and with Initial 

Member’s own counsel. The Initial Member’s determination whether or not any claim or 

liability in any such litigation is an Excluded Liability and the extent to which any such litigation 

relates to both Excluded Liabilities and other claims or liabilities shall be conclusive and binding 

for all purposes with respect to this Agreement. The Company and the Initial Member shall 

cooperate in the defense of any such claim or action to the extent their interests are not in conflict 

and shall use commercially reasonable efforts to work together to resolve or settle such claims or 

action in a manner that is mutually agreeable and in their respective best interests. The Company 

shall obtain the prior written approval of the Initial Member before ceasing to defend against any 

such claims or action. Notwithstanding the foregoing, the Initial Member may at any time 

assume and control the defense of the Company in connection with any such claim or action at 

the Initial Member’s expense. Subject to the provisions of Sections 4.5(d)(i) and (ii) below, the 

costs and expenses incurred by the Company in connection with its defense of any claim or 

action described in this Section 4.5(c), including (I) reasonable attorneys’ fees and expenses 

incurred to defend against (or investigate) the same or pursue counterclaims or cross-claims 

against other parties, (II) awards or judgments assessed against the Company with respect to any 

such claim or action, or (III) the costs of any settlements described in Section 4.5(d)(ii) below of 

such claim or action, shall constitute Servicing Expenses for purposes of the Custodial and 

Paying Agency Agreement. 

(d) If, as a result of any claim or action subject to the provisions of Section 

4.5(c) above: 

(i) there is entered against the Company either (A) a final, nonappealable monetary judgment holding the Company liable for damages in excess of an amount 

equal to the Total Asset Valuation of the Asset relating to or that is the subject of such claim 

(such Asset, the “Affected Asset”) (such excess amount, the “Excess Damage Liability”), or 

(B) a final monetary judgment that is appealable, which the Initial Member agrees in writing 

need not be appealed further by the Company, and that imposes an Excess Damage Liability on 

the Company, or 

(ii) the Company enters into a final settlement agreement with the 

consent of the Initial Member (such consent not to be unreasonably withheld), pursuant to which 

the Company is obligated to pay an Excess Damage Liability, 

then, in any such case described in Clause (i) or (ii) above, the Initial Member shall reimburse 

the Company for the Excess Damage Liability and the Initial Member shall be entitled, at its 

option, to repurchase the Affected Asset at its Repurchase Price in accordance with the 

repurchase provisions of Article VI; provided, however, that the Initial Member shall not be 

liable pursuant to this sentence for any liability imposed upon the Company that arises as a result 

of any act or omission of the Company or the Private Owner. 

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(e) The provisions of Sections 4.5(a), 4.5(b), 4.5(c) and 4.5(d)(i) are subject to 

the right of the Initial Member to retain claims pursuant to Section 2.7 of this Agreement, 

including any such claims as might have been asserted in litigation pending as of the Closing 

Date, and (ii) do not modify in any manner the limitations on liabilities assumed by the Company 

pursuant to Section 2.2 or the definition of Excluded Liabilities. At the Initial Member’s 

discretion, litigation involving any such claims shall be bifurcated, with the Initial Member 

remaining the real party in interest and retaining control over (and being responsible for pursuing 

and bearing the related costs to pursue) claims retained by it pursuant to Section 2.7 and the 

Company substituting itself as the real party in interest and taking control of (and being 

responsible for pursuing and bearing the cost of pursuing) the remainder of the litigation. The 

Initial Member’s determination whether or not litigation consists of any such claims and the 

extent to which litigation consists of any such claims shall be conclusive and binding for all 

purposes with respect to this Agreement. 

(f) Notwithstanding any provision to the contrary in this Agreement, any 

payments by the Company of Servicing Expenses pursuant to Section 4.5(c) shall be subject to 

the obligation of the Private Owner to reimburse the Initial Member pursuant to Section 4.6 of 

the LLC Operating Agreement. 

(g) Further notwithstanding any provision to the contrary in this Agreement, 

in the event that there is instituted any litigation challenging the repudiation of any obligation 

with respect to any Loan by the Initial Member and asserting that the Company has any liability 

arising from such repudiation, the Initial Member shall control and defend such litigation 

(including any claims or actions against the Company) and pay all costs and expense in respect 

thereof. 

Section 4.6 Assets in Bankruptcy. In accordance with Bankruptcy Rules 3001 and 

3002, the Company shall take all actions necessary to file, prior to the respective Servicing 

Transfer Dates (i) proofs of claims in pending bankruptcy cases involving any Assets for which 

the Initial Member or the Failed Bank has not already filed a proof of claim, and (ii) all 

documents required by Rule 3001 of the Federal Rules of Bankruptcy Procedure and to take all 

such similar actions as might be required in any relevant jurisdiction in any pending bankruptcy 

or insolvency case or proceeding in such jurisdiction involving any Asset in order to evidence 

and assert the Company’s rights. The Company shall prepare and provide to the Initial Member, 

on or prior to the respective Servicing Transfer Date, an Affidavit and Assignment of Claim in 

the form attached to this Agreement as Attachment D or any similar forms as might be required 

in any relevant Foreign Jurisdiction and shall be acceptable to the Initial Member, for each Asset 

where a Borrower or an Obligor with respect to such Asset is in bankruptcy as of the Closing 

Date. The Company hereby releases the Initial Member, the FDIC and the Failed Bank from any 

claim, demand, suit or cause of action the Company might have as a result of any action or 

inaction on the part of the Initial Member, the FDIC or the Failed Bank with respect to such 

Loan. In the event the Company fails, prior to the respective Servicing Transfer Date, to take the 

actions required by this Section 4.6, (a) the Initial Member may, but shall have no obligation to, 

file proofs of claim or other documents as the Initial Member determines to be necessary or 

appropriate to evidence and assert the Company’s rights and, (b) in the event the Initial Member 

does take any such actions, the Company shall be liable for and hereby agrees to pay all costs 

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and expenses incurred by the Initial Member in connection therewith (which costs incurred by 

the Initial Member shall constitute Servicing Expenses for purposes of the Custodial and Paying 

Agency Agreement). The provisions of this Section are subject to the right of the Initial Member 

to retain claims pursuant to Section 2.7 of this Agreement, including any such claims as might 

have been asserted in litigation pending as of the Closing Date. At the Initial Member’s 

discretion, litigation involving any such claims shall be bifurcated, with the Initial Member 

remaining the real party-in-interest and retaining control over (and being responsible for 

pursuing and bearing the related costs to pursue) claims retained by it pursuant to Section 2.7 and 

the Company substituting itself as the real party-in-interest and taking control of (and being 

responsible for pursuing and bearing the cost of pursuing) the remaining claims in the litigation. 

Section 4.7 Asset-Related Insurance. On the Closing Date, (a) the Initial Member 

shall cause to be assigned, to the extent assignable, all existing insurance policies in respect of 

any Asset or the Collateral for any Asset; (b) the Company shall be responsible for having itself 

substituted as loss payee or named as an additional insured, as applicable, on all Asset-related 

insurance in which any Failed Bank or the Initial Member is currently listed as a loss payee or 

named as an additional insured, as applicable; and (c) to the extent the Borrower has failed to 

provide required insurance, the Company shall cause to be put into place such insurance for the 

Assets and the Collateral for the Assets with respect to which the Borrower has failed to maintain 

required insurance, fire, hurricane, flood and hazard insurance with extended coverage as is 

customary in the area in which the Assets or Collateral is located and in such amounts and with 

such deductibles as, in the reasonable judgment of the Company, are prudent. Upon the 

cancellation after the Closing Date of any insurance policy maintained by the Initial Member or 

the Failed Bank with respect to any Loan and the receipt by the Company or the Initial Member 

of any refund of any premiums previously paid with respect thereto, such refunded amount shall 

inure to the benefit of the Borrowers with respect to the affected Assets, and such refunded 

amount shall be remitted to (or retained by) the Company and applied as appropriate to adjust the 

Escrow Accounts, if any, or other records with respect to such affected Assets. 

Section 4.8 Loans with Escrow Accounts. Amounts or balances related to the Loans 

on deposit in Escrow Accounts held or controlled by the Initial Member or an Existing Servicer 

shall be transferred to the Company on the respective Servicing Transfer Date. On such Date, 

any positive escrow balances held in the Escrow Accounts, without offset against any negative 

escrow balances, shall be transferred to the Company. The Company agrees to assume, undertake 

and discharge any and all Obligations of the holder of the Loans with respect to any Escrow 

Account and the maintenance of such Escrow Account and the Escrow Payments paid by or on 

account of the related Borrower. 

Section 4.9 Initial Member as Lead Lender in Asset Participations. The Company 

hereby agrees to assume the role of lead lender for any Asset Participations in which a portion of 

an Asset was participated to one or more Persons and in which the Initial Member or any of its 

predecessors-in-interest was the lead lender as of the Closing Date. The Company hereby agrees 

to accept any such Asset Participations subject to all participants’ right, title and interest in such 

Asset Participations. 

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Section 4.10 Contracts for Deed. The Company agrees to comply with all Obligations 

set forth in any Contract for Deed contained in any Asset subject to this Agreement. Pursuant to 

the provisions of Section 3.1 hereof, the Initial Member may require the Company to prepare and 

furnish special warranty deeds for the Initial Member’s approval, conveying the real property 

subject to any such contract to the Company. The costs and expenses of the Company (or the 

Manager or the Servicer for the benefit of the Company) for any title curative work, if required, 

shall constitute Pre-Approved Charges. 

Section 4.11 Acquired Property. The Company agrees to comply with all Obligations 

set forth in any Collateral Document relating to Acquired Property unless, in the opinion of the 

Company, complying with the Obligations pursuant to such Collateral Documents would not be 

in the best interest (in terms of maximizing the value of the Asset) of the Company and the Initial 

Member. Pursuant to the provisions of Section 3.1 hereof, the Initial Member may require the 

Company to prepare and furnish special warranty deeds and other applicable Transfer 

Documents, for the Initial Member’s approval, to convey the Receiver Acquired Property to the 

Company. 

Section 4.12 Leases. The Company agrees to comply with all Obligations set forth in 

any lease related to any Asset unless, in the opinion of the Company, complying with the 

Obligations pursuant to such lease would not be in the best interests (in terms of maximizing the 

value of the Asset) of the Company and the Initial Member. Pursuant to the provisions of 

Section 3.1 hereof, the Initial Member may require the Company to prepare and furnish 

applicable Transfer Documents for the Initial Member’s approval and execution. 

Section 4.13 Notice to Borrowers. The Company, on a timely basis in accordance 

with and to the extent (if any) required by any applicable Laws, and pursuant to the Limited 

Powers of Attorney granted to it pursuant to Section 3.1(d)(i), shall prepare and transmit to each 

Borrower a joint “hello” and “goodbye” letter, at the Company’s expense, which letter shall be 

subject to the review and reasonable approval of the Initial Member. 

Section 4.14 Notice of Claims. The Company immediately shall notify the Initial 

Member, in accordance with the notice provisions of Section 7.4, of any claim, threatened claim 

or litigation against the Initial Member or the Failed Bank arising out of any Asset. 

Section 4.15 Use of the FDIC’s Name and Reservation of Statutory Powers. The 

Company shall not use or permit the use by its agents, successors or assigns of any name or 

combination of letters that is similar to “FDIC” or “Federal Deposit Insurance Corporation.” 

The Company will not represent or imply that it is affiliated with, authorized by or in any way 

related to the FDIC except that, for so long as the FDIC is a member of the Company, the 

Company may represent that fact. The Company shall be entitled to assert (and claim the benefit 

of) the statute of limitations established under 12 U.S.C. Section l82l(d)(14). The Company 

acknowledges and agrees, however, that the assignment of any Asset, Asset Document or 

Collateral Document pursuant to the terms of this Agreement shall not constitute the assignment 

of any other rights, powers or privileges granted to the Initial Member pursuant to the provisions 

the Federal Deposit Insurance Act, including those granted pursuant to 12 U.S.C. Section 

182l(d), 12 U.S.C. Section l823(e) and 12 U.S.C. Section 1825, all such rights and powers being 

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expressly reserved by the Initial Member; nor shall the Company assert or attempt to assert any 

such right, power or privilege in any pending or future litigation involving any Asset transferred 

or purchased pursuant to this Agreement. 

Section 4.16 Prior Servicer Information. The Company acknowledges and agrees 

that the Initial Member might not have access to information from servicers of an Asset prior to 

the appointment of the FDIC as receiver of the Failed Bank and that the Initial Member has not 

requested any information not in the possession of the Initial Member or its servicing contractor 

from any prior servicer of an Asset. The Company acknowledges and agrees that the Initial 

Member will not be required under the terms of this Agreement to request any information from 

any prior servicer. 

Section 4.17 Release of Initial Member, FDIC and Failed Banks. 

(a) Except as otherwise specifically provided in Article VI of this Agreement 

or in the LLC Operating Agreement or any other Transaction Document, the Company hereby 

releases and forever discharges the Initial Member, the FDIC, the Failed Bank and all of their 

respective officers, directors, employees, agents, attorneys, contractors and representatives, and 

all of their respective successors, assigns (other than the Company) and Affiliates, 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 Company had, has or 

might have in the future, whether known or unknown, which are related in any manner 

whatsoever to the Assets, the servicing of the Assets (before or after the Cut-Off Date) by (i) the 

Initial Member, the Failed Bank or their predecessors-in-interest, (ii) the FDIC or (iii) any Person 

acting on behalf of the Initial Member, the FDIC or the Failed Bank or their predecessors-ininterest, or the acquisition of the Assets (other than gross negligence or willful misconduct); 

provided, however, that nothing contained in this Section 4.17(a) shall constitute or be 

interpreted as a waiver of any express right that the Company has under this Agreement or any of 

the Transaction Documents. 

(b) The Company agrees that it will not renew, extend, renegotiate, 

compromise, settle or release any Note or Asset or any right of the Company founded upon or 

growing out of this Agreement, except upon payment in full thereof, unless the Borrower and all 

Obligors on said Note or Asset first shall release and discharge the FDIC, the Initial Member and 

the Failed Bank with respect to such Asset, and their respective agents and assigns, other than the 

Company (the “Released Parties”), from all claims, demands and causes of action that any such 

Borrower may have against any such Released Party arising out of or resulting from any act or 

omission occurring prior to the date of such release. 

Article V
	

Assets Sold “As Is” and Without Recourse
	

Section 5.1 Assets Conveyed “As Is”. THE ASSETS (INCLUDING ANY 

INTERESTS IN OWNERSHIP ENTITIES AND RECEIVER ACQUIRED PROPERTY) ARE 

CONVEYED AND ASSIGNED TO THE COMPANY “AS IS” AND “WITH ALL FAULTS,” 

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WITHOUT ANY REPRESENTATION, WARRANTY OR GUARANTY WHATSOEVER, 

INCLUDING AS TO COLLECTABILITY, ENFORCEABILITY, VALUE OF COLLATERAL, 

ABILITY OF ANY OBLIGOR TO REPAY, CONDITION, FITNESS FOR ANY 

PARTICULAR PURPOSE, MERCHANTABILITY OR FITNESS FOR A SPECIFIC 

PURPOSE, WHETHER EXPRESS OR IMPLIED OR BY OPERATION OF LAW, BY ANY 

PERSON, INCLUDING THE INITIAL MEMBER, THE FAILED BANK OR THE FDIC, OR 

ANY PREDECESSORS-IN-INTEREST OR AFFILIATES OF THE INITIAL MEMBER, THE 

FAILED BANK OR THE FDIC, OR ANY OF THEIR RESPECTIVE OFFICERS, 

DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS. THE INITIAL MEMBER 

SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, 

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

ASSET, THE COLLATERAL OR THE COLLATERAL DOCUMENTS, OR WITH RESPECT 

TO THE LEGALITY, VALIDITY, EFFECTIVENESS, ADEQUACY OR ENFORCEABILITY 

OF ANY SWAP AGREEMENT OR ANY DOCUMENTS RELATING THERETO OR TO 

THE CONDITION, FINANCIAL OR OTHERWISE, OF THE PARTIES TO ANY SWAP 

AGREEMENT OR ANY OTHER PERSON OR FOR THE PERFORMANCE AND 

OBSERVANCE BY THE PARTIES TO ANY SWAP AGREEMENT OR ANY OTHER 

PERSON OF ANY OF ITS OBLIGATIONS PURSUANT TO ANY SWAP AGREEMENT OR 

ANY DOCUMENTS RELATING THERETO OR WITH RESPECT TO ANY OTHER 

MATTER WHATSOEVER RELATING TO ANY SWAP AGREEMENT. 

Section 5.2 No Warranties or Representations with Respect to Escrow Accounts. 

Without limiting the generality of Section 5.1, the Initial Member makes no warranties or 

representations of any kind or nature as to the sufficiency of funds held in any Escrow Account 

to discharge any obligations related in any manner to an escrow obligation, as to the accuracy of 

the amount of any monies held in any Escrow Account or as to the propriety of any previous 

disbursements or payments from any Escrow Account. 

Section 5.3 No Warranties or Representations as to Amounts of Unfunded 

Principal. Without limiting the generality of Section 5.1, the Initial Member makes no 

warranties or representations of any kind or nature as to the amount of any additional or future 

advances of principal the Company may be obligated to make pursuant to the Loan Documents. 

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any 

Asset. Without limiting the generality of Section 5.1, the Initial Member makes no warranties or 

representations of any kind or nature as to the accuracy of any calculation or adjustment of 

interest on any Asset, including any adjustable rate Loan, whether such calculation or adjustment 

is made by the FDIC, the Failed Bank, the Initial Member or any Affiliate, agent or contractor of 

any of the foregoing, or any predecessor-in-interest of the Initial Member or any other party. 

Section 5.5 No Warranties or Representations With Regard to Information. The 

Initial Member makes no warranties or representations of any kind or nature as to the 

completeness or accuracy of any information provided with respect to any Asset. The Company 

acknowledges that, for example, and not by way of limitation, some Asset Files might be missing 

forms or notices, or might contain incomplete or inaccurate forms or notices, that might be 

required by one or more federal or state consumer protection statutes. The Company’s exclusive 

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remedies with respect to any inaccurate or incomplete information provided by the Initial 

Member are an adjustment in accordance with Section 2.4 or an option to repurchase pursuant to 

Article VI, and such exclusive remedies are available only if all other conditions theretofore 

expressed in this Agreement have been met. 

Section 5.6 Intervening or Missing Assignments. The Company acknowledges and 

agrees that the Initial Member shall have no obligation to secure or obtain any missing 

intervening Mortgage Assignment or other assignment to the Initial Member or the Failed Bank 

that is not contained in the Asset File or among the Collateral Documents. Neither the absence 

of any intervening Mortgage Assignment or any Mortgage Assignment to the Initial Member, the 

FDIC or the Failed Bank, nor the existence of any Lien on the Asset or its Collateral, nor any 

defect in the Lien or priority of the Initial Member’s or the Failed Bank’s security interest in the 

Collateral shall give rise to any claim for purchase under Article VI. The Company shall bear all 

responsibility and expense of securing from the appropriate source any intervening Mortgage 

Assignment or any other assignment to the Initial Member, the FDIC or the Failed Bank that 

might be missing from the Collateral Documents, but the costs thereof of the Company (or the 

Manager or the Servicer for the benefit of the Company) shall constitute Pre-Approved Charges. 

Section 5.7 No Warranties or Representations as to Documents. The Initial 

Member makes no warranties or representations of any kind or nature as to the effectiveness or 

enforceability in any Foreign Jurisdiction of this Agreement or any other document or instrument 

delivered or prepared in connection herewith, whether or not prepared and executed in the forms 

provided herewith, all of such forms being provided for reference only. 

Section 5.8 No Warranties or Representations as to Real Estate Taxes or Other 

Potential Liens Affecting Collateral. Without limiting the generality of Section 5.1, the Initial 

Member makes no warranties or representations of any kind or nature as to the existence or 

amount of any unpaid back real estate taxes, penalties, interest or other amounts due or overdue 

and payable or to become due and payable with respect to any Asset or Collateral or related liens 

against any Asset or Collateral which amounts may be subject to payment by the Company in 

accordance with the terms of the Transaction Documents. The Initial Member retains no 

obligation with respect to payment or discharge of any real estate taxes, penalties, interest or 

other amounts or any liens or other encumbrances resulting from the nonpayment thereof without 

regard to when such taxes, penalties, interest or other amounts became due and without regard to 

when such liens or other encumbrances arose. 

Article VI
	

Repurchase by Initial Member at Company’s Option
	

Section 6.1 Repurchases at Company’s Option. The Company, at its option, and 

upon satisfaction of the procedures and other requirements set forth below, may require the 

Initial Member to repurchase an Asset, if, and only if, (x) prior to the Closing Date, one of the 

events described in Section 6.1(a) through (h) has occurred or (y) after the Closing Date, there is 

issued by a court of competent jurisdiction with respect to such Asset a final, non-appealable 

order or judgment or there is entered into, with the consent of the Initial Member, a final 

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settlement of any claim, action or litigation (the “Order”) that requires the assignment and 

transfer of such Asset back to the Initial Member (unless the Initial Member has agreed in 

writing that no appeal need be taken). IN NO EVENT SHALL THE OCCURRENCE OF ANY 

SUCH EVENT OR THE OBLIGATION TO REPURCHASE AN ASSET PURSUANT TO 

THIS ARTICLE VI BE EVIDENCE OF ANY BAD FAITH, MISCONDUCT OR FRAUD ON 

THE PART OF THE INITIAL MEMBER, THE FDIC OR THE FAILED BANK OR ANY 

PREDECESSOR-IN-INTEREST OR ANY AFFILIATE THEREOF, OR ANY OF THEIR 

RESPECTIVE DIRECTORS, EMPLOYEES, OFFICERS, CONTRACTORS OR AGENTS, 

EVEN IF IT IS SHOWN THAT THE INITIAL MEMBER, THE FDIC OR THE FAILED 

BANK OR ANY PREDECESSOR-IN-INTEREST OR ANY AFFILIATE THEREOF, OR ANY 

OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, OFFICERS, CONTRACTORS OR 

AGENTS, (A) KNEW OR SHOULD HAVE KNOWN OF THE EXISTENCE OF ANY FACTS 

RELATING TO THE OCCURRENCE OF SUCH EVENT, (B) CAUSED SUCH EVENT OR 

(C) FAILED TO MITIGATE SUCH EVENT OR ANY OF THE LOSSES RESULTING 

THEREFROM. 

(a) If the Asset is a Loan, the Borrower had been discharged in a no asset 

bankruptcy proceeding, there is no Collateral securing such Loan and out of which such Loan 

may be satisfied, and all other Obligors with respect to the Note, if any, or the obligations 

contained therein, have similarly been discharged in no asset bankruptcies. 

(b) If the Asset is a Loan, a court of competent jurisdiction had entered a final, 

non-appealable judgment or order (unless the Initial Member has agreed in writing that no appeal 

need be taken other than a bankruptcy decree or judicial foreclosure order) holding that neither 

the Borrower nor any other Obligors, owe an enforceable obligation to pay the holder of the Note 

or its assignees. 

(c) If the Asset is a Loan, the Initial Member or the Failed Bank had executed 

and delivered to the Borrower a release of liability from all obligations under the Note. 

(d) A title defect exists in connection with the property that is the subject of a 

Contract for Deed, which title defect requires a prior order or judgment of a court to enable the 

Company to convey title to such property in accordance with the terms and conditions set forth 

in the Contract for Deed. 

(e) The Initial Member is not the owner of the Asset (or, in the case of an 

Asset Participation, the Initial Member is not the owner of the pro rata interest in such Asset 

Participation set forth on the Asset Schedule) and such is not curable by the Initial Member so as 

to permit ownership of the Asset to be transferred to the Company. 

(f) There exists Environmental Hazards, in which case the Company’s 

recourse with respect to this Section 6.1(f) shall be conditioned upon: (i) the presence of 

Environmental Hazards not being disclosed in the Asset Documents, Asset File or other material 

provided by the FDIC to the Private Owner prior to submission of the Bid; (ii) such Asset 

having an Adjusted Unpaid Principal Balance greater than $250,000.00; and (iii) the Company 

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delivering, along with the notice required by Section 6.2, the following, each of which must be 

satisfactory in form and substance to the Initial Member in its discretion: 

(i) A Phase I environmental assessment, from a qualified and 

reputable firm, of the Acquired Property or the Mortgaged Property securing such Loan, as the 

case might be, and 

(ii) A Phase II environmental assessment or lead-based paint survey of 

such Acquired Property or Collateral from a qualified and reputable firm, which assessment shall 

confirm (A) the existence of Environmental Hazards on such Acquired Property or Mortgaged 

Property and (B) that the regulator is likely to require such remediation; and, 

(iii) written certification of the Company under penalty of perjury that 

no action has been taken by or on behalf of the Company, with respect to a Loan, (A) to initiate 

foreclosure proceedings or (B) to accept a deed-in-lieu-of-foreclosure in connection with such 

Loan. 

(g) The Initial Member or the Failed Bank, or its respective officers, directors 

or employees, fraudulently caused the Borrower to receive less than all of the proceeds and 

benefits of a Note. The Company’s recourse with respect to this Section 6.1(g) shall be 

conditioned upon the Company delivering, along with the notice required by Section 6.2, written 

evidence of such fraud, which evidence must be satisfactory in form and substance to the Initial 

Member in its discretion. 

(h) There is instituted after the Cut-Off Date any Action that (i) is asserted by 

more than one Borrower and any Affiliates (with multiple Borrowers with respect to Loans 

secured by the same Collateral being considered a single Borrower for purposes of this Section) 

with respect to more than one Asset (with multiple Loans secured by the same Collateral being 

considered a single Asset for purposes of this Section), (ii) includes allegations of fraud on the 

part of the Initial Member or the Failed Bank in connection with the Initial Member’s or the 

Failed Bank’s origination of such Assets (or the related Underlying Loans) and (iii) names the 

Initial Member or the Failed Bank as a defendant and that asserts liability on the part of the 

Initial Member or the Failed Bank for which the Company is not liable as assignee, as a matter of 

law, with respect to such Assets. 

Section 6.2 Notice to Initial Member. The Company shall notify the Initial Member 

of each Asset with respect to which the Company seeks to exercise its rights pursuant to Section 

6.1. Such notice shall be on the Company’s letterhead and include the following information: (a) 

the Company’s tax identification number, (b) the Company’s wire transfer instructions, (c) the 

asset number and other identifying information related to the Asset, (d) the subsection of Section 

6.1 pursuant to which the Company is seeking to require the Initial Member to repurchase the 

Asset, (e) a summary of the reasons the Company believes that the Asset should be repurchased 

by the Initial Member and (f) a certification by the Company that the request for repurchase is 

being submitted in good faith and is complete and accurate in all respects to the best of the 

Company’s knowledge. The notice shall be accompanied by evidence supporting the basis for 

the Initial Member’s repurchase of such Asset. Promptly upon request by the Initial Member, 

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the Company shall supply the Initial Member with any additional evidence that the Initial 

Member reasonably might request. The Initial Member shall have no obligation to repurchase 

any Asset pursuant to this Article VI for which notice and all supporting evidence reasonably 

required by the Initial Member have not been received by the Initial Member at the addresses 

specified in Article VII no later than the first Business Day after the expiration of (x) in the case 

of any purchase demand pursuant to Section 6.1(a) through (h), 180 calendar days after the 

Closing Date, or in the case of a Contract for Deed, the first Business Day after the expiration of 

360 calendar days after the Closing Date, and (y) in the case of any purchase demand with 

respect to the issuance of an Order, thirty days after the issuance of the Order. 

Section 6.3 Re-delivery of Notes, Files and Documents. For any Asset that qualifies 

for re-purchase pursuant to this Article, the Company shall: (a) re-endorse and deliver the Note 

with respect to any Loan or Underlying Loan to the Initial Member (or its designee); (b) assign 

all Collateral Documents associated with such Asset and reconvey any real property subject to a 

Contract for Deed or any related Receiver Acquired Property or Company Acquired Property, 

together with such other documents or instruments as shall be necessary or appropriate to convey 

the Asset (including any related Receiver Acquired Property or Company Acquired Property and 

including any related equity interests in an Ownership Entity) back to the Initial Member (or its 

designee); (c) deliver to the Initial Member (or its designee) the Asset File, along with any 

additional records compiled or accumulated by the Company pertaining to the Asset; (d) take 

such actions as are necessary to transfer from the Company to the Initial Member any litigation 

or bankruptcy action involving the subject Asset, including substituting the duties of the 

Company for the Initial Member and the Initial Member for the Company, and with respect to 

the Affidavit and Assignment of Claim, the form of which is attached to this Agreement as 

Attachment D, substituting the duties of the Assignor (as such term is defined therein) for the 

Assignee (as such term is defined therein) and the Assignee for the Assignor; and (e) deliver to 

the Initial Member (or its designee) a certification, notarized and executed under penalty of 

perjury by a duly authorized representative of the Company, certifying that as of the date of 

purchase by the Initial Member none of the conditions relieving the Initial Member of its 

obligation to purchase the Asset as specified in Section 6.4 has occurred. The documents 

evidencing the conveyance of the Asset to the Initial Member shall be substantially the same as 

those executed pursuant to Article III of this Agreement to convey the Asset to the Company. In 

all cases in which the Company recorded or filed among public records any document or 

instrument evidencing a transfer of the Asset to the Company, the Company shall cause to be 

recorded or filed among such records a similar document or instrument evidencing the 

conveyance of the Asset to the Initial Member. Upon compliance by the Company with the 

provisions of this Section 6.3, the Initial Member shall pay to the Company the Repurchase 

Price, and the Repurchase Price shall be applied in the manner set forth in Section 5.1 of the 

Custodial and Paying Agency Agreement. 

Section 6.4 Waiver of Company’s Repurchase Option. The Initial Member will be 

relieved of its obligation to purchase any Asset for any reason set forth in Section 6.1 if the 

Company: (a) except in the case of the permanent refinance of a Loan in connection with the 

final Authorized Funding Draw with respect to such Loan, modifies any of the terms of the Loan 

(including the terms of any Collateral Document or Contract for Deed); (b) exercises forbearance 

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with respect to any scheduled payment on the Loan; (c) accepts or executes new or modified 

lease documents assigned by the Initial Member to the Company; (d) sells, assigns or transfers 

the Asset or any interest therein; (e) fails to comply with the LLC Operating Agreement in the 

maintenance, collection, servicing and preservation of the Asset, including delinquency 

prevention, collection procedures and protection of collateral as warranted; (f) initiates any 

litigation in connection with the Asset or the Mortgaged Property securing the Asset other than 

litigation to force payment or to realize on the Collateral securing the Asset; (g) completes any 

action with respect to foreclosure on, or accepts a deed-in-lieu of foreclosure for any Collateral 

securing the Asset; (h) causes, by action or inaction, the priority of title to the Asset, Mortgaged 

Property and other security for the Asset to be less than that conveyed by the Initial Member; (i) 

causes, by action or inaction, the security for the Asset to be different than that conveyed by the 

Initial Member, except as might be required by the terms of the Collateral Documents; (j) causes, 

by action or inaction, a claim of third parties to arise against the Company that, as a result of 

purchase under this Agreement, might be asserted against the Initial Member; (k) causes to arise, 

by action or inaction, a Lien of any nature to encumber the Asset; (l) is the Borrower or any other 

Obligor, or any Affiliate thereof, with respect to such Asset; (m) makes any disbursement of 

principal or otherwise incrementally funds any Loan; or (n) makes a Discretionary Funding 

Advance with respect to the Asset. 

Article VII
	

Notices
	

Section 7.1 Notices. All notices, requests, demands and other communications 

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

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

delivered by hand or by nationally recognized air courier service, or sent via electronic mail 

followed up by a hard copy of such notice, in any case directed to the address of such Person as 

set forth in the applicable Section of this Article VII. Any such notice shall become effective 

when received (or when receipt is refused) by the addressee, provided that any notice or 

communication that is received (or refused) other than during regular business hours of the 

recipient shall be deemed to have been given at the opening of business on the next Business 

Day of the recipient. From time to time, any Person may designate a new address for purposes 

of notice hereunder by notice to such effect to the other Persons identified in this Article VII. 

Section 7.2 Article VI Notice. Any notice, request, demand or other communication 

required or permitted to be given to the Initial Member pursuant to the provisions of Article VI 

shall be delivered to: 

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Initial Member: Assistant Director, Structured Deals 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

E-mail Address: RMalami@fdic.gov 

with a copy to:		 Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

E-mail Address: DGearin@fdic.gov 

Section 7.3 Transfer Documents. For purposes of designating the Custodian as the 

return addressee on Transfer Documents, the following address shall be used: 

Custodian:		 Wells Fargo Bank, National Association
	

9062 Old Annapolis Road
	

Columbia, Maryland 21045
	

Attention: Client Services Manager
	

Reference: 2010-1 RADC/CADC Venture, LLC 

E-mail Addresses: 

Section 7.4 All Other Notices. Any notice, request, demand or other communication 

required or permitted to be given pursuant to any provision of this Agreement and that is not 

governed by the provisions of Section 7.2 or 7.3 shall be delivered to: 

Company before Closing:		 Assistant Director, Structured Deals 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

E-mail Address: RMalami@fdic.gov 

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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 

Company after Closing: 2010-1 RADC/CADC Venture, LLC 

4200 W. 115th Street, Suite 100 

Leawood, Kansas 66211 

Attention: Ryan Anderson and Kirk Lambright 

E-mail Addresses: 

with a copy to: Greenberg Traurig, LLP 

1750 Tysons Boulevard, Suite 1200 

McLean, Virginia 22102 

E-mail Address: 

Initial Member: Assistant Director, Structured Deals 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

E-mail Address: RMalami@fdic.gov 

with a copy to: Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

E-mail Address: DGearin@fdic.gov 

Article VIII 

Miscellaneous Provisions 

Section 8.1 Severability. Any provision of this Agreement that is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (a) if such provision is prohibited or unenforceable in such jurisdiction only as to a 

particular Person or Persons and/or under any particular circumstance or circumstances, such 

Attention: Thomas Galli, Shareholder 

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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; (b) without limitation of clause (a), such provision shall in any event be ineffective 

only as to such jurisdiction and only to the extent of such prohibition or unenforceability, and 

such prohibition or unenforceability in such jurisdiction shall not invalidate or render 

unenforceable such provision in any other jurisdiction; and (c) without limitation of clauses (a) 

or (b), such ineffectiveness shall not invalidate any of the remaining provisions of this 

Agreement. Without limitation of the preceding sentence, it is the intent of the parties to this 

Agreement that in the event that in any court proceeding, such court determines that any 

provision of this Agreement is prohibited or unenforceable in any jurisdiction (because of the 

duration or scope (geographic or otherwise) of such provision, or for any other reason) such 

court shall have the power to, and shall, (p) modify such provision (including without limitation, 

to the extent applicable, by limiting the duration or scope of such provision and/or the Persons 

against whom, and/or the circumstances under which, such provision shall be effective in such 

jurisdiction) for purposes of such proceeding to the minimum extent necessary so that such 

provision, as so modified, may then be enforced in such proceeding and (q) enforce such 

provision, as so modified pursuant to clause (p), in such proceeding. Nothing in this Section is 

intended to, or shall, limit (x) the ability of any party to this Agreement to appeal any court 

ruling or the effect of any favorable ruling on appeal or (y) the intended effect of Section 8.2. 

Section 8.2 Governing Law. EACH PARTY TO THIS AGREEMENT AGREES 

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

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

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE 

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

THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS 

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

THIS AGREEMENT UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM 

TO ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL 

ACTION OR INACTION BY ANY PARTY TO THIS AGREEMENT. 

Section 8.3 Cost, Fees and Expenses. Except as otherwise provided in this 

Agreement, each party to this Agreement agrees to pay all costs, fees and expenses which it has 

incurred in connection with or incidental to the matters contained in this Agreement, including 

fees and disbursements to its accountants, brokers, financial advisors and counsel. 

Section 8.4 Waivers; Amendment and Assignment. 

(a) No provision of this Agreement may be amended or waived except in 

writing executed by all of the parties to this Agreement. This Agreement and the terms, 

covenants, conditions, provisions, obligations, undertakings, rights and benefits set forth in this 

Agreement shall be binding upon, and shall inure to the benefit of, the undersigned parties and 

their respective heirs, executors, administrators, representatives, successors and permitted 

assigns, and no other Person or Persons (including Borrowers or any co-lender or other Person 

with any interest in or liability under any of the Loans) shall have any rights or remedies 

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pursuant to or by reason of this Agreement. Notwithstanding the foregoing, this Agreement may 

not be transferred or assigned without the express prior written consent of the Initial Member, 

and any attempted assignment without such consent shall be void ab initio. 

(b) Notwithstanding anything to the contrary contained elsewhere in this 

Agreement (including the foregoing Section 8.4(a)) or in any Transaction Document, to facilitate 

the possible restructuring or sale of the Purchase Money Notes, the FDIC, without the consent of 

the Private Owner, the Company or the Holders of any other Purchase Money Note, may at any 

time that the FDIC is the Holder or Note Owner of 100 percent of any Purchase Money Note or 

beneficial interest therein and from time to time cause the Company to replace or reissue such 

Purchase Money Note (or any promissory note reissued in respect thereof) and make related 

changes, modifications or amendments to this Agreement and the Transaction Documents as 

permitted therein. 

(c) Further notwithstanding anything to the contrary contained elsewhere in 

this Agreement (including the foregoing Sections 8.4(a) and (b)) or in any Transaction 

Document, the Initial NGPMN Holder shall have the right to Convert any Non-Guaranteed 

Purchase Money Note from time to time, in whole or in part, into one or more Converted 

Guaranteed Purchase Money Notes, all in accordance with Sections 2.8(b) and 2.19 of the 

Custodial and Paying Agency Agreement. 

Section 8.5 No Presumption. This Agreement shall be construed fairly as to each 

party hereto and, if at any time any such term or condition is desired or required to be interpreted 

or construed, no consideration shall be given to the issue of who actually prepared, drafted or 

requested any term or condition of this Agreement or any agreement or instrument subject 

hereto. 

Section 8.6 Entire Agreement. This Agreement and the Transaction Documents 

contain the entire agreement between the Initial Member and the Company and its Affiliates with 

respect to the subject matter hereof and supersede any and all other prior agreements, whether 

oral or written; provided, however, that any Confidentiality Agreement between the FDIC and 

the Private Owner or any Affiliates of the Private Owner (including by way of joinder) with 

respect to the transaction that is the subject of this Agreement and the Transaction Documents 

shall remain in full force and effect to the extent provided therein, except that the Company’s 

rights under Article VI shall not be deemed a repurchase option for purposes of Section 2 of any 

such Confidentiality Agreement. In the event of a conflict between the terms of this Agreement 

and the terms of any Transfer Document or other document or instrument executed in connection 

herewith or in connection with the transactions contemplated hereby, including any translation 

into a foreign language of this Agreement for the purpose of any Transfer Document, or any 

other document or instrument executed in connection herewith which is prepared for 

notarization, filing or any other purpose, the terms of this Agreement shall control, and 

furthermore, the terms of this Agreement shall in no way be or be deemed to be amended, 

modified or otherwise affected in any manner by the terms of such Transfer Document or other 

document or instrument. 

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Section 8.7 Jurisdiction; Venue and Service. 

(a) The Company, on behalf of itself and its Affiliates, hereby irrevocably and 

unconditionally: 

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

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

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

District of Columbia; or 

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

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

inconvenient forum; 

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

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

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 of the Initial Member); 

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

State of New York, County of New York; or 

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

County of New York, is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding by the Company, or 

its Affiliate 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 of the suit, action or proceeding to either the United States District Court for 

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

Columbia at the option of the Initial Member; and 

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(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 8.7(a)(iii), to bring that 

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

New York, and waives any right to remove or transfer such suit, action or proceeding to any 

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

(b) Each of the Private Owner and the Company, 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 8.7(a) may be enforced in any court of 

competent jurisdiction. 

(c) Subject to the provisions of Section 8.7(d), each of the Private Owner and 

the Company, 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 8.7(a) or Section 8.7(b) may be effected by the mailing of copies 

thereof by registered or certified mail, postage prepaid, to it at its address for notices pursuant to 

Sections 7.1 and 7.4 (with copies to such other Persons as specified therein); provided, however, 

that nothing contained in this Section 8.7(c) shall affect the right of any party to serve process in 

any other manner permitted by Law. 

(d) Nothing in this Section 8.7 shall constitute consent to jurisdiction in any 

court by the FDIC, other than as expressly provided in Section 8.7(a)(iii) and Section 8.7(a)(iv), 

or in any way limit the FDIC’s right to remove, transfer, seek to dismiss, or otherwise respond to 

any suit, action, or proceeding against it in any forum. 

Section 8.8 Waiver of Jury Trial. EACH OF THE COMPANY, FOR ITSELF AND 

ITS AFFILIATES, AND THE INITIAL MEMBER HEREBY IRREVOCABLY AND 

UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF 

ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES 

THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT 

A JURY. 

Section 8.9 Counterparts; Facsimile Signatures. This Agreement may be executed 

in two (2) or more counterparts, each of which shall be deemed an original but all of which 

together shall constitute but one and the same agreement. This Agreement and any amendments 

hereto, to the extent signed and delivered by facsimile or other electronic means, shall be treated 

in all manner and respects as an original agreement and shall be considered to have the same 

binding legal effect as if it were the original signed version thereof delivered in person. No 

signatory to this Agreement shall raise the use of a facsimile machine or other electronic means 

to deliver a signature or the fact that any signature or agreement was transmitted or 

communicated through the use of a facsimile machine or other electronic means as a defense to 

the formation or enforceability of a contract and each such Person forever waives any such 

defense. 

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Section 8.10 Headings. Article, section or paragraph titles or captions contained in this 

Agreement are inserted only as a matter of convenience and for reference and in no way define, 

limit, extend or describe the scope of this Agreement or the intent of any provisions hereof. All 

article, section and paragraph references contained in this Agreement shall refer to articles, 

sections and paragraphs in this Agreement unless otherwise specified. 

Section 8.11 Compliance with Law. Except as otherwise specifically provided in this 

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

with all Laws, as they may pertain to such party’s performance of its obligations hereunder. 

Section 8.12 Right to Specific Performance. THE COMPANY HEREBY 

ACKNOWLEDGES AND AGREES THAT THE DAMAGES TO BE INCURRED BY THE 

INITIAL MEMBER AS A RESULT OF THE COMPANY’S BREACH OF THIS 

AGREEMENT WILL BE DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN, THAT 

DAMAGES WILL NOT BE AN ADEQUATE REMEDY AND THAT ANY BREACH OR 

THREATENED BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT BY THE 

COMPANY MAY CAUSE IMMEDIATE IRREPARABLE HARM FOR WHICH THERE 

MAY BE NO ADEQUATE REMEDY AT LAW. ACCORDINGLY, THE PARTIES AGREE 

THAT, IN THE EVENT OF ANY SUCH BREACH OR THREATENED BREACH, THE 

INITIAL MEMBER SHALL BE ENTITLED TO (I) IMMEDIATE AND PERMANENT 

EQUITABLE RELIEF (INCLUDING INJUNCTIVE RELIEF AND SPECIFIC 

PERFORMANCE OF THE PROVISIONS OF THIS AGREEMENT) FROM A COURT OF 

COMPETENT JURISDICTION (IN ADDITION TO ANY OTHER REMEDY TO WHICH IT 

MAY BE ENTITLED AT LAW OR IN EQUITY), AND (II) SOLELY IN THE CASE OF A 

BREACH OF SECTION 4.15 HEREOF, LIQUIDATED DAMAGES IN THE AMOUNT OF 

$25,000 FOR EACH BREACH OF SUCH SECTION. THE PARTIES AGREE AND 

STIPULATE THAT THE INITIAL MEMBER SHALL BE ENTITLED TO EQUITABLE 

(INCLUDING INJUNCTIVE) RELIEF WITHOUT POSTING A BOND OR OTHER 

SECURITY, AND THE COMPANY FURTHER WAIVES ANY DEFENSE IN ANY SUCH 

ACTION FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF THAT A REMEDY 

AT LAW WOULD BE ADEQUATE AND ANY REQUIREMENT UNDER LAW TO POST 

SECURITY AS A PREREQUISITE TO OBTAINING EQUITABLE RELIEF. NOTHING 

CONTAINED IN THIS SECTION SHALL LIMIT EITHER PARTY’S RIGHT TO ANY 

REMEDIES AT LAW, INCLUDING THE RECOVERY OF DAMAGES FOR BREACH OF 

THIS AGREEMENT. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

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Schedule I
 

LIST OF VARIOUS FAILED FINANCIAL INSTITUTIONS
 

Bank Name City State Fund Closing Date 

IndyMac Bank, FSB Pasadena CA 10007 July 11, 2008 

First Georgia Community Bank Jackson GA 10025 December 5, 2008 

Bank of Clark County Vancouver WA 10029 January 16, 2009 

Haven Trust Bank Duluth GA 10027 December 12, 2008 

First City Bank Stockbridge GA 10047 March 20, 2009 

New Frontier Bank Greeley CO 10050 April 10, 2009 

American Southern Bank Kennesaw GA 10053 April 24, 2009 

First Bank of Beverly Hills Calabasas CA 10054 April 24, 2009 

First Bank of Idaho Ketchum ID 10055 April 24, 2009 

Michigan Heritage Bank Farmington 

Hills 

MI 10056 April 24, 2009 

America West Bank Layton UT 10057 May 1, 2009 

Citizens Community Bank Ridgewood NJ 10058 May 1, 2009 

Silverton Bank Atlanta GA 10059 May 1, 2009 

Westsound Bank Bremerton WA 10060 May 8, 2009 

Bank of Lincolnwood Lincolnwood IL 10064 June 5, 2009 

Community Bank of West 

Georgia 

Villa Rica GA 10068 June 26, 2009 

First State Bank of Altus Altus OK 10093 July 31,2009 

Integrity Bank Jupiter FL 10095 July 31, 2009 

Community Bank of Nevada Las Vegas NV 10100 August 14, 2009 

Union Bank Chandler AZ 10102 August 14, 2009 

2010-1 RADC/CADC Venture Structured Transaction 

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SCHEDULE II 

LIST OF PURCHASE MONEY NOTES 

[To Be Attached] 

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SCHEDULE II
	

LIST OF PURCHASE MONEY NOTES
	

1. Purchase Money Note (NG1-R-1 144A) dated August 26, 2010 in the original principal 

amount of $54,494,000 with a maturity date of September 25, 2013 

2. Purchase Money Note (NG2-R-1 144A) dated August 26, 2010 in the original principal 

amount of $27,247,000 with a maturity date of September 25, 2014 

3. Purchase Money Note (NG3-R-1 144A) dated August 26, 2010 in the original principal 

amount of $27,247,000 with a maturity date of September 25, 2015 

2010-1 RADC Venture Structured Transaction 

Asset Contribution and Sale Agreement S-1 

OHS East:160754685.5