LOAN CONTRIBUTION AND ASSIGNMENT AGREEMENT 


BY AND BETWEEN 


THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR FIRST 


NATIONAL BANK OF NEVADA 


AND 


FNBN-CMLCON I LLC 


Dated as ofFebruary 20, 2009 

FNB COMMCONSTR CONTRIB.DOC EXECUTION VERSION 
TABLE OF CONTENTS 


Article I Definitions and Construction 2 


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


Section 1.2 Construction ...........................................................................................................9 


Article II Contribution and Conveyance of Loans 10 


Section 2.1 Terms and Condition........................................................................................... 1 0 


Section 2.2 Allocation of Payments; Post-Cut-Off Date Advances ..................................... 1 0 


Section 2.3 Adjustments .......................................................................................................... 1 0 


Section 2.4 Rebates and Refunds ........................................................................................... 11 


Section 2.5 Interest Conveyed................................................................................................ 11 


Section 2.6 Retained Claims and Release .............................................................................. 12 


Section 2.7 Taxes...................................................................................................................... l2 


Article III Transfer ofLoans, Collateral Documents and Servicing 12 


Section 3.1 Delivery of Documents......................................................................................... 12 


Section 3.2 Recordation of Documents .................................................................................. 15 


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


Article IV Covenants, Duties and Obligations ofthe Company 16 


Section 4.1 Servicing ofLoans................................................................................................ 16 


Section 4.2 Collection Agency/Contingency Fee Agreements .............................................16 


Section 4.3 Insured or Guaranteed Loans............................................................................. 16 


Section 4.4 Reporting to or for the Applicable Taxing Authorities .................................... 17 


Section 4.5 Loans in Litigation............................................................................................... 17 


Section 4.6 Loans in Bankruptcy ........................................................................................... 19 


Section 4.7 Loan Related Insurance ......................................................................................20 


Section 4.8 Loans with Escrow Accounts ......................... : .................................................... 20 


Section 4.9 Initial Member as Lead Lender in Participated Loans ....................................20 


Section 4.10 Contracts for Deed...............................................................................................20 


Section 4.11 Leases ....................................................................................................................20 


Section 4.12 Notice to Borrowers .............................................................................................21 


Section 4.13 Notice of Claims ...................................................................................................21 


Section 4.14 Use of the FDIC's Name and Reservation of Statutory Powers ......................21 


Section 4.15 Prior Servicer Information .................................................................................22 


Section 4.16 Release of Initial Member ...................................................................................22 


Section 4.17 Indemnification ....................................................................................................23 


Article V Loans Sold "As Is" and Without Recourse 


Section 5.1 Loans Conveyed "As ls"......................................................................................24 


Loan Contribution and Assignment Agreement 

EXECUTION VERSION 

12349234.4 

24 
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 ..25 


Section 5.5 No Warranties or Representations With Regard to Information ...................25 


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 .......................................................28 


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


Article VII Notices 29 


Section 7.1 Notices ...................................................................................................................29 


Section 7.2 Article VI Notice .......................................................................... : ....................... 29 


Section 7.3 Transfer Documents ............................................................................................30 


Section 7.4 All Other Notices................................................................................................. .30 


Article VIII Miscellaneous Provisions 31 


Section 8.1 Severability...........................................................................................................31 


Section 8.2 Governing Law.....................................................................................................32 


Section 8.3 Cost, Fees and Expenses ......................................................................................32 


Section 8.4 Waivers; Amendment and Assignment .............................................................32 


Section 8.5 No Presumption....................................................................................................32 


Section 8.6 Entire Agreement................................................................................................ .32 


Section 8.7 Jurisdiction; Venue and Service .........................................................................33 


Section 8.8 Waiver of Jury Trial............................................................................................33 


Section 8.9 Counterparts; Facsimile Signatures...................................................................33 


Section 8.10 Headings................................................................................................................34 


Section 8.11 Compliance with Law ..........................................................................................34 


Section 8.12 Right to Specific Performance ............................................................................34 


Attachments 

Attachment "A" Loan Schedule ................................................................................... A-1 


Attachment "B" Loan Value Schedule ..................................................,......................B-1 


Attachment "C" Affidavit and Assignment ofClaim ...................................................C-1 


Attachment "D" Assignment and Lost Instrument Affidavit.. ..................................... D-1 


Attachment "E" Limited Power ofAttorney ................................................................E-1 


Loan Contribution and Assignment Agreement II 


EXECUTION VERSION 


12349234.4 

LOAN CONTRIBUTION AND ASSIGNMENT AGREEMENT 


THIS LOAN CONTRIBUTION AND ASSIGNMENT AGREEMENT (as the same shall 

be amended or supplemented, this "Agreement") is made and entered into as ofthe 20th day of 

February, 2009 (the "Effective Date"), by and between THE FEDERAL DEPOSIT 

INSURANCE CORPORATION (in any capacity, "FDIC") AS RECEIVER FOR FIRST 

NATIONAL BANK OF NEVADA (including its successors and assigns, the "Initial 

Member"), and FNBN-CMLCON I LLC, a Delaware limited liability company (the 

"Company"). 

RECITALS 

WHEREAS, on July 25, 2008, the FDIC was appointed receiver for First National Bank 

ofNevada (the "Failed Bank"); and 

WHEREAS, the Initial Member owns the Loans (hereinafter defined) described on the 

Loan Schedule attached hereto as Attachment "A" (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 contribute the Loans as a capital contribution 

to the Company, as more fully set forth herein; and 

WHEREAS, the Initial Member and the Company have also entered into a Participation 

and Servicing Agreement as of the date hereof (the "Participation Agreement"), pursuant to 

which the Company will issue and convey to the Initial Member a participation interest in the 

Loans, as more fully set forth therein; and 

WHEREAS, pursuant to the Limited Liability Company Interest Sale and Assignment 

Agreement dated of even date hereof (the "LLC Interest Sale Agreement"), the Initial Member 

has agreed to sell and transfer the LLC Interest to SGH FNB Ventures, LLC (the "LLC Interest 

Transferee") for a purchase price of $41,000,468.22 (the "Bid Amount"), the completion of 

such sale (the "Closing"); and 

WHEREAS, the Bid Amount has been allocated among the Loans by the LLC Interest 

Transferee (such allocated amount with respect to a Loan, the "Loan Value"), as set forth on 

Attachment "B" (the "Loan Value Schedule"); and 

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

relating to the contribution and certain other matters as set forth in this Agreement; 

Loan Contribution and Assignment Agreement 1 

EXECUTION VERSION 

12349234.4 
NOW, THEREFORE, in consideration ofthe foregoing and the mutual promises and 

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

sufficiency ofwhich are hereby acknowledged, the Initial Member and the Company hereby 

agree as follows: 

Article I 


Definitions and Construction 


Section 1.1 Definitions. For purposes of this Agreement, the following terms shall 

have the meanings and definitions hereinafter respectively set forth: 

"Accounting Records" means the general ledger, supporting subsidiary ledgers and 

schedules, and loan servicing system records ofthe Initial Member. 

"Action" means any claim, action, suit (at law or in equity), arbitration or proceeding 

before or by a Governmental Authority. 

"Adjusted Escrow Balance" means, with respect to any Loan, the Escrow Balance 

adjusted up or down, as appropriate, to reflect the actual balance ofthe escrow account as 

reflected on the Accounting Records as ofthe 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-OffDate, (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 which occurred on or before the Cut-OffDate for which the Redemption 

Period, if any, expired on or before the Cut-OffDate, or (iv) the portion of any Dishonored 

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

"Adjusted Unpaid Principal Balance" means, with respect to any Loan, the Unpaid 

Principal Balance adjusted up or down, as appropriate, to reflect the actual unpaid principal 

balance ofthe Loan on the Accounting Records and to correct errors reflected in the 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-OffDate, (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 which occurred on or before the Cut-OffDate 

for which the Redemption Period, if any, expired on or before the Cut-OffDate, or (iv) the 

portion of any Dishonored Check that was applied to (and reflected in) the Unpaid Principal 

Balance. 

"Adjustment Percentage" means, with respect to any Loan, the quotient (expressed as a 

decimal) ofthe Loan Value for such Loan divided by the Unpaid Principal Balance of such 

Loan. 

"Affected Loan" has the meaning given in Section 4.5(c). 

Loan Contribution and Assignment Agreement 2 

EXECUTION VERSION 

12349234.4 
"Affidavit and Assignment of Claim" means an Affidavit and Assignment of Claim in 

the form of Attachment "C" to this Agreement. 

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

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

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

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

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

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

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

Person referred to in clause (ii) or (iii) acts in that capacity, or (v) any Person who is an officer, 

director, general partner, managing member, trustee or holder of ten percent (1 0%) or more of 

the outstanding voting securities, voting equity interests or beneficial interests of any Person 

described in clauses (i) through (iv); provided, however, that for purposes ofthis Agreement, the 

Initial Member shall not be deemed to be an Affiliate of the Company or of any Affiliate ofthe 

Company. For purposes of this definition, the term "control" (including the phrases "controlled 

!!;y" and "under common control with") when used with respect to any specified Person means 

the possession, direct or indirect, ofthe power to direct or cause the direction ofthe management 

and policies ofsuch Person, whether through the ownership ofvoting securities or interests, by 

contract or otherwise. 

"Agreement" has the meaning given in the preamble, and shall include all exhibits, 

schedules and attachments hereto. 

"Ancillary Documents" means the Participation Agreement, the Servicing Agreement, 

the Custodial Agreement, the LLC Interest Sale Agreement, the Guaranty, and the Company 

Operating Agreement of the Company, in each case once executed and delivered, and any and all 

other agreements and instruments executed and delivered contemporaneously in connection with 

the Closing. 

"Assignment and Lost Instrument Affidavit" means an Assignment and Lost 

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

"Authorized Funding Draw" has the meaning given that term in the Participation 

Agreement. 

"Bankruptcy Rule" means any ofthe rules set forth under the Federal Rules of 

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

"Bid Amount" has the meaning given in the seventh recital. 

"Borrower" means any borrower or other obligor with respect to any Loan. 

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

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

or authorized by Law to close. 

Loan Contribution and Assignment Agreement 3 

EXECUTION VERSION 

12349234.4 
"Closing" has the meaning given in the seventh recital. 

"Collateral'' means any and all real or personal property, whether tangible or intangible, 

securing or pledged to secure a Loan, including any account, equipment, guarantee or contract 

right, or other interest that is the subject of any Collateral Document. 

"Collateral Document" means any pledge agreement, security agreement, personal or 

corporate guaranty, deed oftrust, mortgage, contract for the sale ofreal property, assignment, 

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

whether similar to or different from those enumerated, securing in any manner the performance 

or payment by any Borrower ofits obligations or the obligations of any other Borrower under 

any ofthe Loans or the Notes evidencing the Loans. 

"Collection Account" has the meaning given in the Participation Agreement. 

"Company" has the meaning given in the preamble. 

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

property, including any installment land contract. 

"Custodial Agreement" has the meaning given in the Participation Agreement. 

"Custodial Documents" has the meaning given in the Custodial Agreement. 

"Cut-Off Date" means as of the close ofbusiness on December 31,2008. 

"Deficiency Balance" means the remaining unpaid principal balance of any Note 

purchased hereunder after crediting to it the proceeds of a foreclosure sale. 

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

to insufficient funds or a stop payment order. 

"Document Custodian" has the meaning given in the Participation Agreement. 

"Effective Date" has the meaning given in the preamble. 

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

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

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

other property or rights pertaining thereto), of any "hazardous substance," as defined in Section 

101(!4) ofthe Comprehensive Environmental Response, Compensation and Liability Act of 

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

liquid at standard conditions oftemperature and pressure), at a level or in an amount that requires 

remediation or abatement under applicable environmental Law. 

"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. 

Loan Contribution and Assignment Agreement 4 

EXECUTION VERSION 

12349234.4 
"Excess Damage Liability" has the meaning given in Section 4.5(c). 

"Excess Principal" has the meaning given in Section 2.3(h ). 

"Failed Bank" has the meaning given in the first recitaL 

"FDIC" means the Federal Deposit Insurance Corporation, in any capacity. 

"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 ofthe 

Collateral is located in any Foreign Jurisdiction. 

"GAAP" has the meaning given in the Participation Agreement. 

"Governmental Authority" means any United States or non-United States national, 

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

subdivision of any governmental, regulatory or administrative authority, agency or commission, 

or judicial or arbitral body. 

"Guarantor" means any guarantor of all or any portion of any Loan or all or any of any 

Borrower's obligations set forth and described in the Loan Documents. 

"Guidelines" has the meaning given in the Participation Agreement. 

"Immediate Family Member" shall mean, with respect to any individual, his or her 

spouse, parents, parents-in-law, grandparents, descendents, nephews, nieces, brothers, sisters, 

brothers-in-law, sisters-in-law, children (whether natural or adopted), children-in-law, step 

children, grandchildren and grandchildren-in-law. 

"Indemnified Parties" has the meaning given in Section 4.17(a). 

"Initial Member" has the meaning given in the preamble. 

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

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

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

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

and any other lien, claim or encumbrance of any nature whatsoever. 

"Limited Power of Attorney" means the Limited Power ofAttorney in the form of 

Attachment "E" to this Agreement. 

"LIP Account" has the meaning given in the Participation Agreement. 

"LLC Interest" has the meaning given in the fourth recitaL 

Loan Contribution and Assignment Agreement 5 

EXECUTION VERSION 

12349234.4 
"LLC Interest Sale Agreement" has the meaning given in the seventh recital. 

"LLC Interest Transferee" has the meaning given in the seventh recital. 

"Loan" means any loan or Participated Loan listed on the Loan Schedule, and any loan 

into which any listed loan or Participated Loan is refinanced, and includes with respect to each 

such loan or Participated Loan: (i) any obligation evidenced by a Note; (ii) all rights, powers or 

Liens ofthe Initial Member or the Failed Bank in or under the Collateral Documents; (iii) any 

Contract for Deed and the real property which is subject to any such Contract for Deed; and (iv) 

any lease and the related leased property. 

"Loan Documents" means all documents, agreements, certificates, instruments and other 

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

caused to be delivered by any Borrower, any Guarantor or any other obligor evidencing, 

creating, guaranteeing or securing, or otherwise executed or delivered in respect of, all or any 

part of a Loan or evidencing any transaction contemplated thereby, and all Modifications thereto. 

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

are in the possession ofthe Initial Member or any ofits employees or contractors responsible for 

the servicing ofthe Loan, other than (i) the original Notes and Collateral Documents and 

Custodial Documents (ii) confidential or privileged communications between the Initial Member 

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

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

product privileged materials held by the Initial Member's legal counsel unless in the opinion of 

such counsel, the disclosure ofthe material is not likely to result in the waiver of the attorneyclient or work product privilege. 

"Loan Proceeds" has the meaning given in the Participation Agreement. 

"Loan Schedule" has the meaning given in the second recital. 

"Loan Value" has the meaning given in the eighth recital. 

"Loan Value Schedule" has the meaning given in the eighth recital. 

"Losses" has the meaning given in Section 4.17(a). 

"Modification" means any extension, renewal, substitution, replacement, supplement, 

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

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

"Mortgaged Property" means the real property Collateral, including land, fixtures and 

improvements, if any, securing any Loan. 

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

shared credit or Participated Loan agreement, intercreditor agreement, reimbursement agreement, 

Loan Contribution and Assignment Agreement 6 

EXECUTION VERSION 

12349234.4 
any other evidence ofindebtedness of any kind, or any other agreement, document or instrument 

evidencing a Loan, and all Modifications to the foregoing. 

"Obligations" means all obligations and commitments ofthe Initial Member relating to a 

Loan and arising or due or payable after the Cut-OffDate under and in accordance with any of 

the related Notes, Collateral Documents or Related Agreements, including any commitment to 

make Authorized Funding Draws or to advance funds under any letter of assurance, letter of 

credit or similar instrument. 

"Order" has the meaning given in Section 6.1. 

"Participant" has the meaning given in the Participation Agreement. 

"Participant's Share" has the meaning given in the Participation Agreement. 

"Participated Loan" means any Loan subject to a shared credit, participation or similar 

intercreditor agreement under which the Initial Member or the Failed Bank was the lead or agent 

financial depository institution or otherwise managed or held the credit or sold participations, or 

under which the Initial Member or the Failed Bank was a participating financial depository 

institution or purchased participations in a credit managed by another Person. 

"Participation Agreement" has the meaning given in the sixth recital. 

"Participation Interest" has the meaning given in the Participation Agreement. 

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

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

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

entity. 

"Post-Cut-Off Date Advances" has the meaning given in the Participation Agreement. 

"Pre-Approved Charges" means the costs and expenses expressly designated as "PreApproved Charges" in Sections 2.7, 3.l(c), 3.l(d)(l), 3.l(e), 3.2, 4.3, 4.5(c) and 5.6 ofthis 

Agreement, and no other costs or expenses. 

"Pre-Cut-Off Date Advances" has the meaning given in the Participation Agreement. 

"Principal Deficiency" has the meaning given in Section 2.3(b ). 

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

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

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

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

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

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

Loan (including any equipment lease, letter of credit, bankers' acceptance, draft, system 

Loan Contribution and Assignment Agreement 7 

EXECUTION VERSION 

12349234.4 
confirmation oftransaction, loan history, affidavit, general collection information, and 

, correspondence and comments relating to any obligation), (ii) any real property or rights in or to 

any real property (including leases, tenancies, concessions, licenses or other rights ofoccupancy 

or use and security deposits related thereto) related to any Loan, (iii) any collection, contingency 

fee, and tax and other service agreements that are specific to the Loans (or any ofthem) and that 

are assignable, (iv) any letter of assurance, letter of credit or similar instrument evidencing an 

obligation ofthe Failed Bank or the Initial Member that was issued for the benefit of any Person 

and relates in any way to the Loan or the acquisition, development or construction of any project 

with respect to which the proceeds ofthe Loan were used or were intended to be used, and (v) 

any interest rate swap arrangement between the Seller or the Failed Bank and the Borrower that 

relates to any Loan. 

"Released Parties" has the meaning given in Section 4.16(b ). 

"Repurchase Percentage" means, with respect to any Loan, (i) the quotient (expressed 

as a decimal) ofthe Loan Value for such Loan divided by the Unpaid Principal Balance of such 

Loan, divided by (ii) 0.20. 

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

Repurchase Percentage multiplied by the unpaid principal balance ofthe Loan as ofthe date of 

the repurchase, minus (ii) unreimbursed Post-Cut-OffDate Advances, plus (iii) unreimbursed 

Servicing Expenses that have been advanced by the Company with respect to such Loan 

(excluding any expenses described in Section 3.04 ofthe Participation Agreement) as ofthe date 

ofthe repurchase, minus (iv) the amount of any positive escrow balance with respect to the Loan 

as ofthe date ofthe repurchase that is not transferred to the Initial Member at the time ofthe 

repurchase. 

"RESPA" means the Real Estate Settlement Procedures Act of 1974, as amended, and all 

rules and regulations promulgated thereunder. 

"Servicer" has the meaning given in the Participation Agreement. 

"Servicing Agreement" has the meaning given in the Participation Agreement. 

"Servicing Expenses" has the meaning given in the Participation Agreement. 

"Servicing Transfer Date" means the date on which the transfer ofthe Loan servicing 

records to the Servicer's system ofrecord is completed and the Servicerbegins to service the 

Loans, which date shall be no later than February 27, 2009 or such other date as is agreed to by 

the Initial Member and the Company. 

"Third Party Claim" has the meaning given such term in Section 4.17(a). 

"Transfer Documents" means the endorsements and allonges to Notes, Assignment and 

Lost Instrument Affidavits (if applicable), assignments, deeds and other documents of 

assignment, conveyance or transfer required under any applicable Law to evidence the transfer to 

Loan Contribution and Assignment Agreement 8 

EXECUTION VERSION 

12349234.4 
the Company ofthe Loans, the Collateral and the Collateral Documents and the Initial Member's 

rights with respect to the Loans and the Collateral. 

"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 ofthe Loans, the Collateral 

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

the Obligations thereunder. 

"Uniform Commercial Code" means the Uniform Commercial Code as in effect in any 

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

"Unpaid Principal Balance" means, with respect to any Loan, the unpaid principal 

balance ofthe Loan as stated on the Loan Schedule. 

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

accordance with the following: 

(a) References to "Affiliates" include, only other Persons which from time to time 

constitute "Affiliates" of such specified Person, and do not include, at any particular time, other 

Persons that may have been, but at such time have ceased to be, "Affiliates" ofsuch 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 shall 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) shall be 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) shall mean such 

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

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

given time. 

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

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

provision ofthis Agreement. 

(g) The words "include" and "including" and words ofsimilar import are not 

limiting, and shall be construed to be followed by the words "without limitation," whether or not 

they are in fact followed by such words. 

Loan Contribution and Assignment Agreement 9 

EXECUTION VERSION 

12349234.4 
(h) The word "during" when used with respect to a period oftime shall 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 shall be deemed to include the plural and vice versa and impersonal pronouns shall be 

deemed to include the personal pronoun ofthe appropriate gender. 

Article II 


Contribution and Conveyance 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, by way of a 

capital contribution, without recourse, all right, title and interest ofthe Initial Member in and to 

the Loans (including all Notes, the other Loan Documents and Related Agreements) effective as 

ofthe Cut-OffDate, on a servicing-released basis (subject to the provisions of Section 3.3), and 

all rights in the Collateral pursuant to the Collateral Documents. The Company hereby assumes 

and agrees to perform and pay all ofthe Obligations ofthe Initial Member under and with 

respect to the Loans. The Initial Member and the Company agree that the conveyance 

contemplated by this Section and the other provisions ofthis Agreement is intended to be an 

absolute conveyance and transfer of ownership of the Loans by capital contribution. 

Section 2.2 Allocation of Payments; Post-Cut-Off Date Advances. All payments 

and other amounts received on account of any of the Loans or Collateral on or before the Cut-Off 

Date shall belong to the Initial Member. Any and all proceeds received with respect to any or all 

ofthe Loans or Collateral at any time after the Cut-OffDate, including principal, interest, 

prepayment fees, premiums and charges, extension and exit fees, late fees, assumption fees, other 

fees and charges, insurance proceeds and condemnation payments (or any portion thereof) that 

are not used and disbursed to repair, replace or restore the related Collateral in accordance with 

the terms ofthe Loan, proceeds from sales or other dispositions of any or all ofthe Loans or the 

Collateral, and any proceeds from making a draw under any letter of credit or certificate of 

deposit held with respect to any Loan, provided that such draw is permitted by the terms ofthe 

Loan, shall be allocated and distributed to the Company and the Participant in accordance with 

the provisions ofthe Participation Agreement. The Company shall be liable for, and shall 

reimburse the Initial Member for, all Post-Cut-OffDate Advances. To the extent that Post-CutOffDate Advances are outstanding as ofthe Servicing Transfer Date, whether or not then billed, 

the Initial Member shall be reimbursed for the same on the Servicing Transfer Date. All PostCut-OffDate Advances not reimbursed on the Servicing Transfer Date shall be reimbursed by 

the Company to the Initial Member upon demand. 

Section 2.3 Adjustments. 

(a) At least three (3) Business Days before the Servicing Transfer Date, the Initial 

Member shall provide the Company with a statement setting forth, for each Loan, the Adjusted 

Unpaid Principal Balance and the Adjusted Escrow Balance and, ifthe Loan was refinanced into 

a permanent loan after the Cut-Off Date upon the disbursement ofthe final Authorized Funding 

Draw, the date of such refinance and the new loan number (cross-referenced to the loan number 

Loan Contribution and Assignment Agreement 10 

EXECUTION VERSION 

12349234.4 
for that Loan on the Loan Schedule). The statement shall be accompanied by an explanation of 

the reasons for any adjustment to any Unpaid Principal Balance or Escrow Balance. 

(b) If the Adjusted Unpaid Principal Balance of any Loan exceeds the Unpaid 

Principal Balance of such Loan (such excess, the "Excess Principal"), the LLC Interest 

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

Percentage multiplied by the Excess Principal. If the Unpaid Principal Balance of any Loan 

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

Deficiency"), the Initial Member shall be liable to the LLC Interest Transferee for an amount 

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

be made for any miscalculation ofinterest on any Loan. To the extent the Initial Member makes 

advances ofits own funds to make Authorized Funding Draws (rather than withdrawing such 

funds from the LIP Account) or Post-Cut-OffDate Advances after the Cut-OffDate, the 

Company shall reimburse the Initial Member for all such advances. 

(c) The aggregate amount owed by the LLC Interest Transferee to the Initial Member 

pursuant to Section 2.3(b) (excluding the amount of any Authorized Funding Draws and PostCut-OffDate Advances due to the Initial Member) shall be subtracted from the aggregate 

amount owed to the LLC Interest Transferee by the Initial Member pursuant to Section 2.3(b ). If 

the resulting amount is a positive number, the Initial Member shall pay such amount to the LLC 

Interest Transferee, and if the resulting amount is a negative number, the LLC Interest Transferee 

shall pay such amount to the Initial Member as if such number were a positive number. In 

addition, an amount equal to the positive balance of any Borrower escrow accounts as of the 

Servicing Transfer Date shall be remitted to the Servicer (and shall not be considered to 

constitute Loan Proceeds under the Participation Agreement). Any monies due to the LLC 

Interest Transferee or the Initial Member pursuant to this Section shall be paid on the Servicing 

Transfer Date. The Company shall adjust its records to reflect the Adjusted Unpaid Principal 

Balances and the Adjusted Escrow Balances with respect to the Loans. 

Section 2.4 Rebates and Refunds. The Company is not entitled to any rebates or 

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

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

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

Section 2.5 Interest Conveyed. The Initial Member shall convey all ofits right, title 

and interest in and to each Loan. In the event a foreclosure occurs after the Cut-OffDate, or 

occurred on or before the Cut-OffDate, but the Redemption Period had not expired on or before 

the Cut-OffDate, 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 property purchased at 

such foreclosure sale. The Company acknowledges and agrees that the Company shall not 

acquire any interest in or to any such property which was foreclosed by the Initial Member or 

any ofits predecessors-in-interest on or before the Cut-OffDate and for which the Redemption 

Period, if any, had expired on or before the Cut -Off Date. 

Loan Contribution and Assignment Agreement II 

EXECUTION VERSION 

12349234.4 
Section 2.6 Retained Claims and Release. The Company and the Initial Member 

,agree that the contribution ofthe Loans pursuant to this Agreement will exclude the transfer to 

the Company of all right, title and interest ofthe Initial Member and the Failed Bank in and to 

any and all claims of any nature whatsoever that might now exist or hereafter arise, whether 

known or unknown, that the Initial Member has or the Failed Bank had or that either might have, 

regardless ofwhen any such claim is discovered, (a) against officers, directors, employees, 

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

predecessors, underwriters or any other similar Persons who may have caused a loss to the Initial 

Member or any ofits predecessors in connection with the initiation, origination or administration 

of a Loan, (b) against any appraisers, accountants, auditors, attorneys, investment bankers or 

brokers, loan brokers, deposit brokers, securities dealers or other professional individuals or 

entities who performed services for the Initial Member, the Failed Bank or any ofits 

predecessors, relative to the initiation, origination or servicing of a Loan, (c) against any third 

parties for alleged fraud, misrepresentation or other misconduct in connection with the initiation, 

origination or servicing of a Loan or (d) against any appraiser or other Person with whom the 

Initial Member or the Failed Bank or any servicing agent contracted for services or title 

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

Section 2. 7 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 ofmortgage recording taxes and shall timely file any returns 

required to be filed with respect to such Transfer Taxes. Taxes paid by the Company pursuant to 

this Section shall constitute Pre-Approved Charges for purposes ofthe Participation 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: 

(a) On the Effective Date, such Transfer Documents executed by the Initial Member 

as the Initial Member elects to deliver to the Company. 

(b) Subject to the provisions ofthe Participation Agreement, the Initial Member shall 

deliver to the Document Custodian the Notes and other Custodial Documents and Collateral 

Documents, on or within a reasonable period oftime after the Servicing Transfer Date, shall 

deliver the Loan Files to the Company or the Servicer. 

(c) After the Effective Date, the Initial Member, in the Initial Member's sole 

discretion, may elect to grant a Limited Power of Attorney to selected employees ofthe 

Company. Ifthe Initial Member elects to grant such a Limited Power ofAttorney, the Initial 

Member will provide it to the Company within a reasonable time after the Effective Date. Ifthe 

Company is granted such a Limited Power ofAttorney, the Company, at the Company's 

expense, will prepare and execute on behalf ofthe Initial Member, within a reasonable time after 

the Effective Date, all Transfer Documents not delivered by the Initial Member to the Company 

Loan Contribution and Assignment Agreement 12 

EXECUTION VERSION 

12349234.4 
on the Effective Date. Expenses incurred by the Company in complying with the obligations set 

forth in the preceding sentence shall constitute Pre-Approved Charges for purposes ofthe 

Participation Agreement. 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 (the form ofwhich was not provided by the Initial 

Member) and 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 ofthe 

contents or form of any Transfer Document (the form ofwhich was not provided by the Initial 

Member), including any claim relating to the adequacy or inadequacy of any such document or 

instrument for the pmposes thereof, and the use (or purported use) by the Company ofthe 

Limited Power ofAttorney in any way not expressly permitted by its terms. 

The Company shall use the following forms for endorsing or preparing allonges to Notes: 

Pay to the order of 

FNBN-CMLCON I LLC 

Without Recourse 

Federal Deposit Insurance Corporation as Receiver 

for First National Bank ofNevada 

By: ______________________ 

Name: ______~-------------

Title: Attorney-in-Fact 

All documents of assignment, conveyance or transfer shall contain the following sentence: "This 

assignment is made without recourse, representation or warranty, express or implied, by the 

Federal Deposit Insurance Corporation in its corporate capacity or as Receiver for First National 

Bank ofNevada." 

(d) In the event the Initial Member elects not to provide the Company with a Limited 

Power ofAttorney in accordance with Section 3.l(c), then all Transfer Documents not delivered 

by the Initial Member to the Company on the Effective Date shall be prepared and executed by 

one ofthe following methods, at the Initial Member's option: 

I. The Initial Member, at the Initial Member's expense, will prepare and 

execute all endorsements and allonges to Notes or Assignment and Lost Instrument 

Affidavits (if applicable) not delivered by the Initial Member to the Company on the 

Effective Date and provide them to the Company within a reasonable time after the 

Effective Date. The Company, at the Company's expense, will prepare all other Transfer 

Documents not delivered by the Initial Member to the Company on the Effective Date 

and shall deliver such documents to the Initial Member for execution within a reasonable 

time after the Effective Date. Expenses incurred by the Company in complying with the 

Loan Contribution and Assignment Agreement 13 

EXECUTION VERSION 

12349234.4 
obligations set forth in the preceding sentence shall constitute Pre-Approved Charges for 

purposes of the Participation Agreement. All Transfer Documents prepared by the 

Company shall be subject to the terms and conditions for Transfer Documents specified 

in Section 3.1 ( c Yabove. If any Transfer Document delivered by the Company to the 

Initial Member for execution is unacceptable to the Initial Member for any reason 

whatsoever, the Initial Member may return such document to the Company along with an 

explanation as to why the document is unacceptable to the Initial Member. When 

requesting execution of any such document, the Company shall furnish the Initial 

Member with the Loan numbers set forth on the Loan Schedule, and a copy ofthe Notes, 

a copy ofthe Collateral Documents or other documents to be transferred, and copies of 

any previous assignments ofthe applicable Collateral Document or other document; or 

2. The Initial Member, at the Initial Member's expense, will prepare and 

execute all Transfer Documents not delivered by the Initial Member to the Company on 

the Effective Date and submit them for recordation in the applicable jurisdiction within a 

reasonable period oftime after the Effective Date. All such documents 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. 

(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. Expenses 

incurred by the Company in complying with the obligations set forth in the preceding sentence 

shall constitute Pre-Approved Charges for purposes ofthe Participation 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 ofthe 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 ofthe 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, nor is the Initial Member obligated to obtain any 

consents or approval to the sale or transfer ofthe Loans or the related servicing rights, if any, or 

the assumption by the Company ofthe 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 ofthe Initial 

Member under the Participation Agreement). The Initial Member shall have no obligation to 

provide, review or execute any such additional documents unless the same shall have been 

requested ofthe Initial Member within 365 calendar days after the Effective Date. 

Loan Contribution and Assignment Agreement 14 

EXECUTION VERSION 

12349234.4 
Section 3.2 Recordation of Documents. The Initial Member shall use commercially 

reasonable efforts to submit for recordation in the appropriate land, chattel, Uniform Commercial 

Code, and other records ofthe appropriate county, state or other jurisdictions (including any 

Foreign Jurisdiction) Transfer Documents to effect the transfer ofthe Loans and the Collateral 

Documents to the Company. The Initial Member shall request that recorded documents be 

returned to the Initial Member at its notice address set forth in Section 7.3. To the extent the 

same is not completed by the Initial Member or there are Transfer Documents that are returned 

and not recorded, the Company shall be responsible for, and agrees to promptly deliver, at its 

expense, all appropriate documents and instruments with respect thereto for recordation or filing 

in the appropriate land, chattel, Uniform Commercial Code, and other records ofthe appropriate 

county, state or other jurisdictions (including any Foreign Jurisdiction) to effect the transfer of 

the Loans and the Collateral Documents and all rights in Collateral to the Company. The Initial 

Member shall also be responsible for following up on the status of Transfer Documents 

submitted for recordation. Expenses incurred by the Company in complying with the obligations 

set forth in this Section shall constitute Pre-Approved Charges for purposes ofthe Participation 

Agreement. The Initial Member shall, ifsuch 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 ofthis Article III. 

Section 3.3 Transfer of Servicing. The Loans are conveyed to the Company on a 

servicing-released basis as ofthe Cut-OffDate. From and after the Cut-Off Date, all rights, 

obligations, liabilities and responsibilities with respect to the servicing ofthe 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. To provide for the orderly transfer 

ofthe servicing to the Company, the Initial Member will provide, at the Initial Member's 

expense, interim servicing ofthe Loans on the Company's behalf from the Cut-OffDate through 

the Servicing Transfer Date. The obligations ofthe Initial Member to provide interim servicing 

for the Loans shall be as follows: (i) receive payments and post them to the system ofrecord, (ii) 

maintain records reflecting payments received, (iii) provide the Company, on request, a schedule 

ofpayments processed, (iv) provide payoffinformation to the Company regarding particular 

Loans as applicable, (v) make Post-Cut-OffDate Advances, and (vi) make or withdraw funds 

from the LIP Account to make Authorized Funding Draws permitted under the Participation 

Agreement. The foregoing shall not limit the actions that the Initial Member may take with 

respect to any Loan while the Initial Member is providing interim servicing for the Loans. The 

Initial Member may engage agents ofthe Initial Member's own choosing to perform such interim 

servicing. Subject to the provisions of Sections 4.5(a) and Section 4.6, the Initial Member's 

performance ofthis interim servicing shall cease on the Servicing Transfer Date. Prior to the 

Servicing Transfer Date, all Loan Proceeds (including any recoveries ofPre-Cut-OffDate 

Advances) remaining after reimbursement ofPost-Cut-OffDate Advances shall be allocated 

between the Participant and the Company as prescribed in Section 4.0l(a) ofthe Participation 

Agreement and distributed as required by Section 4.0l(b) ofthe Participation Agreement, with 

the Company's share of all remaining Loan Proceeds received in the prior calendar month 

remitted to the Company on or prior to the fifteenth (15) day of each month (or ifthe fifteenth 

(15th) day is not a Business Day, the immediately following Business Day ofthe month) 

commencing no later than the fifth ( S'h) Business Day after the Closing, to such account or 

Loan Contribution and Assignment Agreement 15 

EXECUTION VERSION 

12349234.4 
accounts as the Company may, from time to time, direct. On the Servicing Transfer Date, all 

,Loan Proceeds received and not yet remitted to the Company or the Initial Member pursuant to 

this Section 3.3 shall be remitted to the Collection Account. Prior to the Servicing Transfer 

Date, the Initial Member shall be (and hereby is) authorized by the Company to use and 

withdraw funds from the Collection Account, the LIP Account and the Borrower escrow 

accounts in the performance ofits interim servicing duties under this Section 3.3. The Company 

hereby ratifies any and all actions taken by the Initial Member in performance ofinterim 

servicing activities prior to the Closing Date. The Company acknowledges and agrees that the 

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

Company and shall not have any liability for any acts or omissions taken in connection therewith 

(other than to correct calculation, allocation or distribution errors), and except for amounts for 

which the Company may be reimbursed as provided in the Participation Agreement, the 

Company hereby releases and forever discharges the Initial Member, the FDIC, the Failed Bank 

and its predecessors and all of their respective officers, directors, employees, agents, attorneys, 

contractors and representatives and all oftheir 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 ofwhatever 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 servicing ofthe Loans (other than gross negligence or willful misconduct) at 

any time prior to the Servicing Transfer Date. 

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 Participation 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 

ofthem) and are assignable, and assumes and agrees to fulfill all Obligations ofthe Initial 

Member and the Failed Bank 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 ofthe 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 ofthis Agreement and, with respect to those Loans with respect to which 

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

acknowledges and agrees that, upon assumption ofthe Obligations with respect to the Loans, it 

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

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

Loan Contribution and Assignment Agreement 16 

EXECUTION VERSION 

12349234.4 
that, upon assumption ofthe Obligations with respect to the Loans, it assumes and agrees to 

fulfill all ofthe Initial Member's and the Failed Bank's Obligations under the contracts of 

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

Company to fulfill its obligations set forth in the preceding sentence shall constitute PreApproved Charges for purposes of the Participation Agreement. 

Section 4.4 Reporting to or for the Applicable Taxing Authorities. The Initial 

Member shall be responsible for submitting all Internal Revenue Service information returns 

related to the Loans for all applicable periods prior to the Servicing Transfer Date. The Company 

shall be responsible for submitting all Internal Revenue Service information returns related to the 

Loans for all applicable periods commencing with the Servicing Transfer Date. Information 

returns include reports on 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 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 Effective Date falls and thereafter. 

Section 4.5 Loans in Litigation. 

(a) With respect to any Loan subject of any type ofpending litigation as ofthe 

Closing Date, the Company shall notify the FDIC's Regional Counsel, 1601 Bryan Street, 

Dallas, Texas 75201-4586, within fifteen (15) Business Days before the Servicing Transfer Date 

ofthe name ofthe attorney selected by the Company to represent the Company's interests in the 

litigation. The Company shall, before the Servicing Transfer Date, notify the clerk ofthe court 

or other appropriate official and all counsel of record that ownership ofthe Loan was transferred 

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

the Company shall have its attorney file appropriate pleadings and other documents and 

instruments with the court or other appropriate body before the Servicing Transfer Date, 

substituting the Company's attorney for the Initial Member's attorney, removing the Initial 

Member and the Failed Bank as a party to the litigation and substituting the Company as the real 

party-in-interest. Nothing contained in this Agreement shall preclude the Company from 

retaining the same attorney retained by the Initial Member (or the Failed Bank) to handle 

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 Servicing Transfer Date, to remove the Initial Member and the 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 ofthe Company and, (2) 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, to cause the Initial 

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

Loan Contribution and Assignment Agreement 17 

EXECUTION VERSION 

12349234.4 
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 Servicing 

Transfer Date, and 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 ofthe Initial Member and the Failed Bank and substitution ofthe 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 ofthe Initial Member, unless 

such settlement includes an irrevocable and complete waiver and release of any and all potential 

claims against the Initial Member and the Failed Bank in relation to such litigation or the subject 

Loans or Obligations by any Person asserting any claim in the litigation and any Borrower, and 

any and all losses, liabilities, claims, causes of action, damages, demands, taxes, fees, costs and 

expenses relating thereto shall be paid by the Company without recourse of any kind to the Initial 

Member or the Failed Bank (other than to the extent the same constitute Servicing Expenses). 

The Company shall pay all ofthe costs and expenses incurred by it in connection with the 

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

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

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

Member, upon demand, for all legal expenses the Initial Member incurs on or after the Effective 

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 Post-Cut-Off 

Date Advances hereunder). 

(c) In the event there is asserted against the Initial Member (or the Failed Bank) or 

the Company any claim or action with respect to one or more Loans that is based upon or arises 

out of any act or omission ofthe Initial Member or the Failed Bank on or prior to the Cut-Off 

Date (and not any act or omission ofor on behalf ofthe Company) and that alleges liability that, 

in the opinion ofboth the Initial Member and the Company, is reasonably likely to exceed the 

liability ofthe Company as the assignee and owner ofthe Loan after the Cut-OffDate, (i) the 

Company shall be responsible for and shall control and assume the defense of the Company and 

the Company's interest in the Loans, at the Company's own expense and by the Company's own 

counsel, which counsel must be reasonably satisfactory to the Initial Member; and (ii) the Initial 

Member shall be responsible for and shall control and assume the defense ofthe Initial Member 

and the Failed Bank at the Initial Member's own expense. To the extent their interests are not in 

conflict, the Company and the Initial Member shall cooperate in the defense of any such claims 

or action 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 ofthe Initial Member before ceasing to defend 

against any such claims or action. 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 (x) 

reasonable attorneys' fees and expenses incurred to defend against (or investigate) the same or 

Loan Contribution and Assignment Agreement 18 

EXECUTION VERSION 

12349234.4 
pursue counterclaims or cross-claims against other parties, (y) awards or judgments assessed 

against the Company with respect to any such claim or action, or (z) the costs of any settlement 

ofsuch claim or action, shall constitute Pre-Approved Charges for purposes ofthe Participation 

Agreement. If, as a result of any claim or action subject to the provisions ofthis Section 4.5(c), 

(i) there is entered against the Company either (1) a final, non-appealable monetary judgment 

holding the Company liable for damages in excess of an amount equal to the Loan Value ofthe 

Loan relating to or that is the subject ofsuch claim (such Loan, the "Affected Loan") divided by 

0.20 (such excess amount, the "Excess Damage Liability"), or (2) a final monetary judgment 

that is appealable, which the Initial Member agrees in writing need not be appealed further by the 

Company, and that imposes an Excess Damage Liability on the Company, or (ii) the Company 

enters into a final settlement agreement with the consent ofthe Initial Member (such consent not 

to be umeasonably withheld), pursuant to which the Company is obligated to pay an Excess 

Damage Liability, then, in any such case, 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 ofthe Company. 

(d) The provisions of Sections 4.5(a), 4.5(b) and 4.5(c) are subject to the right ofthe 

Initial Member to retain claims pursuant to Section 2.6 ofthis Agreement, including any such 

claims as may have been asserted in litigation pending as ofthe date ofthe Closing. 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 2.6 and the Company substituting itself as the real party in interest and taking control of 

(and being responsible for pursuing and bearing the cost ofpursuing) the remainder ofthe 

litigation. 

Section 4.6 Loans in Bankruptcy. In accordance with Bankruptcy Rules 3001 and 

3002, the Company agrees to take all actions necessary to file, prior to the Servicing Transfer 

Date, (i) proofs of claims in pending bankruptcy cases involving any Loans for which the Initial 

Member or the Failed Bank has not already filed a proofof claim, and (ii) all documents required 

by Rule 3001 ofthe Federal Rules ofBankruptcy Procedure and to take all such similar actions 

as may be required in any relevant jurisdiction in any pending bankruptcy or insolvency case or 

proceeding in such jurisdiction involving any Loans in order to evidence and assert the 

Company's rights. The Company shall prepare and provide to the Initial Member, on or prior to 

the Servicing Transfer Date, an Affidavit and Assigrunent of Claim or any similar forms as may 

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 ofthe Effective Date. The 

Company hereby releases the Initial Member and the Failed Bank from any claim, demand, suit 

or cause of action the Company may have as a result of any action or inaction on the part ofthe 

Initial Member or the Failed Bank with respect to such Loan. In the event the Company fails, 

prior to the Servicing Transfer Date, to take the actions required by this Section 4.6, (1) the 

Initial Member may, but shall have no obligation to, file proofs of claim or other documents as 

the Initial Member determines may be necessary or appropriate to evidence and assert the 

Loan Contribution and Assignment Agreement 19 

EXECUTION VERSION 

12349234.4 
Company's rights and, (2) 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 (regardless ofwhether such costs and expenses constitute 

Post-Cut-Off Date Advances). The provisions of this Section are subject to the right ofthe 

Initial Member to retain claims pursuant to Section 2.6 of this Agreement, including any such 

claims as may have been asserted in litigation pending as of the date ofthe Closing. 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 2.6 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 ofthe 

litigation. 

Section 4. 7 Loan Related Insurance. As ofthe Effective Date, the Company shall 

cause to be put into place, 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 ofthe Company, are prudent. 

Upon the cancellation of any insurance policy maintained by the Initial Member or the Failed 

Bank with respect to any Loan and the receipt by the Company or the Initial Member of any 

refund of any premiums previously paid with respect thereto, such refunded amount shall inure 

to the benefit of the Borrowers with respect to the affected Loans, and such refunded amount 

shall be remitted to (or retained by) the Company and applied as appropriate to adjust the escrow 

accounts with respect to such affected Loans. 

Section 4.8 Loans with Escrow Accounts. The Company agrees to assume, 

undertake and discharge any and all Obligations ofthe holder ofthe Loans with respect to any 

escrow, maintenance of escrow and payments from escrow ofmonies paid by or on account of 

the Borrower. 

Section 4.9 Initial Member as Lead Lender in Participated Loans. The Company 

hereby agrees to assume the role oflead lender for any Participated Loan in which a portion of a 

Loan was participated to one or more entities and in which the Initial Member or any ofits 

predecessors was the lead lender as ofthe Effective Date. The Company hereby agrees to accept 

any such Participated Loan subject to all participants' right, title and interest in such Participated 

Loan. 

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 and execution, conveying the 

real property subject to any such contract to the Company. Title curative work, ifrequired, shall 

be at the Company's sole cost and expense. 

Section 4.11 Leases. The Company agrees to comply with all Obligations set forth in 

any lease related to any Loan unless, in the opinion ofthe Company, complying with the 

Loan Contribution and Assignment Agreement 20 

EXECUTION VERSION 

12349234.4 
Obligations under such lease would not be in the best interests (in terms of maximizing the value 

ofthe Loan) ofthe 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 4.12 Notice to Borrowers. No later than thirty (30) days prior to the Servicing 

Transfer Date, the Company (or the Servicer) shall.provide the Initial Member with all 

information necessary to allow the Initial Member to prepare and send to Borrowers a "goodbye" 

letter meeting the requirements of, and in accordance with, RESP A, if applicable. Based upon 

the information provided by the Company, the Initial Member shall send to Borrowers such 

"goodbye" letter. The Company (or the Servicer) shall provide a "hello" letter to Borrowers 

meeting the requirements of and in accordance with RESP A, if applicable. Alternatively, ifthe 

Initial Member and the Company (or the Servicer) so agree, they may send a joint 

"hello/goodbye" letter to Borrowers meeting the requirements of and in accordance with 

RESPA, if applicable. The Initial Member and the Company (and the Servicer) shall each bear 

their own costs and expenses incurred to comply with their respective obligations contained in 

this Section (or, in the case of a decision to send a joint "hello/goodbye" letter, their respective 

costs shall be allocated among them), and no such costs or expenses shall be considered PostCut-OffDate Advances hereunder or Servicing Expenses for purposes ofthe Participation 

Agreement. 

Section 4.13 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 the Failed Bank arising out of any Loan. 

Section 4.14 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!etters that is similar to "FDIC" or "Federal Deposit Insurance Corporation." 

The Company will not represent or imply that it is affiliated with, authorized by or in any way 

related to the FDIC. The Company shall be entitled to assert (and claim the benefit of) the 

statute oflimitations established under 12 U.S.C. § 182l(d)(14). However, the Company 

acknowledges and agrees that the assignment of any Loan or Collateral Document pursuant to 

the terms ofthis Agreement shall not constitute the assignment of any other rights, powers or 

privileges granted to the Initial Member pursuant to the provisions the Federal Deposit Insurance 

Act, including those granted pursuant to 12 U.S.C. § 182l(d), 12 U.S.C. § 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. 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 SECTION 

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 

Loan Contribution and Assignment Agreement 21 

EXECUTION VERSION 

12349234.4 
MEMBER SHALL BE ENTITLED TO (I) IMMEDIATE AND PERMANENT EQUITABLE 

,RELIEF (INCLUDING INJUNCTNE 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) LIQUIDATED DAMAGES IN THE 

AMOUNT OF $25,000 FOR EACH BREACH OF THIS SECTION. THE PARTIES AGREE 

AND STIPULATE THAT THE INITIAL MEMBER SHALL BE ENTITLED TO EQUITABLE 

(INCLUDING INJUNCTNE) RELIEF WITHOUT POSTING A BOND OR OTHER 

SECURITY AND THE COMPANY FURTHER WANES 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. 

Section 4.15 Prior Servicer Information. The Company acknowledges and agrees 

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

that the Initial Member has not requested any information not in the possession ofthe 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 ofthis 

Agreement to request any information from any prior servicer. 

Section 4.16 Release oflnitial Member. 

(a) Except as otherwise specifically provided in Article VI ofthis Agreement or in 

the Participation Agreement or any other Ancillary Document, the Company hereby releases and 

forever discharges the Initial Member, the FDIC, and the Failed Bank and all oftheir respective 

officers, directors, employees, agents, attorneys, contractors and representatives, and all oftheir 

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 ofwhatever 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 ofthe Loans (before or after the Cut-OffDate) by the Initial Member, the 

Failed Bank or its predecessors, the FDIC or any Person acting on behalf ofthe Initial Member, 

the FDIC or the Failed Bank or its predecessors, or the acquisition ofthe Loans (other than gross 

negligence or willful misconduct); provided, however, that nothing contained in this Section 

4.16(a) shall constitute or be interpreted as a waiver of any express right that the Company has 

under this Agreement or any ofthe Ancillary Documents. 

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

settle or release any Note or Loan or any right ofthe 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 Bank 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 which any such Borrower may have 

against any such Released Party arising from or growing out of any act or omission occurring 

prior to the date of such release. The provisions ofthis Section shall not be applicable with 

respect to actions taken in order to comply with the Guidelines. 

Loan Contribution and Assignment Agreement 22 

EXECUTION VERSION 

12349234.4 
Section 4.17 Indemnification. 

(a) The Company shall indemnify and hold harmless the Initial Member and the 

Initial Member's Affiliates, and their respective officers, directors, employees, partners, 

principals, agents and contractors (the "Indemnified Parties"), from and against any losses, 

damages, liabilities, costs and expenses (including reasonable attorneys' fees and litigation and 

similar costs, and other out-of-pocket expenses incurred in investigating, defending, asserting or 

preparing the defense or assertion of any ofthe foregoing), deficiencies, claims, interest, awards, 

judgments, penalties and fines (collectively, "Losses") arising out ofor resulting from any 

breach by the Company or any ofits Affiliates or any oftheir respective officers, directors, 

employees, partners, principals, agents or contractors of any of the Company's obligations under 

or covenants or agreements contained in this Agreement (including any claim asserted by the 

Initial Member against the Company to enforce its rights hereunder or by any third party), or any 

third-party allegation or claim based upon facts alleged that, iftrue, would constitute such a 

breach, or any gross negligence, bad faith or willful misconduct (including any act or omission 

constituting theft, embezzlement, breach oftrust or violation of any Law). Such indemnity shall 

survive the termination ofthis Agreement. In order for an Indemnified Party to be entitled to any 

indemnification provided for under this Agreement in respect of, arising out ofor involving a 

Loss or a claim or demand made by any Person against the Indemnified Party (a "Third Party 

Claim"), such Indemnified Party shall deliver notice thereof to the Company promptly after 

receipt by such Indemnified Party ofwritten notice ofthe Third Party Claim, describing in 

reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount of 

such claim (if known) and such other information with respect thereto as is available to the 

Indemnified Party and as the Company may reasonably request. The failure or delay to provide 

such notice, however, shall not release the Company from any ofits obligations under this 

Section 4.17 except to the extent that it is materially prejudiced by such failure or delay. 

(b) If for any reason the indemnification provided for herein is unavailable or 

insufficient to hold harmless the Indemnified Parties, the Company shall contribute to the 

amount paid or payable by the Indemnified Parties as a result ofthe Losses ofthe Indemnified 

Parties in such proportion as is appropriate to reflect the relative fault ofthe Indemnified Parties, 

on the one hand, and the Company (including any Servicer or subservicer), on the other hand in 

connection with a breach ofthe Company's obligations under this Agreement. 

(c) Ifthe Company confirms in writing to the Indemnified Party within fifteen 

(15) days after receipt of a Third Party Claim the Company's responsibility to indemnify and 

hold harmless the Indemnified Party therefor, the Company may elect to assume control over the 

compromise or defense of such Third Party Claim at the Company's own expense and by the 

Company's own counsel, which counsel must be reasonably satisfactory to the Indemnified 

Party, provided that (i) the Indemnified Party may, if such Indemnified Party so desires, employ 

counsel at such Indemnified Party's own expense to assist in the handling (but not control the 

defense) of any Third Party Claim; (ii) the Company shall keep the Indemnified Party advised of 

all material events with respect to any Third Party Claim; (iii) the Company shall obtain the prior 

written approval ofthe Indemnified Party before ceasing to defend against any Third Party Claim 

or entering into any settlement, adjustment or compromise of such Third Party Claim involving 

injunctive or similar equitable relief being asserted against any Indemnified Party or any ofits 

Loan Contribution and Assignment Agreement 23 

EXECUTION VERSION 

12349234.4 
Affiliates; and (iv) the Company will not, without the prior written consent ofthe Indemnified 

1 Party, settle or compromise or consent to the entry of any judgment in any pending or threatened 

action in respect of which indemnification may be sought hereunder (whether or not any such 

Indemnified Party is a party to such action), unless such settlement, compromise or consent by 

its terms obligates the Company to satisfy the full amount ofthe liability in connection with such 

Third Party Claim and includes an unconditional release of such Indemnified Party from all 

liability arising out of such Third Party Claim. 

(d) Notwithstanding anything contained herein to the contrary, the Company shall not 

be entitled to control (and ifthe Indemnified Party so desires, it shall have sole control over) the 

defense, settlement, adjustment or compromise of (but the Company shall nevertheless be 

required to pay all Losses incurred by the Indemnified Party in connection with such defense, 

settlement or compromise): (i) any Third Party Claim that seeks an order, injunction or other 

equitable relief against any Indemnified Party or any ofits Affiliates; (ii) any action in which 

both the Company (or any Affiliate) and the Indemnified Party are named as parties and either 

the Company (or such Affiliate) or the Indemnified Party determines with advice of counsel that 

there may be one or more legal defenses available to it that are different from or additional to 

those available to the other party or that a conflict of interest between such parties may exist in 

respect of such action; and (iii) any matter that raises or implicates any issue relating to any 

power, right or obligation ofthe FDIC under any Law. If the Company elects not to assume the 

compromise or defense against the asserted liability, fails to timely and properly notify the 

Indemnified Party ofits election as herein provided, or, at any time after assuming such defense, 

fails to diligently defend against such Third Party Claim in good faith, the Indemnified Party 

may pay, compromise or defend against such asserted liability (but the Company shall 

nevertheless be required to pay all Losses incurred by the Indemnified Party in connection with 

such defense, settlement or compromise). In connection with any defense of a Third Party Claim 

(whether by the Company or the Indemnified Party), all ofthe parties hereto shall, and shall 

cause their respective Affiliates to, cooperate in the defense or prosecution thereof and to in good 

faith retain and furnish such records, information and testimony, and attend such conferences, 

discovery proceedings, hearings, trials and appeals, as may be reasonably requested by a party 

hereto in connection therewith. 

(e) Under no circumstances shall any liability ofthe Company under the provisions 

ofthis Section 4.17 constitute a Servicing Expense or otherwise be charged to the Initial Member 

or Participant or be deducted from the Participant's Share. 

Article V 


Loans Sold "As Is" and Without Recourse 


Section 5.1 Loans Conveyed "As Is". THE LOANS ARE CONVEYED TO THE 

COMPANY "AS IS" AND "WITH ALL FAULTS," WITHOUT ANY REPRESENTATION, 

WARRANTY OR GUARANTY WHATSOEVER, INCLUDING AS TO COLLECTIBILITY, 

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 

Loan Contribution and Assignment Agreement 24 

EXECUTION VERSION 

12349234.4 
INITIAL MEMBER, THE FAILED BANK OR THE FDIC, OR ANY PREDECESSORS OR 

AFFILIATE OF THE INITIAL MEMBER, THE FAILED BANK OR THE FDIC, OR ANY OF 

THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR 

CONTRACTORS. THE INITIAL MEMBER SPECIFICALLY DISCLAIMS ANY 

WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR 

PRESENT, EXPRESS OR IMPLIED, CONCERNING THE 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 MA TIER 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 ofthe 

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 .I, the Initial Member further makes no 

warranties or representations of any kind or nature as to the amount of any additional or future 

advances ofprincipal the Company may be obligated to make. 

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any 

Loan. Without limiting the generality of Section 5.1, the Initial Member makes no warranties or 

representations of any kind or nature as to the accuracy of any calculation or adjustment of 

interest on any Loan, including any adjustable rate Loan, whether such calculation or adjustment 

is made by the FDIC, the Failed Bank, the Initial Member or any Affiliate, agent or contractor of 

any ofthe foregoing, or any predecessor-in-interest ofthe 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 oflimitation, some Loan Files may be missing 

forms or notices, or may contain incomplete or inaccurate forms or notices, that may 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 2.3 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. 

Loan Contribution and Assignment Agreement 25 

EXECUTION VERSION 

12349234.4 
Section 5.6 Intervening or Missing Assignments. The Company acknowledges and 

, agrees that the Initial Member shalJ have no obligation to secure or obtain any missing 

intervening assignment or any assignment to the Initial Member or the Failed Bank that is not 

contained in the Loan File or among the ColJateral Documents. Neither the absence of any 

intervening assignment or any assignment to the Initial Member, the FDIC or the Failed Bank, 

nor the existence of any Lien on the Loan or its ColJateral, nor any defect in the Lien or priority 

of the Initial Member's or the Failed Bank's security interest in the ColJateral shalJ give rise to 

any claim for purchase under Article VI. The Company shall bear aU responsibility and expense 

ofsecuring from the appropriate source any intervening assignment or any assignment to the 

Initial Member, the FDIC or the Failed Bank that may be missing from the Co1lateral 

Documents, but the cost thereof shaH constitute a Pre-Approved Charge for purposes ofthe 

Participation Agreement. 

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

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

enforceability in any Foreign Jurisdiction ofthis Agreement or any other document or instrument 

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

provided herewith, aU 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 ofthe procedures and other requirements set forth below, require the Initial 

Member to repurchase a Loan, if, and only if, (x) prior to the Effective Date, one ofthe events 

described in Section 6.l(a) through (g) has occurred or (y) after the Cut-OffDate, there is issued 

by a court of competent jurisdiction with respect to such Loan a court order (the "Order") that is 

based upon or as a result ofthe acts or omissions ofthe Initial Member on or prior to the Cut-Off 

Date, and either requires the assignment and transfer of such Loan back to the Initial Member or 

is a final non-appealable order that holds the Company liable to a Borrower for damages 

(exclusive of damages arising from the Company's acts or omissions after the Servicing Transfer 

Date) in an amount that exceeds the unpaid principal balance of such Borrower's Loan at the 

time ofsuch Order and, with respect to which, in either case, the Action in which such Order is 

issued meets the other conditions set forth in Section 6.l(h) below. IN NO EVENT SHALL 

THE OCCURRENCE OF ANY SUCH EVENT OR THE OBLIGATION TO REPURCHASE A 

LOAN HEREUNDER BE EVIDENCE OF BAD FAITH, MISCONDUCT OR FRAUD EVEN 

IN THE EVENT THAT IT IS SHOWN THAT THE INITIAL MEMBER, IN ANY 

CAPACITY, OR ANY AFFILIATE THEREOF, OR ANY OF THEIR RESPECTIVE 

DIRECTORS, EMPLOYEES, OFFICERS, CONTRACTORS OR AGENTS KNEW OR 

SHOULD HAVE KNOWN OF THE EXISTENCE OF ANY FACTS RELATING TO THE 

OCCURRENCE OF SUCH EVENT. 

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

no Co11ateral securing such Loan and out ofwhich such Loan may be satisfied, and aU 

guarantors or sureties ofthe Note, if any, or the obligations contained therein, have similarly 

been discharged in no asset bankruptcies. 

Loan Contribution and Assignment Agreement 26 

EXECUTION VERSION 

12349234.4 
(b) A court of competent jurisdiction had entered a final judgment (other than a 


bankruptcy decree or judicial foreclosure order) holding that neither the Borrower nor any 


guarantors or sureties owe an enforceable obligation to pay the holder of the Note or its 


assignees. 


(c) The Initial Member or Failed Bank had executed and delivered to the Borrower a 

release ofliability from all obligations under the Note. 

(d) A title defect exists in connection with the property which is the subject of a 

Contract for Deed and 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 ofthe Loan (or, in the case of a Participated 

Loan, the Initial Member is not the owner ofthe 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 ofthe 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.l(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 Initial 

Member to the LLC Interest Transferee prior to submission ofthe Bid; (ii) such Loan having an 

Adjusted 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 ofwhich must be satisfactory 

in form and substance to the Initial Member in its discretion: 

1. A Phase I environmental assessment, from a qualified and reputable firm, 

ofthe Mortgaged Property securing the Loan; and 

2. A Phase II environmental assessment or lead-based paint survey of such 

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

existence ofEnvironmental Hazards on such Collateral and (ii) that the regulator is likely 

to require such remediation; and, 

3. The Company shall have submitted a written certification ofthe Company 

under penalty ofpetjury that no action has been taken by or on behalf ofthe Company (i) 

to initiate foreclosure proceedings or (ii) to accept a deed-in-lieu-of-foreclosure in 

connection with such Loan. 

(g) The Initial Member or the Failed Bank, or their respective officers, directors or 

employees, fraudulently caused the Borrower to receive less than all ofthe proceeds and benefits 

of a Note. The Company's recourse with respect to this Section 6.l(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. 

Loan Contribution and Assignment Agreement 27 

EXECUTION VERSION 

12349234.4 
(h) There is instituted after the Cut-OffDate any Action (i) that 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 ofthis Section) with respect 

to more than one Loan (with multiple Loans secured by the same Collateral being considered a 

single Loan for purposes ofthis Section), (ii) that includes allegations of fraud on the part ofthe 

Initial Member or the Failed Bank in connection with the Initial Member's or the Failed Bank's 

origination of such Loans, and (iii) that names the Initial Member or the Failed Bank as a 

defendant and that asserts liability on the part ofthe Initial Member or the Failed Bank for which 

the Company is not liable as assignee, as a matter oflaw, with respect to such Loans. 

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

of each Loan with respect to which the Company seeks to exercise its rights under Section 6.1. 

Such notice shall be on the Company's letterhead and include the following information: (a) the 

Company's tax identification number, (b) the Company's wire transfer instructions, (c) the 

subsection of Section 6.1 under which the Company is seeking to require the Initial Member to 

repurchase a Loan, and (d) a summary ofthe reasons the Company believes that the Loans 

should be repurchased by the Initial Member. 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 VII for which notice and all 

supporting evidence reasonably required by the Initial Member have not been received by the 

Initial Member at the addresses specified in Article VII no later than the first Business Day after 

the expiration of(i) in the case of any purchase demand pursuant to Section 6.l(a) through (g), 

180 calendar days after the Effective Date, or in the case of a Contract for Deed, the first 

Business Day after the expiration of 360 calendar days after the Effective Date, and (ii) in the 

case of any purchase demand pursuant to Section 6.1 (h), thirty (30) days after the issuance ofthe 

Order. 

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

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

Initial Member (or its designee), (b) assign all Collateral Documents associated with such Loan 

and reconvey any real property subject to a Contract for Deed or transferred by special warranty 

deed pursuant to Section 2.5, together with such other documents or instruments as shall be 

necessary or appropriate to convey the Loan 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, and (d) deliver to the Initial 

Member (or its designee) a certification, notarized and executed under penalty ofpeijury by a 

duly authorized representative ofthe Company, certifying that as ofthe date of purchase by the 

Initial Member none ofthe conditions relieving the Initial Member ofits obligation to purchase 

the Loan as specified in Section 6.4 has occurred. The documents evidencing such conveyance 

shall be substantially the same as those executed pursuant to Article III ofthis 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 ofthe Loan to the Company, 

the Company shall cause to be recorded or filed among such records a similar document or 

instrument evidencing the conveyance ofthe Loan to the Initial Member. Upon compliance by 

Loan Contribution and Assignment Agreement 28 

EXECUTION VERSION 

12349234.4 
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 ofthe 

Participation Agreement. 

Section 6.4 Waiver of Company's Repurchase Option. The Initial Member will be 

relieved ofits obligation to purchase any Loan for any reason set forth in Section 6.1 ifthe 

Company: (a) except as permitted by the Guidelines and other than the permanent refinance of a 

Loan in connection with the final Authorized Funding Draw with respect to such Loan, modifies 

any ofthe terms ofthe Loan (including the terms of any Collateral Document or Contract for 

Deed); (b) except as permitted by the Guidelines, 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 (other than the Participation Interest issued to the Initial Member pursuant to the 

Participation Agreement); (e) fails to comply with the Participation Agreement in the 

maintenance, collection, servicing and preservation ofthe 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 

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

securing the Loan; (h) causes, by action or inaction, the priority oftitle 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 may be required by the terms ofthe Collateral Documents; (j) causes, 

by action or inaction, a claim ofthird parties to arise against the Company that, as a result of 

purchase under this Agreement, might be asserted against the Initial Member; (k) causes, by 

action or inaction, a Lien of any nature to encumber the Loan to arise; (I) is the Borrower or any 

Affiliate thereof under such Loan; or (m) makes any disbursement ofprincipal or otherwise 

incrementally funds any Loan other than making an Authorized Funding Draw. 

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 ofthe provisions ofthis 

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

or, delivered by hand or by nationally recognized air courier service, in any case directed to the 

address of such Person as set forth in the applicable Section ofthis Article VII. Any such notice 

shall become effective when received (or receipt is refused) by the addressee, provided that any 

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

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

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

of notice hereunder by notice to such effect to the other Persons identified 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 ofArticle VI 

shall be delivered to: 

Loan Contribution and Assignment Agreement 29 

EXECUTION VERSION 

12349234.4 
Initial Member: 

with a copy to: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

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 

Section 7.3 Transfer Documents. For purposes ofdesignating the Company as the 

return addressee on Transfer Documents, the following address shall be used: 

Company after Closing: 	 FNBN-CMLCON I LLC 


c/o The Sorenson Group 


4393 Riverboat Road, Suite 450 


Salt Lake City, UT 84123 


Attention: Donald E. Wallace 


Section 7.4 All Other Notices. Any notice, request, demand or other communication 

required or permitted to be given pursuant to any provision ofthis Agreement and that is not 

governed by the provisions of Section 7.2 or 7.3, shall be delivered to: 

Company before Closing: 

with a copy to: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

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 

Company after Closing: FNBN-CMLCON I LLC 

c/o The Sorenson Group 

Loan Contribution and Assignment Agreement 30 

EXECUTION VERSION 

12349234.4 
4393 Riverboat Road, Suite 450 

Salt Lake City, UT 84123 

Attention: Donald E. Wallace 

with a copy to: B. Ray Zoll, P.C. 

894,1 South 700 East 

Sandy, Utah 84070 

Attention: B. Ray Zoll 

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 

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 

Article VIII 

Miscellaneous Provisions 

Section 8.1 Severability. Any provision ofthis Agreement which is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (i) ifsuch 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; (ii) without limitation of clause (i), 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 (iii) without limitation of clauses (i) 

or (ii), such ineffectiveness shall not invalidate any ofthe remaining provisions ofthis 

Agreement. Without limitation of the preceding sentence, it is the intent ofthe parties to this 

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

provision ofthis Agreement is prohibited or unenforceable in any jurisdiction (because ofthe 

duration or scope (geographic or otherwise) ofsuch provision, or for any other reason) such 

court shall have the power to, and shall, (x) modify such provision (including without limitation, 

to the extent applicable, by limiting the duration or scope ofsuch 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 

Loan Contribution and Assignment Agreement 31 

EXECUTION VERSION 

12349234.4 
provision, as so modified, may then be enforced in such proceeding and (y) enforce such 

,provision, as so modified pursuant to clause (x), in such proceeding. Nothing in this Section is 

intended to, or shall, limit (I) the ability of any party to this Agreement to appeal any court 

ruling or the effect of any favorable ruling on appeal or (2) 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 hereto. 

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 and counsel. 

Section 8.4 Waivers; Amendment and Assignment. No provision ofthis Agreement 

may be amended or waived except in writing executed by all ofthe 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 ofthe undersigned 

parties and their respective heirs, executors, administrators, representatives, successors and 

permitted assigns, and no other Person or Persons (including Borrowers or any co-lender or other 

Person with any interest in or liability under any ofthe Loans) shall have any rights or remedies 

under or by reason ofthis 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. 

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 ofwho actually prepared, drafted or 

requested any term or condition ofthis Agreement or any agreement or instrument subject 

hereto. 

Section 8.6 Entire Agreement. This Agreement and the Ancillary Documents 

contain the entire agreement between the Initial Member (including in its capacity as Participant) 

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. In the event of a conflict between the 

terms ofthis Agreement and the terms of any Transfer Document or other document or 

instrument executed herewith or in connection with the transactions contemplated hereby, 

including, without limitation, 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 ofthis 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. 

Loan Contribution and Assignment Agreement 32 

EXECUTION VERSION 

12349234.4 
Section 8.7 Jurisdiction; Venue and Service. The Company, for itself and its 


Affiliates, hereby irrevocably and unconditionally: 


(a) (i) agrees that any suit, action or proceeding instituted against it by any other 

party with respect to this Agreement may be instituted, and that any suit, action or proceeding by 

it against any other party with respect to this Agreement shall be instituted, only in the Supreme 

Court ofthe State ofNew York, County ofNew York, or the U.S. District Court for the Southern 

District ofNew York or the United States District Court for the District ofColumbia (and 

appellate courts from any ofthe foregoing) as the party instituting such suit, action or proceeding 

may in his or its sole discretion elect, (ii) consents and submits, for itself and its property, to the 

jurisdiction ofsuch courts for the purpose of any such suit, action or proceeding instituted 

against it by any other party and (iii) agrees that a final judgment in any such suit, action or 

proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the 

judgment or in any other manner provided by Law; 

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

proceeding pursuant to Section 8.7(a) may be effected by the mailing of copies thereofby 

registered or certified mail, postage prepaid, to the Company at its address for notices pursuant to 

Article VII (with copies to such other Persons as specified therein); provided, however, that 

nothing contained in this Section 8. 7 shall affect the ability ofthe Company to be served process 

in any other manner permitted by Law; 

(c) (i) waives any objection that it may now or hereafter have to the laying of venue 

of any suit, action or proceeding arising out of or relating to this Agreement brought in any court 

specified in Section 8.7(a), (ii) waives any claim that any such suit, action or proceeding brought 

in any such court has been brought in an inconvenient forum and (iii) agrees not to plead or 

claim either ofthe foregoing; and 

(d) agrees that nothing contained in this Section 8. 7 shall be construed to constitute 

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

limitation on any removal rights the FDIC, in any capacity, may have. 

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 ofwhich shall be deemed an original but all ofwhich 

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 ifit 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 

Loan Contribution and Assignment Agreement 33 

EXECUTION VERSION 

12349234.4 
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. 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 ofthis Agreement or the intent of any provisions hereof. All Section and 

paragraph references contained herein shall refer to Sections and paragraphs in this Agreement 

unless otherwise specified. 

Section 8.11 Compliance with Law. Except as otherwise specifically provided herein, 

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 ofits 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 4.14 HEREOF, LIQUID A TED DAMAGES IN THE AMOUNT OF 

$25,000 FOR EACH BREACH OF SUCH SECTION. THE PARTIES AGREE AND 

STIPULATE THAT THE INITIAL MEMBER SHALL BE ENTITLED TO EQUITABLE 

(INCLUDING INJUNCTIVE) RELIEF WITHOUT POSTING A BOND OR OTHER 

SECURITY AND THE COMPANY FURTHER WAIVES ANY DEFENSE IN ANY SUCH 

ACTION FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF THAT A REMEDY 

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

SECURITY AS A PREREQUISITE TO OBTAINING EQUITABLE RELIEF. NOTHING 

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

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

THIS AGREEMENT. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

Loan Contribution and Assignment Agreement 34 

EXECUTION VERSION 

12349234.4 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

as of the day and year first above written. 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECENER FOR FIRST 

NATIONAL BANK OF NEVADA 

By: 

Name: Ra ph A. Malamt 

Title: Attorney-in-Fact 

COMPANY: 

FNBN-CMLCON I LLC 

By: Federal Deposit Insurance Corporation as 

Receiver for First National Bank ofNevada, as Sole 

By: 

Name: 

Title: Attorney-in-Fact 

Loan Contribution and Assignment Agreement 35 

EXECUTION VERSION 

12349234.4 
.. ATTACHMENT "A" 

to 

Loan Contribution and Assignment Agreement 

LOAN SCHEDULE 

[Attached] 

See Tab 22 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 

12349234.4 
ATTACHMENT "B" 

to 

Loan Contribution and Assignment Agreement 

LOAN VALUE SCHEDULE 

[Attached] 

See Tab 23 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 

12349234.4 
ATTACHMENT "C" 


to 


Loan Contribution and Assignment 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 First National Bank ofNevada 

("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 FNBN-CMLCON I LLC ("Assignee") of {insert the 

Company's address} , 

and his/her/its successors and assigns, all ofthe 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 ofthe court, such as for the 

Western District ofTexas, being designated as Case Number {insert docket number assigned 

case} ("Bankruptcy Claim"), or such part ofsaid Claim as is based on the promissory note of 

{insert the names ofthe makers ofthe note exactly as they appear on the note}, dated {insert the 

date the note was made}, and made payable to {insert the name ofthe payee on the note exactly 

as it appears on the note}, provided, however, that this assigmnent is made pursuant to the terms 

and conditions as set forth in that certain Loan Contribution and Assigmnent Agreement between 

the Assignor and the Assignee dated February 20, 2009 (the "Agreement"). 

For purposes ofBankruptcy Rule 3001, this assigmnent and affidavit represent the 

unconditional transfer ofthe Bankruptcy Claim or such part ofthe Claim as is based on the 

promissory note or notes above and shall constitute the statement ofthe transferor 

acknowledging the transfer and stating the consideration therefore as required by said Rule 3001. 

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

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

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

· the basis of claim. 

This assigmnent shall also evidence the unconditional transfer ofthe Assignor's interest 


in any security held for the claim. 


Loan Contribution and Assignment Agreement C-1 

EXECUTION VERSION 

12349234A 
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 FIRST NATIONAL BANK OF 

NEVADA 

By: 

Name: 

Title: Attorney-in-Fact 

Signed and sworn to before me this day of________, 20 

Notary Public 

[SEAL] My Commission expires: 

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 First National Bank ofNevada 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 First National Bank ofNevada, 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: _______ 

Loan Contribution and Assignment Agreement C-2 

EXECUTION VERSION 

12349234.4 
---------------------

ATTACHMENT "D" 


to 


Loan Contribution and Assignment Agreement 


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

to Attachment D 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: 

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

Receiver for First National Bank ofNevada, whose address is 

("Initial Member"). 

2. That at the time of the preparation of transfer to FNBN-CMLCON I 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 ofMaker:------------­

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). 

Loan Contribution and Assignment Agreement D-1 

EXECUTION VERSION 

12349234.4 
5. That the purpose ofthis 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 

Assigmnent Agreement between the Company and the Initial Member dated February 20, 2009. 

6. That pursuant to the terms and conditions ofthe aforementioned Loan 

Contribution and Assigmnent Agreement the Instrument (including, without limitation, any and 

all rights the Initial Member may have to enforce payment and performance ofthe Instrument, 

including any rights under Section 3-309 ofthe Uniform Commercial Code) is hereby assigned 

effective as ofthe date hereof, without recourse, representation or warranty, to the Company. A 

copy ofthe Instrument is attached to this affidavit, if available. 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR FIRST NATIONAL BANK OF 

NEVADA 

By: 

Name: 

Title: Attorney-in-Fact 


Signed and sworn to before me this __day of------~ __ 


Notary Public 


[SEAL] My Commission expires: ____ 


Loan Contribution and Assignment Agreement D-2 

EXECUTION VERSION 

12349234.4 
ACKNOWLEDGMENT 

I 

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 First National Bank ofNevada acting 

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

the Federal Deposit Insurance Corporation as Receiver for First National Bank ofNevada, 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__________, 

20 

Notary Public 

[SEAL] 	 My Commission expires: _______ 

Loan Contribution and Assignment Agreement D-3 

EXECUTION VERSION 

12349234.4 
-----------------

ATTACHMENT "E" 


to 


Loan Contribution and Assignment Agreement 


(Note to Preparer: When preparing the actual Limited Power ofAttorney, delete this instruction 

and the reference to Attachment E above.) 

LIMITED POWER OF ATTORNEY 

KNOW ALL PERSONS BY THESE PRESENTS, that the FEDERAL DEPOSIT 

INSURANCE CORPORATION AS RECEIVER FOR FIRST NATIONAL BANK OF 

NEVADA, hereafter called the "Receiver", hereby designates the individual(s) set out below (the 

"Attomey(s)-in-Fact") for the sole purpose of executing the documents outlined below: 

WHEREAS, the undersigned has full authority to execute this instrument on behalf ofthe 

Receiver. 

NOW THEREFORE, the Receiver grants to the above-named Attomey(s)-in-Fact the 

authority, subject to the limitations herein, as follows: 

1. To execute, acknowledge, seal and deliver on behalf ofthe Federal Deposit 

Insurance Corporation as Receiver for First National Bank ofNevada all instruments oftransfer 

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 Sale enumerated above. 

The form which the Attomey(s)-in-Fact shall use for endorsing promissory notes or preparing 

allonges to promissory notes is as follows: 

Pay to the order of 


FNBN-CMLCON I LLC 


Without Recourse 


FEDERAL DEPOSIT INSURANCE 


CORPORATION AS RECEIVER FOR FIRST 


NATIONAL BANK OF NEVADA 


By: _____________________ 


Name: 


Title: 


Loan Contribution and Assignment Agreement E-1 

EXECUTION VERSION 

12349234.4 
All other documents of assignment, conveyance or transfer shall contain this sentence: "This 

, assignment is made without recourse, representation or warranty, express orimplied, by the 

Receiver." 

2. The Receiver further grants 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 

ofAttorney as fully as the Receiver 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 and 

shall continue in full force and effect through , unless 

otherwise terminated by an official ofthe Receiver or its successors and assigns authorized to do 

so ("Revocation"). At such time this Limited Power ofAttorney 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 

ofthe jurisdiction where this Limited Power ofAttorney has been recorded, or unless a third 

party has received actual notice ofa Revocation. 

IN WITNESS WHEREOF, the Federal Deposit Insurance Corporation as Receiver for 

First National Bank ofNevada by its duly authorized officer has caused these presents to be 

executed and subscribed in its name this __ day of , 2009. 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR FIRST NATIONAL BANK OF NEVADA 

By:_________________ 

Name: ____________________________________ 

Title: 

(CORPORATE SEAL) 	 ATTEST:_______________ Name:___________________________________ 

Title: 

Signed, sealed and delivered 

in the presence of 

By:____________ 

Name:_________________________ 

Witness 

By:_____________ 

Name:______________ 

Witness 

Loan Contribution and Assignment Agreement E-2 

EXECUTION VERSION 

12349234.4 
ACKNOWLEDGMENT 


STATE OF ___ § 

§ 

COUNTY OF __ § 

On this day of , 200 , before me, a Notary Public in and for 

the county and state aforesaid appeared , to me personally 

known, who, being by me first duly sworn did depose that s/he is Attorney-in-Fact ofthe Federal 

Deposit Insurance Corporation as Receiver for First National Bank ofNevada (the 

"Corporation"), in whose name the foregoing Limited Power ofAttorney was executed and 

subscribed, and the said Limited Power ofAttorney was executed and subscribed on behalf of 

the said Corporation by due authority of the Corporation, and the said Attorney-in-Fact 

acknowledged the said Limited Power ofAttorney to be the free act and deed of said 

Corporation. 

Notary Public 


My Commission Expires: _______ 


LDan Contribution and Assignment Agreement E-3 

EXECUTION VERSION 

12349234.4