LIMITED LIABILITY COMPANY INTEREST 


SALE AND ASSIGNMENT AGREEMENT 


THIS LIMITED LIABILITY COMPANY INTEREST SALE AND 

ASSIGNMENT AGREEMENT (this "Agreement") is made as ofJanuary 12,2009, by 

KMS SPE LLC, a limited liability company organized and existing under the laws of 

Nevada ("LLC Interest Transferee"), the Federal Deposit Insurance Corporation 

("FDIC") as Receiver ("Receiver") for ANB Financial, N.A.("Initial Member"), and 

ANB Venture, LLC, a limited liability company organized and existing under the laws of 

Delaware (the "Company"). 

RECITALS 

WHEREAS, on May 9, 2008, the FDIC was appointed Receiver for the ANB 

Financial, N.A. ("Failed Bank"); and 

WHEREAS, the Receiver formed the Company and holds the sole membership 

interest in the Company (the "LLC Interest"); and 

WHEREAS, Initial Member and the Company have entered into a Loan 

Contribution and Assignment Agreement dated of even date hereof (the "Contribution 

Agreement"), pursuant to which Initial Member has transferred to the Company, as a 

capital contribution, all of the Receiver's right, title and interest in and to certain Loans 

(as defined therein) held by the Failed Bank; and · 

WHEREAS, pursuant to the Participation and Servicing Agreement dated of even 

date hereof (the "Participation Agreement") between the Company and Initial Member, 

the Company has issued to Initial Member, as a return on capital, a participation interest 

in the Loans; and 

WHEREAS, after conducting a sealed bid sale for the LLC Interest, the Receiver 

selected Kingston Management Services, LLC as the successful bidder ("Successful 

Bidder") pursuant to the bid submitted by it (the "Bid") and, in accordance with the 

instructions governing the sealed bid sale (the "Bid Instructions"), the Successful Bidder 

has formed LLC Interest Transferee as a Qualified Transferee and deposited 

$2,019,600.00 (the "Earnest Money Deposit") with Initial Member; and 

WHEREAS, Initial Member desires to transfer the LLC Interest to LLC Interest 

Transferee in compliance with Article VIII ofthe Limited Liability Company Operating 

Agreement between the Company and Initial Member dated of even date hereof (the 

"LLC Operating Agreement"), and this Agreement is being entered into and delivered 

to the Company pursuant to Section 8.3(b) of the LLC Operating Agreement; 

NOW, THEREFORE, in consideration of the foregoing, Initial Member and LLC 

Interest Transferee hereby agree as follows: 

I. Sale and Assignment; Closing; Post-Closing Adjustment. 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
(a) On the terms and subject to the conditions set forth in this 

Agreement, Initial Member hereby sells to LLC Interest Transferee, and LLC Interest 

Transferee hereby purchases from Initial Member, all of Initial Member's right, title and 

interest in and to the LLC Interest for a purchase price of$20,196,000.00 (the "Purchase 

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

LLC Interest Transferee shall remit to Initial Member, by wire transfer of immediately 

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

to the positive difference (if any) between the Purchase Price and the Earnest Money 

Deposit (the "Purchase Price Payment"). 

(b) Upon (i) the receipt by Initial Member of the Purchase Price 

Payment, and (ii) the delivery ofthe executed joinder (as required by Section 4) and 

Guaranty (as required by Section 5), (iii) delivery of the completed Loan Value 

Schedule, in the form attached as Exhibit C, which shall be appended to the Contribution 

Agreement as the Loan Value Schedule thereunder, and (iv) the delivery of the executed 

LLC Interest Transferee Acknowledgment and Certification, in the form attached as 

Exhibit D, the sale and assigrunent ofthe LLC Interest to LLC Interest Transferee and the 

closing of the other transactions contemplated hereby shall be effective. 

(c) By its execution and delivery of this Agreement, the LLC Interest 

Transferee hereby joins in and agrees to be bound by the terms and conditions of the 

Contribution Agreement as the "LLC Interest Transferee" thereunder, and Initial Member 

and the Company hereby acknowledge and agree to the LLC Interest Transferee's joinder 

thereto. 

2. LLC Interest Transferee Bound by LLC Operating Agreement. LLC 

Interest Transferee hereby unconditionally and irrevocably confirms and agrees to be 

bound by the provisions of and comply with each and every one of the covenants, 

a~o,>reements, obligations and duties of a Member contained in the LLC Operating 

Agreement, including without limitation the restrictions on ownership and transfer set 

forth in Article VIII ofthe LLC Operating Agreement, all as fully and to the same extent 

as if LLC Interest Transferee had originally executed the LLC Operating Agreement as 

the initial member thereof, and to be bound by all waivers made and consents given by 

Initial Member with respect to any matter set forth therein. 

3. Withdrawal oflnitial Member. Initial Member hereby withdraws and 

resigns from the Company and is hereby released from its liabilities and ceases to be 

bound by its obligations as a Member of the Company, including without limitation any 

liabilities or obligations arising under or with respect to the LLC Operating Agreement. 

4. Joinder to LLC Operating Agreement. Contemporaneously with the 

execution and delivery of this Agreement, LLC Interest Transferee shall execute and 

deliver to the Company a joinder to the LLC Operating Agreement in the form attached 

hereto as Exhibit A. 

5. Guarantv. Contemporaneously with the execution and delivery of this 

Agreement, LLC Interest Transferee shall cause to be delivered to Initial Member and the 

2 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
Company a guaranty in the form attached hereto as Exhibit B, duly executed by the 


Guarantor named therein. 


6. Representations and Warranties of LLC Interest Transferee. LLC 

Interest Transferee hereby represents and warrants to Initial Member and to the Company 

as follows: 

(a) LLC Interest Transferee is a "Qualified Transferee," as such term 

is defined in the LLC Operating Agreement, and as such, represents and warrants that 

each item included in such definition is true and correct in all respects as ofthe date 

hereof as ifset forth herein. 

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

agents by or on behalf ofLLC Interest Transferee or the Successful Bidder in connection 

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

to, the Purchaser Eligibility Certification, the Bid Certification, the Qualification Request 

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

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

therein not misleading. 

7. Exclusivity of Representations. EXCEPT FOR SUCH 

REPRESENTATIONS AND WARRANTIES AS ARE OTHERWISE EXPRESSLY 

PROVIDED IN THIS AGREEMENT, THE LLC INTEREST IS SOLD "AS IS" AND 

"WITH ALL FAULTS," WITHOUT ANY REPRESENTATION, WARRANTY OR 

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

COLLECTIBILITY OR CONDITION OF THE LOANS HELD BY THE COMPANY), 

FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OR ANY 

OTHER WARRANTY, EXPRESS OR IMPLIED, AND INITIAL MEMBER 

SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR 

REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR 

IMPLIED, CONCERNING THE LLC INTEREST OR THE LOANS, OR THE 

COLLATERAL SECURING THE LOANS. 

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

binding upon and inure to the benefit ofthe parties hereto and their respective heirs (in 

the case of any individual), successors and permitted assigns; provided, however, that the 

LLC Interest Transferee may not assign this Agreement or any of its rights, interests or 

obligations hereunder. Any purported assignment or delegation in violation ofthis 

Agreement shall be null and void ab initio. 

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

enforeed by, Initial Member, LLC Interest Transferee and the Company and their 

respeetive successors and assigns. There shall be no third party beneficiaries hereunder. 

10. Waivers and Amendments. No amendment or waiver of any provision 

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

Initial Member, LLC Interest Transferee and the Company. 

3 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
11. Failure to Consummate Transaction. If for any reason, without fault of 

Initial Member, LLC Interest Transferee fails to consummate the purchase ofthe LLC 

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

liquidated damages, and sole and exclusive remedy, shall be the Earnest Money Deposit. 

LLC Interest Transferee and Initial Member agree that the failure or refusal oflnitial 

Member to alter or modifY, in any way, the terms or conditions ofthis Agreement, the 

Participation Agreement or any Ancillary Document or other documents referred to or 

contained in the Bid Instructions shall not constitute fault on the part oflnitial Member. 

LLC Interest Transferee shall not be liable for any of the foregoing damages if LLC 

Interest Transferee is forced to withdraw its Bid after award as the result of a supervisory 

directive given by the FDIC or any other federal or state financial regulatory agency, 

provided that Initial Member shall be satisfied that such supervisory directive is legally 

effective. In such event, Initial Member shall refund the Earnest Money Deposit. 

12. Governing Law. THIS AGREEMENT IS GOVERNED BY AND 

SHALL BE 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. 

13. Submission to Jurisdiction; Waivers. Each oflnitial Member, LLC 

Interest Transferee and the Company hereby irrevocably and unconditionally: 

(a) (i) agrees that any suit, action or proceeding against it or any of its 

Affiliates by the other party arising out of or relating to or in connection with this 

Agreement may be instituted, and that any suit, action or proceeding by such party or any 

ofits respective Affiliates against the other party arising out of or relating to or in 

connection with this Agreement shall be instituted only, in the Supreme Court ofthe 

State ofNew York, County ofNcw York, or the United States District Court for the 

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

Columbia (and appellate courts from any of the foregoing), as the Person instituting such 

suit, action or proceeding may elect in its or his sole discretion, (ii) consents and submits, 

for itself and its property, to the jurisdiction of such courts for the purpose of any such 

suit, action or proceeding instituted against it, and (iii) agrees that a final judgment in any 

such suit, action or proceeding shall be conclusive and may be enforced in other 

jurisdictions by suit on the judgment or in any other manner provided by law; 

(b) agrees that service of all writs, process and summonses in any suit, 

action or proceeding pursuant to Section 13(a) may be effected by the mailing of copies 

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

pursuant to Section 14, such service to become effective 30 days after such mailing, 

provided that nothing contained in this Section 13(b) shall affect the right of any party to 

serve process in any other manner permitted by law; 

(c) (i) waives any objection which it may now or hereafter have to the 

laying of venue of any suit, action or proceeding arising out ofor relating to this 

Agreement brought in any court specified in Section 13(a), (ii) waives any claim that any 

4 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
such suit, action or proceeding brought in any such court has been brought in an 

inconvenient forum, and (iii) agrees not to plead or claim either ofthe foregoing; and 

(d) W AlVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY 

OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR 

ANY ANCILLARY DOCUMENT AND AGREES THAT ANY SUCH DISPUTE 

SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 

(e) Nothing contained in this Section 13(e) shall be construed to 

constitute a consent to jurisdiction by the Initial Member, the Failed Bank or the FDIC in 

any capacity. 

14. Notices. All notices, requests, demands, and other communications 

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

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

prepaid, or, delivered by hand or by nationally recognized air courier service directed to 

the address ofsuch Person set forth below: 

If to Initial Member, to: 

Manager, Capital Markets & Resolutions 


Federal Deposit Insurance Corporation 


550 171

h Street, NW (Room F-7008) 


Washington, D.C. 20429-0002 


Attention: George Alexander 


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 

5 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
If to LLC Interest Transferee, to: 

KMS SPELLC 

477 Shoup Avenue, Suite 207 

Idaho Falls, ID 83402 

Attention: David 0. Kingston 

with a copy to: 

KMS SPELLC 


477 Shoup Avenue, Suite 207 


Idaho Falls, ID 83402 


Attention: Kari M. Campos 


If to the Company, to: 

Manager, Capital Markets & Resolutions 


Federal Deposit Insurance Corporation 


550 17'h Street, NW (Room F-7008) 


Washington, D.C. 20429-0002 


Attention: George Alexander 


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 

Any such notice shall become effective when received (or 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 ofthe 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 above. 

15. Counterparts; Facsimile Signatures. This Agreement may be executed 

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

together constitute one and the same instrument. It shall not be necessary for any 

counterpart to bear the signature of all parties hereto. This Agreement and any 

amendments hereto, to the extent signed and delivered by means of a facsimile machine, 

shall be treated in all manner and respects as an original agreement and shall be 

considered to have the same binding legal effect as ifit were the original signed version 

6 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
thereof delivered in person. No signatory to this Agreement shall raise the use of a 

facsimile machine to deliver a signature or the fact that any signature or agreement was 

transmitted or communicated through the use of a facsimile machine as a defense to the 

formation or enforceability of a contract and each such Person forever waives any such 

deferise. 

16. Certain Defined Terms. Capitalized terms used and not defined in this 

Agreement shall have the respective meanings set forth in the LLC Operating Agreement. 

7 

ANB LLC INTEREST SALE AGREEMENT 

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

executed as of the date first written above. 

LLC INTEREST TRANSFEREE: 

KMS SPE LLC, a Nevada limited liability 

company 

By: Kingston Properties L.P., its Manager 

By: DK Enterprises, Inc., its General 

Par

Name: David 0. Kingst<\):J. 

Title: President 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

ANB FI~NCIAL, N.~. 

Name

Title: Attorney-in-Fact 

COMPANY: 

ANB VENTURE, LLC, a Delaware 

limited liability company 

B

Name:JGeorge Alexander 

Title: Attorney-in-Fact 

8 


ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
EXHIBIT A 


FORM OF JOINDER 


MEMBER SIGNATURE PAGE 


By its execution and delivery ofthis signature page, the undersigned hereby joins 

in and agrees to be bound by the terms and conditions of the Limited Liability Company 

Operating Agreement ofANB Venture, LLC dated as ofJanuary 12, 2009 (the "LLC 

Operating Agreement") as the sole "Member" thereunder and authorizes this signature 

page to be attached to the LLC Interest Sale Agreement or counterparts thereof. 

Member: 

KMS SPE LLC, a Nevada limited liability 

company 

By: Kingston Properties L.P ., its Manager 

By: DK Enterprises, Inc., its General 

Partner 

By:--=--:--:-::--::-::-:-­ Name: David 0. Kingston 

Title: President 

Date: January 12, 2009 

Address: 

477 Shoup Avenue, Suite 207 

Idaho Falls, ID 83402 

Attention: David 0. Kingston 

Facsimile No.: (208)523-4927 

With a copy to: 

477 Shoup Avenue, Suite 207 

Idaho Falls, ID 83402 

Attention: Kari M. Campos 

Facsimile No.: (208)552-4563 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
EXHIBITB 


FORM OF GUARANTY 


[Attached) 

See Tab 15 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
EXHIBITC 

FORM OF LOAN VALUE SCHEDULE 

Loan Number Loan Value 

See Tab 24 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
EXHIBITD 


FORM OF TRANSFEREE ACKNOWLEDGMENT AND CERTIFICATION 

TRANSFEREE ACKNOWLEDGMENT AND CERTIFICATION 

Reference is made to the Limited Liability Company Interest Sale and 

Assignment Agreement dated January 12, 2009 (the "LLC Interest Sale Agreement") 

by and among KMS SPE LLC (the "LLC Interest Transferee"), the Federal Deposit 

Insurance Corporation as Receiver for ANB Financial, N.A. (the "Receiver") and ANB 

Venture, LLC (the "Company"). Capitalized terms used, and not otherwise defined in 

this Acknowledgement and Certification have the meanings given in the LLC Interest 

Sale Agreement. 

The undersigned, LLC Interest Transferee, hereby acknowledges and certifies to 

the Receiver that it has read and understands, and is prepared to cause the Company to 

comply with, the obligations imposed upon the Company under the Participation 

Agreement, the Contribution Agreement and the Ancillary Documents (as defined in the 

Participation Agreement). Without limiting the foregoing, the LLC Interest Transferee is 

aware of and prepared to cause the Company to comply with the obligations as specified 

in the Contribution Agreement (i) to remove the Receiver and ANB Financial, N.A. (the 

"Failed Bank") as a party to any litigation or actions with respect to the Loans (as 

defined in the Contribution Agreement) and to substitute the Company as the real partyin-interest in any such litigation or actions prior to the Servicing Transfer Date (as 

defined in the Contribution Agreement) and (ii) to take all actions necessary to file, prior 

to the Servicing Transfer Date, (x) proofs of claims in pending bankruptcy cases 

involving any Loans for which the Receiver or the Failed Bank has not already filed a 

proof of claim, and (y) all documents required by Rule 3001(e)(2) of the Federal Rules of 

Bankruptcy Procedure and to take all such similar actions as may be required in any 

relevant jurisdiction in any pending bankruptcy or insolvency case or proceeding in such 

jurisdiction involving any Loans in order to evidence and assert the Company's rights. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) 

ANB LLC INTEREST SALE AGREEMENT 

EXECUTION VERSION 
Attached hereto as Schedule I is a List of Litigation (the "List") with respect to 

the Loans. The undersigned acknowledges that the Receiver makes no representation or 

warranty as to the completeness or accuracy of the List or the information contained or 

referred to therein. 

KMS SPE LLC, a Nevada limited liability 

company 

By: Kingston Properties L.P ., its Manager 

By: DK Enterprises, Inc., its General Partner 

By:--::::---:--:-=-::-:c:-­ Name: David 0. Kingston 

Title: President 

ANB LU:: INTEREST SALE AGREEMENT 

EXECUTION VERSION