Multibank Structured Transaction 2010-1 CRE
 

EXECUTION COPY
 

PURCHASE MONEY NOTES GUARANTY AGREEMENT
 

BY AND BETWEEN
 

FEDERAL DEPOSIT INSURANCE CORPORATION, IN ITS CORPORATE
 

CAPACITY
 

AND
 

FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR
 

VARIOUS FAILED FINANCIAL INSTITUTIONS LISTED ON SCHEDULE 1
 

HERETO
 

Dated as of July 2, 2010

OHS East:160712103.6
TABLE OF CONTENTS
 

Section 1. Guaranty...................................................................................................... 2
 

Section 2. Guaranty Absolute ...................................................................................... 2
 

Section 3. Action with Respect to Guaranteed Obligations......................................... 3
 

Section 4. Representations and Warranties.................................................................. 3
 

Section 5. Waiver......................................................................................................... 3
 

Section 6. Reinstatement of Guaranteed Obligations.................................................. 4
 

Section 7. Subrogation; Assignment of Claims........................................................... 4
 

Section 8. Purchase Money Notes Guarantor’s Right to Control Remedies ............... 5
 

Section 9. Information ................................................................................................. 5
 

Section 10. Governing Law ........................................................................................... 5
 

Section 11. Records and Accounts................................................................................. 5
 

Section 12. Waiver of Remedies.................................................................................... 5
 

Section 13. Termination................................................................................................. 6
 

Section 14. Successors and Assigns............................................................................... 6
 

Section 15. Amendments............................................................................................... 6
 

Section 16. [Reserved]................................................................................................... 6
 

Section 17. Payments..................................................................................................... 6
 

Section 18. Notices ........................................................................................................ 7
 

Section 19. Severability ................................................................................................. 8
 

Section 20. Headings ..................................................................................................... 9
 

Section 21. Limitation of Liability................................................................................. 9
 

Section 22. Waiver of Jury Trial.................................................................................... 9
 

Section 23. Jurisdiction, Venue and Service................................................................ 10
 

Section 24. Counterparts; Facsimile Signature............................................................ 12
 

OHS East:160712103.6
PURCHASE MONEY NOTES GUARANTY AGREEMENT

THIS PURCHASE MONEY NOTES GUARANTY AGREEMENT (this

“Guaranty Agreement”) entered into as of July 2, 2010 by and between the Federal

Deposit Insurance Corporation, in its corporate capacity (the “Purchase Money Notes

Guarantor”) and the Federal Deposit Insurance Corporation, as Receiver for various

failed financial institutions listed on Schedule 1 hereto (the “Initial Holder”).

Capitalized terms used herein and not otherwise defined herein shall have the meanings

assigned to them in, or by reference in, that certain Custodial and Paying Agency

Agreement, dated as of July 2, 2010, among 2010-1 CRE Venture, LLC, the Federal

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase

Money Notes, the Federal Deposit Insurance Corporation, in its capacity as Receiver for

various failed financial institutions listed on Schedule 1 hereto, as Collateral Agent

pursuant to the Reimbursement, Security and Guaranty Agreement, and Wells Fargo

Bank, N.A., a national banking association (as amended, supplemented or restated from

time to time, and including any substantially similar agreement entered into by Debtor (as

hereinafter defined) and any new or successor custodian and paying agent, the

“Custodial and Paying Agency Agreement”).

RECITALS

WHEREAS, pursuant to that certain Loan Contribution and Sale Agreement,

dated as of July 2, 2010, as amended, supplemented or restated from time to time (the

“Contribution Agreement”), between 2010-1 CRE Venture, LLC (“Debtor”) and the

Initial Holder, the Initial Holder transferred certain assets to Debtor, partly as a sale and

partly as a capital contribution, and in return for said assets Debtor issued to the Initial

Holder three classes of Purchase Money Notes, dated as of July 2, 2010, in the aggregate

principal face amount of $562,965,000, as set forth on Schedule 2 to the Contribution

Agreement (the “Purchase Money Notes”); and

WHEREAS, to provide the Holders support for the payment and performance of

Debtor’s obligations under the Purchase Money Notes, the Purchase Money Notes

Guarantor has agreed to enter into this Guaranty Agreement and to perform the

obligations of the Purchase Money Notes Guarantor described herein;

WHEREAS, pursuant to 12 U.S.C. §1825(d), if the principal amount of an

obligation issued by the FDIC after August 9, 1989, is stated in the obligation and the

term to maturity or the date of maturity of such obligation is stated in the obligation, then

the full faith and credit of the United States is pledged to the payment of such obligation

with respect to both principal and interest;

WHEREAS, because the principal of the Guaranteed Obligations (as defined

below) is stated in this Guaranty Agreement, and the date of maturity of the Purchase

Money Notes Guarantor’s obligations under this Guaranty Agreement is stated in this

Guaranty Agreement, the full faith and credit of the United States is pledged to the

Purchase Money Notes Guarantor’s obligation to pay the Guaranteed Obligations (as

defined below) pursuant to 12 U.S.C. §1825(d); and

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NOW, THEREFORE, in consideration of payment to the Purchase Money Notes

Guarantor of a guaranty fee agreed upon by the Purchase Money Notes Guarantor and

Debtor and paid by the Initial Holder on behalf of Debtor, the sufficiency of which is

hereby acknowledged, the Purchase Money Notes Guarantor and Initial Holder hereby

agree as follows:

Section 1. Guaranty. The Purchase Money Notes Guarantor hereby

absolutely, irrevocably, completely, unconditionally and immediately guarantees all of

the following (collectively, the “Guaranteed Obligations”): the due and punctual

payment of the principal of each Class of Purchase Money Notes, in an aggregate amount

of $562,965,000, when such principal shall become due and payable in accordance with

the terms of each respective Class of Purchase Money Notes and the Custodial and

Paying Agency Agreement (whether at stated maturity, by acceleration or otherwise),

which $562,965,000, shall constitute the principal amount of the Guaranteed Obligations.

The date of termination of the Purchase Money Notes Guarantor’s obligations under this

Guaranty Agreement shall be June 25, 2020, which date shall be the date on which the

Purchase Money Notes Guarantor’s obligation to pay the Guaranteed Obligations shall be

due (if and to the extent the same are not discharged, satisfied or paid on or prior thereto).

The full faith and credit of the United States is pledged to the Purchase Money Notes

Guarantor’s obligation to pay the Guaranteed Obligations pursuant to 12 U.S.C.

§1825(d).

Section 2. Guaranty Absolute. The Purchase Money Notes Guarantor

guarantees that the Guaranteed Obligations will be paid strictly in accordance with the

terms of each Class of Purchase Money Notes regardless of any law, regulation or order

now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of

the Holders with respect thereto. The liability of the Purchase Money Notes Guarantor

under this Guaranty Agreement shall be absolute, irrevocable and unconditional in

accordance with its terms and shall, to the fullest extent permissible under applicable law,

remain in full force and effect without regard to, and shall not be released, suspended,

discharged, terminated, modified or otherwise affected by, any circumstance or

occurrence whatsoever, including without limitation, any of the following (whether or not

the Purchase Money Notes Guarantor consents thereto or has notice thereof):

(a) any lack of validity, legality or enforceability of any Purchase

Money Note or this Guaranty Agreement;

(b) any furnishing to the Holders of any security for the

Guaranteed Obligations;

(c) any bankruptcy, insolvency, reorganization, composition,

adjustment, merger, consolidation, dissolution, liquidation or other like proceeding

relating to the Purchase Money Notes Guarantor, Debtor or any other person, or any

action taken with respect to this Guaranty Agreement by any trustee or receiver, or by

any court, in any such proceeding; or

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(d) any defect, limitation or insufficiency in the rights of Debtor or

any other person under any Purchase Money Note or in the exercise thereof.

Section 3. Action with Respect to Guaranteed Obligations. Unless

otherwise consented to in writing by the Purchase Money Notes Guarantor, the Holders

may not take any of the following actions: (a) amend, modify, alter or supplement the

terms of any of the Guaranteed Obligations, including, but not limited to, extending or

shortening the time of payment of any of the Guaranteed Obligations or modifying the

amount of any of the Guaranteed Obligations; (b) amend, modify, alter or supplement

any Purchase Money Note; (c) release any other person liable in any manner for the

payment or collection of the Guaranteed Obligations; and (d) exercise, or refrain from

exercising, any rights against Debtor or any other person; provided, however, that any

such action taken by the Holders with the written consent of the Purchase Money Notes

Guarantor shall not discharge the Purchase Money Notes Guarantor from its obligations

hereunder.

Section 4. Representations and Warranties. The Purchase Money Notes

Guarantor hereby makes the following representations and warranties to the Holders:

(a) The Purchase Money Notes Guarantor has the right and

power, and has taken all necessary action to authorize the execution and delivery of this

Guaranty Agreement and to perform its obligations hereunder in accordance with its

terms. This Guaranty Agreement has been duly executed and delivered by a duly

authorized officer of the Purchase Money Notes Guarantor and this Guaranty Agreement

is a legal, valid and binding obligation of the Purchase Money Notes Guarantor

enforceable against it in accordance with its terms;

(b) The execution, delivery and performance of this Guaranty

Agreement does not and will not, by the passage of time, the giving of notice or both:

(i) require any governmental approval that has not been obtained or violate any law

relating to the Purchase Money Notes Guarantor; (ii) conflict with, result in a breach of or

constitute a default under the organizational documents of the Purchase Money Notes

Guarantor, or any agreement or other instrument to which the Purchase Money Notes

Guarantor is a party or by which it or any of its respective properties may be bound; or

(iii) result in or require the creation or imposition of any lien upon or with respect to any

property now owned or hereafter acquired by the Purchase Money Notes Guarantor; and

(c) No action, suit, proceeding, governmental investigation or

arbitration, at law or in equity, or before or by any governmental authority, is pending, or

to the knowledge of the Purchase Money Notes Guarantor, threatened against the

Purchase Money Notes Guarantor or any of its property which will affect the ability of

the Purchase Money Notes Guarantor to perform its obligations under this Guaranty

Agreement.

Section 5. Waiver. Except with respect to the Purchase Money Notes

Guarantor’s consent rights under Section 3, which consent rights shall not be limited,

waived or otherwise modified by operation of this Section 5, the Purchase Money Notes

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Guarantor, to the fullest extent permitted by law, hereby waives notice of acceptance

hereof or any presentment, demand, protest or notice of any kind, and any other act or

thing, or omission or delay to do any other act or thing, which in any manner or to any

extent might vary the risk of the Purchase Money Notes Guarantor or which otherwise

might operate to discharge the Purchase Money Notes Guarantor from its obligations

hereunder. The Purchase Money Notes Guarantor acknowledges that it will receive direct

and indirect benefits from the arrangements contemplated herein and that the waivers set

forth in this Section 5 are knowingly made in contemplation of such benefits. The

Purchase Money Notes Guarantor hereby waives any right to revoke this Section 5 and

acknowledges that this Section 5 is continuing in nature and applies to all Guaranteed

Obligations, whether existing now or in the future.

Section 6. Reinstatement of Guaranteed Obligations. This Guaranty

Agreement shall in all respects be a continuing and irrevocable guaranty of payment and

(a) shall remain in full force and effect until the indefeasible payment in full and in cash

of the Guaranteed Obligations, (b) be binding upon the Purchase Money Notes

Guarantor, its successors and assigns and (c) inure to the benefit of, and be binding upon

and enforceable by, the Holders and their respective successors, pledgees, transferees and

assigns. If claim is ever made on any Holder for repayment or recovery of any amount or

amounts received in payment or on account of any of the Guaranteed Obligations, and

such Holder repays all or part of said amount by reason of (y) any judgment, decree or

order of any court or administrative body of competent jurisdiction, or (z) any settlement

or compromise of any such claim effected by the Holder with any such claimant

(including, without limitation, Debtor or a trustee in bankruptcy for Debtor), then and in

such event the Purchase Money Notes Guarantor agrees that any such judgment, decree,

order, settlement or compromise shall be binding on it, notwithstanding any revocation

hereof or the cancellation of this Guaranty Agreement, any Purchase Money Note, or any

other instrument evidencing any liability of Debtor, and the Purchase Money Notes

Guarantor shall be and remain liable to such Holder for the amounts so repaid or

recovered to the same extent as if such amount had never originally been paid to such

Holder and the Purchase Money Notes Guarantor’s obligations and liabilities to such

Holder under this Guaranty Agreement shall be reinstated to such extent and this

Guaranty Agreement and any collateral for this Guaranty Agreement shall remain in full

force and effect (or shall be reinstated) to such extent.

Section 7. Subrogation; Assignment of Claims. If and to the extent the

Purchase Money Notes Guarantor makes any payment to the Holders pursuant to or in

connection with this Guaranty Agreement, the Purchase Money Notes Guarantor shall be

subrogated to all of the rights of the Holders with respect to any claim to which such

payment relates to the extent of such payment, and the Holders, upon acceptance of any

such payment, will be deemed to have assigned to the Purchase Money Notes Guarantor

any and all claims such Holders may have against the Debtor or others and for which

such Holders receive payment from the Purchase Money Notes Guarantor under this

Guaranty Agreement. Upon the request of the Purchase Money Notes Guarantor, the

Holders shall execute written assignments of such claims.

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Section 8. Purchase Money Notes Guarantor’s Right to Control

Remedies. If there shall occur an “Event of Default” under the Reimbursement, Security

and Guaranty Agreement, the Purchase Money Notes Guarantor shall have the right to

control any and all remedies available to the Holders under any Purchase Money Note,

and the Holders hereby agree to take any and all actions available to the Holders under

such Purchase Money Note as the Purchase Money Notes Guarantor shall direct.

Section 9. Information. The Purchase Money Notes Guarantor (a)

assumes all responsibility for being and keeping itself informed of the financial condition

of Debtor, and of all other circumstances bearing upon the risk of nonpayment of any of

the Guaranteed Obligations and the nature, scope and extent of the risks that the Purchase

Money Notes Guarantor assumes and incurs hereunder, and (b) agrees that the

Noteholder shall not have any duty whatsoever to advise the Purchase Money Notes

Guarantor of information regarding such circumstances or risks.

Section 10. Governing Law. THIS GUARANTY 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 GUARANTY AGREEMENT TO THE LAW OF

ANOTHER JURISDICTION. NOTHING IN THIS GUARANTY AGREEMENT

SHALL REQUIRE ANY UNLAWFUL ACTION OR INACTION BY ANY PARTY TO

THIS GUARANTY AGREEMENT.

Section 11. Records and Accounts. The Holders may maintain books and

accounts setting forth the amounts paid and payable with respect to the Guaranteed

Obligations, and in the case of any dispute relating to any of the outstanding amount,

payment or receipt of any of the Guaranteed Obligations or otherwise, the entries in such

books and accounts shall constitute prima facie evidence of amounts and other matters set

forth therein. The failure of the Holders to maintain such books and accounts shall not in

any way relieve or discharge the Purchase Money Notes Guarantor of any of its

obligations hereunder.

Section 12. Waiver of Remedies. No failure on the part of the Holders to

exercise, and no delay in exercising, any right hereunder or under any Purchase Money

Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such

right preclude any other or further exercise thereof or the exercise of any other right. The

rights and remedies of the Holders provided herein and in each Class of Purchase Money

Notes are cumulative and are in addition to, and not exclusive of, any other rights or

remedies provided by law. The rights of the Holders under this Agreement and each

Class of Purchase Money Notes against any other party thereto are not conditional or

contingent on any attempt by the Holders to exercise any of their respective rights under

any other document against such party or against any other Person.

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Section 13. Termination. This Guaranty Agreement shall remain in full

force and effect with respect to the Purchase Money Notes Guarantor until, and shall

terminate upon, the earliest of indefeasible satisfaction and payment in full of the

Guaranteed Obligations and the termination or cancellation of each Purchase Money

Note in accordance with its terms.

Section 14. Successors and Assigns. Each reference herein to the Holders

and to the Purchase Money Notes Guarantor shall be deemed to include their respective

successors and assigns, in whose favor the provisions of this Guaranty Agreement also

shall inure and upon whom this Guaranty Agreement also shall be binding; provided,

that, for each Class of Purchase Money Notes, the Purchase Money Notes Guarantor may

not assign or transfer its obligations hereunder to any person without the prior written

consent of the Holders of one hundred percent (100%) of the outstanding principal

balance of such Class and any such assignment or other transfer to which such Holders

have not so consented shall be null and void ab initio.

Section 15. Amendments. For each Class of Purchase Money Notes, no

amendment of any provision of this Guaranty Agreement shall be effective unless it is in

writing and signed by the Purchase Money Notes Guarantor and the Holders of more than

fifty percent (50%) of the outstanding principal balance of such Class; provided that any

amendment, waiver or other modification that would (a) affect adversely the interests,

rights or obligations of any Holder, or (b) release the Purchase Money Notes Guarantor

from all or any part of its obligation to make each and every payment under this Guaranty

Agreement, shall not be effective unless it is in writing and signed by each affected

Holder, and in each case, such consent, amendment, waiver or other modification shall be

effective only in the specific instance and for the specific purpose for which given.

Section 16. [Reserved.]

Section 17. Payments.

(a) All payments to be made by the Purchase Money Notes

Guarantor pursuant to this Guaranty Agreement in respect of the Guaranteed Obligations

shall be made in legal currency of the United States of America, in immediately available

funds by 12:00 p.m. New York time on the date that is one (1) Business Day prior to the

applicable Distribution Date or Maturity Date; provided that the Purchase Money Notes

Guarantor has received written demand therefor by the applicable Holder or by the

Paying Agent on such Holder’s behalf, in each case in substantially the form attached

hereto as Exhibit A, no later than 5:00 p.m. New York time on the date that is four (4)

Business Days prior to such Distribution Date or Maturity Date. The deposit of any such

payments by the Purchase Money Notes Guarantor into the Class A-1 Defeasance

Account, Class A-2 Defeasance Account or the Class A-3 Defeasance Account, as

applicable, pursuant to the Custodial and Paying Agency Agreement for further

distribution by the Paying Agent to the Holders shall constitute payment in satisfaction of

this Section with respect to the Guaranteed Obligations.

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(b) In addition, the Purchase Money Notes Guarantor agrees that

to the extent the full principal amount of any Purchase Money Note is not paid when due,

for whatever reason, the Purchase Money Notes Guarantor will pay interest on such

unpaid principal amount at the rate of 1.00% per annum calculated on the basis of a year

of 360 days and twelve 30 day months. Such interest shall be due and payable by the

Purchase Money Notes Guarantor on the day the overdue principal is paid to the Holders,

which may be any Business Day without regard to whether or not such date is a

Distribution Date or the Maturity Date. Such interest payment shall be made in legal

currency of the United States of America to the Paying Agent for further distribution by

the Paying Agent to the Holders. Any such interest shall accrue from and including the

Distribution Date or Maturity Date on which the principal became due and payable to,

but not including, the date on which such principal is actually paid to the Holders. For

avoidance of doubt, the agreement to pay interest as described in this Section 17(b), in no

way relieves the Purchase Money Notes Guarantor of its obligations to make full and

timely payment of amounts due with respect to the Guaranteed Obligations as provided in

the first sentence of Section 1 and in the first sentence of Section 17(a), nor does it relieve

any party from any liability for breach by such party of any obligation that results in the

failure of any payment of principal on any Purchase Money Note to be made when due.

Section 18. 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 Guaranty Agreement shall be in writing and shall be mailed or

delivered to the applicable address or electronic mail address of the parties specified

below for such Person or to such other address or electronic mail address as shall be

designated by such party in a notice to the other parties. All such notices and other

communications shall be deemed to be given or made upon the earlier to occur of

(i) actual receipt (or refusal thereof) by the relevant party hereto and (ii) (A) if delivered

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

on behalf of the relevant party hereto; (B) if delivered by mail, four (4) Business Days

after deposit in the mails, postage prepaid; and (C) if delivered by electronic mail (which

form of delivery is subject to the provisions of this paragraph), when delivered. In no

event shall a voice mail message be effective as a notice, communication or confirmation

hereunder.

Address for notices or communications to the Purchase Money Notes Guarantor:

Manager, Capital Markets & Resolutions

Federal Deposit Insurance Corporation

550 17th Street, N.W.

Room F-7014

Washington, D.C. 20429

Attention: Ralph Malami

Email address: RMalami@fdic.gov

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with a copy to:

Senior Counsel
 

FDIC Legal Division
 

Litigation and Resolutions Branch, Receivership Section
 

Special Issues Unit
 

3501 Fairfax Drive (Room E-7056)
 

Arlington, VA 22226
 

Attention: David Gearin
 

Email address: Dgearin@fdic.gov
 

Address for notices or communications to the Initial Holder:

Manager, Capital Markets & Resolutions

Federal Deposit Insurance Corporation

550 17th Street, N.W.

Room F-7014

Washington, D.C. 20429

Attention: Ralph Malami

Email address: RMalami@fdic.gov

with a copy to:

Senior Counsel
 

FDIC Legal Division
 

Litigation and Resolutions Branch, Receivership Section
 

Special Issues Unit
 

3501 Fairfax Drive (Room E-7056)
 

Arlington, VA 22226
 

Attention: David Gearin
 

Email address: Dgearin@fdic.gov
 

Address for notices or communications to the Holders:

Wells Fargo Bank, N.A.

9062 Old Annapolis Road

Columbia, Maryland 21045

Attention: Client Services Manager

Ref: Multibank 2010-1 CRE

Section 19. Severability. Any provision of this Guaranty 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 entity or persons or

entities 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 entity or persons or entities and/or under such particular circumstance or

circumstances, as the case may be; (b) without limitation of clause (a), such provision

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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 Guaranty Agreement. Without

limitation of the preceding sentence, it is the intent of the parties to this Guaranty

Agreement that in the event that in any court proceeding, such court determines that any

provision of this Guaranty 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, (x) modify such provision

(including, without limitation, to the extent applicable, by limiting the duration or scope

of such provision and/or the persons or entities 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 (p) enforce such provision, as so modified

pursuant to clause (q), in such proceeding. Nothing in this Section 19 is intended to, or

shall, limit (x) the ability of any party to this Guaranty Agreement to appeal any court

ruling or the effect of any favorable ruling on appeal or (y) the intended effect of

Section 10.

Section 20. Headings. Section titles or captions contained in this

Guaranty 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 Guaranty Agreement or the

intent of any provisions hereof. All Section, paragraph and clause references contained

herein shall refer to Sections, paragraphs and clauses in this Guaranty Agreement unless

otherwise specified.

Section 21. Limitation of Liability. Neither the Holders nor any of their

respective affiliates, officers, directors, employees, attorneys, or agents, shall have any

liability with respect to, and the Purchase Money Notes Guarantor hereby waives,

releases, and agrees not to sue any of them upon, any claim for any special, indirect,

incidental, or consequential damages suffered or incurred by the Purchase Money Notes

Guarantor in connection with, arising out of, or in any way related to, this Guaranty

Agreement or any of the transactions contemplated hereby. The Purchase Money Notes

Guarantor hereby waives, releases, and agrees not to sue the Holders or any of their

respective affiliates, officers, directors, employees, attorneys, or agents for punitive

damages in respect of any claim in connection with, arising out of, or in any way related

to, this Guaranty Agreement or any of the transactions contemplated hereby.

Section 22. Waiver of Jury Trial. EACH OF THE PURCHASE MONEY

NOTES GUARANTOR AND EACH HOLDER 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 GUARANTY

AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED

BEFORE A JUDGE SITTING WITHOUT A JURY.

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Section 23. Jurisdiction; Venue and Service.

(a) Each Holder (if such Holder is not the FDIC; any Holder that is

not the FDIC, a “Non-FDIC Holder”), 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 Purchase Money Notes

Guarantor or any other Holder (if such other Holder is the FDIC; the Holder that

is the FDIC, the “FDIC Holder”) arising out of, relating to, or in connection with

this Guaranty Agreement or any Ancillary Document, and waives any right to:

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

any court or dispute-resolution forum other than the

court in which the Purchase Money Notes Guarantor or

the FDIC Holder files the suit, action or proceeding

without the consent of the Purchase Money Notes

Guarantor or the FDIC Holder, as applicable;

(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 for any suit, action or proceeding against it or any of its Affiliates

commenced by the Purchase Money Notes Guarantor or the FDIC Holder arising

out of, relating to, or in connection with this Guaranty 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 Purchase Money Notes Guarantor or the

FDIC Holder, as applicable;

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

the State of New York; or

(C)	 assert that the Supreme Court of the State of New York

is an inconvenient forum.

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(iii) agrees to bring any suit, action or proceeding by any NonFDIC Holder, or its Affiliates against the Purchase Money Notes Guarantor or the

FDIC Holder arising out of, relating to, or in connection with this Agreement or

any Ancillary Document in only either the United States District Court for the

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

of Columbia, and waives any right to remove or transfer such suit, action or

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

the Purchase Money Notes Guarantor or the FDIC Holder, as applicable, 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

Purchase Money Notes Guarantor or the FDIC Holder, as applicable;

(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 23(a)(iii), to bring that suit, action or proceeding in only the Supreme

Court of the State of New York, and waives any right to remove or transfer such

suit, action or proceeding to any other court or dispute-resolution forum without

the consent of the Purchase Money Notes Guarantor or the FDIC Holder, as

applicable; and

(v) agrees that any final judgment entered against it in any suit,

action or proceeding falling within Section 23(a) may be enforced in any court of

competent jurisdiction.

(b) Each Non-FDIC Holder, 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 23(a) may be enforced in any

court of competent jurisdiction.

(c) Subject to the provisions of Section 23(d), each Holder, on

behalf of itself and its Affiliates, and the Purchase Money Notes Guarantor hereby

irrevocably and unconditionally agrees that service of all writs, process and summonses

in any suit, action or proceeding pursuant to Section 23(a) or Section 23(b) may be

effected by the mailing of copies thereof by registered or certified mail, postage prepaid,

to it at its address for notices pursuant to Section 18 (with copies to such other Persons as

specified therein); provided, however, that nothing contained in this Section 23(c) shall

affect the right of any party to serve process in any other manner permitted by Law.

(d) Nothing in this Section 23 shall constitute consent to

jurisdiction in any court by the FDIC, other than as expressly provided in Section

23(a)(iii) and Section 23(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.

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OHS East:160712103.6
Section 24. Counterparts; Facsimile Signature. This Guaranty 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

Guaranty Agreement and any amendments hereto, to the extent signed and delivered by

facsimile or other electronic means, shall be treated in all manner and respects as an

original agreement and shall be considered to have the same binding legal effect as if it

were the original signed version thereof delivered in person. No signatory to this

Guaranty 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 or entity

forever waives any such defense.

[Signature page follows.]

12

OHS East:160712103.6

Schedule 1

List of Various Failed Financial Institutions

Bank Name City State Fund Closing Date

Silver State Bank Henderson NV 10013 September 5, 2008

First Georgia Community Bank Jackson GA 10025 December 5, 2008

Bank of Clark County Vancouver WA 10029 January 16, 2009

Ocala National Bank Ocala FL 10032 January 30, 2009

First City Bank Stockbridge GA 10047 March 20, 2009

Omni National Bank Atlanta GA 10048 March 27, 2009

New Frontier Bank Greeley CO 10050 April 10, 2009

American Southern Bank Kennesaw GA 10053 April 24, 2009

First Bank of Beverly Hills Calabasas CA 10054 April 24, 2009

First Bank of Idaho Ketchum ID 10055 April 24, 2009

Michigan Heritage Bank Farmington Hills MI 10056 April 24, 2009

America West Bank Layton UT 10057 May 1, 2009

Citizens Community Bank Ridgewood NJ 10058 May 1, 2009

Silverton Bank Atlanta GA 10059 May 1, 2009

Westsound Bank Bremerton WA 10060 May 8, 2009

Bank of Lincolnwood Lincolnwood IL 10064 June 5, 2009

Community Bank of West Georgia Villa Rica GA 10068 June 26, 2009

Integrity Bank Jupiter FL 10095 July 31, 2009

Community Bank of Nevada Las Vegas NV 10100 August 14, 2009

Community Bank of Arizona Phoenix AZ 10101 August 14, 2009

Union Bank Chandler AZ 10102 August 14, 2009

Corus Bank Chicago IL 10117 September 11, 2009

Silver State Bank Henderson NV 10013 July 11, 2008

OHS East:160712103.6