Execution Copy 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT 

INDYMAC VENTURE, LLC 

10069513v15 
TABLE OF CONTENTS 

Page 

ARTICLE I CERTAIN DEFINITIONS ..........................................................................................1 

Section 1.01 Definitions ..................................................................................................1 

ARTICLE II ORGANIZATION OF THE COMPANY..................................................................2 

Section 2.01 Formation....................................................................................................2 

Section 2.02 Name...........................................................................................................2 

Section 2.03 Organizational Contributions and Actions; Initial Transfer .......................2 

Section 2.04 Registered Office; Chief Executive Office.................................................2 

Section 2.05 Purpose; Duration.......................................................................................3 

Section 2.06 Single Purpose Limitations.........................................................................3 

Section 2.07 Limitations on the Company’s Activities ...................................................3 

ARTICLE III MANAGEMENT AND OPERATIONS OF THE COMPANY ..............................5 

Section 3.01 Management of the Company’s Affairs .....................................................5 

Section 3.02 Employees and Services .............................................................................7 

Section 3.03 Related Party Agreements ..........................................................................7 

Section 3.04 Real Property ..............................................................................................7 

ARTICLE IV RIGHTS AND DUTIES OF, AND RESTRICTIONS ON, MEMBERS.................7 

Section 4.01 Filings; Duty of the Members to Cooperate ...............................................7 

Section 4.02 Certain Restrictions and Requirements ......................................................8 

ARTICLE V BORROWINGS; CONTRIBUTIONS; OTHER MATTERS ...................................8 

Section 5.01 Capital Contributions..................................................................................8 

Section 5.02 No Reliance by Parties Extending Credit ...................................................8 

Section 5.03 No Liens .....................................................................................................9 

Section 5.04 Establishment and Permitted Uses of LIP Account....................................9 

Section 5.05 Establishment and Permitted Uses of Collection Account .........................9 

Section 5.06 Establishment and Permitted Uses of Liquidity Reserve Account and 

Litigation Reserve Account ........................................................................9 

ARTICLE VI DISTRIBUTIONS AND ALLOCATIONS..............................................................9 

Section 6.01 Distributions ...............................................................................................9 

Section 6.02 Allocations..................................................................................................9 

ARTICLE VII ACCOUNTING AND TAXATION .......................................................................9 

Section 7.01 Fiscal Year..................................................................................................9 

i 
Section 7.02 Maintenance of Books and Records ...........................................................9 

Section 7.03 Annual Financial Statements ....................................................................10 

Section 7.04 Taxation....................................................................................................10 

Section 7.05 Records Retention.....................................................................................10 

ARTICLE VIII RESTRICTIONS ON DISPOSITION OF COMPANY INTERESTS ................10 

Section 8.01 Limitations on Disposition of Company Interests ....................................10 

Section 8.02 Change of Control ....................................................................................10 

Section 8.03 Additional Provisions Relating to Permitted Dispositions .......................11 

Section 8.04 Effect of Permitted Dispositions...............................................................11 

Section 8.05 Effect of Prohibited Dispositions .............................................................12 

Section 8.06 Distributions After Disposition ................................................................12 

Section 8.07 Resignation; Dissolution...........................................................................12 

ARTICLE IX DISSOLUTION AND WINDING-UP OF THE COMPANY ...............................13 

Section 9.01 Dissolution................................................................................................13 

Section 9.02 Winding-Up Procedures ...........................................................................13 

ARTICLE X QUALIFIED TRANSFEREES................................................................................14 

Section 10.01 Qualified Transferees ...............................................................................14 

ARTICLE XI MANAGER LIABILITY .......................................................................................17 

Section 11.01 Liability of Manager.................................................................................17 

ARTICLE XII MISCELLANEOUS..............................................................................................18 

Section 12.01 Waiver of Rights of Partition and Dissolution .........................................18 

Section 12.02 Entire Agreement......................................................................................18 

Section 12.03 Governing Law; Jurisdiction ....................................................................18 

Section 12.04 Third Party Beneficiaries..........................................................................18 

Section 12.05 Expenses ...................................................................................................19 

Section 12.06 Waivers and Amendments ........................................................................19 

Section 12.07 Notices......................................................................................................19 

Section 12.08 Counterparts; Facsimile Signatures ..........................................................21 

Section 12.09 Successors and Assigns ............................................................................21 

Section 12.10 Construction..............................................................................................21 

Section 12.11 Compliance With Law; Severability ........................................................22 

Section 12.12 Power of Attorney ....................................................................................23 

Section 12.13 Jurisdiction; Venue and Service ...............................................................23 

Section 12.14 Waiver of Jury Trial. ..............................................................................24 

ii 
INDYMAC VENTURE, LLC 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT
 

THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (as the same 

may be amended or modified from time to time in accordance with the terms hereof, this 

“Agreement”), is made and effective as of March 19, 2009 by and among the Federal Deposit 

Insurance Corporation as Receiver for IndyMac Federal Bank, FSB (the “Initial Member”) and 

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

RECITALS 

WHEREAS, the Initial Member has formed the Company as a Delaware limited liability 

company for the purpose of carrying on the Business (as defined in Annex I hereto); 

WHEREAS, the parties desire to set forth herein the terms and conditions of the 

foregoing; 

WHEREAS, concurrently with the execution hereof, the Initial Member and the 

Company shall enter into an Asset Contribution and Assignment Agreement (the “Contribution 

Agreement”) pursuant to which, among other things, the Initial Member shall contribute the 

Assets (as defined in Annex I hereto) to the Company; 

WHEREAS, following such contribution by the Initial Member, the Initial Member shall 

transfer to OneWest Ventures Holdings LLC all of its interest in the Company, and OneWest 

Ventures Holdings LLC shall agree to become a party to and be bound by this Agreement as the 

sole “Member” pursuant to a Limited Liability Company Interest Sale and Assignment 

Agreement (the “LLC Interest Sale Agreement”) (the consummation of such transactions, the 

“Closing”); and 

WHEREAS, concurrently with the execution hereof, the Initial Member and the 

Company shall enter into a Participation and Servicing Agreement (the “Participation 

Agreement”) pursuant to which, among other things, the Company will transfer and convey to 

the Initial Member, as Participant, the Participation Interest. 

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and 

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

sufficiency of which are hereby acknowledged, the parties hereto agree as follows. 

ARTICLE I 

CERTAIN DEFINITIONS 

Section 1.01 Definitions. Initially capitalized terms used and not defined herein shall 

have the meanings assigned to them in Annex I hereto, which is hereby incorporated into this 

Agreement as if set forth in full herein. 
ARTICLE II 

ORGANIZATION OF THE COMPANY 

Section 2.01 Formation. 

(a) The Company was formed as a limited liability company pursuant to the 

Act on March 6, 2009 upon the filing of the Certificate of Formation of the Company (the 

“Certificate”), a copy of which is attached as Exhibit A hereto, with the Secretary of State of the 

State of Delaware. The Certificate shall not be amended except to change the registered agent or 

office of the Company. 

(b) The Initial Member hereby agrees to be, and is hereby agreeing to be 

admitted as, the sole member of the Company until the Closing. The Company shall at all times 

have no more than one member. 

Section 2.02 Name. 

(a) The name of the Company shall be “IndyMac Venture, LLC”. 

(b) The Business shall be conducted only under the name of the Company or 

such other name or names that comply with applicable law as the Member may select from time 

to time. 

Section 2.03 Organizational Contributions and Actions; Initial Transfer. 

(a) As soon as practicable after the execution hereof, the Initial Member shall 

contribute to the Company the Assets in accordance with the provisions of the Contribution 

Agreement (such date, the “Contribution Date”). 

(b) Upon the consummation of the transaction contemplated in 

Section 2.03(a), the Initial Member shall own 100% of the limited liability company interests in 

the Company. 

Section 2.04 Registered Office; Chief Executive Office. The Company, at its own 

expense, shall maintain a registered office and registered agent in Delaware to the extent 

required by the Act, which office and agent shall be as determined by the Manager from time to 

time and which shall be set forth in the Certificate. Initially (and until otherwise determined by 

the Manager), the registered office in Delaware shall be, and the name and address of the 

Company’s registered agent in Delaware shall be, as specified in the Certificate as originally 

filed, which may be amended by the Manager from time to time as necessary to correctly reflect 

the name and address of the Company’s registered agent. The chief executive office of the 

Company shall be located at 888 East Walnut Street, Pasadena, CA, or such other place as shall 

be determined by the Manager from time to time. 

2
 
Section 2.05 Purpose; Duration. 

(a) The purpose of the Company is to engage in and conduct the Business, 

directly or, to the extent specifically authorized in this Agreement, indirectly through other 

Persons. Without limiting the foregoing, the Company shall not form or have any Subsidiaries 

unless authorized in or pursuant to this Agreement. The Company shall have all powers 

necessary, desirable or convenient, or which the Manager deems necessary, desirable or 

convenient, and may engage in any and all activities necessary, desirable or convenient, or which 

the Manager deems necessary, desirable or convenient, to accomplish the purposes of the 

Company or consistent with the furtherance thereof. 

(b) Subject to Section 9.01, the Company shall continue in existence 

perpetually. 

Section 2.06 Single Purpose Limitations. Notwithstanding any provision hereof or of 

any other document governing the formation, management or operation of the Company to the 

contrary, the following shall govern for so long as the Participation Agreement remains in effect: 

Except to the extent permitted hereunder or under the Ancillary Documents, (i) the Company 

shall not incur or assume any Debt; (ii) the Company shall not consolidate or merge with or into 

any other Person, convert into any other type of Person or convey or transfer its properties and 

assets substantially as an entirety to any entity; and (iii) to the fullest extent permitted by law, the 

Company shall not be dissolved, liquidated or terminated, in each case without the consent of the 

Member and the Participant. 

Section 2.07 Limitations on the Company’s Activities. This Section 2.07 is being 

adopted in order to comply with certain provisions required in order to qualify the Company as a 

“special purpose” entity. 

(a) For so long as the Participation Agreement is in effect, the Member shall 

cause the Company to do or cause to be done all things necessary to preserve and keep in full 

force and effect its existence, rights (charter and statutory) and franchises, and the Member also 

shall cause the Company to: 

(i) maintain financial statements separate from any Affiliate, although 

it may be included in the consolidated financial statements of its parent or ultimate parent 

in accordance with GAAP; 

(ii) at all times hold itself out to the public as a legal entity separate 

from the Member and any other Person; 

(iii) file its own tax returns, if any, as may be required under applicable 

law, to the extent (1) it is not part of a consolidated group filing a consolidated return or 

returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay 

any taxes so required to be paid under applicable law; 

(iv) except as contemplated hereby or by the Ancillary Documents, not 

commingle its assets with assets of any other Person; 

3
 
(v) conduct its business in its own name and strictly comply with all 

organizational formalities to maintain its separate existence; 

(vi) pay its own liabilities only out of its own funds; 

(vii) maintain an arm’s length relationship with any Affiliate upon 

terms that are commercially reasonable and that are no less favorable to the Company 

than could be obtained in a comparable arm’s length transaction with an unrelated 

Person; 

(viii) pay the salaries of its own employees, if any and maintain, or cause 

to be maintained, a sufficient number of employees, if any, in light of its contemplated 

business operations; 

(ix) not hold out its credit or assets as being available to satisfy the 

obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts 

of any other Person; 

(x) allocate, fairly and reasonably, shared expenses, including any 

overhead for shared office space; 

(xi) use separate stationery, invoices and checks; 

(xii) except as contemplated hereby or by the Ancillary Documents, not 

pledge its assets for the benefit of any other Person, or make any loans or advances to any 

other Person; provided that the Company may invest its funds in interest bearing accounts 

held by any bank that is not a Related Person and make advances in accordance with the 

Participation Agreement; 

(xiii) correct any known misunderstanding regarding its separate 

identity; and 

(xiv) maintain adequate capital in light of its contemplated business 

purpose, transactions and liabilities, if any. 

(b) The failure of the Company, or the Member on behalf of the Company, to 

comply with any of the foregoing covenants or any other covenants contained in this Agreement 

shall not affect the status of the Company as a separate legal entity or the limited liability of the 

Member. 

(c) So long as the Participation Agreement is in effect, the Member shall not 

permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to 

which the Participant has not provided its written consent, and the Member also shall not cause 

or permit the Company to: 

(i) except as contemplated hereby or by the Ancillary Documents, 

Guarantee any obligation of any Person, including any Related Person; 

4
 
(ii) engage in any business unrelated to the Business; 

(iii) have any assets other than those related to the Business; 

(iv) incur, create or assume any Debt other than as expressly permitted 

hereby or by the Ancillary Documents; 

(v) make or permit to remain outstanding any loan or advance to, or 

own or acquire any stock or securities of, any Person, except that the Company may 

invest in those investments permitted under the Ancillary Documents and may make any 

advance required or expressly permitted to be made pursuant to any provisions of the 

Ancillary Documents and permit the same to remain outstanding in accordance with such 

provisions; 

(vi) to the fullest extent permitted by law, engage in any dissolution, 

liquidation, consolidation, merger, asset sale or transfer of ownership interests other than 

such activities as are expressly permitted pursuant to any provision of the Ancillary 

Documents and subject to obtaining any approvals required under this Agreement; or 

(vii) except for any Ownership Entity, or as contemplated or permitted 

by the Participation Agreement, form, acquire or hold any Subsidiary. 

ARTICLE III 

MANAGEMENT AND OPERATIONS OF THE COMPANY 

Section 3.01 Management of the Company’s Affairs. 

(a) Prior to the Closing, the management of the Company is vested 

exclusively in the Initial Member, which is hereby appointed to act as the Manager. From and 

after the Closing, the management of the Company shall be vested exclusively in the Member, 

which is hereby appointed as the Manager effective as of the Closing. Subject to the terms and 

conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, 

and shall, manage the business and affairs of the Company in accordance with this Agreement. 

The Manager shall not resign, may not assign or delegate its responsibilities to any other Person, 

and shall serve as such until such time, if any, as (i) the Member’s Company Interest is Disposed 

of in accordance with the terms of this Agreement and the transferee is admitted as the new, sole 

Member, in which case the transferee Member shall, effective upon such Disposition, be 

appointed the Manager, or (ii) the Manager is otherwise removed and replaced or the Company 

is dissolved in accordance with the terms of this Agreement. The Manager shall devote such 

time to the affairs of the Company as is necessary to manage the Company as set forth in this 

Agreement. The Member hereby expressly acknowledges that this Agreement constitutes a 

personal services contract between the Member, as Manager, on the one hand, and the Company, 

on the other hand. Nothing in this Section 3.01 eliminates, limits or otherwise modifies any of 

the express terms of this Agreement or any liability, obligation or covenant of any Person 

hereunder. 

5
 
(b) Except as otherwise specifically provided in this Agreement and without 

limitation of the powers expressly granted to the Manager under any other provision of this 

Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall 

be identical to the authority, duties (including fiduciary duties) and functions of the board of 

directors and the officers of a corporation organized under the Delaware General Corporation 

Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no 

authority to take or authorize the taking of any action in contravention of any express term of this 

Agreement. 

(c) No Person dealing with the Company or the Manager shall be required to 

determine, and any such Person may conclusively assume and rely upon, the authority of the 

Manager to execute any instrument or make any undertaking on behalf of the Company. No 

Person dealing with the Company or the Manager shall be required to determine any facts or 

circumstances bearing upon the existence of such authority. Without limitation of the foregoing, 

any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed 

by the Manager as to: 

(i) the identity of the Member; 

(ii) the existence or non-existence of any fact or facts that constitute a 

condition precedent to acts by the Manager or are in any other manner germane to the 

affairs of the Company; 

(iii) the identity of Persons who are authorized to execute and deliver 

any instrument or document of or on behalf of the Company; or 

(iv) any act or failure to act by the Company or any other matter 

whatsoever involving the Company or the Member. 

(d) It is understood and agreed that (i) nothing contained in this Agreement 

creates any duty on behalf of the Participant, (ii) the Member and the Company hereby expressly 

waive any fiduciary duties that may otherwise be deemed to be owed by the Participant to the 

Member or the Company, and (iii) the Participant shall be entitled to act and exercise any right of 

approval or consent that it has under this Agreement in its interest, in its sole and absolute 

discretion, without regard to and against the interests of the Member or the Company. 

(e) Unless and to the extent reimbursement is due pursuant to a Related Party 

Agreement, the Company shall not be liable for, and the Manager shall not seek reimbursement 

from the Company or the Member for, any expenses or costs incurred after the formation of the 

Company by the Manager and/or any Related Person on behalf of or for the benefit of the 

Company (including any costs or expenses incurred as a result of the performance of its 

obligations under Section 3.02). 

(f) This Section 3.01 is subject to any express requirement of direct 

Participant consent set forth elsewhere in this Agreement, including to Sections 2.06, 2.07(c), 

8.01, 8.02, 8.07(a) and 12.06. Any purported action by the Company requiring the consent of 

Participant under this Agreement shall be null and void ab initio unless and until Participant’s 

consent is obtained. 

6
 
Section 3.02 Employees and Services. After the Closing, the Manager shall cause to be 

made available to the Company, from time to time, employees, facilities and support services in 

a manner and to an extent reasonably required for it to fulfill its duties and obligations as 

Manager and for the day-to-day operation of the Business, including the Manager’s employees, 

facilities and support services. If necessary to meet the foregoing requirements, the Manager 

shall enter into contractual arrangements to secure employees, facilities and support services 

from third parties (including its Affiliates), provided, however, that the Company shall at all 

times provide for the servicing of the Loans through a servicer under contract with the Company 

and the safekeeping of the Notes, other Loan Documents and Related Agreements by a document 

custodian under contract with the Company, in each case in accordance with the Participation 

Agreement. Notwithstanding anything to the contrary contained in this Section 3.02, (a) no 

employees of the Member or any third party (including any Affiliate) shall be deemed to be 

employees of the Company, (b) any contractual relationships entered into to provide employees, 

facilities or support services shall be relationships between the third parties (or Affiliates) and the 

Member (and not the Company) and shall not relieve the Member of its obligations or any 

liability hereunder, and (c) no expenses incurred to secure or maintain employees, facilities or 

support services shall be an expense of the Company unless the same is expressly reimbursable 

by the Company pursuant to the terms of the Participation Agreement or is otherwise expressly 

set forth in this Agreement to be an expense of the Company. 

Section 3.03 Related Party Agreements. Neither the Company nor any of its 

Subsidiaries shall enter into any current or future contract, agreement, commitment or 

arrangement (including any agreement to sell Company Property, incur any Debt or Guarantee 

any obligations) with any Related Person (a “Related Party Agreement”), except as may 

otherwise be expressly provided herein or in any Ancillary Document or with the prior written 

consent of the Participant. 

Section 3.04 Real Property. The Company shall not take title in its own name to any 

real property with respect to which there is an Environmental Hazard. 

ARTICLE IV 

RIGHTS AND DUTIES OF, AND RESTRICTIONS ON, MEMBERS 

Section 4.01 Filings; Duty of the Members to Cooperate. The Manager shall promptly 

cause to be executed, delivered, filed, recorded or published, as appropriate, and any former 

Member will, as requested by the Manager from time to time but at the sole expense of the 

Company, execute and deliver, (i) all certificates, documents and other instruments that the 

Manager deems necessary or appropriate to form, qualify or continue the existence or 

qualification of the Company as a limited liability company in the State of Delaware or as a 

foreign limited liability company in all other jurisdictions in which the Company may, or may 

desire to, conduct business or have Company Property, (ii) any amendment to the Certificate or 

any instrument described in clause (i) required because of, or in order to effectuate, an 

amendment to this Agreement, or any change in the membership of the Company, in accordance 

with the terms hereof, (iii) all certificates, documents and other instruments (including 

conveyances and a certificate of cancellation) that the Manager deems necessary or appropriate 

to reflect the dissolution and liquidation of the Company pursuant to the terms of this 

7
 
 

Agreement, and (iv) such other certificates, documents and other instruments as are required by 

law or by any Governmental Authority to be executed by them in connection with the Business 

as conducted or proposed to be conducted by the Company from time to time. In addition, as 

soon as reasonably practical after the date hereof, the Company shall apply for and, thereafter, 

use its reasonable best efforts to obtain, as quickly as possible, and maintain all such licenses as 

are required to conduct the Business, including qualifications to conduct business in 

jurisdictions other than Delaware and licenses to purchase, own or service the Loans, if the 

failure to so obtain such licenses would reasonably be expected to result in the imposition of 

fines, penalties or other liabilities on the Company, claims and defenses being asserted against 

the Company (including counterclaims and defense asserted by borrowers under the Loans), or 

materially adversely affect the Company or the Company’s ability to foreclose on the collateral 

securing or otherwise realize the full value of any Loan or other Company Property. 

Section 4.02 Certain Restrictions and Requirements. 

(a) The Member may not use or possess Company Property other than for a 

Company purpose, except as provided under license or other contractual arrangements. The 

Member shall not have any authority to bind, or otherwise to act on behalf of, the Company 

except pursuant to authority expressly granted herein or pursuant to authority granted by the 

Manager in accordance with the terms hereof. 

(b) The Company shall not purchase or redeem the Member’s Company 

Interest, directly or indirectly. 

(c) No Person may or shall be admitted as a Member in the Company except 

pursuant to and in accordance with Article VIII hereof. 

(d) The Member will at all times meet the qualifications of a Qualified 

Transferee. 

(e) The Member shall cause the Company to become a member of MERS on 

or before March 19, 2009 and, for so long as any Loan is registered on the MERS system, 

maintain itself as a MERS member in good standing (including paying all dues and other fees 

required to maintain its membership and complying with MERS policies and procedures). 

ARTICLE V 

BORROWINGS; CONTRIBUTIONS; OTHER MATTERS 

Section 5.01 Capital Contributions. Except as otherwise expressly provided in this 

Agreement or the Act, no Member (or former Member or the Initial Member) shall be obligated 

to make any contribution of capital to the Company or have any liability for the debts and 

obligations of the Company. This Section 5.01 is in furtherance of, and not in limitation of, 

Section 18-303(a) of the Act. 

Section 5.02 No Reliance by Parties Extending Credit. Without limitation of the 

generality of Section 12.04 hereof, the provisions of Section 2.03 are hereby expressly stated not 

to be for the benefit of any Person (including any Person now or hereafter extending credit to the 

8
 
Company), other than the Member, the Initial Member and the Company, and it is the intent of 

the Member, the Initial Member and the Company that reliance on the provisions of Section 2.03 

by any such Person other than the Member, the Initial Member and the Company should be 

deemed unreasonable for purposes of Section 18-502(b) of the Act. 

Section 5.03 No Liens. Notwithstanding anything to the contrary contained in this 

Agreement, except for the security interest granted to the Participant pursuant to the Participation 

Agreement, the Company shall not encumber or permit any Lien to be placed on any Company 

Property or the proceeds therefrom. 

Section 5.04 Establishment and Permitted Uses of LIP Account. The Company shall, 

and hereby is authorized to, cause to be established and maintained the LIP Account in 

accordance with the Participation Agreement, and the funds deposited therein shall be disbursed 

and used solely as provided therein. 

Section 5.05 Establishment and Permitted Uses of Collection Account. The Company 

shall, and hereby is authorized to, cause to be established and maintained the Collection Account 

in accordance with the Participation Agreement, and the funds deposited therein shall be 

disbursed and used solely as provided therein. 

Section 5.06 Establishment and Permitted Uses of Liquidity Reserve Account and 

Litigation Reserve Account. The Company hereby is authorized to cause to be established and 

maintained a Liquidity Reserve Account and a Litigation Reserve Account in accordance with 

the Participation Agreement and, in the event the Company elects to establish such accounts, the 

funds deposited therein shall be disbursed and used solely as provided in the Participation 

Agreement. 

ARTICLE VI 

DISTRIBUTIONS AND ALLOCATIONS 

Section 6.01 Distributions. Subject to applicable law and any limitations contained 

elsewhere in this Agreement, the Manager may elect from time to time to distribute Distributable 

Cash to the Member. 

Section 6.02 Allocations. All income and loss of the Company shall be allocated to the 

Member. 

ARTICLE VII 

ACCOUNTING AND TAXATION 

Section 7.01 Fiscal Year. The books and records of the Company shall be kept on an 

accrual basis and the fiscal year of the Company shall commence on January 1 and end on 

December 31. 

Section 7.02 Maintenance of Books and Records. At all times during the continuance 

of the Company, the Manager shall keep or cause to be kept, at the chief executive office 

9
 
 

referred to in Section 2.04, full and complete books of account. The books of account shall be 

maintained in a manner that provides sufficient assurance that: 

(a) transactions of the Company are executed in accordance with the general 

or specific authorization of the Manager consistent with the provisions of this Agreement; and 

(b) transactions of the Company are recorded in such form and manner as will 

(i) permit preparation of federal, state and local income and franchise tax returns and information 

returns in accordance with this Agreement and as required by law, (ii) permit preparation of the 

Company’s financial statements in accordance with GAAP, and as otherwise set forth herein, 

and the provisions of the reports required to be provided hereunder, and (iii) maintain 

accountability for the Company’s assets. 

Section 7.03 Annual Financial Statements. As soon as practicable following, but no 

later than 90 days after, the end of each fiscal year of the Company, the Manager shall prepare 

and deliver to the Member and the Participant an audited balance sheet of the Company as at the 

end of such fiscal year, and audited statements of operations and cash flow of the Company for 

such fiscal year, each prepared in accordance with GAAP and accompanied by the Accountants’ 

report thereon, which shall be certified in the customary manner by the Accountants. 

Section 7.04 Taxation. The Company shall be treated as an entity that is disregarded as 

an entity separate from its owner for federal income tax purposes pursuant to Treasury 

Regulations Section 301.7701-3. 

Section 7.05 Records Retention. Until the date that is the later of ten (10) years from 

the date hereof or three (3) years after the date on which the final accounting is delivered to the 

Member and the Participant pursuant to Section 9.02, in addition to any requirements set forth in 

the Participation Agreement, the Manager shall retain and, upon reasonable advance notice and 

during normal business hours, make available to the Member and the Participant (and any 

representatives or agents of the same, including any Governmental Authority) for review and 

copying all books and records of the Company. 

ARTICLE VIII 

RESTRICTIONS ON DISPOSITION OF COMPANY INTERESTS 

Section 8.01 Limitations on Disposition of Company Interests. Except as otherwise 

provided in this Article VIII or in connection with the Closing, the Member shall not, directly or 

indirectly, Dispose of all or any part of its Company Interest or any of its rights or interests under 

this Agreement unless (i) the transferee is a Qualified Transferee and (ii) it first obtains the prior 

written consent of the Participant (which consent shall not be unreasonably withheld, delayed or 

conditioned). In addition, the Member shall not Dispose of less than all of its Company Interest. 

Section 8.02 Change of Control. Except as otherwise provided in this Article VIII, the 

Member will not permit any Change of Control to occur unless (i) it first obtains the prior written 

consent of the Participant (which consent shall not be unreasonably withheld, delayed or 

conditioned) and (ii) following such Change of Control, the Member would be a Qualified 

Transferee. 

10
 
Section 8.03 Additional Provisions Relating to Permitted Dispositions. Except as 

otherwise expressly provided in this Section 8.03, the following provisions shall apply to each 

Permitted Disposition under this Article VIII: 

(a) The Member shall not take, or cause the Company to take, any action that 

involves any material risk (other than any risk attributable to the fact that such action might lead 

to consummation of the proposed Permitted Disposition) of resulting in a material adverse effect 

on the business, financial condition, properties or prospects of the Company. In the event the 

Member proposes to make a Permitted Disposition, the Member shall be required to pay any and 

all filing and recording fees, fees of counsel and accountants and other out-of-pocket costs and 

expenses reasonably incurred by the Participant and/or the Company in connection with such 

Permitted Disposition. 

(b) The transferee in a Permitted Disposition shall deliver to the Company, 

with a copy to the Participant, an agreement, in form and substance reasonably satisfactory to the 

Participant, by which such transferee shall (i) agree to become a party to and be bound by this 

Agreement as the “Member,” agree to be appointed as the Manager, and without limitation of the 

generality of the foregoing, agree to be bound by the other terms of Section 8.04 hereof, 

(ii) assume and agree to perform when due all of the obligations of the transferor Member under 

this Agreement, and (iii) represent and warrant that it complies with the requirements set forth in 

Article X. 

(c) In connection with each Permitted Disposition, the transferor Member and 

the transferee shall deliver to the Company and the Participant such other documents and 

instruments as the Participant reasonably may request and which are required to effect the 

Permitted Disposition and substitute the transferee as the Member. 

Section 8.04 Effect of Permitted Dispositions. 

(a) Upon consummation of any Permitted Disposition: 

(i) the transferee shall be admitted as a Member of the Company and 

be deemed to be a party to this Agreement as the “Member” and shall be appointed as the 

Manager; 

(ii) the transferred Company Interest shall continue to be subject to all 

the provisions of this Agreement, including the remainder of this Article VIII, and the 

transferee Member shall have the same status as the transferor Member had at the time of 

consummation of such Permitted Disposition and, without limiting the generality of the 

foregoing, any outstanding breach, misrepresentation, violation or default (with respect to 

this Agreement or any Ancillary Document) by any direct or indirect predecessor to the 

transferee as the Member, or by any Related Person of any such predecessor Member, 

shall be deemed to constitute an outstanding breach, misrepresentation, violation or 

default as the case may be, by the transferee Member; 

(iii) subject to Section 8.04(b) and the last sentence of Section 12.09, 

the transferor Member shall cease to be the Member of the Company (and accordingly, 

except as expressly otherwise provided in Section 8.04(b) or the last sentence of 

11
 
Section 12.09, shall cease to be responsible for the payment or performance of any of the 

obligations or liabilities under this Agreement of the Member). 

(b) No Permitted Disposition (and no resulting withdrawal or resignation of 

the transferor Member from the Company) shall: 

(i) relieve the transferor Member of any of the obligations or 

liabilities of the transferor Member under this Agreement required to have been paid or 

performed prior to the consummation of such Permitted Disposition (or of any liability it 

may have arising out of any breach, misrepresentation, violation or default by the 

transferor Member prior to such consummation); 

(ii) result in the termination of, relieve the transferor Member (or any 

Related Person thereof) of, or otherwise affect, any of the obligations or liabilities of the 

transferor Member or any Related Person thereof under, any Related Party Agreement 

(such Related Party Agreements to continue in effect in accordance with their respective 

terms), except to the extent expressly provided in such Related Party Agreement; or 

(iii) dissolve the Company. 

Section 8.05 Effect of Prohibited Dispositions. No actual or purported Disposition of 

any Company Interest of the Member (or any portion thereof), or of any other right or interest of 

the Member under this Agreement, whether voluntary or involuntary, in violation of any 

provision of this Agreement shall be valid or effective. The transferor of any Company Interest 

(or portion thereof) Disposed of in violation of any provision of this Agreement, until such 

Disposition or purported Disposition shall be rescinded, shall not be entitled to, and hereby 

specifically waives, any right to receive Company distributions from and after the date of such 

Disposition or purported Disposition or failure to comply, as the case may be. Notwithstanding 

the foregoing, to the extent that the Member would have been entitled to Company distributions 

but for the preceding provisions of this Section 8.05 (“Omitted Distributions”), if and when 

such Disposition or purported Disposition shall be rescinded, the Member shall be entitled to 

receive all such Omitted Dispositions (but no interest shall be paid thereon with respect to the 

period between the date such Omitted Dispositions would have been made but for this 

Section 8.05 and the date they are actually made). 

Section 8.06 Distributions After Disposition. Distributions with respect to a Company 

Interest made on or after the effective date of the Permitted Disposition of such Company 

Interest shall be made to the transferee Member with respect to such Company Interest, 

regardless of when such distributions accrued on the books of the Company. 

Section 8.07 Resignation; Dissolution. 

(a) The Member may not withdraw or resign from the Company, except (i) in 

connection with the Disposition by the Initial Member of its entire Company Interest as 

contemplated in the recitals, (ii) in connection with a Permitted Disposition made in accordance 

with the applicable provisions of this Article VIII or (iii) with the prior written consent of the 

Participant. 

12
 
(b) The Member covenants that it shall not allow a Dissolution Event to occur 

with respect to itself. 

(c) Section 18-304 of the Act shall not apply to the Company. Nothing in this 

Section 8.07(c) shall limit the terms of Section 9.01 hereof. 

(d) Except as is otherwise expressly provided in this Agreement, the Member 

shall not be entitled to receive any payment pursuant to Section 18-604 of the Act. 

ARTICLE IX 

DISSOLUTION AND WINDING-UP OF THE COMPANY 

Section 9.01 Dissolution. A dissolution of the Company shall take place upon the first 

to occur of the following: 

(i) the agreement by the Member and the Participant to dissolve the 

Company; 

(ii) the sale of all or substantially all of the Company Property (other 

than cash and cash equivalent instruments), including as an entirety or substantially as an 

entirety; or 

(iii) without limitation of clause (i) above, a Dissolution Event or an 

Insolvency Event occurs with respect to the Member or a Person that Controls the 

Member. 

Section 9.02 Winding-Up Procedures. If a dissolution of the Company pursuant to 

Section 9.01 occurs, subject to the Company’s compliance with its obligation under the other 

agreements to which it is a party, the other terms and conditions of this Agreement or the 

Ancillary Documents, the Manager shall proceed as promptly as practicable to wind up the 

affairs of the Company in an orderly and businesslike manner. A final accounting shall be made 

by the Manager. As part of the winding up of the affairs of the Company, the following steps 

will be taken: 

(a) The assets of the Company shall be sold except to the extent that some or 

all of the assets of the Company are retained by the Company for distribution to the Member as 

hereinafter provided. 

(b) The Company shall comply with Section 18-804(b) of the Act. 

(c) Distributions of the assets of the Company after a dissolution of the 

Company shall be conducted as follows: 

(i) first, to creditors, including the Participant (which for all purposes 

in its capacity as Participant shall constitute a creditor) and the Member or former 

Members who are creditors, to the extent otherwise permitted by law, in satisfaction of 

liabilities of the Company (whether by payment or the making of reasonable provision 

13
 
for payment thereof) other than liabilities for which reasonable provision for payment has 

been made and liabilities for distributions to the Member and former Members under 

Section 18-601 of the Act; 

(ii) next, to the Member and former Members in satisfaction of 

liabilities (if any) for distributions under Section 18-601 of the Act; and 

(iii) next, to the Member. 

ARTICLE X 

QUALIFIED TRANSFEREES 

Section 10.01 Qualified Transferees. Each Member, other than the Initial Member, shall 

at all times be in compliance with the following (and any proposed transferee of any Company 

Interest that is in compliance with the following shall be deemed a “Qualified Transferee”): 

(a) Organization; Good Standing; Licenses. The Member (i) is a Single 

Purpose Entity duly organized, validly existing and in good standing under the laws of the state 

of its organization, (ii) has qualified or will qualify to do business as a foreign corporation, 

partnership or other entity and will remain so qualified, and is and will remain in good standing, 

in each jurisdiction in which the character of its properties or the nature of its activities makes 

such qualification necessary and in which failure to so qualify would have a material adverse 

effect upon the Member or its ability to perform its obligations hereunder, (iii) has full power to 

own its property, to carry on its business as presently conducted, and to enter into and perform its 

obligations under this Agreement, (iv) has all licenses or other governmental approvals necessary 

to perform its obligations hereunder; and (v) has a net worth calculated in accordance with 

GAAP of not less than $5,000,000 on the date the Member becomes a party to this Agreement 

and will maintain such minimum net worth so long as the value of the Company Property 

exceeds $25,000,000. 

(b) Authorization; No Violation. The execution and delivery by the Member 

of this Agreement and the consummation of the transactions contemplated hereby have been 

duly and validly authorized by all necessary action. Neither the execution and delivery of this 

Agreement, nor the consummation of the transactions herein contemplated, nor compliance with 

the provisions hereof, will conflict with or result in a breach of, or constitute a default under, 

(i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order 

binding on the Member or its properties, (ii) the constituent documents of the Member, or 

(iii) any of the provisions of any indenture, mortgage, contract or other instrument to which the 

Member is a party or by which it is bound or result in the creation or imposition of any Lien 

upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other 

instrument. 

(c) Governmental Approvals. All actions, approvals, consents, waivers, 

exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to 

be taken, given or obtained, as the case may be, by or from any Governmental Authority that are 

necessary in connection with the execution and delivery by the Member of this Agreement and 

14
 
the consummation of the transactions contemplated hereby and the performance of its obligations 

hereunder, have been duly taken, given or obtained, as the case may be, are in full force and 

effect, are not subject to any pending proceedings or appeals (administrative, judicial or 

otherwise) and either the time within which any appeal therefrom may be taken or review thereof 

may be obtained has expired or no review thereof may be obtained or appeal therefrom taken. 

(d) No Litigation. On the date the Member becomes a party to this 

Agreement, there is no action, suit, proceeding or investigation pending or threatened against the 

Member before any Governmental Authority. 

(e) No Violation of Orders, Decrees, etc. The Member is not in default with 

respect to any order or decree of any court or any order, rule, regulation or demand of any 

Governmental Authority. 

(f) Third Party Consents. Except for those consents, approvals, 

authorizations, orders, waivers, declarations, filings and registrations that have been or will be 

obtained or made prior to the date the Member becomes a party to this Agreement, no consent, 

approval, authorization, order or waiver of, or declaration, filing or registration with, any court, 

governmental agency or body, or non-governmental entity is required for the execution, delivery 

and performance of this Agreement or the consummation of all the transactions herein 

contemplated and the performance of its obligations hereunder. 

(g) Owners are Accredited Investors. All of the equity owners of the Member 

are “accredited investors,” as that term is defined in Rule 501 under the Securities Act of 1933, 

as amended (the “Securities Act”). 

(h) Knowledge and Experience. The Member, either by itself or through its 

advisers and principals, has such knowledge and experience in the origination, servicing, sale 

and/or purchase of performing and non-performing or distressed construction and lot loans, as 

well as financial and business matters, as to enable the Member to utilize the information made 

available to it with respect to the Company Interest and the Company Property to evaluate the 

merits and risks of a purchase of the Company Interest and, indirectly, the Company Property, 

and to make an informed decision with respect thereto. 

(i) Economic Risks. The Member acknowledges, understands and represents 

that it is able to bear the economic risks associated with the acquisition and ownership of the 

Company Interest and, indirectly, the Company Property, including the risk of a total loss of its 

investment in the Company and, indirectly, the Company Property and/or the risk that it may be 

required to hold the Company Interest and, indirectly, the Company Property for an indefinite 

period of time. 

(j) No Representations. The Member hereby acknowledges that, except as is 

otherwise expressly provided in this Agreement or the Contribution Agreement, none of the 

Initial Member or the FDIC or any Affiliate of either, or any of their respective officers, 

directors, employees, agents or contractors, makes or has made any representation or warranty 

regarding the Company Interest or the Assets, or the value of any property securing any Loan. 

15
 
(k) Due Diligence. The Member acknowledges and agrees that, whether or 

not information is available with respect to the Company Interest or the Company Property and 

whether or not it chooses to review any information that is or was made available to it regarding 

the Company’s Interest or the Company Property, the Member, by itself or through its advisers 

or principals, has the ability and shall be responsible for making its own independent 

investigation and evaluation of the Company Interest and the Company Property and the 

economic, credit or other risks involved in an acquisition of the Company Interest and, 

indirectly, the Company Property. Except as is otherwise expressly provided in this Agreement 

or the Contribution Agreement, none of the Initial Member or the FDIC or any Affiliate of either, 

or any of their respective officers, directors, employees, agents or contractors, makes and 

representation or warranty as to the completeness or accuracy of any information provided. 

(l) No Securities. The Member acknowledges and agrees that (i) neither the 

offer nor the sale of the Company Interest (and, indirectly, the Company Property) is intended to 

constitute an offer or sale of a “security” within the meaning of the Securities Act or any 

applicable federal or state securities laws, (ii) no inference that any of the Company Interest or 

the Company Property is a “security” under such federal or state securities laws shall be drawn 

from any of the certifications, representations or warranties made by any Person in this 

Agreement, (iii) it is not contemplated that any filing will be made with the Securities and 

Exchange Commission or pursuant to the “Blue Sky” or securities laws of any jurisdiction, and 

(iv) if any of the Company Interest or the Company Property is a security, such may not be 

resold or otherwise transferred by the Member except in accordance with any and all applicable 

securities and Blue Sky laws. 

(m) Resales. The Member is acquiring the Company Interest (and, indirectly, 

the Company Property) for its own account and not with a view toward resale in a distribution 

within the meaning of the Securities Act. 

(n) Resales in Compliance with Law. The Member will not (i) offer, pledge, 

sell or otherwise dispose of the Company Interest (or any interest therein) or any Company 

Property (or any interest therein or evidence thereof) to, or (ii) solicit any offer to buy or accept a 

transfer, pledge or other disposition of the Company Interest (or any interest therein) or any 

Company Property (or any interest therein or evidence thereof) from, or (iii) otherwise approach 

or negotiate with respect to the Company Interest (or any interest therein) or any Company 

Property (or any interest therein or evidence thereof) with, any person or entity in any manner, or 

take any other action, that would render the transfer to the Member of the Company Interest or 

any interest in any Company Property a violation of any law, rule, regulation or requirement 

relating to the issuance, regulation, registration or disposition of securities, nor will it so act, nor 

will it authorize any person or entity to so act, in any manner with respect to the Company 

Interest (or any interest therein) or any Company Property (or interest therein or evidence 

thereof). 

(o) Acquisition in Compliance with Law. The Member’s acquisition of the 

Company Interest and the resulting investment in the Company Property will comply with all 

applicable laws, rules, regulations and requirements, including any and all laws and/or 

restrictions imposed on resale of the Company Interest and the Company Property by federal and 

state securities or Blue Sky laws, rules, regulations or requirements. 

16
 
(p) Independent Evaluation. The Member has made an independent 

evaluation of the Company and its assets (including the Loans, related Loan files and any other 

Company Property and/or any electronic data made available to it pertaining to the Loans and the 

other Company Property held by the Company). The Member also has conducted such other 

investigations as it deems appropriate, including searches of Uniform Commercial Code, title, 

court, bankruptcy and other public records. The Member agrees and represents that it is entering 

into this Agreement solely on the basis of its own investigations and its judgment as to the value 

of the Company Interest and the nature, validity, enforceability, collectibility and value of the 

Company Property and all other facts material to their ownership, including to the legal matters 

and risks relating to the collection and enforcement, and the performance of any obligations 

under any of the Loans or any other Company Property in any jurisdiction. The Member further 

acknowledges that no employee or representative of the Initial Member or any Affiliate thereof, 

or any of their respective officers, directors, employees, agents or contractors, has been 

authorized to make any statements or representations other than those specifically contained in 

this Agreement or the Contribution Agreement. 

ARTICLE XI 

MANAGER LIABILITY 

Section 11.01 Liability of Manager. 

(a) Except as otherwise specifically provided in this Agreement (including in 

the other subsections of this Section 11.01), the duties (including fiduciary duties) and 

obligations owed to the Company and the Member by the Manager shall be as provided in 

Section 3.01(b) hereof. 

(b) The Manager may rely, and shall be protected in acting or refraining from 

acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, 

consent, order, bond, debenture or other paper or document reasonably believed by it to be 

genuine and to have been signed or presented by the proper party or parties. 

(c) The Manager may consult with legal counsel, accountants, appraisers, 

management consultants, investment bankers and other consultants and advisers selected by it, 

and any act taken or omitted to be taken in reliance upon the opinion of such Persons as to 

matters that the Manager reasonably believes to be within such Person’s professional or expert 

competence shall be conclusively presumed to have been done or omitted in good faith and in 

accordance with such opinion. 

(d) The Manager shall not be liable to the Company or any Member for its 

good faith reliance on the provisions of this Agreement. 

(e) The limitations and exculpation afforded by each provision of this 

Section 11.01 are cumulative and not exclusive. Nothing in this Section 11.01 is intended, or 

shall be deemed, to permit conduct that would otherwise constitute misappropriation of a trade 

secret of the Company under applicable law or conduct that, even disregarding the terms hereof, 

otherwise would be actionable by the Company or the Member. 

17
 
(f) The provisions of this Section 11.01 are for the benefit of the Manager. 

This Section 11.01 may be amended, modified or repealed in the manner set forth elsewhere in 

this Agreement, but any amendment, modification or repeal of this Section 11.01 or any 

provision hereof (including as a result of any amendment, modification or repeal of the Delaware 

General Corporation Law) shall (unless the Manager shall expressly have consented to such 

amendment, modification or repeal) be prospective only and shall (unless the Manager shall 

expressly have consented to such amendment, modification or repeal) not in any way affect the 

limitations on liability under this Section 11.01 as in effect immediately prior to such 

amendment, modification or repeal with respect to claims arising from or relating to matters 

occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of 

when such claims may be asserted. 

ARTICLE XII 

MISCELLANEOUS 

Section 12.01 Waiver of Rights of Partition and Dissolution. The Member hereby 

irrevocably waives all rights it may have at any time to maintain any action for division or sale of 

the Company Property as now or hereafter permitted under any applicable statutes or other laws. 

The Member hereby waives and renounces its rights to seek a court decree of dissolution or to 

seek the appointment of a court receiver for the Company as now or hereafter permitted under 

any applicable statutes or other laws. 

Section 12.02 Entire Agreement. This Agreement, together with any exhibit hereto (and 

any other agreements expressly contemplated hereby or thereby), constitutes the entire 

agreement and understanding, and supersedes all other prior agreements and understandings, 

both written and oral, between the Member or its Affiliates and the Company with respect to the 

subject matter hereof. The Member acknowledges that certain agreements or other instruments 

are being (or were) executed by the Company, the Member (or a former Member) and/or 

Affiliates of the Member (or a former Member) and the Participant simultaneously or otherwise 

in connection with the execution of this Agreement and that, notwithstanding anything to the 

contrary contained in the foregoing sentence of this Section 12.02, such agreements shall be 

effective and binding on the parties thereto in accordance with the terms thereof. 

Section 12.03 Governing Law; Jurisdiction. THIS AGREEMENT IS GOVERNED BY 

AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF 

DELAWARE, 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. In the event of a direct conflict between the 

provisions of this Agreement and any mandatory, non-waivable provision of the Act, such 

provision of the Act shall control to the extent necessary to eliminate such direct conflict. 

Nothing in this Agreement shall require any unlawful action or inaction by any Person. 

Section 12.04 Third Party Beneficiaries. The Participant is hereby constituted an express 

third party beneficiary of this Agreement. Subject to Section 11.01, (i) this Agreement is for the 

benefit solely of, and shall inure solely to the benefit of, the Member, the Company and the 

18
 
Participant, and (ii) this Agreement is not enforceable by any Person (including any creditor of 

the Company or of the Member) other than the Member, the Company and the Participant. 

Section 12.05 Expenses. Except as may otherwise be expressly provided herein or in 

any Ancillary Document, the Member shall pay its own expenses (including legal, accounting 

investment banker, broker or finders fees) incident to the negotiation and execution of this 

Agreement and any Ancillary Documents, the consummation of the transactions contemplated by 

Section 2.03 hereof and the performance of its obligations hereunder. 

Section 12.06 Waivers and Amendments. This Agreement may be amended or 

modified, and the terms hereof may be waived, only by a written instrument signed by the 

Member and the Participant. Except where a specific period for action or inaction is provided 

herein, no failure on the part of the Member or the Participant to exercise, and no delay on the 

part of the Member or Participant in exercising, any right, power or privilege hereunder shall 

operate as a waiver thereof; nor shall any waiver on the part of the Member or the Participant of 

any such right, power or privilege, or any single or partial exercise of any such right, power or 

privilege, preclude any other or further exercise thereof or the exercise of any other right, power 

or privilege. 

Section 12.07 Notices. All notices, requests, demands, and other communications 

required or permitted to be given or delivered under or by reason of the provisions of this 

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

or delivered by hand or by nationally recognized air courier service, directed to the address of 

such Person set forth below: 

If to the Company before the Closing, to: 

Manager, Structured Transactions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7008) 

Washington, D.C. 20429-0002 

Attention: George Alexander 

with a copy to: 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: Senior Counsel 

If to the Company after the Closing, to: 

IndyMac Venture, LLC 

888 East Walnut Street 

Pasadena, CA 91101-7211 

Attention: Steven T. Mnuchin 

19
 
with a copy to: 

Cleary Gottlieb Steen & Hamilton LLP 

One Liberty Plaza 

New York, NY 10006 

Attention: Paul E. Glotzer 

If to the Member before the Closing, to: 

Manager, Structured Transactions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7008) 

Washington, D.C. 20429-0002 

Attention: George Alexander 

with a copy to: 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: Senior Counsel 

If to the Member after the Closing, to: 

OneWest Ventures Holdings LLC 

888 East Walnut Street 

Pasadena, CA 91101-7211 

Attention: Steven T. Mnuchin 

with a copy to: 

Cleary Gottlieb Steen & Hamilton LLP 

One Liberty Plaza 

New York, NY 10006 

Attention: Paul E. Glotzer 

If to the Participant, to: 

Manager, Structured Transactions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7008) 

Washington, D.C. 20429-002 

Attention: George Alexander 

20
 
FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: Senior Counsel 

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 of the recipient. From time to time, any Person may designate a new 

address for purposes of notice hereunder by notice to such effect to the other Persons identified 

above. 

Section 12.08 Counterparts; Facsimile Signatures. 

(a) This Agreement may be executed in any number of counterparts, each of 

which shall be an original and all of which shall together constitute one and the same instrument. 

It shall not be necessary for any counterpart to bear the signature of all parties hereto. 

(b) This Agreement and any amendments hereto, to the extent signed and 

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

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

original signed version thereof delivered in person. No signatory to this Agreement shall raise 

the use of a facsimile machine or other electronic means to deliver a signature or the fact that any 

signature or agreement was transmitted or communicated through the use of a facsimile machine 

or other electronic means as a defense to the formation or enforceability of a contract and each 

such Person forever waives any such defense. 

Section 12.09 Successors and Assigns. Except as otherwise specifically provided in this 

Agreement (including in Article VIII), this Agreement shall be binding upon and inure to the 

benefit of the Member, the Company and the Participant and their respective Successors and 

assigns. Without limitation of Section 8.04, this Agreement, as in effect on the date that any 

particular Person shall cease to be the Member, shall continue to bind such Person in relation to 

the period during which it was the Member. 

Section 12.10 Construction. 

(a) Captions. Paragraph titles or captions contained in this Agreement are 

inserted only as a matter of convenience and for reference and in no way define, limit, extend or 

describe the scope of this Agreement or the intent of any provisions hereof. All Section and 

paragraph references contained herein shall refer to this Agreement unless otherwise specified. 

(b) References to Persons Exclusive. References to “Affiliates” “Related 

Persons” or “Subsidiaries” of a specified Person refer to, and include, only other Persons which 

from time to time constitute “Affiliates”, “Related Persons” or “Subsidiaries,” as the case may 

be, 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,” “Related Persons” or “Subsidiaries,” 

21
 
as the case may be, of such specified Person, except to the extent that any such reference 

specifically provides otherwise. A reference to the Member or other Person, in and of itself, 

does not, and shall not be deemed to, refer to or include any other Person having an interest in 

the Member or other Person (such as, without limitation, any stockholder or member of or 

partner in the Member or other Person). 

(c) Use of “Or”. The term “or” is not exclusive. 

(d) References to Laws. A reference in this Agreement to a law includes any 

amendment, modification or replacement to such law. 

(e) Use of Accounting Terms. Accounting terms used herein shall have the 

meanings assigned to them by GAAP applied on a consistent basis by the accounting entity to 

which they refer. 

(f) References to Documents. 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. 

(g) Use of “Herein.” Unless otherwise specified, the words “hereof,” “herein” 

and “hereunder” and words of similar import when used in this Agreement shall refer to this 

Agreement as a whole and not to any particular provision of this Agreement. 

(h) Use of “Including.” The words “include” and “including” and words of 

similar import when used in this Agreement 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. 

(i) Use of “During.” The word “during” when used in this Agreement with 

respect to a period of time shall be construed to mean commencing at the beginning of such 

period and continuing until the end of such period. 

Section 12.11 Compliance With Law; Severability. 

(a) 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 

applicable laws, as they may pertain to such party’s performance of its obligations hereunder. 

(b) Severability. Any provision of this Agreement which is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (i) if such provision is prohibited or unenforceable in such jurisdiction only as to a 

particular Person or Persons and/or under any particular circumstance or circumstances, such 

provision shall be ineffective, but only in such jurisdiction and only with respect to such 

particular Person or Persons and/or under such particular circumstance or circumstances, as the 

case may be; (ii) without limitation of clause (i), such provision shall in any event be ineffective 

22
 
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 of the remaining provisions of this 

Agreement. Without limitation of the preceding sentence, it is the intent of the parties to this 

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

provision of this Agreement is prohibited or unenforceable in any jurisdiction (because of the 

duration or scope (geographic or otherwise) of such provision, or for any other reason) such 

court shall have the power to, and shall, (x) modify such provision (including without limitation, 

to the extent applicable, by limiting the duration or scope of such provision and/or the Persons 

against whom, and/or the circumstances under which, such provision shall be effective in such 

jurisdiction) for purposes of such proceeding to the minimum extent necessary so that such 

provision, as so modified, may then be enforced in such proceeding and (y) enforce such 

provision, as so modified pursuant to clause (x), in such proceeding. Nothing in this 

Section 12.11(b) is intended to, or shall, limit (1) 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 12.03. 

Section 12.12 Power of Attorney. The Member does hereby constitute and appoint the 

Manager as its true and lawful representative and attorney-in-fact, in its name, place and stead to 

make, execute, sign, acknowledge, deliver or file any certificate, document or other instrument 

that the Member is required to execute and deliver pursuant to clause (i), (ii) or (iii) of 

Section 4.01 hereof. The foregoing notwithstanding, the Manager shall not have any right, 

power or authority to amend or modify this Agreement. The power of attorney granted hereby is 

coupled with an interest and shall (i) survive and not be affected by the subsequent death, 

incapacity, disability, dissolution, termination or bankruptcy of the Member granting the same or 

the transfer of all or any portion of the Member’s Company Interest and (ii) extend to the 

Member’s Successors, assigns and legal representatives. 

Section 12.13 Jurisdiction; Venue and Service. Each of the Company, for itself and its 

Affiliates, and the Initial Member, hereby irrevocably and unconditionally: 

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

Affiliates by the Participant (or its direct or indirect predecessors, as such) arising out of or 

relating to or in connection with this Agreement or any Ancillary Document may be instituted, 

and that any suit, action or proceeding by the Company or the Member or any of their respective 

Affiliates against the Participant (or its direct or indirect predecessors, as such) arising out of or 

relating to or in connection with this Agreement or any Ancillary Document shall be instituted, 

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

States District Court for the District of Columbia (and appellate courts from any of the 

foregoing), (ii) consents and submits, for itself and its property, to the jurisdiction of such courts 

for the purpose of any such suit, action or proceeding instituted against it, and (iii) agrees that a 

final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in 

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

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

or proceeding pursuant to Section 12.13(a) may be effected by the mailing of copies thereof by 

23
 
registered or certified mail, postage prepaid, to it at its address for notices pursuant to 

Section 12.07 (with copies to such other Persons as specified therein), such service to become 

effective 30 days after such mailing, provided that nothing contained in this Section 12.13(b) 

shall affect the right of any party to serve process in any other manner permitted by law; 

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

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

Ancillary Document brought in any court specified in Section 12.13(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 of the foregoing; 

(d) agrees that nothing contained in this Section 12.13 shall be construed as a 

limitation on any removal rights the FDIC may have. 

Section 12.14 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 OR ANY 

ANCILLARY DOCUMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE 

TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

24
 
IN WITNE.:SS WIIERE:OF, the parties have caused this Limited Liability Company 

Operating Agreement to be executed by their respective otTicers or agents thereunto duly 

authorized on the date first above written. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

INDYMAC FEDERAL BANK, FSB, 

as the Initial Member 

INDYMAC VENTURE, LLC 

By: 	 Federal Deposit Insurance Corporation as 

Receiver for lndyMac Federal Bank, FSB, 

as Sole Member and Manager 

By:

Groups 6-8- LLC Operating Agreement 
ANNEX I 

CERTAIN DEFINITIONS 

As used in the Agreement, the following terms have the following meanings 

(terms defined in the singular to include the plural and vice versa and references in this Annex I 

to sections constitute references to sections of the Agreement unless otherwise expressly 

indicated): 

“Accountants” shall mean the independent certified public accountants of the Company. 

“Act” shall mean the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et 

seq. 

“Affiliate” shall mean, with respect to any specified Person, any other Person that 

directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under 

common Control with such specified Person; provided, however, that for purposes of this 

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

Affiliate of the Company. 

“Agreement” shall have the meaning set forth in the preamble, and shall include all 

exhibits and annexes hereto. 

“Ancillary Documents” means the LLC Interest Sale Agreement (and the Guaranty 

required to be delivered thereby), the Contribution Agreement and the Participation Agreement 

(including the Servicing Agreement, the Electronic Tracking Agreement, one or more Account 

Control Agreements and the Custodial Agreement attached as exhibits thereto), in each case once 

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

contemporaneously in connection with the Closing. 

“Assets” shall have the meaning assigned thereto in the Contribution Agreement. 

“Business” shall mean the acquisition of the Assets pursuant to the Contribution 

Agreement and the ownership, servicing, administration, management and liquidation of the 

Loans and other Company Property. 

“Certificate” shall have the meaning set forth in Section 2.01(a). 

“Change of Control” with respect to the Member shall mean (i) the Disposition of any 

equity or other interest in the Member that would result in the Member failing to be a MajorityOwned Subsidiary of OneWest Bank, FSB; (ii) the Person who currently Controls the Member 

ceasing to Control the Member; or (iii) the merger of the Member or any Person who Controls 

the Member into another Person. 

“Closing” shall have the definition set forth in the recitals. 

I-1 
“Collection Account” shall have the meaning assigned thereto in the Participation 

Agreement. 

“Company” shall have the meaning set forth in the preamble. 

“Company Interest” shall mean, with respect to any particular Member, the entire limited 

liability company interest (as such term is defined in the Act) of such Member, including (i) such 

Member’s rights to share in the income, gain, loss, deductions and credits of, and the right to 

receive distributions from, the Company, (ii) all other rights, benefits and privileges enjoyed by 

such Member (under the Act, this Agreement or otherwise) in its capacity as a Member, 

including rights to vote, consent and approve, and (iii) all obligations, duties and liabilities 

imposed on such Member (under the Act, this Agreement or otherwise) in its capacity as a 

Member. 

“Company Property” shall mean all property, whether real or personal, tangible or 

intangible, owned by the Company, including the Loans contributed by the Initial Member to the 

Company pursuant to the Contribution Agreement. 

“Contribution Agreement” shall have the meaning set forth in the recitals. 

“Contribution Date” shall have the meaning set forth in Section 2.03(a). 

“Control” (including the phrases “Controlled by” and “under common Control with”) 

when used with respect to any specified Person shall mean the possession, direct or indirect, of 

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

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

“Debt” of any Person shall mean (i) all indebtedness of such Person for borrowed money, 

(ii) all obligations of such Person for the deferred purchase price of property or services 

(excluding trade payables arising in the ordinary course of business), (iii) all obligations of such 

Person evidenced by notes, bonds, debentures or other similar instruments, (iv) all indebtedness 

created or arising under any conditional sale or other title retention agreement with respect to 

property acquired by such Person (even though the rights and remedies of the seller or lender 

under such agreement in the event of default are limited to repossession or sale of such property), 

(v) all obligations of such Person as lessee under leases that have been or should be, in 

accordance with GAAP, recorded as capital leases, or (vi) all indebtedness or obligations of 

others of the kinds referred to in clauses (i) through (v) above in respect of which such Person 

has entered into or issued any Guaranty. 

“Disposition” shall mean any sale, assignment, alienation, gift, exchange, conveyance, 

transfer, pledge, hypothecation, granting of a security interest or other disposition or attempted 

disposition whatsoever, whether voluntary or involuntary. For the avoidance of doubt, it is 

understood and agreed that a statutory conversion of a Person into another form of Person does 

not constitute a Disposition. The term “Dispose” shall mean to make or consummate a 

“Disposition.” 

“Dissolution Event” shall mean, with respect to any specified Person, (i) in the case of a 

specified Person that is a partnership or a limited liability company, the dissolution and 

I-2 
commencement of winding up of such partnership or limited liability company, and (ii) in the 

case of a specified Person that is a corporation, the filing of a certificate of dissolution, or its 

equivalent, for the corporation or the revocation of its charter and the expiration of 90 days after 

the date of notice to the corporation of revocation without a reinstatement of its charter. For the 

avoidance of doubt, it is understood and agreed that a statutory conversion of a Person into 

another form of Person does not constitute a “Dissolution Event.” 

“Distributable Cash” shall mean the amount of cash which the Manager deems available 

for distribution to the Member, taking into account all debts, liabilities and obligations of the 

Company then due and amounts which the Manager deems necessary to place into reserves for 

customary, usual and reasonably foreseeable claims with respect to the Business. 

“Environmental Hazard” shall mean the presence at, in or under any real 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(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 

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

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

requires remediation or abatement under applicable environmental law. 

“FDIC” shall mean the Federal Deposit Insurance Corporation, in any capacity. 

“GAAP” shall mean United States generally accepted accounting principles as in effect 

from time to time. 

“Governmental Authority” shall mean 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. 

“Guarantee” shall mean, with respect to any particular indebtedness or other obligation, 

(i) any direct or indirect guarantee thereof by a Person other than the obligor with respect to such 

indebtedness or other obligation or any transaction or arrangement intended to have the effect of 

directly or indirectly guaranteeing such indebtedness or other obligation, including without 

limitation any agreement by a Person other than the obligor with respect to such indebtedness or 

other obligation (A) to pay or purchase such indebtedness or other obligation or to advance or 

supply funds for the payment or purchase of such indebtedness or other obligation, (B) to 

purchase, sell or lease (as lessee or lessor) property of, to purchase or sell services from or to, to 

supply funds to or in any other manner invest in, the obligor with respect to such indebtedness or 

other obligation (including any agreement to pay for property or services of the obligor 

irrespective of whether such property is received or such services are rendered), primarily for the 

purpose of enabling the obligor to make payment of such indebtedness or other obligation or to 

assure the holder or other obligee of such indebtedness or other obligation against loss, or 

(C) otherwise to assure the obligee of such indebtedness or other obligation against loss with 

respect thereto, or (ii) any grant (or agreement in favor of the obligee of such indebtedness or 

other obligation to grant such obligee, under any circumstances) by a Person other than the 

I-3 
obligor with respect to such indebtedness or other obligation of a security interest in, or other 

Lien on, any property or other interest of such Person, whether or not such other Person has not 

assumed or become liable for the payment of such indebtedness or other obligation. 

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

spouse, parents, parents-in-law, grandparents, descendents, children (whether natural or 

adopted), children-in-law, stepchildren, grandchildren and grandchildren-in-law. 

“Initial Member” shall have the meaning set forth in the preamble. 

“Insolvency Event” shall mean, with respect to any specified Person, the occurrence of 

any of the following events: 

(1) the specified Person makes a general assignment for the benefit of 

its creditors; 

(2) the specified Person files a voluntary petition for relief in any 

Insolvency Proceeding; 

(3) the specified Person is adjudged bankrupt or insolvent or there is 

entered against the specified Person an order for relief in any Insolvency 

Proceeding; 

(4) the specified Person files a petition or answer seeking for the 

specified Person any reorganization, arrangement, composition, readjustment, 

liquidation, dissolution, or similar relief under any statute, law or regulation; 

(5) the specified Person seeks, consents to, or acquiesces in the 

appointment of a trustee, receiver or liquidator of the specified Person or of all or 

any substantial part of the specified Person’s properties; 

(6) the specified Person files an answer or other pleading admitting or 

failing to contest the material allegations of a petition filed against the specified 

Person in any proceeding described in clauses (1) through (5); 

(7) the specified Person becomes unable to pay its obligations as they 

become due, or the sum of such specified Person’s debts is greater than all of 

such Person’s property, at a fair valuation; or 

(8) at least 90 days have passed following the commencement of any 

proceeding against the specified Person seeking reorganization, arrangement, 

composition, readjustment, liquidation, dissolution or similar relief under any 

statute, law or regulation, and such proceeding has not been dismissed, or at least 

90 days have passed following the appointment of a trustee, receiver or liquidator 

for the specified Person or all or any substantial part of the specified Person’s 

properties without the specified Person’s agreement or acquiescence, and such 

appointment has not been vacated or stayed, or if the appointment is stayed, at 

I-4 
least 90 days have passed following the expiration of the stay if the appointment 

has not been vacated. 

“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States 

Code (11 U.S.C. §§101, et seq.) or any proceeding under the statues, laws or regulations of any 

jurisdiction involving any reorganization, arrangement, composition, readjustment, liquidation, 

dissolution, or similar relief. 

“LLC Interest Sale Agreement” shall have the meaning set forth in the recitals. 

“Lien” shall mean any mortgage, pledge, security interest, equity interest, participation 

interest, lien or other charge or encumbrance, including the lien or retained security title of a 

conditional vendor, upon or with respect to any property or assets. 

“LIP Account” shall have the meaning assigned thereto in the Participation Agreement. 

“Litigation Reserve Account” shall have the meaning assigned thereto in the 

Participation Agreement. 

“Liquidity Reserve Account” shall have the meaning assigned thereto in the Participation 

Agreement. 

“Loan” shall have the meaning assigned thereto in the Contribution Agreement. 

“Loan Documents” shall have the meaning assigned thereto in the Contribution 

Agreement. 

“Majority-Owned Subsidiary” shall mean, with respect to any specified Person, any other 

Person (i) as to which such specified Person owns, directly or indirectly, of record and 

beneficially, (x) not less than a majority of the voting power and (y) (A) if such other Person is a 

corporation, not less than fifty-one percent (51%) of the outstanding capital stock, and (B) if 

such other Person is not a corporation, not less than fifty-one percent (51%) of the equity and 

profits interests at the time any determination thereof is being made, in the case of both subclauses (x) and (y) other than director’s qualifying (or other similar) shares (it being understood 

that a pledge for collateral security purposes of an equity interest in a Person shall not be deemed 

to affect the ownership of such equity interest by the pledgor, or the Control of such Person, so 

long as such pledgor continues to be entitled, in all material respects, to not less than a majority 

of the voting power and not less than fifty-one percent (51%) the income with respect to such 

equity interest), and (ii) which such specified Person in any event Controls. 

“Manager” shall mean, at all times, the sole Member within whom the management of 

the Company is exclusively vested and who shall be appointed manager at such time as such 

Member executes this Agreement. 

“Member” shall mean (i) prior to the Closing, the Initial Member, and (ii) following the 

Closing, OneWest Ventures Holdings LLC or any Successor thereto. 

“MERS” shall mean Mortgage Electronic Registration Systems, Incorporated. 

I-5 
“Note” shall have the meaning assigned thereto in the Contribution Agreement. 

“Omitted Distributions” shall have the meaning set forth in Section 8.05. 

“Ownership Entity” shall have the meaning assigned thereto in the Participation 

Agreement. 

“Participant” shall have the meaning assigned thereto in the Participation Agreement. 

“Participation Interest” shall have the meaning assigned thereto in the Participation 

Agreement. 

“Participation Agreement” shall have the meaning set forth in the recitals. 

“Permitted Disposition” shall mean (i) the transfer of the entire Company Interest of the 

Initial Member to OneWest Ventures Holdings LLC contemplated by the recitals to this 

Agreement and (ii) a direct transfer of a Company Interest permitted pursuant to Section 8.01 

“Person” shall mean 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. 

“Qualified Transferee” shall have the meaning set forth in Section 10.01. 

“Related Agreement” shall have the meaning assigned thereto in the Contribution 

Agreement. 

“Related Party Agreement” shall have the meaning set forth in Section 3.03. 

“Related Person” shall mean, with respect to any specified Person, (i) any Affiliate of 

such specified Person, (ii) any Person owning or controlling five percent (5%) or more of the 

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

specified, (iii) any officer, director, general partner, managing member, trustee, employee or 

promoter of the Person specified or any Immediate Family Member of such officer, director, 

general partner, managing 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) (other than an Immediate Family Member referred to in clause (iii)) acts in any capacity 

referred to in clause (iii), or (v) any Person who is an officer, director, general partner, managing 

member, trustee or holder of five percent (5%) 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 of this Agreement, the Initial Member shall not be deemed 

to be a Related Person of the Company or of any Related Person of the Company. 

“Securities Act” shall have the meaning set forth in Section 10.01(g). 

“Single Purpose Entity” shall mean a corporation or limited liability company that (i) is 

organized under the laws of any state of the United States or the District of Columbia, (ii) has no 

I-6 
material assets other than its Company Interest, its right, title and interest in, to and under this 

Agreement and the other instruments contemplated by this Agreement or other assets directly 

related to the Company, (iii) is not engaged in any significant business operations except by 

virtue of or as a result of, or otherwise directly in connection with, its ownership of its Company 

Interest, its status as Member, the exercise of any of its rights or powers under this Agreement or 

the other instruments contemplated by the Agreement or the actions of the Company, (iv) does or 

causes to be done all things necessary to preserve and keep in full force and effect its existence, 

rights (charter and statutory) and franchises, (v) at all times holds itself out to the public as a 

legal entity separate from its parent, the Company and any other Person (including any Affiliate), 

(vi) except as expressly contemplated hereby or by the Ancillary Documents, does not 

commingle its assets with assets of any other Person, (vii) conducts its business in its own name 

and strictly complies with all organizational formalities to maintain its separate existence, (viii) 

maintains an arm’s length relationship with any Affiliate upon terms that are commercially 

reasonable and on terms no less favorable to it than could be obtained in a comparable arm’s 

length transaction with an unrelated Person, and (ix) has no Debt. 

“Subsidiary” shall mean, with respect to any specified Person, each of (i) any other 

Person not less than a majority of the overall economic equity in which is owned, directly or 

indirectly through one of more intermediaries, by such specified Person, and (ii) without 

limitation of clause (i), any other Person who or which, directly or indirectly through one or 

more intermediaries, is Controlled by such specified Person (it being understood with respect to 

each of clauses (i) and (ii) that a pledge for collateral security purposes of an equity interest in a 

Person shall not be deemed to affect the ownership of such equity interest by the pledgor or the 

Control of such Person so long as such pledgor continues to be entitled, in all material respects, 

to all the voting power and all the income with respect to such equity interest). 

“Successor” shall mean, (i) with respect to the Member, any future Member which is a 

direct or indirect transferee (whether by Permitted Disposition, merger, consolidation or 

otherwise) of the Company Interest of such Member; (ii) with respect to any former Member, the 

current Member which is the direct or indirect transferee (whether by Permitted Disposition, 

merger, consolidation or otherwise) of the Company Interest of such former Member and (iii) 

with respect to the Participant, any Person that is a direct or indirect transferee (whether by 

Disposition, merger, consolidation or otherwise) of any of the Participant’s rights or interests 

under this Agreement or any other Ancillary Document. 

“Treasury Regulations” shall mean the regulations promulgated by the United States 

Department of the Treasury pursuant to and in respect of provisions of the Internal Revenue 

Code of 1986, as amended. All references herein to sections of the Treasury Regulations shall 

include any corresponding provision or provisions of succeeding, substitute, proposed or final 

Treasury Regulations. 

“$” shall mean lawful currency of the United States of America. 

I-7 
EXHIBIT A
 

CERTIFICATE OF FORMATION 

OF 

INDYMAC VENTURE, LLC 

SEE TAB 5.