Multibank Structured Transaction 2010-1 CRE
 

EXECUTION COPY
 

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
 

2010-1 CRE VENTURE, LLC
 

Dated as of July 2, 2010

Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

OHS East:160711166.10
TABLE OF CONTENTS
 

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

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

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

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

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

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

Section 2.3 Allocation of Payments; Advances...................................................... 7
 

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

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

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

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

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

Article III Transfer of Loans, Collateral Documents and Servicing..................................... 10
 

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

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

Section 3.3 Transfer of Servicing ......................................................................... 14
 

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

Article IV Covenants, Duties and Obligations of the Company........................................... 17
 

Section 4.1 Servicing of Loans............................................................................. 17
 

Section 4.2 Collection Agency/Contingency Fee Agreements............................. 17
 

Section 4.3 Insured or Guaranteed Loans............................................................. 17
 

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

Section 4.5 Loans in Litigation............................................................................. 18
 

Section 4.6 Loans in Bankruptcy.......................................................................... 21
 

Section 4.7 Loan Related Insurance...................................................................... 22
 

Section 4.8 Loans with Escrow Accounts............................................................. 22
 

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

Section 4.10 Contracts for Deed ............................................................................. 23
 

Section 4.11 Acquired Property.............................................................................. 23
 

Section 4.12 Leases................................................................................................. 23
 

Section 4.13 Notice to Borrowers........................................................................... 23
 

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Section 4.14 Notice of Claims................................................................................ 23
 

Section 4.15 Use of the FDIC’s Name and Reservation of Statutory Powers........ 23
 

Section 4.16 Prior Servicer Information ................................................................. 24
 

Section 4.17 Release of Initial Member.................................................................. 24
 

Section 4.18 Reasonable Cooperation with Respect to Deficiency Judgment
 

Claim.................................................................................................. 25
 

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

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

Section 5.2 No Warranties or Representations with Respect to Escrow
 

Accounts ............................................................................................ 25
 

Section 5.3 No Warranties or Representations as to Amounts of Unfunded
 

Principal ............................................................................................. 25
 

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on
 

any Loan............................................................................................. 26
 

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

Section 5.6 Intervening or Missing Assignments................................................. 26
 

Section 5.7 No Warranties or Representations as to Documents.......................... 26
 

Article VI Repurchase by the Initial Member at the Company’s Option.............................. 26
 

Section 6.1 Repurchases at Company’s Option.................................................... 26
 

Section 6.2 Notice to Initial Member.................................................................... 28
 

Section 6.3 Re-delivery of Notes, Files and Documents...................................... 29
 

Section 6.4 Waiver of Company’s Repurchase Option ........................................ 29
 

Article VII Notices ................................................................................................................. 30
 

Section 7.1 Notices ............................................................................................... 30
 

Section 7.2 Article VI Notice................................................................................ 30
 

Section 7.3 Transfer Documents........................................................................... 31
 

Section 7.4 All Other Notices............................................................................... 31
 

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

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

Section 8.2 Governing Law .................................................................................. 33
 

Section 8.3 Cost, Fees and Expenses.................................................................... 33
 

Section 8.4 Waivers; Amendment and Assignment ............................................. 33
 

Section 8.5 No Presumption ................................................................................. 34
 

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Section 8.6 Entire Agreement............................................................................... 34
 

Section 8.7 Jurisdiction; Venue and Service......................................................... 35
 

............................................................................................................ 35
 

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

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

Section 8.10 Headings ............................................................................................ 37
 

Section 8.11 Compliance with Law........................................................................ 37
 

Section 8.12 Right to Specific Performance ........................................................... 37
 

Attachments and Schedule

Attachment A — Loan Schedule................................................................................... A-1
 

Attachment B — Loan Value Schedule .........................................................................B-1
 

Attachment C — Affidavit and Assignment of Claim...................................................C-1
 

Attachment D — Allonge.............................................................................................. D-1
 

Attachment E — Assignment and Lost Instrument Affidavit........................................E-1
 

Attachment F-1 — Assignment of Real Estate Mortgage ................................................F-1
 

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

Attachment G — Assignment of Assignment of Leases and Rents.............................. G-1
 

Attachment H — Limited Power of Attorney ............................................................... H-1
 

Schedule 1 List of Various Failed Financial Institutions ...................................S1-1
 

Schedule 2 List of Purchase Money Notes.........................................................S2-1
 

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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 2nd day of July,

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 2010-1 CRE 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 Collateral

Documents; and

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WHEREAS pursuant to the Limited Liability Company Interest Sale and Assignment

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

by and among the Initial Member, the Company and ColFin Axle Funding, 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 set forth below. Any other defined terms used herein but not defined herein

shall have the meanings set forth in the Agreement of Common Definitions, dated as of July 2,

2010, between the Initial Member, the Company, the Private Owner, the Bank, the Collateral

Agent and the Purchase Money Notes Guarantor.

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

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

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

equity, before or by a Governmental Authority.

“Adjusted 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 or (iv) the portion of any

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

Balance.

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

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

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

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

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

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

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

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

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

“Adjustment Percentage” means, with respect to any 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(d).

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

the form of Attachment C to this Agreement.

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

includes all exhibits, schedules and attachments to this Agreement.

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

Instrument Affidavit in the form of Attachment E 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.

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

“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.

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“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 Judgment Claim” shall mean any claim, right or demand in or to any

deficiency judgment, or any similar claim, right, demand or any other recourse arising from, or

in connection with, any loan that is or was secured by any REO Property that became Acquired

Property prior to the Closing Date, such REO Property being identified as “REO” in the

“Loan/REO” column of the Loan Schedule attached as Exhibit A to this Agreement, whether the

title to such properties was acquired by foreclosure, by deed in lieu of foreclosure, by power of

sale or by sale pursuant to the Uniform Commercial Code, and whether such claim, right,

demand or other recourse is to or against the borrower or a guarantor with respect to such loan.

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

to insufficient funds or a stop payment order.

“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.

“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).

“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

Collateral is located in any Foreign Jurisdiction.

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

Attachment H to this Agreement.

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

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

“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, Collateral Documents, Loan Documents or Related Agreements.

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

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

“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

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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.

“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 Collateral

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

the Obligations thereunder.

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

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

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

given time.

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(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 Collateral pursuant to the

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

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

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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.

For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement,

the Initial Member does not convey, nor does the Company acquire, any right, title and interest

the Initial Member, the Receiver or any predecessors-in-interest thereto may have with respect to

any Deficiency Judgment Claim pursuant to the Agreement.

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 or a

Failed Bank to the extent attributable to an act, omission or circumstances that occurred or

existed prior to the Cut-Off 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 Allocation of Payments; Advances.

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

or 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.

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

Date for Servicing Expenses, Pre-Approved Charges and Reimbursable Company Administrative

Expenses that an Existing Servicer pays after the Cut-Off Date through the Servicing Transfer

Date out of its own funds (rather than withdrawing such funds from the Collection Account or

the Liquidity Account or otherwise using Loan Proceeds to pay for the respective Servicing

Expenses, Pre-Approved Charges and Reimbursable Company Administrative Expenses). Any

such amounts for Servicing Expenses, Pre-Approved Charges and Reimbursable Company

Administrative Expenses paid after the Cut-Off 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.

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 Date 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

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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

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 Collateral that was

foreclosed by the Initial Member or any of its predecessors-in-interest on or before the Cut-Off

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

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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. For the avoidance of doubt, 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 all right, title and interest the Initial Member, the Receiver or any predecessors-ininterest thereto may have with respect to any Deficiency Judgment Claim.

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,

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 or closing protection coverage in connection with the initiation, origination, insuring or

servicing of a Loan; provided, however, that claims under and pursuant to a title insurance policy

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

Section 2.8 Transfer Taxes. Except as otherwise provided 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 required to complete the conveyance of

any mortgage under Section 2.1. 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, 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:

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(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, at the expense

of the Company the Initial Member shall deliver the Notes, other Custodial Documents and

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 Collateral Documents

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

Registered Mortgages”), 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 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

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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 officers of the Company for the purpose of executing on behalf of the Initial

Member such Transfer Documents prepared by the Company pursuant to Section 3.1(d)(i)(A).

The Limited Power of Attorney will be in the form attached to this Agreement as Attachment H.

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

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

set forth above 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 (as such time period may be extended pursuant to the immediately following

sentence) 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 as an

attachment hereto) 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 as an attachment hereto), 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

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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

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

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

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

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

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

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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

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

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

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

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

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

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

not properly prepared and submitted for recordation or filing within six (6) months of the

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

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

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

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

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

information or otherwise take such steps as 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.

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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

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 the last day of the month in which

the final Servicing Transfer Date occurs, unless otherwise agreed between the parties. 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 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

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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

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

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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 August 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

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

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

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

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

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

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

each 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

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

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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

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

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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

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

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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.

(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

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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

by the Initial Member in connection therewith (which costs incurred by the Initial Member shall

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

The provisions of this Section are subject to the right of the Initial Member to retain claims

pursuant to Section 2.7 of this Agreement, including any such claims as might have been

asserted in litigation pending as of the Closing Date. At the Initial Member’s discretion,

litigation involving any such claims shall be bifurcated, with the Initial Member remaining the

real party-in-interest and retaining control over (and being responsible for pursuing and bearing

the related costs to pursue) claims retained by it pursuant to Section 2.7 and the Company

substituting itself as the real party-in-interest and taking control of (and being responsible for

pursuing and bearing the cost of pursuing) the remaining claims in the litigation.

Section 4.7 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 Collateral for each Loan; (b) the Company shall be responsible for having itself substituted as

loss payee on named as additional insured, as applicable, on all Loan related insurance in which

any Failed Bank or the Initial Member is currently listed as a loss payee or named as additional

insured, as applicable; and (c) the Company shall cause to be put into place such insurance for

the 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 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. On such date,

any positive escrow balances held in the Escrow Accounts, without offset against any negative

escrow balances, shall be transferred to the Company. The Company agrees to assume,

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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 Initial

Member hereby assigns and the Company hereby assumes 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

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 Collateral Document relating to Acquired Property unless, in the opinion of the

Company, complying with the Obligations under such 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.”

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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. § 1821(d)(14). The Company

acknowledges and agrees, however, that the assignment of any Loan or Collateral Document

pursuant to the terms of this Agreement shall not constitute the assignment of any other rights,

powers or privileges granted to the Initial Member pursuant to the provisions the Federal Deposit

Insurance Act, including those granted pursuant to 12 U.S.C. § 1821(d), 12 U.S.C. § 1823(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.

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

Transaction 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.

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Section 4.18 Reasonable Cooperation with Respect to Deficiency Judgment Claim.

The Company shall take such actions as are reasonably necessary or appropriate in order to

preserve and protect and allow the owner thereof to assert any Deficiency Judgment Claim and

shall not take any action which would impair the validity or amount of, or the ability of the

owner thereof to assert, any Deficiency Judgment Claim. All costs incurred by the Company in

connection with the foregoing shall be Servicing Expenses.

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

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 COLLATERAL

OR THE COLLATERAL DOCUMENTS, OR WITH RESPECT TO THE LEGALITY,

VALIDITY, EFFECTIVENESS, ADEQUACY OR ENFORCEABILITY OF ANY SWAP

AGREEMENT OR ANY DOCUMENTS RELATING THERETO OR TO THE CONDITION,

FINANCIAL OR OTHERWISE, OF THE PARTIES TO ANY SWAP AGREEMENT OR ANY

OTHER PERSON OR FOR THE PERFORMANCE AND OBSERVANCE BY THE PARTIES

TO ANY SWAP AGREEMENT OR ANY OTHER PERSON OF ANY OF ITS

OBLIGATIONS 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.

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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.

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 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 Collateral, nor any

defect in the Lien or priority of the Initial Member’s or the applicable Failed Bank’s security

interest in the Collateral shall give rise to any claim for purchase under Article VI. The

Company shall bear all responsibility and expense of securing from the appropriate source any

intervening Mortgage Assignment or any other assignment to the Initial Member, the FDIC or a

Failed Bank that might be missing from the Collateral Documents, but the costs thereof shall

constitute Pre-Approved Charges.

Section 5.7 No Warranties or Representations as to Documents. The Initial

Member makes no warranties or representations of any kind or nature as to the effectiveness or

enforceability in any Foreign Jurisdiction of this Agreement or any other document or instrument

delivered or prepared in connection herewith, whether or not prepared and executed in the forms

provided herewith, all of such forms being provided for reference only.

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 (unless the Initial Member has agreed in writing that no appeal need be taken) or there

is entered into, with the consent of the Initial Member, a final settlement of any claim, action or

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litigation (the “Order”) that requires the assignment and transfer of such Loan back to the Initial

Member.

(a) The Borrower had been discharged in a no asset bankruptcy proceeding,

there is no Collateral securing such Loan and out of which such Loan may be satisfied, and all

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 Collateral from a qualified and reputable firm, which assessment shall confirm (A) the

existence of Environmental Hazards on such 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.

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(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,

written evidence of such fraud, which evidence must be satisfactory in form and substance to the

Initial Member in its discretion.

(h) There is instituted after the Cut-Off Date any Action that (i) is asserted by

more than one Borrower and any Affiliates (with multiple Borrowers with respect to Loans

secured by the same Collateral being considered a single Borrower for purposes of this Section)

with respect to more than one Loan (with multiple Loans secured by the same 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.

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.

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

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

Initial Member (or its designee); (b) assign all 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 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 repurchase by the Initial Member none of the conditions relieving the Initial

Member of its obligation to repurchase 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 reconveyance 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 repurchase 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 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 Collateral securing the Loan; (g) completes any

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

delivered by hand or by nationally recognized air courier service, or sent via electronic mail

followed up by a hard copy of such notice, in any case directed to the address of such Person as

set forth in the applicable Section of this Article VII. Any such notice shall become effective

when received (or when receipt is refused) by the addressee, provided that any notice or

communication that is received (or refused) other than during regular business hours of the

recipient shall be deemed to have been given at the opening of business on the next Business

Day of the recipient. From time to time, any Person may designate a new address for purposes

of notice hereunder by notice to such effect to the other Persons identified in this Article VII.

Section 7.2 Article VI Notice. Any notice, request, demand or other communication

required or permitted to be given to the Initial Member pursuant to the provisions of Article VI

shall be delivered to:

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Initial Member:	 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
 

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

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: 2010-1 CRE 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:	 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

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

Company after Closing:	 2010-1 CRE Venture, LLC

2450 Broadway, 6th Floor

Santa Monica, CA 90404

Attention: Paul Fuhrman

Email Address:
 

with a copy to:	 Colony Capital, LLC

660 Madison Avenue

New York, NY 10065

Attention: Ron Sanders

Email Address:

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

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, Virginia 22226

Attention: David Gearin

Email Address: DGearin@fdic.gov

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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 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

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

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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 or the holders of any other Purchase Money Note,

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 Transaction 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 amounts on deposit pursuant to Section 3.3 of the Custodial and

Paying Agency Agreement to pay such maturing Purchase Money Note (including the amount, if

any, of any payments made pursuant to the Purchase Money Notes Guaranty); provided,

however, for purposes of this clause (2), proceeds from reissued Purchase Money Notes

deposited pursuant to Section 3.3 of the Custodial and Paying Agency Agreement shall not be

included as amounts on deposit to pay such maturing Purchase Money Note 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 Transaction Documents

contain the entire agreement between the Initial Member and the Company and its Affiliates with

respect to the subject matter hereof and supersede any and all other prior agreements, whether

oral or written provided 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

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

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

Article VI shall not be deemed a repurchase option for purposes of Section 2 of any such

Confidentiality Agreement. In the event of a conflict between the terms of this Agreement and

the terms of any Transfer Document or other document or instrument executed in connection

herewith or in connection with the transactions contemplated hereby, including any translation

into a foreign language of this Agreement for the purpose of any Transfer Document, or any

other document or instrument executed in connection herewith which is prepared for

notarization, filing or any other purpose, the terms of this Agreement shall control, and

furthermore, the terms of this Agreement shall in no way be or be deemed to be amended,

modified or otherwise affected in any manner by the terms of such Transfer Document or other

document or instrument.

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);

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

State of New York, County of New York; or

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

County of New York, is an inconvenient forum;

(iii) agrees to bring any suit, action or proceeding by the Company, or

its Affiliate against the Initial Member arising out of, relating to, or in connection with this

Agreement or any 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; and

(v) 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.

(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.

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Section 8.8 Waiver of Jury Trial. EACH OF THE COMPANY, FOR ITSELF AND

ITS AFFILIATES, AND THE INITIAL MEMBER HEREBY IRREVOCABLY AND

UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF

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

THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT

A JURY.

Section 8.9 Counterparts; Facsimile Signatures. This Agreement may be executed

in two (2) or more counterparts, each of which shall be deemed an original but all of which

together shall constitute but one and the same agreement. This Agreement and any amendments

hereto, to the extent signed and delivered by facsimile or other electronic means, shall be treated

in all manner and respects as an original agreement and shall be considered to have the same

binding legal effect as if it were the original signed version thereof delivered in person. No

signatory to this Agreement shall raise the use of a facsimile machine or other electronic means

to deliver a signature or the fact that any signature or agreement was transmitted or

communicated through the use of a facsimile machine or other electronic means as a defense to

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

defense.

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

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(INCLUDING INJUNCTIVE) RELIEF WITHOUT POSTING A BOND OR OTHER

SECURITY, AND THE COMPANY FURTHER WAIVES ANY DEFENSE IN ANY SUCH

ACTION FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF THAT A REMEDY

AT LAW WOULD BE ADEQUATE AND ANY REQUIREMENT UNDER LAW TO POST

SECURITY AS A PREREQUISITE TO OBTAINING EQUITABLE RELIEF. NOTHING

CONTAINED IN THIS SECTION SHALL LIMIT EITHER PARTY’S RIGHT TO ANY

REMEDIES AT LAW, INCLUDING THE RECOVERY OF DAMAGES FOR BREACH OF

THIS AGREEMENT.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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ATTACHMENT A
 

to
 

Loan Contribution and Sale Agreement
 

LOAN SCHEDULE
 

[Attached]

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ATTACHMENT B
 

to
 

Loan Contribution and Sale Agreement
 

LOAN VALUE SCHEDULE
 

[Attached]

Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

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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 2010-1 CRE Venture, LLC (“Assignee”) of 2450

Broadway, 6th Floor, Santa Monica, California 90404, 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 as of the 2nd day

of July, 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.

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_________________________________

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

in any security held for the claim.

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 2010-1 CRE 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 2010-1 CRE

Loan Contribution and Sale Agreement

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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 2010-1 CRE 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).

Multibank Structured Transaction 2010-1 CRE

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______________________________________

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

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 the 2nd day of July, 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 2010-1 CRE

VENTURE, LLC, a Delaware limited liability company, its successors and assigns (hereinafter

referred to as “Assignee” or “Grantee”), at 2450 Broadway, 6th Floor, Santa Monica, California

90404, 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”).

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[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 2010-1 CRE 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

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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

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____________________________________

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

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[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

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EXHIBIT A
 

(Legal Description)
 

6

Multibank Structured Transaction 2010-1 CRE

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OHS East:160711166.10
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 2010-1 CRE

VENTURE, LLC, a Delaware limited liability company, its successors and assigns (hereinafter

referred to as “Assignee” or “Grantee”), at 2450 Broadway, 6th Floor, Santa Monica, California

90404, 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 2010-1 CRE

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[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 2010-1 CRE 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]

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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 2010-1 CRE

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____________________________________

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

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[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

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EXHIBIT A
 

(Legal Description)
 

6

Multibank Structured Transaction 2010-1 CRE

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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

[Note to Preparer, insert correct name of instrument here and in body of Assignment below.

Delete this instruction prior to execution.]

(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 2010-1 CRE

VENTURE, LLC, a Delaware limited liability company, its successors and assigns, (hereinafter

referred to as “Assignee” or “Grantee”), at 2450 Broadway, 6th Floor, Santa Monica, California

90404, 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. Any notes and or other agreements evidencing the indebtedness and/or the

obligations secured by the Assignment of Leases; and

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3. Any and all other documents and instruments evidencing, securing and or relating

to the indebtedness and or obligations secured by the Assignment of Leases.

[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:

Such 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”).]

SEE ATTACHED EXHIBIT A

TO HAVE AND TO HOLD the same unto said 2010-1 CRE 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]

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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

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____________________________________

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

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[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

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EXHIBIT A
 

(Legal Description)
 

6

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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 E above)

LIMITED POWER OF ATTORNEY
 

Multibank Structured Transactions 2010-1
 

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 contained in the Structured Transaction enumerated

above.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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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

2010-1 CRE 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]

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Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

OHS East:160711166.10
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]

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Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

OHS East:160711166.10
______________________________

_______________________________

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:

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Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

OHS East:160711166.10
EXHIBIT A
 

TO LIMITED POWER OF ATTORNEY
 

Attorneys-in-Fact
 

[list names and organizations of Attorney(s)–in-Fact]
 

Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

OHS East:160711166.10
EXHIBIT B
 

TO LIMITED POWER OF ATTORNEY
 

Failed Financial Institutions
 

Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

OHS East:160711166.10
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

Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

OHS East:160711166.10
SCHEDULE 2
 

LIST OF PURCHASE MONEY NOTES
 

1.	 Purchase Money Note (NT CL A-1 144A) dated July 2, 2010 in the original principal

amount of $56,297,000 with a maturity date of June 25, 2012

2.	 Purchase Money Note (NT CL A-2 144A) dated July 2, 2010 in the original principal

amount of $337,779,000 with a maturity date of June 25, 2013

3.	 Purchase Money Note (NT CL A-3 144A) dated July 2, 2010 in the original principal

amount of $168,889,000 with a maturity date of June 25, 2014

4.	 Purchase Money Note (NT CL A-1 REG S) dated July 2, 2010 in the original principal

amount of $0 with a maturity date of June 25, 2012

5.	 Purchase Money Note (NT CL A-2 REG S) dated July 2, 2010 in the original principal

amount of $0 with a maturity date of June 25, 2013

6.	 Purchase Money Note (NT CL A-3 REG S) dated July 2, 2010 in the original principal

amount of $0 with a maturity date of June 25, 2014

Multibank Structured Transaction 2010-1 CRE

Loan Contribution and Sale Agreement

OHS East:160711166.10