Multibank Structured Transaction 2009-1 RES-ADC 

Execution Version 

LOAN CONTRIBUTION AND SALE AGREEMENT
 

BY AND BETWEEN
 

THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER 

FOR VARIOUS FAILED FINANCIAL INSTITUTIONS
 

LISTED ON SCHEDULE 1 HERETO
 

AND
 

MULTIBANK 2009-1 RES-ADC VENTURE, LLC
 

Dated as of February 9, 2010
 

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TABLE OF CONTENTS
 

Article I Definitions and Construction 2
 

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

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

Article II Contribution and Sale of Loans 14
 

Section 2.1 Terms and Conditions. ........................................................................................14 

Section 2.2 Liabilities Assumed by the Company.................................................................15 

Section 2.3 Allocation of Payments; Advances .....................................................................15
 

Section 2.4 Adjustments ..........................................................................................................16 

Section 2.5 Rebates and Refunds ...........................................................................................17
 

Section 2.6 Interest Conveyed. ...............................................................................................17
 

Section 2.7 Retained Claims ...................................................................................................17
 

Section 2.8 Transfer Taxes .....................................................................................................18 

Article III Transfer of Loans, Underlying Collateral Documents and Servicing 18
 

Section 3.1 Delivery of Documents.........................................................................................18
 

Section 3.2 Recordation of Documents ..................................................................................21 

Section 3.3 Transfer of Servicing ...........................................................................................22 

Section 3.4 Grant of Power of Attorney by Company .........................................................24 

Article IV Covenants, Duties and Obligations of the Company 5 

Section 4.1 Servicing of Loans................................................................................................25 

Section 4.2 Collection Agency/Contingency Fee Agreements .............................................25 

Section 4.3 Insured or Guaranteed Loans.............................................................................25 

Section 4.4 Reporting to or for the Applicable Taxing Authorities ....................................25 

Section 4.5 Loans in Litigation ...............................................................................................26
 

Section 4.6 Loans in Bankruptcy ...........................................................................................29 

Section 4.7 Loan Related Insurance ......................................................................................30 

Section 4.8 Loans with Escrow Accounts ..............................................................................30 

Section 4.9 Initial Member as Lead Lender in Loan Participations...................................30 

Section 4.10 Contracts for Deed...............................................................................................30
 

Section 4.11 Acquired Property ...............................................................................................31 

Section 4.12 Leases ....................................................................................................................31 

Section 4.13 Notice to Borrowers .............................................................................................31 

Section 4.14 Notice of Claims ...................................................................................................31 

Section 4.15 Use of the FDIC’s Name and Reservation of Statutory Powers ......................31 

Section 4.16 Prior Servicer Information .................................................................................31 

Section 4.17 Release of Initial Member ...................................................................................32 

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Article V Loans Sold “As Is” and Without Recourse 32 

Section 5.1 Loans Conveyed “As Is”......................................................................................32 

Section 5.2 No Warranties or Representations with Respect to Escrow Accounts ...........33 

Section 5.3 No Warranties or Representations as to Amounts of Unfunded Principal ....33 

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any Loan ..33 

Section 5.5 No Warranties or Representations With Regard to Information ...................33 

Section 5.6 Intervening or Missing Assignments ..................................................................33 

Section 5.7 No Warranties or Representations as to Documents ........................................34 

Article VI Repurchase by the Initial Member at the Company’s Option 34 

Section 6.1 Repurchases at Company’s Option ....................................................................34 

Section 6.2 Notice to Initial Member .....................................................................................36 

Section 6.3 Re-delivery of Notes, Files and Documents .......................................................36 

Section 6.4 Waiver of Company’s Repurchase Option ........................................................37 

Article VII Notices 37 

Section 7.1 Notices ...................................................................................................................37 

Section 7.2 Article VI Notice ..................................................................................................38 

Section 7.3 Transfer Documents ............................................................................................38 

Section 7.4 All Other Notices ..................................................................................................38 

Article VIII Miscellaneous Provisions 40 

Section 8.1 Severability. ..........................................................................................................40 

Section 8.2 Governing Law.....................................................................................................40 

Section 8.3 Cost, Fees and Expenses ......................................................................................41 

Section 8.4 Waivers; Amendment and Assignment .............................................................40 

Section 8.5 No Presumption....................................................................................................40 

Section 8.6 Entire Agreement .................................................................................................41 

Section 8.7 Jurisdiction; Venue and Service .........................................................................41 

Section 8.8 Waiver of Jury Trial ............................................................................................43 

Section 8.9 Counterparts; Facsimile Signatures...................................................................43 

Section 8.10 Headings................................................................................................................43 

Section 8.11 Compliance with Law ..........................................................................................44 

Section 8.12 Right to Specific Performance ............................................................................44
 

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Attachments and Schedule 

Attachment A — Loan Schedule 

Attachment B — Loan Value Schedule 

Attachment C — Affidavit and Assignment of Claim 

Attachment D — Allonge 

Attachment E — Assignment and Lost Instrument Affidavit 

Attachment F-1 — Assignment of Real Estate Mortgage 

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

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

Documents 

Attachment H — Limited Power of Attorney 

Schedule 1 List of Various Failed Financial Institutions 

Schedule 2 List of Purchase Money Notes 

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LOAN CONTRIBUTION AND SALE AGREEMENT 

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

amended or supplemented, this “Agreement”) is made and entered into as of the 9th day of 

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

CORPORATION (acting in any capacity, the “FDIC”) AS RECEIVER FOR VARIOUS 

FAILED FINANCIAL INSTITUTIONS LISTED ON SCHEDULE 1 HERETO (including its 

successors and assigns thereto, the “Initial Member”), and MULTIBANK 2009-1 RES-ADC 

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

RECITALS 

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

failed financial institutions listed on Schedule 1 (collectively, the “Failed Banks,” and each 

individually, a “Failed Bank”); and 

WHEREAS the Initial Member owns the Loans (as that term is hereinafter defined) 

described on the Loan Schedule attached hereto as Attachment A to this Agreement (the “Loan 

Schedule”); and 

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

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

interest in the Company (the “LLC Interest”); and 

WHEREAS the Initial Member desires to transfer the Loans 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 herein; and 

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

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

will execute and deliver to the Initial Member the Company’s Purchase Money Notes dated as of 

the date hereof with the maturity dates and in the principal amounts set forth on Schedule 2 

(collectively, the “Purchase Money Notes”, and each individually, a “Purchase Money Note”), 

as guaranteed by the FDIC pursuant to that certain Guaranty Agreement dated as of the date 

hereof between the FDIC in its corporate capacity and the Receiver (the “Purchase Money 

Notes Guaranty”); and 

WHEREAS the Company will be obligated to reimburse the FDIC for any guaranty 

payments made pursuant to the Purchase Money Notes Guaranty, and such reimbursement 

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

Security and Guaranty Agreement dated as of the date hereof between the Company and the 

FDIC (the “Reimbursement, Security and Guaranty Agreement”) and the Underlying 

Collateral Documents; 

WHEREAS pursuant to the Limited Liability Company Interest Sale and Assignment 

Agreement dated as of even date herewith (the “Transferred LLC Interest Sale Agreement”) 

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by and among the Initial Member, the Company and RL RES 2009-1 Investments, LLC, a 

Delaware limited liability company (the “Private Owner”), the Initial Member has agreed to sell 

and transfer 40% of the issued and outstanding membership interests in the Company (the 

“Transferred LLC Interest”) to the Private Owner for a purchase price set forth in the 

Transferred LLC Interest Sale Agreement (the “Transferred LLC Interest Sale Price”), the 

completion of such sale being referred to as the “Closing”; and 

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

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

forth on Attachment B to this Agreement (the “Loan Value Schedule”); and 

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

relating to the contribution and sale of the Loans 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, the following terms shall 

have the meanings and definitions hereinafter respectively set forth: 

“Account Control Agreement” has the meaning given that term in the Custodial and 

Paying Agency Agreement. 

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

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

“Acquired Property” means, collectively, the Receiver Acquired Property and the 

Company Acquired Property. 

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

equity, before or by a Governmental Authority. 

“Adjusted Cut-Off Date Unpaid Principal Balance” means, with respect to any Loan, 

the Cut-Off Date Unpaid Principal Balance adjusted higher or lower, as appropriate, to reflect the 

actual Unpaid Principal Balance of the Loan as of the Cut-Off Date on the Accounting Records 

and to 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 for which the Redemption Period, if 

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any, expired 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 for which the Redemption Period, 

if any, expired 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 Loan, the quotient (expressed as a 

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

of such Loan. 

“Advances” means the sum of all unreimbursed amounts advanced by or on behalf of a 

Failed Bank, the Initial Member or the Company for the benefit of a Borrower or a third-party 

advanced to meet required scheduled payments, or to protect the Failed Bank’s or the Initial 

Member’s lien position or the Collateral, including payment of ad valorem taxes and premiums 

for hazard and forced placed insurance as permitted by the terms of any Loan Document. 

Advances do not include Funding Draws or Corporate Advances. 

“Affected Loan” has the meaning given that term in Section 4.5(c). 

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

the form of Attachment C to this Agreement. 

“Affiliate” means, with respect to any specified Person, (i) any other Person directly or 

indirectly controlling or controlled by or under common control with such specified Person, (ii) 

any Person owning or controlling ten percent (10%) or more of the outstanding voting securities, 

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

general partner, managing member, trustee, employee or promoter of the Person specified or any 

Immediate Family Member of such officer, director, partner, member, trustee, employee or 

promoter, (iv) any corporation, partnership, limited liability company, trust or similar entity for 

which any Person referred to in clause (ii) or (iii) acts in the stated capacity, or (v) any Person 

who is an officer, director, general partner, managing member, trustee or holder of ten percent 

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

of any Person described in clauses (i) through (iv); provided, however, that (I) with respect to the 

Private Owner (in any capacity), in addition to the foregoing, each Affiliate of Rialto Capital 

Management, LLC, a Delaware limited liability company, shall be deemed to be an “Affiliate” of 

the Private Owner, and (II) none of the Initial Member, the Purchase Money Notes Guarantor, 

the collateral agent pursuant to the Reimbursement, Security and Guaranty Agreement or any 

Affiliate (for this purpose determined disregarding clauses (ii), (iii) and (iv) of this definition 

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

Person Controlled by the Company) of any of the foregoing shall be deemed to be an “Affiliate” 

of the Company or of any Person controlled by the Company. For purposes of this definition, 

the term “control” (including the phrases “controlled by” and “under common control with ”), 

when used with respect to any specified Person, means the possession, directly or indirectly, of 

the power to direct or cause the direction of the management and policies of such Person, 

whether through the ownership of voting securities or interests, by contract or otherwise. 

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

includes all exhibits, schedules and attachments to this Agreement. 

“Ancillary Documents” means the LLC Operating Agreement, the Servicing Agreement 

(including the Electronic Tracking Agreement), the Custodial and Paying Agency Agreement, 

one or more Account Control Agreements, the Transferred LLC Interest Sale Agreement, the 

Purchase Money Notes (and any promissory note reissued in respect thereof pursuant to Section 

2.8 of the Custodial and Paying Agency Agreement), the Purchase Money Notes Guaranty and 

the Reimbursement, Security and Guaranty Agreement, in each case once executed and 

delivered, and any and all other agreements and instruments executed and delivered in 

connection with the Closing. 

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

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

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

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

“Bid” has the meaning given that term in the Transferred LLC Interest Sale Agreement. 

“Bidder” means the entity or individual who submitted the Bid. 

“Borrower” means any borrower with respect to any Loan. 

“Business Day” means any day except a Saturday, Sunday or other day on which 

commercial banks in Washington, D.C. or United States federal government offices are required 

or authorized by Law to close. 

“Closing” has the meaning given that term in the recitals. 

“Closing Date” has the meaning given that term in the preamble. 

“Collection Account” has the meaning given that term in the Custodial and Paying 

Agency Agreement. 

“Company” has the meaning given that term in the preamble. 

“Company Acquired Property” means (i) Underlying Collateral to which title is 

acquired by or on behalf of the Company or any Ownership Entity by foreclosure, by deed in lieu 

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

equity interests in any Ownership Entity holding any such Underlying Collateral and (iii) the 

assets held directly or indirectly by any such Ownership Entity. 

“Contract for Deed” means an executory contract with a third party to convey real 

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

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

“Corporate Advances” means the payment of appraisal fees, broker opinion fees, 

attorney fees and associated legal fees, foreclosure fees, trustee fees, property inspection fees, 

property preservation and operating cost fees, tax penalties, premiums for title insurance policies, 

lien search fees or any other cost that can be directly associated with the collection and servicing 

of a Loan. 

“Custodial and Paying Agency Agreement” means the Custodial and Paying Agency 

Agreement dated as of the date hereof between the Company, the Purchase Money Notes 

Guarantor, the Initial Member (in its capacity as the Collateral Agent) and Wells Fargo Bank, 

N.A., in its capacities as the Custodian and the Paying Agent. 

“Custodial Documents” has the meaning given that term in the Custodial and Paying 

Agency Agreement. 

“Custodian” has the meaning given that term in the Custodial and Paying Agency 

Agreement. 

“Cut-Off Date” means as of the close of business on December 18, 2009. 

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

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

Loan Schedule. 

“Deficiency Balance” means the remaining unpaid principal balance of any Note or Loan 

sold or contributed pursuant to this Agreement after crediting to it the proceeds of a foreclosure 

sale, deed in lieu of foreclosure or any other exercise of remedies with respect to Underlying 

Collateral. 

“Discretionary Funding Advance” has the meaning given that term in the LLC 

Operating Agreement. 

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

to insufficient funds or a stop payment order. 

“Distribution Date Report” has the meaning given that term in the Custodial and Paying 

Agency Agreement. 

“Due Period” has the meaning given that term in the Custodial and Paying Agency 

Agreement. 

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“Electronic Tracking Agreement” has the meaning given that term in the Custodial and 

Paying Agency Agreement. 

“Environmental Hazard” means the presence at, in or under any Mortgaged Property 

(whether held in fee simple estate or subject to a ground lease or otherwise, and including any 

improvements whether by buildings or facilities, and any personal property, fixtures, leases and 

other property or rights pertaining thereto), of any “hazardous substance,” as such term is defined 

in Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability 

Act of 1980, 42 U.S.C. §9601(14), or any petroleum (including crude oil or any fraction thereof 

that is liquid at standard conditions of temperature and pressure), at a level or in an amount that 

requires remediation or abatement pursuant to applicable Law. 

“Escrow Account” means an account maintained by the Initial Member or its agent for 

the deposit of Escrow Payments received in respect of one or more Loans. 

“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 Loan Schedule. 

“Escrow Payments” means the amounts for the purpose of paying ground rents, taxes, 

assessments, water rates, common charges in condominiums and planned unit developments, 

mortgage insurance premiums, fire and hazard insurance premiums and other payments, or for 

the purpose of paying construction costs, that have been deposited in escrow or designated by the 

Borrower with the Initial Member or its servicer or other agent with respect to any Loan. 

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

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

“Excess Working Capital Advances” has the meaning given that term in the LLC 

Operating Agreement. 

“Excluded Liabilities” has the meaning given that term in Section 2.2. 

“Existing Servicer” means a Person (including the Initial Member in its capacity as 

Receiver for a Failed Bank) acting as servicer for any Loan as of the Cut-Off Date. 

“Failed Banks” or “Failed Bank” has the meaning given that term in the recitals. 

“FDIC” has the meaning given that term in the preamble. 

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

subdivision of or in such other jurisdiction. 

“Foreign Loan” means a Loan with respect to which the Borrower or any of the 

Underlying Collateral is located in any Foreign Jurisdiction. 

“Funding Draws” has the meaning given that term in the LLC Operating Agreement. 

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“GAAP” means the generally accepted accounting principles as in effect in the United 

States from time to time. 

“Governmental Authority” means (i) any United States or non-United States national, 

federal, state, local, municipal, provincial or international government or any political 

subdivision thereof or (ii) any governmental, regulatory or administrative authority, agency or 

commission or judicial or arbitral body of any of the foregoing described in clause (i). 

“Group of Loans” means all Loans that, as of the Cut-Off Date, are serviced by the same 

Existing Servicer. 

“Guaranty” means the Guaranty required to be delivered to the Initial Member pursuant 

to the Transferred LLC Interest Sale Agreement. 

“Immediate Family Member” means with respect to any individual, his or her spouse, 

parents, parents-in-law, grandparents, descendents, nephews, nieces, brothers, sisters, brothersin-law, sisters-in-law, children (whether natural or adopted), children-in-law, step children, 

grandchildren and grandchildren-in-law. 

“Initial Member” has the meaning given that term in the preamble. 

“Interim Servicing Fee” means the fee to be paid by the Company to the Initial Member 

for the provision of interim servicing on behalf of the Company with respect to the Loans for the 

period beginning on the day after the Cut-Off Date and ending, with respect to each Loan, on the 

Servicing Transfer Date for such Loan. The Interim Servicing Fee for each Due Period with 

respect to each Group of Loans 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 

Loans by multiplying (i) the Unpaid Principal Balance of such Group of Loans calculated as of 

the first day of such Due Period by (ii) 0.25 percent (0.25%) by (iii) a fraction, the numerator of 

which is the number of days in the respective Due Period (whether or not the Servicing Transfer 

Date occurs within such Due Period) and the denominator of which is 360. 

“Interim Servicing Period” has the meaning given that term in Section 3.3(b). 

“Law” means any applicable statute, law, ordinance, regulation, rule, code, injunction, 

judgment, decree or order (including any executive order) of any Governmental Authority. 

“Lien” means any pledge, security interest, charge, restriction on or condition to transfer, 

voting or exercise or enjoyment of any right or beneficial interest, option, right of first refusal, 

easement, covenant, restriction and any other lien, claim or encumbrance of any nature 

whatsoever. 

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

Attachment H to this Agreement. 

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“LLC Operating Agreement” means the Amended and Restated Limited Liability 

Operating Company Agreement dated as of the date hereof among the Initial Member, the 

Private Owner and the Company. 

“Loan” means any loan, Loan Participation, Ownership Entity (including any cash and 

cash equivalents held directly or indirectly by such Ownership Entity) or Receiver Acquired 

Property listed on the Loan Schedule, and any loan into which any listed loan or Loan 

Participation is refinanced or modified, and includes with respect to each such loan, Loan 

Participation, Ownership Entity, Receiver Acquired Property or other related asset or any 

Related Agreement: (i) any obligation evidenced by a Note; (ii) all rights, powers or Liens of the 

Initial Member or the Failed Banks in or under the Underlying Collateral and Underlying 

Collateral Documents and in and to Acquired Property (including all Ownership Entities and 

Acquired Property held by any Ownership Entity); (iii) all rights of the Initial Member or the 

Failed Banks pursuant to any Contract for Deed and in or to the real property that is subject to 

any such Contract for Deed; (iv) all rights of the Initial Member or the Failed Banks pursuant to 

any lease and in or to the related leased property; (v) all rights to causes of action, lawsuits, 

judgments, claims and demands of any nature available to or being pursued by or for the benefit 

of the Initial Member or the Failed Banks with respect to the Loans, the Underlying Collateral or 

the ownership, use, function, value of or other rights pertaining thereto, whether arising by way 

of counterclaim or otherwise, other than any claims retained by the Initial Member pursuant to 

Section 2.7; (vi) all guaranties, warranties, indemnities and similar rights in favor of the Initial 

Member or the Failed Banks with respect to any of the Loans; (vii) all rights of the Initial 

Member or the Failed Banks under the Related Agreements; and (viii) all rights of the Initial 

Member or the Failed Banks to any Deficiency Balances. 

“Loan Documents” means all documents, agreements, certificates, instruments and other 

writings (including all Underlying Collateral Documents) now or hereafter executed by or 

delivered or caused to be delivered by any Borrower, any Obligor or any other obligor 

evidencing, creating, guaranteeing or securing, or otherwise executed or delivered in respect of, 

all or any part of a Loan or any Acquired Property or evidencing any transaction contemplated 

thereby, and all Modifications thereto. 

“Loan File” means all documents pertaining to any Loan, either copies or originals, that 

are in the possession of the Initial Member or any of its employees or contractors responsible for 

the servicing of the Loan, other than (i) the original Notes, renewals of the Notes and other 

Underlying Collateral Documents and Custodial Documents and (ii) confidential or privileged 

communications between the Initial Member (or any predecessor-in-interest, including the 

applicable Failed Bank) and its legal counsel; provided, however , that the Loan Files do not 

include files maintained by other employees or agents of the Initial Member or attorney-client or 

work product privileged materials held by the Initial Member’s legal counsel unless, in the 

opinion of such counsel, the disclosure of the material is not likely to result in the waiver of the 

attorney-client or work product privilege. 

“Loan Participation” means any loan identified on the Loan Schedule subject to a 

shared credit, participation, co-lending or similar intercreditor agreement pursuant to which the 

Initial Member or the applicable Failed Bank was the lead or agent financial depository 

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institution or otherwise managed or held the credit or sold participations, or under which the 

Initial Member or the applicable Failed Bank was a participating financial depository institution 

or purchased participations in a credit managed by another Person. 

“Loan Proceeds” has the meaning given that term in the LLC Operating Agreement. 

“Loan Schedule” has the meaning given that term in the recitals. 

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

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

“Manager” has the meaning given that term in the LLC Operating Agreement. 

“MERS” has the meaning given that term in the LLC Operating Agreement. 

“MERS Registered Mortgages” has the meaning given that term in Section 3.1(c). 

“MERS® System” has the meaning given that term in the LLC Operating Agreement. 

“Modification” means any extension, renewal, substitution, replacement, supplement, 

amendment or modification of any agreement, certificate, document, instrument or other writing, 

whether or not contemplated in the original agreement, document or instrument. 

“Monthly Report” has the meaning given that term in the LLC Operating Agreement. 

“Mortgage” means the mortgage, deed of trust, deed to secure debt, trust deed or other 

instrument, including any amendments or modifications thereto, creating a first or junior lien on 

or ownership interest in a Mortgaged Property. 

“Mortgage Assignment” means, with respect to any Mortgage, an assignment of the 

Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the 

applicable Law of the jurisdiction wherein the related Mortgaged Property is located to reflect 

the assignment of the Mortgage. 

“Mortgaged Property” means any underlying real property constituting part of the 

Underlying Collateral for any Loan, whether held in fee simple estate or subject to a ground 

lease or otherwise, and whether or not improved by buildings or facilities, and any personal 

property, fixtures, leases and other property or rights pertaining thereto. 

“Note” means each note or promissory note, lost instrument affidavit, loan agreement, 

shared credit or Loan Participation agreement, intercreditor agreement, reimbursement 

agreement, any other evidence of indebtedness of any kind, or any other agreement, document or 

instrument evidencing a Loan, and all Modifications to the foregoing. 

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“Obligations” means all obligations and commitments of the Initial Member relating to a 

Loan and arising or due or payable after the Cut-Off Date pursuant to and in accordance with any 

of the related Notes, Underlying Collateral Documents, Loan Documents or Related Agreements. 

“Obligor” means (i) any guarantor of all or any portion of any Loan or all or any of any 

Borrower’s obligations set forth and described in the Loan Documents or (ii) any other Person 

(other than the Borrower, the Lender and any administrative or other agent) that is obligated 

pursuant to the Loan Documents with respect to a Loan, and shall include the guarantor under 

any completion guaranty or similar document. 

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

“Ownership Entity” means a Single Purpose Entity that is a subsidiary of the Company, 

whether contributed by the Initial Member on the Closing Date (if any) or formed or acquired by 

the Company thereafter; provided, however, that, with respect to any entity transferred to the 

Company on the Closing Date pursuant to this Agreement that is not a Single Purpose Entity as 

of such date, any such entity shall be deemed to be an Ownership Entity. 

“Paying Agent” has the meaning given that term in the Custodial and Paying Agency 

Agreement. 

“Person” means any individual, corporation, partnership (general or limited), limited 

liability company, limited liability partnership, firm, joint venture, association, joint-stock 

company, trust, estate, unincorporated organization, governmental or regulatory body or other 

entity. 

“Pre-Approved Charges” means the costs and expenses expressly designated as “PreApproved Charges” in Sections 2.8, 3.1(c), 3.1(d)(i), 3.1(e), 3.2(b), 4.3, 4.10 and 5.6 of this 

Agreement, and no other costs or expenses. 

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

“Private Owner” has the meaning given that term in the recitals. 

“Purchase Money Notes” or “Purchase Money Note” has the meaning given that term 

in the recitals. 

“Purchase Money Notes Guaranty” has the meaning given that term in the recitals. 

“Receiver Acquired Property” means (i) Underlying Collateral title to which has been 

acquired by or on behalf of the Initial Member or any Failed Bank by foreclosure, by deed in lieu 

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

such case in accordance with the Loan Documents if the foreclosure or other acquisition event 

occurs after the Cut-Off Date, or occurred on or before the Cut-Off Date but the Redemption 

Period had not expired on or before the Cut-Off Date, (ii) the equity interests in any Ownership 

Entity holding any such Underlying Collateral and (iii) the assets held directly or indirectly by 

any such Ownership Entities. 

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“Redemption Period” means the statutory time period, if any, during which a foreclosed 

owner may buy back foreclosed real property from the foreclosure sale purchaser under the Law 

of the jurisdiction in which the property is located, which period (if the jurisdiction provides for 

the same) may vary among the jurisdictions that do provide for a Redemption Period. 

“Reimbursement, Security and Guaranty Agreement” has the meaning given that 

term in the recitals. 

“Related Agreement” means (i) any agreement, document or instrument (other than the 

Note and Underlying Collateral Documents) relating to or evidencing any obligation to pay or 

securing any Loan (including any equipment lease, letter of credit, bankers’ acceptance, draft, 

system confirmation of transaction, loan history, affidavit, general collection information, and 

correspondence and comments relating to any obligation), (ii) any agreement relating to real 

property or rights in or to any real property (including leases, tenancies, concessions, licenses or 

other rights of occupancy or use and security deposits related thereto) related to any Loan, (iii) 

any collection, contingency fee, and tax and other service agreements that are specific to the 

Loans (or any of them) and that are assignable, (iv) any letter of assurance, letter of credit or 

similar instrument evidencing an obligation of any Failed Bank or the Initial Member that was 

issued for the benefit of any Person and relates in any way to a Loan or the acquisition, 

development or construction of any project with respect to which the proceeds of such Loan 

were used or were intended to be used and (v) any interest rate swap arrangement between the 

Borrower and any of a Failed Bank, the Initial Member or the Company (in each case as the 

applicable lender, agent or other creditor under the Loan) that relates to any Loan. 

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

“Repurchase Loan Value” means, with respect to any Loan, the sum of (i) the product 

of the Loan Value of such Loan multiplied by 2.5 and (ii) the product of (x) the aggregate 

original principal face amount of the Purchase Money Notes and (y) the quotient (expressed as a 

decimal) of the Loan Value of such Loan divided by the Transferred LLC Interest Sale Price. 

“Repurchase Percentage” means, with respect to any Loan, the quotient (expressed as a 

decimal) of the Repurchase Loan Value for such Loan divided by the Adjusted Cut-Off Date 

Unpaid Principal Balance of such Loan. 

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

Repurchase Percentage multiplied by the Unpaid Principal Balance of the Loan as of the date of 

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

Company with respect to such Loan (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 the Loan as of the date of the repurchase that is not 

transferred to the Initial Member at the time of the repurchase. 

“Servicer” has the meaning given that term in the LLC Operating Agreement. 

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“Servicing Agreement” has the meaning given that term in the LLC Operating 

Agreement. 

“Servicing Expenses” has the meaning given that term in the LLC Operating Agreement. 

“Servicing Transfer Date” means, with respect to any Loan, the date on which the 

transfer of the loan servicing records for such Loan to the Servicer’s system of records is 

completed and the Servicer begins to service such Loan, as determined in accordance with 

Section 3.3, which date the Initial Member and the Company anticipate shall be no later than 

March 31, 2010 or such other date as is agreed to by the Initial Member and the Company, it 

being understood and agreed that (i) the loan servicing records for each Group of Loans will be 

transferred to the Servicer’s system of records at the same time, but not necessarily at the same 

time as the loan servicing records for any other Group of Loans are transferred to the Servicer’s 

system of records, and (ii) the Initial Member and the Company will proceed (and the Company 

is to cause the Servicer to proceed) with all commercially reasonable diligence to effect such 

transfer of loan servicing records as soon as is practicable after the Closing. 

“Single Purpose Entity” has the meaning given that term in the LLC Operating 

Agreement. 

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

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

and other documents of assignment, conveyance or transfer required under any applicable Law to 

evidence the transfer to the Company of the Loans, the Underlying Collateral and the Underlying 

Collateral Documents and the Initial Member’s rights with respect to the Loans and the 

Underlying Collateral. The form Allonge to be used in preparation of the Transfer Documents is 

attached to this Agreement as Attachment D, the form of Assignment and Lost Instrument 

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

Attachment E, 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 F-1 and F-2, respectively, and 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 G. 

“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 Loans, the 

Underlying Collateral and the Underlying Collateral Documents or the rights in the Underlying 

Collateral or the assignment and assumption of the Obligations thereunder. 

“Transferred LLC Interest” has the meaning given that term in the recitals. 

“Transferred LLC Interest Sale Agreement” has the meaning given that term in the 

recitals. 

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“Transferred LLC Interest Sale Price” has the meaning given that term in the recitals. 

“Underlying Collateral” means any and all real or personal property, whether tangible, 

intangible or mixed, securing or pledged to secure a Loan, including (i) any account, equipment, 

guarantee or contract right, or equity, partnership or other interest that is the subject of any 

Underlying Collateral Document and (ii) as the context requires, Acquired Property, whether or 

not so expressly specified. 

“Underlying Collateral Document” means any pledge agreement, security agreement, 

personal, corporate or other guaranty, deed of trust, deed, trust deed, deed to secure debt, 

mortgage, contract for the sale of real property, assignment, collateral agreement, stock power or 

other agreement or document of any kind, whether an original or a copy, whether similar to or 

different from those enumerated, (i) securing in any manner the performance or payment by any 

Borrower or any Obligor of its obligations or the obligations of any other Borrower or Obligor 

pursuant to any of the Loans or Notes evidencing the Loans or (ii) evidencing any Acquired 

Property or the ownership of any Acquired Property. 

“Uniform Commercial Code” means the Uniform Commercial Code as in effect in any 

applicable jurisdiction, as the same might be amended from time to time. 

“Unpaid Principal Balance” has the meaning given that term in the LLC Operating 

Agreement. 

“Working Capital Reserve” has the meaning given that term in the Custodial and 

Paying Agency Agreement. 

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. 

(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 

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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 Loans
 

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, 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 Loans (including all Receiver Acquired Property, equity and other 

interests in Ownership Entities formed by the Receiver or any predecessor in interest, Notes, the 

other Loan Documents and Related Agreements), including all future advances made with 

respect thereto, effective as of the Closing Date, and all rights in the Underlying Collateral 

pursuant to the Underlying Collateral Documents; 

(b) all amounts payable to the Initial Member under the Loan Documents and 

all obligations owed to the Initial Member in connection with the Loans and the Loan 

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 under or in 

connection with the Loans or the Loan Documents or that is in any way based on or related to 

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

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

or the transactions related thereto or contemplated thereby, excluding, however, any and all 

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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 Loans 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 under or with respect to the Loans, and any 

securities, interest, dividends or other property that may 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 Loans 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 liability or monetary obligation of the Initial Member to the 

extent attributable to an act, omission or circumstances that occurred or existed prior to the CutOff Date and that constitutes a breach or default under any contract (including any contract 

included in the Obligations), a tort, willful misconduct, fraud or a violation of Law by the Initial 

Member or a Failed Bank; 

(b) any monetary claim against or monetary liability of the FDIC in its 

capacity as receiver for a Failed Bank that, was, is or will be subject to or is required to be 

asserted through the receivership administrative claims processes administered by the FDIC in its 

capacity as receiver for a Failed Bank pursuant to 12 U.S.C. § 1821(d)(3) through (13); and 

(c) 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 a Failed Bank under applicable Law, including claims and liabilities that are 

barred under 12 U.S.C. §§ 1821(c), (d), (e) (including § 1821(e)(3)), (i), (j); 12 U.S.C. § 1822; 

12 U.S.C. § 1823; or 12 U.S.C. § 1825. 

Section 2.3 Alloca tion of Pa ymen ts; Ad va n ces. 

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

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

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

be allocated and distributed to and shall belong to the Company. 

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(b) The Initial Member shall be paid or reimbursed on the Servicing Transfer 

Date for Advances that an Existing Servicer pays after the Cut-Off Date through the Closing 

Date out of its own funds (rather than using Loan Proceeds to pay for the respective expenses for 

which the Advances are made). In addition, the Initial Member shall be paid or reimbursed on 

the Servicing Transfer Date for Servicing Expenses or Pre-Approved Charges that an Existing 

Servicer pays after the Closing 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 or otherwise using Loan Proceeds to pay for the respective Servicing Expenses or PreApproved Charges). Any such amounts for Advances paid after the Cut-Off Date through the 

Closing Date or for Servicing Expenses or Pre-Approved Charges paid after the Closing Date 

through the Servicing Transfer Date owed to but not reimbursed to the Initial Member on the 

Servicing Transfer Date for the respective Loan 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 Servicing 

Expenses or Pre-Approved Charges with respect to a Loan, as well as for any advances of 

principal or interest with respect to a Loan 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 Loan prior 

to the Servicing Transfer Date for such Loan to fund Servicing Expenses, Pre-Approved Charges 

or otherwise. On the respective Servicing Transfer Date, the Initial Member shall provide the 

Company with a statement setting forth, for each Loan 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 for such Loan and the amount of any reimbursement of Advances that the Initial 

Member has received from the respective Borrower or other Obligor. 

(b) On the respective Servicing Transfer Date, the Initial Member shall 

provide the Company with a statement setting forth, for each Loan that is the subject of such 

Servicing Transfer Date, the Adjusted Cut-Off Date 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 Cut-Off Date Unpaid Principal Balance of any Loan 

exceeds the Cut-Off Date Unpaid Principal Balance of such Loan (such excess, the “Excess 

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

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

Balance of any Loan exceeds the Adjusted Cut-Off Date Unpaid Principal Balance of any Loan 

(such deficiency, the “Principal Deficiency”), the Initial Member shall be liable to the Private 

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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 Loan. 

(d) On 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 

Advances 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 Loans as of each Servicing Transfer Date 

shall be remitted to the Servicer (and shall not be considered to constitute Loan Proceeds under 

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 Cut-Off Date Unpaid Principal Balances, the Adjusted Escrow Balances and 

the Unpaid Principal Balances with respect to the Loans. 

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

refunds from the Initial Member or the Failed Banks 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 Banks 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, or occurred on or before the Cut-Off Date but the Redemption Period had not expired on or 

before the Cut-Off Date, the Initial Member shall convey to the Company the Deficiency 

Balance, if any, 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, together with a special warranty deed to the Receiver 

Acquired Property purchased at such foreclosure sale. The Company acknowledges and agrees 

that the Company shall not acquire any interest in or to (a) any such Underlying Collateral that 

was foreclosed by the Initial Member or any of its predecessors-in-interest on or before the CutOff Date and for which the Redemption Period, if any, had expired on or before the Cut-Off Date 

and (b) any performance or completion bond or letter of credit or other assurance filed with any 

Governmental Authority with respect to any Loan 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 any Failed Bank to make any payment or 

otherwise provide any performance or satisfaction. 

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 

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

interest of the Initial Member, any 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, 

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whether known or unknown, that the Initial Member, any 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-in-interest in connection 

with the initiation, origination, servicing or administration of a Loan; (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 a Loan; (c) any third parties for alleged fraud, 

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

of a Loan; 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 in connection with the initiation, origination, insuring or servicing of a Loan. 

Section 2.8 Transfer Taxes. Except as otherwise provided herein, the Company shall 

pay, indemnify and hold harmless the Initial Member from and against any Transfer Taxes, and 

shall timely file 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 timely file 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 for purposes of the Custodial and Paying 

Agency Agreement. 

Article III
 

Transfer of Loans, Underlying Collateral Documents and Servicing 

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

execute and deliver to one another the following: 

(a) On the Closing Date, 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, other Custodial Documents and Underlying Collateral 

Documents for each Loan to the Custodian as soon as is practicable after the Closing Date and 

shall deliver the Loan Files for such Loan 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 Loan. 

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

Documents securing the Loans 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 

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Loans. To the extent the cost of transferring the MERS Registered Mortgages is a cost imposed 

by MERS on the transferor of a Loan, 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 for purposes 

of the Custodial and Paying Agency Agreement, provided 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 for purposes of the Custodial and Paying Agency Agreement 

and such charges shall be borne by the Private Owner alone. The Company shall provide a 

report to the Initial Member 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 (2) 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. 

(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 

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

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

Company in complying with the obligations set forth in the preceding sentences shall constitute 

Pre-Approved Charges for purposes of the Custodial and Paying Agency Agreement, provided 

that any such expenses with respect to a Transfer Document that is not properly prepared and 

submitted for recordation or filing within six (6) months of the Closing Date shall not constitute 

Pre-Approved Charges for purposes of the Custodial and Paying Agency Agreement 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 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 herein, 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 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 G, inclusive, in preparing the Transfer Documents. All documents of assignment, 

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 corporate capacity or as Receiver for [Insert Name of 

Appropriate 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 Lender and the Purchase Money Notes Guarantor 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 

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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 Loans, the Company, at its own expense, must retain 

counsel licensed in the Foreign Jurisdictions involved with the Foreign Loans. Such foreign 

counsel must draft the documents necessary to assign the Foreign Loans to the Company. 

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

in complying with the obligations set forth in the preceding sentence shall constitute PreApproved Charges for purposes of this Agreement. Documents presented to the Initial Member 

to assign Foreign Loans 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 herein 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 Loans 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 

right, title and interest in and to any and all Loans 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. 

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 Loans 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 

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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 in complying with the obligations set forth in this Section 3.2 shall 

constitute Pre-Approved Charges for purposes of the Custodial and Paying Agency Agreement; 

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 (6) months of the Closing 

Date shall not constitute Pre-Approved Charges for purposes of the Custodial and Paying 

Agency Agreement 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 may 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. 

Section 3.3 Transfer of Servicing. 

(a) The Loans 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 Loans 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. The Company shall assume on and as of the Closing 

Date all obligations and liabilities with respect to any and all asset management and special 

servicing functions with respect to the Loans, notwithstanding any interim servicing that the 

Initial Member and the Existing Servicers might perform during the Interim Servicing Period. 

Without limiting the generality of the foregoing, the Company shall assume on and as of the 

Closing Date all obligations with respect to funding any Funding Draws and shall consult and 

coordinate with the Paying Agent concerning any advances from the Working Capital Reserve 

and the provision of any Discretionary Funding Advances to fund any such construction draws. 

To facilitate communication among the Company, the Initial Member and the Existing Servicers, 

(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 Servicer will be authorized 

to refer during the respective Interim Servicing Period all asset management or special servicing 

inquiries and matters and all any circumstances outside the scope of the Initial Member’s and the 

Existing Servicers’ limited 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’ limited interim servicing responsibilities. Prior to the Closing Date, the 

Initial Member will establish protocols with respect to those servicing inquiries, matters and 

circumstances that are to be referred to the Company’s designated principal contact person or 

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that are to be handled by the Initial Member and the Existing Servicers as part of the limited 

interim servicing described in Section 3.3(b). 

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

Initial Member will provide interim servicing of the Loans, or will maintain agreements with 

third-party Existing Servicers to provide interim servicing of the Loans, on the Company’s 

behalf beginning on the day after the Cut-Off Date and ending, with respect to each Loan, on the 

Servicing Transfer Date for such Loan (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; and (iv) to make payments (whether 

from its own funds or otherwise) to fund Servicing Expenses and Pre-Approved Charges. The 

foregoing shall not limit the actions that the Initial Member may take with respect to any Loan 

prior to the Servicing Transfer Date. 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 March 31, 2010. 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 and the Escrow 

Accounts and to request 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 with respect to the payment and satisfaction of any Servicing Expenses or 

Pre-Approved Charges in full if the amount of Loan Proceeds it has collected and is retaining is 

insufficient to pay and satisfy such Servicing Expenses or Pre-Approved Charges in full). 

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 Loans on the Servicing Transfer 

Date for such Group of Loans. On the Servicing Transfer Date with respect to each Group of 

Loans, the Initial Member will provide (or will cause the applicable Existing Servicer to provide) 

the Company with a statement setting forth for the period from the effective date of the most 

recent regular monthly report that the Initial Member has delivered to the Company and the 

Servicing Transfer Date (i) the amount of payments and other amounts received for each Loan to 

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

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. 

(c) During the Interim Servicing Period, the Initial Member shall cause all 

Loan Proceeds with respect to any Group of Loans for which the Servicing Transfer Date has not 

occurred (including any recoveries of advances) remaining after reimbursement or payment of 

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 Loan Proceeds with respect to any 

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Group of Loans for which the Servicing Transfer Date has not occurred, prior to the time Loan 

Proceeds are required to be remitted to the Collection Account (including for the reimbursement 

of any advances that the Initial Member might make during the Interim Servicing Period). 

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

respect to each Group of Loans 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 

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

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

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

Group of Loans 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 Loans 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 Loan Proceeds. 

(e) 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 Loans. 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 Banks 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 Loans (other than gross negligence or willful 

misconduct) at any time prior to the last Servicing Transfer Date. 

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

to cause all Servicing Transfer Dates to occur prior to March 31, 2010 to the extent reasonably 

practicable, unless a later date is consented to by the Initial Member. 

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 or Section 4.11 as they relate to 

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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 or Section 4.11. 

Article IV
 

Covenants, Duties and Obligations of the Company
 

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

Company shall service the Loans 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 Loans 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 Loans (or any 

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

Member and the Failed Banks thereunder. 

Section 4.3 Insured or Guaranteed Loans. If any Loans 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 Loans 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 Loans, 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 Loans 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 Loans, 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 Loans, 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 to fulfill its obligations set forth in the preceding sentence shall constitute PreApproved Charges for purposes of the Custodial and Paying Agency Agreement. 

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

each Loan, 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 Loans, for the calendar or tax year in which the Closing Date falls and thereafter. 

Section 4.5 Loans in Litigation. 

(a) (i) With respect to any Loan 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 Loan 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 Loan 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 (15) 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 Loan 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 applicable 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 applicable Failed Bank) 

to handle such litigation with respect to the Loans, 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 

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Member and the applicable Failed Bank as parties 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 applicable 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 (5) 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 applicable 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 applicable 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 

applicable Failed Bank (other than to the extent the same constitute Servicing Expenses). The 

Company shall provide to the Initial Member no later than twenty (20) 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-in-interest. 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 

Loan(s), 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 applicable 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 crossclaims 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 Repurchase Loan Value of the Loan relating to or that is the subject of such claim 

(such Loan, the “Affected Loan”) (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 Loan 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) 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 may 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 under 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 Loans 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 Loans for which 

the Initial Member or the Failed Banks have 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 Loan 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 C or any similar forms as might be required 

in any relevant Foreign Jurisdiction and shall be acceptable to the Initial Member, for each Loan 

where a Borrower under such Loan is in bankruptcy as of the Closing Date. The Company 

hereby releases the Initial Member, the FDIC and the Failed Banks 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 Banks 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 and expenses incurred 

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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 2.6 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 Loan 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 

the Underlying Collateral for each Loan; (b) the Company shall be responsible for having itself 

substituted as loss payee on all Loan related insurance in which any Failed Bank or the Initial 

Member is currently listed as a loss payee; and (c) the Company shall cause to be put into place 

such insurance for the Underlying Collateral with respect to each Loan 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 Underlying 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 Cut-Off Date of any insurance policy maintained by 

the Initial Member or any 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 Loans, 

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 

Loans. 

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. As of each 

Servicing Transfer Date, any negative escrow balances shall be netted against the amount of any 

positive escrow balances held in the Escrow Accounts 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 Loan Participations. The Company 

hereby agrees to assume the role of lead lender for any Loan Participations in which a portion of 

a Loan 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 Loan Participations subject to all participants’ right, title and interest in such 

Loan Participations. 

Section 4.10 Contracts for Deed. The Company agrees to comply with all Obligations 

set forth in any Contract for Deed contained in any Loan subject to this Agreement. Pursuant to 

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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 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 Underlying Collateral Document relating to Acquired Property unless, in the 

opinion of the Company, complying with the Obligations under such Underlying Collateral 

Documents would not be in the best interest (in terms of maximizing the value of the Loan) 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 Loan unless, in the opinion of the Company, complying with the 

Obligations under such lease would not be in the best interests (in terms of maximizing the value 

of the Loan) 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 shall, on a timely basis in 

accordance with any applicable Laws, and pursuant to the Limited Powers of Attorney granted to 

it pursuant to Section 3.1(d)(i), 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 shall immediately 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 a Failed Bank arising out of any Loan. 

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. § l82l(d)(14). The Company 

acknowledges and agrees, however, that the assignment of any Loan or Underlying 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. § 182l(d), 12 

U.S.C. § l823(e) and 12 U.S.C. § 1825, all such rights and powers being 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 Loan transferred or purchased 

hereunder. 

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Section 4.16 Prior Servicer Information. The Company acknowledges and agrees 

that the Initial Member might not have access to information from servicers of a Loan prior to 

the appointment of the FDIC as receiver of the applicable 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 a Loan. 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. 

(a) Except as otherwise specifically provided in Article VI of this Agreement 

or in the LLC Operating Agreement or any other Ancillary Document, the Company hereby 

releases and forever discharges the Initial Member, the FDIC, the Failed Banks 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 Loans, the servicing of the Loans (before or after the Cut-Off Date) by the 

Initial Member, the Failed Banks or their predecessors-in-interest, the FDIC or any Person acting 

on behalf of the Initial Member, the FDIC or the Failed Banks or their predecessors-in-interest, 

or the acquisition of the Loans (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 Ancillary 

Documents. 

(b) The Company agrees that it will not renew, extend, renegotiate, 

compromise, settle or release any Note or Loan or any right of the Company founded upon or 

growing out of this Agreement, except upon payment in full thereof, unless all Borrowers on said 

Note or Loan shall first release and discharge the FDIC, the Initial Member and the Failed Banks 

applicable with respect to such Loan, 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
 

Loans Sold “As Is” and Without Recourse
 

Section 5.1 Loans Conveyed “As Is”. THE LOANS (INCLUDING ANY 

OWNERSHIP ENTITIES AND RECEIVER ACQUIRED PROPERTY) ARE CONVEYED 

AND ASSIGNED TO THE COMPANY “AS IS” AND “WITH ALL FAULTS,” 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 

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INITIAL MEMBER, THE FAILED BANKS OR THE FDIC, OR ANY PREDECESSORS-ININTEREST OR AFFILIATES OF THE INITIAL MEMBER, THE FAILED BANKS 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 LOANS, THE UNDERLYING 

COLLATERAL OR THE UNDERLYING 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 UNDER 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. 

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any 

Loan. 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 Loan, including any adjustable rate Loan, whether such calculation or adjustment 

is made by the FDIC, a 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 Loan. The Company 

acknowledges that, for example, and not by way of limitation, some Loan 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 

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 under 

Article VI, and such exclusive remedies are available only if all other conditions theretofore 

expressed in this Agreement have been met. 

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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 a Failed Bank 

that is not contained in the Loan File or among the Underlying Collateral Documents. Neither 

the absence of any intervening Mortgage Assignment or any Mortgage Assignment to the Initial 

Member, the FDIC or a Failed Bank, nor the existence of any Lien on the Loan or its Underlying 

Collateral, nor any defect in the Lien or priority of the Initial Member’s or the applicable Failed 

Bank’s security interest in the Underlying 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 a Failed Bank that might be missing from the Underlying Collateral 

Documents, but the costs thereof shall constitute Pre-Approved Charges for purposes of the 

Custodial and Paying Agency Agreement. 

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. 

Article VI
 

Repurchase by the Initial Member at the Company’s Option
 

Section 6.1 Repurchases at Company’s Option. The Company may, at its option, 

and upon satisfaction of the procedures and other requirements set forth below, require the Initial 

Member to repurchase a Loan, 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 Loan a final, non-appealable order or 

judgment or there is entered into, with the consent of the Initial Member, a final settlement of 

any claim, action or litigation (the “Order”) that requires the assignment and transfer of such 

Loan 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 A LOAN HEREUNDER BE EVIDENCE OF ANY 

BAD FAITH, MISCONDUCT OR FRAUD ON THE PART OF THE INITIAL MEMBER, 

THE FDIC OR THE FAILED BANKS 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 BANKS 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) The Borrower had been discharged in a no asset bankruptcy proceeding, 

there is no Underlying Collateral securing such Loan and out of which such Loan may be 

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satisfied, and all guarantors or sureties of the Note, if any, or the obligations contained therein, 

have similarly been discharged in no asset bankruptcies. 

(b) 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 Obligors, sureties or other obligors owe an enforceable obligation to pay the holder of 

the Note or its assignees. 

(c) The Initial Member or the applicable 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 Loan (or, in the case of a 

Participated Loan, the Initial Member is not the owner of the pro rata interest in such 

Participated Loan set forth on the attached Schedule of Loans) and such is not curable by the 

Initial Member so as to permit ownership of the Loan 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 Loan, Loan File or other material provided by 

the FDIC to the Private Owner prior to submission of the Bid; (ii) such Loan having an Adjusted 

Cut-Off Date Unpaid Principal Balance greater than $250,000.00; and (iii) the Company 

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 Mortgaged Property securing the Loan; and 

(ii) A Phase II environmental assessment or lead-based paint survey of 

such Underlying Collateral from a qualified and reputable firm, which assessment shall confirm 

(A) the existence of Environmental Hazards on such Underlying Collateral 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 (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 applicable Failed Bank, or their 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, 

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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 Underlying Collateral being considered a single Borrower for purposes of 

this Section) with respect to more than one Loan (with multiple Loans secured by the same 

Underlying Collateral being considered a single Loan for purposes of this Section), (ii) includes 

allegations of fraud on the part of the Initial Member or the applicable Failed Bank in connection 

with the Initial Member’s or the Failed Bank’s origination of such Loans and (iii) names the 

Initial Member or any Failed Bank as a defendant and that asserts liability on the part of the 

Initial Member or any Failed Bank for which the Company is not liable as assignee, as a matter 

of law, with respect to such Loans. 

Section 6.2 Notice to Initial Member. The Company shall notify the Initial Member 

of each Loan with respect to which the Company seeks to exercise its rights under 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 loan 

number and other identifying information related to the Loan, (d) the subsection of Section 6.1 

under which the Company is seeking to require the Initial Member to repurchase the Loan, (e) a 

summary of the reasons the Company believes that the Loan 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 Loan. Promptly upon request by the Initial Member, the Company 

shall supply the Initial Member with any additional evidence that the Initial Member may 

reasonably request. The Initial Member shall have no obligation to repurchase any Loan 

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 VI 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 (30) days after the issuance of the Order. 

Section 6.3 Re-delivery of Notes, Files and Documents. For any Loan that qualifies 

for purchase under this Article, the Company shall: (a) re-endorse and deliver the Note to the 

Initial Member (or its designee); (b) assign all Underlying Collateral Documents associated with 

such Loan 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 Loan (including any related 

Receiver Acquired Property or Company Acquired Property) back to the Initial Member (or its 

designee); (c) deliver to the Initial Member (or its designee) the Loan File, along with any 

additional records compiled or accumulated by the Company pertaining to the Loan; (d) take 

such actions as are necessary to transfer from the Company to the Initial Member any litigation 

or bankruptcy action involving the subject Loan, including substituting the duties of the 

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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 C, substituting the duties of the Assignor (as defined therein) for the Assignee (as 

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 Loan as 

specified in Section 6.4 has occurred. The documents evidencing the conveyance of the Loan to 

the Initial Member shall be substantially the same as those executed pursuant to Article III of this 

Agreement to convey the Loan 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 Loan 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 Loan to the Initial Member. Upon 

compliance by the Company with the provisions hereof, the Initial Member shall pay to the 

Company the Repurchase Price, and such Repurchase Price shall constitute Loan Proceeds for 

purposes 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 Loan 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 Underlying Collateral Document or Contract for Deed); (b) exercises 

forbearance 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 Loan or any interest therein; (e) fails to comply with the LLC Operating Agreement 

in the maintenance, collection, servicing and preservation of the Loan, including delinquency 

prevention, collection procedures and protection of collateral as warranted; (f) initiates any 

litigation in connection with the Loan or the Mortgaged Property securing the Loan other than 

litigation to force payment or to realize on the Underlying Collateral securing the Loan; (g) 

completes any action with respect to foreclosure on, or accepts a deed-in-lieu of foreclosure for 

any Underlying Collateral securing the Loan; (h) causes, by action or inaction, the priority of 

title to the Loan, Mortgaged Property and other security for the Loan to be less than that 

conveyed by the Initial Member; (i) causes, by action or inaction, the security for the Loan to be 

different than that conveyed by the Initial Member, except as might be required by the terms of 

the Underlying 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 Loan; (l) is the Borrower or any Affiliate thereof under such Loan; or (m) makes 

any disbursement of principal or otherwise incrementally funds any Loan. 

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, 

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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: 

Initial Member: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

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, NA 

9062 Old Annapolis Road 

Columbia, Maryland 21045 

Attention: Client Services Manager 

Reference: Multibank 2009-1 RES-ADC Venture, LLC 

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: 

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Company before Closing: 

with a copy to: 

Company after Closing: 

with a copy to: 

Initial Member: 

with a copy to: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

E-Mail Address: RMalami@fdic.gov 

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 

Multibank 2009-1 RES-ADC Venture, LLC 

700 NW 107 Avenue, Suite 400 

Miami, Florida 33172 

Attention: Thekla Blaser Salzman 

E-Mail Address: Thekla.Salzman@rialtocapital.com 

Bilzin Sumberg Baena Price & Axelrod LLP 

200 South Biscayne Boulevard, Suite 2500 

Miami, Florida 33131-5340 

Attention: Alan Axelrod 

E-Mail Address: AAxelrod@bilzin.com 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

E-Mail Address: RMalami@fdic.gov 

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 

39 

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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 

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. THIS AGREEMENT SHALL BE GOVERNED BY 

AND CONSTRUED IN ACCORDANCE WITH FEDERAL LAW, BUT IF FEDERAL LAW 

DOES NOT PROVIDE A RULE OF DECISION, IT SHALL BE GOVERNED BY AND 

CONSTRUED IN ACCORDANCE WITH THE LAW 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. 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 herein, each 

party hereto 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 hereof shall be 

40 

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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 under 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 contrary contained elsewhere in this 

Agreement (including the foregoing Section 8.4(a)) or in any Ancillary Document, in order to 

facilitate the possible restructuring and sale of the Purchase Money Notes, the FDIC, without the 

consent of the Private Owner or the Company, may at any time that the FDIC is the holder of 

100 percent of any Purchase Money Note or beneficial interest therein cause the Company to 

replace or reissue such Purchase Money Note (or any promissory note reissued in respect 

thereof) and make related changes, modifications or amendments to this Agreement and the 

Ancillary Documents as permitted therein; provided, however, that (i) (A) the maturity date of 

such replacement or reissued Purchase Money Note shall not be later than the seventh 

anniversary of the Closing Date and (B) the outstanding principal amount of such replacement or 

reissued Purchase Money Note at the time of its replacement or reissuance shall equal (1) the 

outstanding principal amount of such Purchase Money Note minus (2) the aggregate amount paid 

to the Holders of such Purchase Money Note pursuant to Section 3.3 and (ii) no modification 

contained in such replacement or reissued Purchase Money Note shall adversely affect in any 

material respect (A) the amount or timing of any payments or distributions to the Private Owner 

or any permitted successor or assign pursuant to the Priority of Payments, (B) any other rights or 

obligations of, or the need for any advances, contributions or payments from, the Private Owner 

or its Affiliates or any permitted successor or assign pursuant to this Agreement or any Ancillary 

Document or otherwise or (C) the rights or interests of any Holder of any other Purchase Money 

Notes or any owner of an interest therein. Prior to effecting any such changes, amendments or 

modifications, the FDIC shall notify each of the Private Owner and the Company of any such 

contemplated changes, amendments or modifications, and the Private Owner and the Company 

agree that they will cooperate in good faith with the FDIC in effecting all such changes, 

amendments or modifications. 

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 Ancillary 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 that any Confidentiality Agreement between the FDIC and the Private 

Owner or any Affiliates of the Private Owner (including by way of joinder) with respect to the 

transaction that is the subject of this Agreement and the Ancillary Documents shall remain in full 

force and effect to the extent provided therein, except that the Company’s rights under Article VI 

41 

Multibank Structured Transaction 2009-1 RES-ADC 

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shall not be deemed a repurchase option for purposes of Section 2of 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. 

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 Ancillary Document, and waives any right to: 

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

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

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

(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 Ancillary 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; 

42 

Multibank Structured Transaction 2009-1 RES-ADC 

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(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 Ancillary Document, in only the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia, and waives 

any right to remove or transfer such suit, action or proceeding to any other court or disputeresolution 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; 

(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; and 

(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 

43 

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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. 

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 

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] 

44 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

as of the day and year first above written. 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, AS RECEIVER FOR 

VARIOUS FAILED FINANCIAL INSTITUTIONS 

LISTED ON SCHEDULE 1 HERETO 

Name: ---------------- Ronald Sommers ~ 

Title: Attorney-in-Fact 

COMPANY: 

MUL TIBANK 2009-1 RES-ADC VENTURE, LLC 

By: 	 Federal Deposit Insurance Corporation, as 

Receiver for Various Failed Financial 

Institutions Listed on Schedule 1 Hereto, as 

Sole Member and Manager 

c

Name: "------:-:--=------ Ronald Sommers -1

Title: Attorney-in-Fact 

[S•gnatur~ ?Jg~ to Loan Contnhutinn and s,,k Agreement) 

1\lult•hank Structured Transact1t1n 2009-i RES-ADC 

Loan Conrribuuon m1d Sdk :\grccmcnt 

468-003iAGR;237~65J 

 

ATTACHMENT A 

to 

Loan Contribution and Sale Agreement 

LOAN SCHEDULE
 

OMITTED

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 

 


 

ATTACHMENT B
 

to 

Loan Contribution and Sale Agreement 

LOAN VALUE SCHEDULE
 

OMITTED

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
 

 

 

ATTACHMENT C 

to 

Loan Contribution and Sale Agreement 

(For use with Loans in Bankruptcy) 

(Note to Preparer: When preparing the actual Affidavit and Assignment, delete this instruction 

and the reference to Attachment C above.) 

State of 

County of 

§ 

§ 

§ 

AFFIDAVIT AND ASSIGNMENT OF CLAIM 

The undersigned, being first duly sworn, deposes and states as follows: 

Federal Deposit Insurance Corporation as Receiver for ___________________ 

(“Assignor”), acting by and through its duly authorized officers and agents, for good and 

valuable consideration, the receipt and sufficiency of which are hereby acknowledged does 

hereby sell, transfer, assign and set over to Multibank 2009-1 RES-ADC Venture, LLC 

(“Assignee”) of 700 NW 107 Avenue, Suite 400, Miami, Florida 33172, and its successors and 

assigns, all of the Assignor’s interest in any claim in the bankruptcy case commenced by or 

against {insert Obligor’s name} (“Obligor”) in the {insert appropriate U. S. 

Bankruptcy Court, including the district of the court, such as for the Western District of Texas, 

being designated as Case Number {insert docket number assigned case} (“Bankruptcy Claim”), 

or such part of said Claim as is based on the promissory note of {insert the names of the makers 

of the note exactly as they appear on the note}, dated {insert the date the note was made}, and 

made payable to {insert the name of the payee on the note exactly as it appears on the note}, 

provided, however, that this assignment is made pursuant to the terms and conditions as set forth 

in that certain Loan Contribution and Sale Agreement between the Assignor and the Assignee 

dated February 9, 2010 (the “Agreement”). 

For purposes of Rule 3001 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy 

Rule 3001”), this assignment and affidavit represent the unconditional transfer of the Bankruptcy 

Claim or such part of the Claim as is based on the promissory note or notes above and shall 

constitute the statement of the transferor acknowledging the transfer and stating the consideration 

therefore as required by Bankruptcy Rule 3001. 

This transfer was not for the purpose of the enhancement of any claim in a pending 

bankruptcy. The transfer of the debt was pursuant to the Agreement, through which numerous 

debts were sold; no specific amount of the total consideration was assigned to the debt that forms 

the basis of claim. 

This assignment also shall evidence the unconditional transfer of the Assignor’s interest 

in any security held for the claim. 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
 

_________________________________ 

 

 

 

 

 

 

 


 


 

IN WITNESS WHEREOF, the Assignor has caused this Affidavit and Assignment of 

Claim to be executed this __ day of , . 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

By: 
 

Name: 
 

Title: Attorney-in-Fact 

ACKNOWLEDGMENT 

STATE OF § 

§ 

COUNTY OF § 

Before me, the undersigned authority, a Notary Public in and for the county and state 

aforesaid, on this day personally appeared ______________________________, known to me 

to be the person whose name is subscribed to the foregoing instrument, as Attorney-in-Fact of 

the Federal Deposit Insurance Corporation as Receiver for _______________________, acting 

in the capacity stated above, and acknowledged to me that s/he executed the same as the act of 

the Federal Deposit Insurance Corporation as Receiver for ___________________________, for 

the purposes and consideration therein expressed, and in the capacity therein stated. 

Given under my hand and seal of office on this the day of , ____. 

Notary Public 

[SEAL] My Commission expires: 

2 

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__________________________________ 

 

 


 


 


 

ATTACHMENT D 

to 

Loan Contribution and Sale Agreement 

(Note to Preparer: When preparing an actual Allonge, delete this instruction and the reference 

to Attachment D above.) 

ALLONGE 

THIS ALLONGE IS TO BE ATTACHED TO AND MADE AN INTEGRAL PART of 

the following instrument: 

Note [Insert proper name of Note] 

Dated: [Insert Date of Execution of Note] 

Payable by _______________________ [Insert Name of Borrower], a _______________ 

[Insert State of Formation] [Kind of Entity] [If known] 

Payable to the Order of: [Insert name of Original Payee] 

Original Principal Amount: ____________________ Dollars [Insert Original Principal 

Amount in words] ($____________________) [Insert amount in numerals.]
 

PAY TO THE ORDER OF MULTIBANK 2009-1 RES-ADC VENTURE, LLC, A 

DELAWARE LIMITED LIABILITY COMPANY, WITHOUT RECOURSE AND 

WITHOUT REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR BY 

OPERATION OF LAW, OF ANY KIND AND NATURE WHATSOEVER. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

By: 
 

Name: 
 

Title: Attorney in Fact 

Dated as of ________________, 2010 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
 

 

ATTACHMENT E
 
 

to 

Loan Contribution and Sale Agreement 

(Note to Preparer: When preparing the actual Affidavit delete this instruction and the reference 

to Attachment E above.) 

STATE OF § 

§ 

COUNTY OF § 

ASSIGNMENT AND LOST INSTRUMENT AFFIDAVIT 

Before me, the undersigned authority, personally appeared _______________________, 

who upon being duly cautioned and sworn, deposes and says, to the best of his/her knowledge, as 

follows: 

1. That s/he is the _____________ for the Federal Deposit Insurance Corporation as 

Receiver for ______________________________________, whose address is 550 17th Street 

NW, Washington, DC 20429 (the “Initial Member”). 

2. That at the time of the preparation of transfer to Multibank 2009-1 RES-ADC 

Venture, LLC (the “Company”), the Initial Member was the owner of that certain loan, 

obligation or interest in a loan or obligation evidenced by a promissory note, evidencing an 

indebtedness or evidencing rights in an indebtedness (the “Instrument”), as follows: 

Loan Number: 

Name of Maker: 

Original Principal Balance: 

Date of Instrument: 

3. That the original Instrument has been lost or misplaced. The Instrument was not 

where it was assumed to be, and a search to locate the Instrument was undertaken, without 

results. Prior to the transfer to the Company the Instrument had not been assigned, transferred, 

pledged or hypothecated. 

4. That if the Initial Member subsequently locates the Instrument, the Initial Member 

shall use reasonable efforts to provide written notice to the Company and deliver and endorse the 

Instrument to the Company in accordance with written instructions received from the Company 

(or such other party designated in writing by the Company). 

5. That the purpose of this affidavit is to establish such facts. This affidavit shall not 

confer any rights or benefits, causes or claims, representations or warranties (including, without 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
______________________________________ 

 

 

 

 

 


 


 

limitation, regarding ownership or title to the Instrument or the obligations evidenced thereby) 

upon the Company, its successors or assigns. All such rights, benefits, causes or claims, 

representations and warranties (if any) shall be as set forth in the Loan Contribution and Sale 

Agreement between the Company and the Initial Member dated as of February 9, 2010 (the 

“Contribution Agreement”). 

6. That pursuant to the terms and conditions of the Contribution Agreement, the 

Instrument (including, without limitation, any and all rights the Initial Member might have to 

enforce payment and performance of the Instrument, including any rights under Section 3-309 of 

the Uniform Commercial Code) is hereby assigned effective as of the date hereof, without 

recourse, representation or warranty, to the Company. A copy of the Instrument is attached to 

this affidavit, if available. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

By: 
 

Name: 
 

Title: Attorney-in-Fact 

Signed and sworn to before me this day of , 2010. 

Notary Public 

[SEAL] My Commission expires: 

2 

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ATTACHMENT F-1
 

to 

Loan Contribution and Sale Agreement 

Upon recordation, return to: 

[Insert name and address of Person to whom recorded original Assignment is to be returned. 

Note to preparer, delete this instruction upon completion of documentation and prior to 

submission for execution.] 

Name: 

Address: 

Tax Map No. or Tax Parcel Identification No.: ____________________ 

[Insert if local recording office requires.] [Note to preparer, delete the instruction upon 

completion of documentation and prior to submission for execution.]
 

ASSIGNMENT OF REAL ESTATE MORTGAGE 

(Book _____, Page ____) 

KNOW ALL MEN BY THESE PRESENTS: 

THAT, THE FEDERAL DEPOSIT INSURANCE CORPORATION (acting in any 

capacity, the “FDIC”) AS RECEIVER FOR , at 550 17th Street, NW, 

Washington, D.C. 20429-0002 (hereinafter referred to as “Assignor” or “Grantor”), for value 

received, does by these presents, grant, bargain, sell, assign, transfer and set over to 

MULTIBANK 2009-1 RES-ADC VENTURE, LLC, a Delaware limited liability company, its 

successors and assigns (hereinafter referred to as “Assignee” or “Grantee”), at 700 NW 107 

Avenue, Suite 400, Miami, Florida 33172, all right, title and interest in and to that certain: 

Note and Real Estate Mortgage, each dated [Insert Date], executed by [Insert Name of 

Borrower], a [Insert Kind of Entity] (the “Grantor”), each being in the original principal 

sum of [Write out amount] and /100 Dollars ($[Insert Numerals]) and which Note 

was made payable to [Insert name of original lender] and which Mortgage was recorded 

on [Insert Date], in Book _____, Page _____ with the [Register of Deeds, [Insert] 

County, State of [Insert]] (“Register’s Office”). 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
[Insert the following paragraph only if original real estate mortgage was originated by 

and executed in favor of another lender and then transferred to the applicable Failed 

Bank. Note to preparer, delete this instruction upon completion of documentation and 

prior to submission for execution: 

Such Note and Mortgage were assigned by [Name of original lender] to [Insert Name of 

Failed Bank] pursuant to that certain Assignment of Real Estate Mortgage dated [Insert 

Date] and recorded on [Insert Date] in Book _____, Page _____ in the Register’s Office 

(“Assignment”).] 

[Insert the following paragraph only if the Real Estate Mortgage was modified or 

amended and a document was recorded to reflect the modification and amendment. Note 

to preparer, delete this instruction upon completion of documentation and prior to 

submission for execution: 

Such Note and Real Estate Mortgage were modified pursuant to that certain [Insert 

Correct Name of Document, e.g., Modification and Ratification of Note and Real Estate 

Mortgage Agreement] dated [Insert Date] and recorded on [Insert Date] in Book _____, 

Page _____ in the Register’s Office (“Modification”).] 

The Mortgage, as such may have been assigned and modified, covers the following described 

property: 

SEE ATTACHED EXHIBIT A 

TO HAVE AND TO HOLD the same unto said MULTIBANK 2009-1 RES-ADC 

VENTURE, LLC, ITS SUCCESSORS AND ASSIGNS. 

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR 

WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY THE FDIC AS 

RECEIVER FOR [INSERT NAME OF FAILED BANK] OR IN ITS CORPORATE 

CAPACITY. THE LOAN IS CONVEYED “AS IS” AND “WITH ALL FAULTS,” WITHOUT 

ANY REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING AS TO 

COLLECTABILITY, ENFORCEABILITY, VALUE OF COLLATERAL, ABILITY OF ANY 

OBLIGOR TO REPAY, CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, 

MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, BY ANY 

PERSON, INCLUDING THE FDIC OR ITS OFFICERS EMPLOYEES, AGENTS OR 

CONTRACTORS.

 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

Multibank Structured Transaction 2009-1 RES-ADC 

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_______________________________ 

____________________________________ 

 

IN WITNESS WHEREOF, FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR __________________ has caused this instrument to be executed this ______ 

day of _________, 2010, effective as of the ________ day of ________________, 2010. 

ASSIGNOR: 

Signed, sealed and delivered FEDERAL DEPOSIT INSURANCE 

in the presence of: CORPORATION AS RECEIVER FOR 

ATTEST: By: ___________________________________ 

Print Name:__________________________ Name: _________________________________ 

Title:_______________________________ Title: Attorney-in-Fact 

____________________________________ SEAL 

Witness #1 

Print Name:__________________________ 

Witness #2 

Print Name:__________________________ 

Note: State law has various execution requirements, including attestations or witnesses or both. 

Preparer delete foregoing note once local requirements are determined. 

3 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
 

 

 

____________________________________ 

ACKNOWLEDGMENT 

[UNIVERSAL FORM OF ACKNOWLEDGMENT] [Note to Preparer, delete the 

designation, Universal Form of Acknowledgement prior to execution. Use only one of the two 

acknowledgements: this designation or the California form.] 

STATE OF ____________________ ) 

) SS: 

COUNTY OF __________________ ) 

On this ______ day of _______________, 2010, before me personally appeared 

___________________, known to me or proved to me on the basis of satisfactory evidence to be 

the person(s) who executed the foregoing instrument, and he/she thereupon duly acknowledged 

to me that he/she executed the same to be his/her free act and deed. 

WITNESS my hand and official seal. 

Name of Notary:______________________ 

My commission expires:________________ 

4 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
 

[CALIFORNIA FORM OF ACKNOWLEDGMENT] Note to Preparer, delete the 

designation, California Form of Acknowledgement prior to execution if you using this 

acknowledgement. Use only one of the two acknowledgements: this designation or the Universal 

form.] 

STATE OF CALIFORNIA 

COUNTY OF __________________ 

) 

) 

) 

SS: 

On ______________________ before me, (here insert name and title of the officer), personally 

appeared __________________ who proved to me on the basis of satisfactory evidence to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 

he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 

signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 

acted, executed the instrument. 

I certify under PENALTY OF PERJURY under the laws of the State of California that the 

foregoing paragraph is true and correct. 

WITNESS my hand and official seal. 

Signature ____________________________ (Seal) 

5 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
EXHIBIT A 

(Legal Description) 

6 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
 

 


 


 

ATTACHMENT F-2
 

to 

Loan Contribution and Sale Agreement 

Upon recordation, return to: 

[Insert name and address of Person to whom of recorded original Assignment is to be returned. 

Note to preparer, delete this instruction upon completion of documentation and prior to 

submission for execution.] 

Name: 

Address: 

Tax Map No. or Tax Parcel Identification No.: ____________________ 

[Insert if local recording office requires.] [Note to preparer, delete the instruction upon 

completion of documentation and prior to submission for execution.]
 

ASSIGNMENT OF REAL ESTATE DEED OF TRUST 

(Book _____, Page ____) 

KNOW ALL MEN BY THESE PRESENTS: 

THAT, THE FEDERAL DEPOSIT INSURANCE CORPORATION (acting in any 

capacity, “FDIC”) AS RECEIVER FOR , at 550 17th Street, NW, 

Washington, D.C. 20429-0002, (hereinafter referred to as “Assignor” or “Grantor”), for value 

received, does by these presents, grant, bargain, sell, assign, transfer and set over to 

MULTIBANK 2009-1 RES-ADC VENTURE, LLC, a Delaware limited liability company, its 

successors and assigns (hereinafter referred to as “Assignee” or “Grantee”), at 700 NW 107 

Avenue, Suite 400, Miami, Florida 33172, all right, title and interest in and to that certain: 

Real Estate Deed of Trust executed by [Insert name of Borrower], a [Insert Kind of 

Entity], organized and existing under the laws of [Insert State], dated [Insert Date of 

Execution], in the original principal sum of [Insert Amount in words] and __/100 Dollars 

($[Insert Numbers]) of Deed of Trust in favor of [Name of Trustee], a resident of 

___________, _____________ [if more than one Trustee and [Name of Trustee], a 

resident of ______________, __________________,] Trustee [or Trustees] for, and on 

behalf of, [Insert Name of Failed Bank] (the “Mortgage”), which Mortgage was recorded 

on [Insert Date], in the Clerk’s Office [of the Circuit Court of the City of 

______________, or of the Court of ] [State] (“Clerk’s Office”) in Book _____, 

Page _____. 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
[Insert the following paragraph only if original real estate date of trust was originated by 

and executed in favor of another lender and then transferred to the applicable Failed 

Bank. Note to preparer, delete this instruction upon completion of documentation and 

prior to submission for execution: 

Such Mortgage was assigned by [original lender] to [Insert Name of Failed Bank] 

pursuant to that certain Assignment of Real Estate Deed of Trust dated [Insert Date] 

(“Assignment”), which Assignment was recorded on [Insert Date] in the Clerk’s Office in 

Book _____, Page _____.] 

[Insert the following paragraph only if the Real Estate Deed of Trust was modified or 

amended and a document was recorded to reflect the modification and amendment. Note 

to preparer, delete this instruction upon completion of documentation and prior to 

submission for execution: 

The Mortgage was modified by that certain [Insert Correct Name of Document, e.g., 

Modification and Ratification of Note and Real Estate Deed of Trust] dated 

__________________ (“Modification”), which Modification was recorded on 

________________ in the Clerk’s Office in Book _____, Page _____.] 

The Mortgage, as such may have been assigned and modified, covers the following described 

property: 

SEE ATTACHED EXHIBIT A 

TO HAVE AND TO HOLD the same unto said MULTIBANK 2009-1 RES-ADC 

VENTURE, LLC, ITS SUCCESSORS AND ASSIGNS. 

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR 

WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY THE FDIC AS 

RECEIVER FOR [INSERT NAME OF FAILED BANK] OR IN ITS CORPORATE 

CAPACITY. THE MORTGAGE LOAN, AS ASSIGNED AND MODIFIED, IS CONVEYED 

“AS IS” AND “WITH ALL FAULTS,” WITHOUT ANY REPRESENTATION OR 

WARRANTY WHATSOEVER, INCLUDING AS TO COLLECTABILITY, 

ENFORCEABILITY, VALUE OF COLLATERAL, ABILITY OF ANY OBLIGOR TO 

REPAY, CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, 

MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, BY ANY 

PERSON, INCLUDING THE FDIC OR ITS OFFICERS, EMPLOYEES, AGENTS OR 

CONTRACTORS. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

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________________________________ 

 

____________________________________ 

____________________________________ 

IN WITNESS WHEREOF, FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR _____________________. has caused this instrument to be executed this 

______ day of _________, 2010, to be effective as of the ____ day of ___________, 2010. 

Signed, sealed and delivered 

in the presence of: 

ATTEST: 

Print Name:__________________________ 

Title:_______________________________ 

Witness #1 

Print Name:__________________________ 

Witness #2 

Print Name:__________________________ 

ASSIGNOR: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

By: _____________________________________ 

Name: __________________________________ 

Title: Attorney-in-Fact 

SEAL 

Note: State law has various execution requirements, including attestations or witnesses or both. 

Prepare delete foregoing note once local requirements are determined. 

3 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
 

 

____________________________________ 

ACKNOWLEDGMENT 

[UNIVERSAL FORM OF ACKNOWLEDGMENT] [Note to Preparer, delete the 

designation, Universal Form of Acknowledgement prior to execution. Use only one of the two 

acknowledgements: this designation or the California form.] 

STATE OF ____________________ ) 

) SS: 

COUNTY OF __________________ ) 

On this ______ day of _______________, 2010, before me personally appeared 

___________________, known to me or proved to me on the basis of satisfactory evidence to be 

the person(s) who executed the foregoing instrument, and he/she thereupon duly acknowledged 

to me that he/she executed the same to be his/her free act and deed. 

WITNESS my hand and official seal. 

Name of Notary:______________________ 

My commission expires:________________ 

4 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
 

[CALIFORNIA FORM OF ACKNOWLEDGMENT] [Note to Preparer, delete the 

designation, Universal Form of Acknowledgement prior to execution. Use only one of the two 

acknowledgements: this designation or the Universal form.] 

STATE OF CALIFORNIA ) 

) SS: 

COUNTY OF __________________ ) 

On ______________________ before me, (here insert name and title of the officer), personally 

appeared who proved to me on the basis of satisfactory evidence to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 

he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 

signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 

acted, executed the instrument. 

I certify under PENALTY OF PERJURY under the laws of the State of California that the 

foregoing paragraph is true and correct. 

WITNESS my hand and official seal. 

Signature ____________________________ (Seal) 

5 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
EXHIBIT A 

(Legal Description) 

6 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
 

 

 


 


 


 


 

ATTACHMENT G
 

to 

Loan Contribution and Sale Agreement 

Upon recordation, return to: 

[Insert name and address of Person to whom recorded original Assignment is to be returned. 

Note to preparer, delete this instruction upon completion of documentation and prior to 

submission for execution.] 

Name: 

Address: 

Tax Map No. or Tax Parcel Identification No.: ____________________ 

[Insert if local recording office requires.] [Note to preparer, delete the instruction upon 

completion of documentation and prior to submission for execution.]
 

ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS
 

AND OTHER LOAN DOCUMENTS
 

[Note to Preparer, insert correct name of instrument here and in body of Assignment below. 

Delete this instruction prior to execution.] 

KNOW ALL MEN BY THESE PRESENTS: 

THAT, THE FEDERAL DEPOSIT INSURANCE CORPORATION (acting in any 

capacity, the “FDIC”) AS RECEIVER FOR , at 550 17th Street, NW, 

Washington, D.C. 20429-0002, (hereinafter referred to as “Assignor” or “Grantor”), for value 

received, does by these presents, grant, bargain, sell, assign, transfer and set over to 

MULTIBANK 2009-1 RES-ADC VENTURE, LLC, a Delaware limited liability company, its 

successors and assigns, (hereinafter referred to as “Assignee” or “Grantee”), at 700 NW 107 

Avenue, Suite 400, Miami, Florida 33172, all right, title and interest in and to that certain: 

1. Assignment of Leases and Rents, dated [Insert Date] (“Assignment of Leases”), 

made by [Insert Name of Borrower], a [Insert Kind of Entity] (the “Borrower”), in favor 

of [Insert name of original lender] and which Assignment of Leases was recorded on 

[Insert Date], in Book _____, Page _____ with [the Register of Deeds, [Insert] County, 

State of [Insert] (“Register’s Office”) as Document No. _____________________;] and 

[2.] [Insert similar description, with recording information, for each additional 

recorded Loan Document, with definition][note to preparer, delete the instruction upon 

completion of documentation and prior to submission for execution.]; and 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
[3.] Any notes and or other agreements evidencing the indebtedness and/or the 

obligations secured by the Assignment of Leases and the other recorded loan documents 

identified in Paragraph 2 through ___ above; and 

[4.] Any and all other documents and instruments evidencing, securing and or relating 

to the indebtedness and or obligations secured by the Assignment of Leases and the other 

recorded loan documents identified in Paragraph 2 through ___ above. 

[Insert the following paragraph only if original assignment of leases and rents was 

originated by and executed in favor of another lender and then transferred to the 

applicable Failed Bank. Note to preparer, delete this instruction upon completion of 

documentation and prior to submission for execution: 

The Assignment of Leases was assigned by [Name of original lender] to [Insert Name of 

Failed Bank] pursuant to that certain Assignment of Assignment of Leases and Rents 

dated [Insert Date] and recorded on [Insert Date] in Book _____, Page _____ in the 

Register’s Office as Document No.________________.] 

[Insert the following paragraph only if the original Assignment of Leases and Rents 

Mortgage was modified or amended and a document was recorded to reflect the 

modification and amendment. Note to preparer, delete this instruction upon completion 

of documentation and prior to submission for execution: 

The Assignment of Leases and Rents was modified pursuant to that certain [Modification 

of Assignment of Leases] [Insert Correct Name of Document] dated [Insert Date] and 

recorded on [Insert Date] in Book _____, Page _____ in the Register’s Office as 

Document No. ____________(“Modification”).] 

[Insert similar additional paragraphs for each additional recorded loan document as 

necessary. Note to preparer, delete this instruction upon completion of documentation 

and prior to submission for execution.] 

SEE ATTACHED EXHIBIT A 

TO HAVE AND TO HOLD the same unto said MULTIBANK 2009-1 RES-ADC 

VENTURE, LLC, ITS SUCCESSORS AND ASSIGNS. 

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR 

WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY THE FDIC AS 

RECEIVER FOR [INSERT NAME OF FAILED BANK] OR IN ITS CORPORATE 

CAPACITY. THE LOAN IS CONVEYED “AS IS” AND “WITH ALL FAULTS,” WITHOUT 

ANY REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING AS TO 

COLLECTABILITY, ENFORCEABILITY, VALUE OF COLLATERAL, ABILITY OF ANY 

OBLIGOR TO REPAY, CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, 

MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, BY ANY 

2 

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PERSON, INCLUDING THE FDIC OR ITS OFFICERS EMPLOYEES, AGENTS OR 

CONTRACTORS. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

3 

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____________________________________ 

 

____________________________________ 

 

IN WITNESS WHEREOF, FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR _______________. has caused this instrument to be executed this ______ day 

of _________, 2010, effective as of the ______ day of ______________, 2010. 

ASSIGNOR: 

Signed, sealed and delivered FEDERAL DEPOSIT INSURANCE 

in the presence of: CORPORATION AS RECEIVER FOR 

ATTEST: By: ____________________________________ 

Print Name:__________________________ Name: _________________________________ 

Title:_______________________________ Title: Attorney-in-Fact 

____________________________________ SEAL 

Witness #1 

Print Name:__________________________ 

Witness #2 

Print Name:__________________________ 

Note: State law has various execution requirements, including attestations or witnesses or both. 

Preparer delete foregoing note once local requirements are determined. 

4 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
 

 

 

____________________________________ 

ACKNOWLEDGMENT 

[UNIVERSAL FORM OF ACKNOWLEDGMENT] [Note to Preparer, delete the 

designation, Universal Form of Acknowledgement prior to execution. Use only one of the two 

acknowledgements: this designation or the California form. ] 

STATE OF ____________________ ) 

) SS: 

COUNTY OF __________________ ) 

On this ______ day of _______________, 2010, before me personally appeared 

___________________, known to me or proved to me on the basis of satisfactory evidence to be 

the person(s) who executed the foregoing instrument, and he/she thereupon duly acknowledged 

to me that he/she executed the same to be his/her free act and deed. 

WITNESS my hand and official seal. 

Name of Notary:______________________ 

My commission expires:________________ 

5 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 
 

[CALIFORNIA FORM OF ACKNOWLEDGMENT] Note to Preparer, delete the 

designation, California Form of Acknowledgement prior to execution if you using this 

acknowledgement. Use only one of the two acknowledgements: this designation or the Universal 

form.] 

STATE OF CALIFORNIA 

COUNTY OF __________________ 

) 

) 

) 

SS: 

On ______________________ before me, (here insert name and title of the officer), personally 

appeared __________________ who proved to me on the basis of satisfactory evidence to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 

he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 

signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 

acted, executed the instrument. 

I certify under PENALTY OF PERJURY under the laws of the State of California that the 

foregoing paragraph is true and correct. 

WITNESS my hand and official seal. 

Signature ____________________________ (Seal) 

6 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
EXHIBIT A 

(Legal Description) 

7 

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468-003/AGR/2374653.10 

 


 

ATTACHMENT H
 

to 

Loan Contribution and Sale Agreement 

(Note to FDIC Preparer: When preparing the actual Limited Power of Attorney, delete this 

instruction and the reference to Attachment H above) 

LIMITED POWER OF ATTORNEY 

Multibank Structured Transactions 2009-1
 

KNOW ALL PERSONS BY THESE PRESENTS that the FEDERAL DEPOSIT 

INSURANCE CORPORATION, a corporation organized and existing under an Act of Congress, 

hereafter called the “FDIC,” pursuant to the applicable resolutions of the Board of Directors of 

the FDIC, and redelegations thereof, hereby designates the individual(s) set forth on Exhibit A, 

attached hereto and made a part hereof (the “Attorney(s)-in-Fact”), to act on behalf of the FDIC 

in any of its Receivership or Corporate capacities related to the various failed financial 

institutions listed on Exhibit B, attached hereto and made a part hereof, for the sole purpose of 

executing the documents outlined below; and 

WHEREAS the undersigned has full authority to execute this Limited Power of Attorney 

on behalf of the FDIC; 

NOW THEREFORE, the FDIC grants to the Attorney(s)-in-Fact the authority, subject to 

the limitations herein, as follows: 

1. To execute, acknowledge, seal and deliver on behalf of the FDIC, individually 

and not jointly by and through the FDIC, acting in any capacity, any and all instruments of 

transfer and conveyance, appropriately completed, with all ordinary or necessary endorsements, 

acknowledgments, affidavits and supporting documents as may be necessary or appropriate to 

evidence the sale and transfer of any asset pursuant to that certain Loan Contribution and Sale 

Agreement dated as of February 9, 2010 between Multibank 2009-1 RES-ADC Venture, LLC 

and the Receiver. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

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468-003/AGR/2374653.10 
 

 

 


 


 

The form which the Attorney(s)-in-Fact shall use for endorsing promissory notes or preparing 

allonges to promissory notes is as follows: 

Pay to the order of 

Multibank 2009-1 RES-ADC Venture, LLC 

Without Recourse 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR [insert 

name of applicable failed financial institution] 

By: 
 

Name: 
 

Title: Attorney-in-Fact 

All documents of assignment, conveyance or transfer shall contain this sentence: “This 

assignment is made without recourse and without representation or warranty, express, implied or 

by operation of law of any kind and nature whatsoever, by the Federal Deposit Insurance 

Corporation in any capacity. 

2. To grant to each Attorney-in-Fact full power and authority to do and perform all 

acts necessary to carry into effect the powers granted by this Limited Power of Attorney as fully 

as the FDIC in any capacity might or could do with the same validity as if all and every such act 

had been herein particularly stated, expressed and especially provided for. 

This Limited Power of Attorney shall be effective from [usually Closing Date] and 

shall continue in full force and effect through [one year’s duration] , unless otherwise 

terminated by an official of the FDIC or its successors and assigns authorized to do so 

(“Revocation”). At such time this Limited Power of Attorney will be automatically revoked. 

Any third party may rely upon this document as the named individual(s)’ authority to continue to 

exercise the powers herein granted unless a Revocation has been recorded in the public records 

of the jurisdiction where this Limited Power of Attorney has been recorded, or unless a third 

party has received actual notice of a Revocation. 

IN WITNESS WHEREOF, the FDIC by its duly authorized officer empowered to act on 

its behalf by appropriate resolution of its Board of Directors, or redelegations thereof, has 

caused these presents to be executed and subscribed in its name this day of , 2010. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

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FEDERAL DEPOSIT INSURANCE 

CORPORATION 

By: 

Name: 

Title: 

Signed, sealed and delivered 

in the presence of 

By: 

Name:

 Witness 

By: 

Name:

 Witness 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

3 

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______________________________ 

_______________________________ 

ACKNOWLEDGMENT 

UNITED STATES OF AMERICA ) 

) 

DISTRICT OF COLUMBIA ) 

_____________________, affiant, for himself says that [s/he] is a [title] , Division of 

Resolutions and Receiverships, of the Federal Deposit Insurance Corporation, the Corporation in 

whose name the foregoing Limited Power of Attorney has been subscribed, that the said Limited 

Power of Attorney was subscribed on behalf of the said Corporation by due authority of the 

Corporation’s Board of Directors, and that the said ________________ acknowledges the said 

Limited Power of Attorney to be the free act and deed of the said Corporation. 

Notary Public, District of Columbia 

United States of America 

My Commission Expires: 

4 

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EXHIBIT A
 

TO LIMITED POWER OF ATTORNEY
 

Attorneys-in-Fact
 

[list names and organizations of Attorney(s)–in-Fact] 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10 

 


 

EXHIBIT B
 

TO LIMITED POWER OF ATTORNEY
 

Failed Financial Institutions 

Bank Name City State Fund Closing Date 

Columbian Bank and Trust Topeka KS 10011 August 22, 2008 

Integrity Bank Alpharetta GA 10012 August 29, 2008 

Silver State Bank Henderson NV 10013 September 5, 2008 

Alpha Bank and Trust Alpharetta GA 10018 October 24, 2008 

Freedom Bank Bradenton FL 10019 October 31, 2008 

Security Pacific Bank Los Angeles CA 10020 November 7, 2008 

Franklin Bank, SSB Houston TX 10021 November 7, 2008 

The Community Bank Loganville GA 10022 November 21, 2008 

First Georgia Community Bank Jackson GA 10025 December 5, 2008 

Sanderson State Bank Sanderson TX 10026 December 12, 2008 

Haven Trust Bank Duluth GA 10027 December 12, 2008 

Bank of Clark County Vancouver WA 10029 January 16, 2009 

1st Centennial Bank Redlands CA 10030 January 23, 2009 

MagnetBank Salt Lake City UT 10031 January 30, 2009 

Ocala National Bank Ocala FL 10032 January 30, 2009 

FirstBank Financial Services McDonough GA 10036 February 6, 2009 

Cornbelt Bank and Trust Pittsfield IL 10037 February 13, 2009 

Riverside Bank of the Gulf Coast Cape Coral FL 10038 February 13, 2009 

Silver Falls Bank Silverton OR 10041 February 20, 2009 

FirstCity Bank Stockbridge GA 10047 March 20, 2009 

Omni National Bank Atlanta GA 10048 March 27, 2009 

Integrity Bank Jupiter FL 10095 July 31, 2009 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
SCHEDULE 1 

LIST OF VARIOUS FAILED FINANCIAL INSTITUTIONS 

Bank Name City State Fund Closing Date 

Columbian Bank and Trust Topeka KS 10011 August 22, 2008 

Integrity Bank Alpharetta GA 10012 August 29, 2008 

Silver State Bank Henderson NV 10013 September 5, 2008 

Alpha Bank and Trust Alpharetta GA 10018 October 24, 2008 

Freedom Bank Bradenton FL 10019 October 31, 2008 

Security Pacific Bank Los Angeles CA 10020 November 7, 2008 

Franklin Bank, SSB Houston TX 10021 November 7, 2008 

The Community Bank Loganville GA 10022 November 21, 2008 

First Georgia Community Bank Jackson GA 10025 December 5, 2008 

Sanderson State Bank Sanderson TX 10026 December 12, 2008 

Haven Trust Bank Duluth GA 10027 December 12, 2008 

Bank of Clark County Vancouver WA 10029 January 16, 2009 

1st Centennial Bank Redlands CA 10030 January 23, 2009 

MagnetBank Salt Lake City UT 10031 January 30, 2009 

Ocala National Bank Ocala FL 10032 January 30, 2009 

FirstBank Financial Services McDonough GA 10036 February 6, 2009 

Cornbelt Bank and Trust Pittsfield IL 10037 February 13, 2009 

Riverside Bank of the Gulf Coast Cape Coral FL 10038 February 13, 2009 

Silver Falls Bank Silverton OR 10041 February 20, 2009 

FirstCity Bank Stockbridge GA 10047 March 20, 2009 

Omni National Bank Atlanta GA 10048 March 27, 2009 

Integrity Bank Jupiter FL 10095 July 31, 2009 

Multibank Structured Transaction 2009-1 RES-ADC 

Loan Contribution and Sale Agreement 

468-003/AGR/2374653.10 
	 

	 

	 

	 

	 

	 

SCHEDULE 2 

LIST OF PURCHASE MONEY NOTES 

1.	 Purchase Money Note (NT CL A-1 144A) dated February 9, 2010 in the original 

principal amount of $110,698,466.00 with a maturity date of February 25, 2012 

2.	 Purchase Money Note (NT CL A-2 144A) dated February 9, 2010 in the original 

principal amount of $221,000,000.00 with a maturity date of February 25, 2013 

3.	 Purchase Money Note (NT CL A-3 144A) dated February 9, 2010 in the original 

principal amount of $110,000,000.00 with a maturity date of February 25, 2014 

4.	 Purchase Money Note (NT CL A-1 REG S) dated February 9, 2010 in the original 

principal amount of $0 with a maturity date of February 25, 2012 

5.	 Purchase Money Note (NT CL A-2 REG S) dated February 9, 2010 in the original 

principal amount of $0 with a maturity date of February 25, 2013 

6.	 Purchase Money Note (NT CL A-3 REG S) dated February 9, 2010 in the original 

principal amount of $0 with a maturity date of February 25, 2014 

Multibank Structured Transaction 2009-1 RES-ADC 

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468-003/AGR/2374653.10