LIMITED LIABILITY COMPANY OPERATING AGREEMENT 

ANB Venture, LLC 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
TABLE OF CONTENTS 


ARTICLE I Certain Definitions ............................................................................................... 1 


1.1 
 Definitions............................................................................................................ 1 


ARTICLE II Organization ofthe Company .............................................................................. 1 


2.1 Formation............................................................................................................. 1 


2.2 Name.................................................................................................................... 2 


2.3 Organizational Contributions and Actions; Initial Transfer. ............................... 2 


2.4 Registered Office; Chief Executive Office .......................................................... 2 


2.5 Purpose; Duration ................................................................................................ 3 


2.6 Single Purpose Limitations .................................................................................. 3 


2.7 Limitations on the Company's Activities ............................................................ 3 


ARTICLE III Management and Operations of the Company ..................................................... 5 


3.1 Management ofthe Company's Affairs ............................................................... 5 


3.2 Employees and Services ...................................................................................... 7 


3.3 Related Party Agreements .................................................................................... 7 


3.4 Real Property ....................................................................................................... 7 


ARTICLE IV Rights and Duties of, and Restrictions on, Members ........................................... 7 


4. I Filings; Duty ofMembers to Cooperate .............................................................. 7 


4.2 Certain Restrictions and Requirements ................................................................ 8 


ARTICLE V Borrowings; Contributions; Other Matters .......................................................... 9 


5.1 Capital Contributions ........................................................................................... 9 


5.2 No Reliance by Parties Extending Credit ............................................................ 9 


5.3 No Liens ............................................................................................................... 9 


5.4 Establishment and Permitted Uses of Collection Account .................................. 9 


5.5 	 Establishment and Permitted Uses of the Liquidity Reserve Account 


and the Litigation Reverse Account... ................................................................ 9 


ARTICLE VI Distributions and Allocations .............................................................................. 9 


6.1 Distributions......................................................................................................... 9 


6.2 Allocations ........................................................................................................... 9 


ARTICLE VII Accounting and Taxation ................................................................................... 10 


7.1 
 Fiscal Year ......................................................................................................... 10 


ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
TABLE OF CONTENTS 

(continued) 

7.2 Maintenance ofBooks and Records .................................................................. 10 


7.3 Annual Statements ............................................................................................. I 0 


7.4 Taxation ............................................................................................................. I 0 


7.5 Records Retention .............................................................................................. I 0 


ARTICLE VIII Restrictions on Disposition ofCompany Interests ............................................. 10 


8.1 Limitations on Disposition ofCompany Interests ............................................. I 0 


8.2 Change of Control .............................................................................................. II 


8.3 Additional Provisions Relating to Permitted Dispositions ................................ II 


8.4 Effect ofPcrmitted Dispositions ........................................................................ II 


8.5 Effect ofProhibited Dispositions ....................................................................... 12 


8.6 Distributions After Disposition .......................................................................... 13 


8.7 Resignation; Dissolution .................................................................................... 13 


ARTICLE IX Dissolution and Winding-Up of the Company .................................................. 13 


9.1 Dissolution ......................................................................................................... l3 


9.2 Winding-Up Procedures ..................................................................................... 13 


ARTICLE X Qualified Transferees ......................................................................................... 14 


10.1 Qualified Transferees ......................................................................................... 14 


ARTICLE XI Manager Liability ............................................................................................... 17 


11.1 Liability ofManager. ......................................................................................... 17 


ARTICLE XII Miscellaneous .................................................................................................... 18 


12.1 Waiver ofRights ofPartition and Dissolution ................................................... 18 


12.2 Entire Agreement ............................................................................................... 18 


12.3 Governing Law; Jurisdiction .............................................................................. 18 


12.4 Third Party Beneficiaries ................................................................................... 19 


12.5 Expenses ............................................................................................................ 19 


12.6 Waivers and Amendments ................................................................................. 19 


12.7 Notices ............................................................................................................... 19 


12.8 Counterparts; Facsimile Signatures ................................................................... 21 


12.9 Successors and Assigns ...................................................................................... 21 


12.1 0 Construction....................................................................................................... 22 


12.11 Compliance With Law; Severability .................................................................. 23 


12.12 Power ofAttorney .............................................................................................. 23 


12.13 Submission to Jurisdiction; Waivers .................................................................. 24 


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ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
TABLE OF CONTENTS 

(continued) 

Annex I- Certain Definitions 

Exhibits 

Exhibit A- Certificate ofFormation 

Exhibit B- Form of Loan Contribution and Assignment Agreement 

Exhibit C- Form of Participation and Servicing Agreement 

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EXECUTION VERSION 
ANB VENTURE, LLC 


LIMITED LIABILITY COMPANY 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 January 12, 2009, by and among the Federal Deposit 

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

Member") and ANB Venture, LLC, a Delaware limited liability company (the "Company"). 

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); and 

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

foregoing; and 

WHEREAS, following the contribution by the Initial Member to the Company of the 

Loans as contemplated herein, the Initial Member shall transfer to KMS SPE LLC all ofits 

interest in the Company, and KMS SPE LLC shall agree to become a party to and bound by this 

Agreement as the sole "Member" pursuant to a Limited Liability Company Interest Sale and 

Assignment Agreement (the "LLC Sale Agreement") (the consummation of such transactions, 

the "Closing"). 

NOW, THEREFORE, in consideration of the premises and the other covenants and 

conditions contained herein, 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 

1.1 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 

2.1 Formation. 

(a) The Initial Member has caused the Certificate of Formation attached as 

Exhibit A hereto (the "Certificate") to be filed in the office of the Secretary of State of the State 

ofDelaware. The Company shall exist effective as of the dateoffiling of such Certificate. 

Immediately upon its formation and the filing of such Certificate, the Initial Member shall cause 

the Company to execute and become a party to this Agreement. The Certificate shall not be 

amended except to change the registered agent or office of the Company. 

ANB LLC OPERATING AGREEMENT 

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

admitted as, the sole member of the Company. The Company shall at all times have no more 

than one member. 

2.2 Name. 

(a) The name of the Company shall be "ANB Venture, LLC". 

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

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

to time. 

2.3 Organizational Contributions and Actions; Initial Transfer. 

(a) Concurrently with the execution hereof, the Initial Member and the 

Company shall execute and deliver to each other an instrument in the form ofExhibit B hereto 

(the "Loan Contribution and Assignment Agreement"). 

(b) Concurrently with the execution hereof, the Federal Deposit Insurance 

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

initial "Servicer" thereunder) shall execute and deliver to each other an instrument in the form of 

Exhibit C hereto (a "Participation and Servicing Agreement") pursuant to which, among other 

things, the Participant shall acquire, in partial consideration for the Loans, an 80% undivided 

ownership interest in the Loans and all proceeds therefrom (the "Participation Interest") and 

pursuant to which the Company shall grant the Participant a first priority security interest in the 

Loans, the related documentation and all proceeds therefrom to secure the Participant's 

Participation Interest, (ii) the Participation Certificate shall be executed and delivered by the 

Company to the Participant, and (iii) the Participant shall be entitled to perfect its security 

interest in the Loans and proceeds therefrom and all other Company Property by filing such 

financing statements and taking such other actions as shall be necessary, including having a 

collateral agent take possession ofthe notes and other collateral documents evidencing the 

Loans. 

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

contribute to the Company the Loans in accordance with the provisions of the Loan Contribution 

and Assignment Agreement (such date, the "Contribution Date"). 

(d) Upon the consummation ofthe transactions contemplated in Section 

2.3(c), the Membership Share of the Initial Member shall be 100%. 

2.4 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 at, and the name and address ofthe 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 

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ANB LLC OPERATING AGREEMENT 

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and address of the Company's registered agent. The chief executive office of the Company shall 

be located at 477 Shoup Avenue, Suite 207, Idaho Falls, lD 83402, or such other place as shall 

be determined by the Manager from time to time. 

2.5 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 9.1, the Company shall continue in existence 

perpetual!y. 

2.6 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 and Servicing 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 ofPerson 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 ofthe Member and the Participant. 

2.7 Limitations on the Company's Activities. This Section 2.7 is being adopted in 

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

purpose" entity. 

(a) For so long as the Participation and Servicing 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 the applicable 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 (I) it is not part of a consolidated group filing a consolidated return or returns 

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ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
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; 

(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 on terms 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 Guaranty 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 it may invest its funds in interest bearing accounts held by any bank that is 

not its Affiliate and make advances in accordance with the Participation and Servicing 

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 and Servicing Agreement is in effect, the 

Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the 

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k'lB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
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, 

Guaranty any obligation of any Person, including any Affiliate; 

(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 as contemplated or permitted by the Participation and 

Servicing Agreement, form, acquire or hold any Subsidiary. 

ARTICLE III 

Management and Operations of the Company 

3.1 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 of the 

Company (the "Manager"). From and after the Closing, the management of the Company shall 

be vested exclusively in the Member, which is hereby appointed, effective as of the Closing, to 

act as the Manager of the Company. 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 

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ANB LLC OPERATING AGREEMENT 

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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 3.1 eliminates, limits or otherwise modifies any of the express terms of 


this Agreement or any liability, obligation or covenant of any Person hereunder. 


(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 ofthe 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 any 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 its Affiliates on behalf of or for the benefit ofthe Company 

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

Section 3.2). 

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ANB LLC OPERATING AGREEMENT 

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(f) This Section 3.1 is subject to any express requirement of direct Participant 

consent set forth elsewhere in this Agreement, including to Sections 2.6, 2.7(c), 8.1, 8.2, 8.7(a) 

and 12.6. Any purported action by the Company requiring the consent ofthe Participant under 

this Agreement shall be null and void ab initio unless and until the Participant's consent is 

obtained. 

3.2 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 and other Loan documents by a document custodian under contract with 

the Company, in each case in accordance with the Participation and Servicing Agreement. 

Notwithstanding anything to the contrary contained in this Section 3.2, (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 and Servicing Agreement or is otherwise 

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

3.3 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 Guaranty any obligations) with any 

Affiliate (a "Related Partv Agreement"), except as may otherwise be expressly provided herein 

or in any Ancillary Document. 

3.4 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 

4.1 Filings; Duty of Members to Cooperate. The Company shall promptly cause to 

be executed, delivered, filed, recorded or published, as appropriate, and any current or prior 

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

Company, execute and deliver to the Company, (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 

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ANB LLC OPERATING AGREEMENT 

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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 

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 acquired collateral. 

4.2 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. 

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ANB LLC OPERATING AGREEMENT 

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ARTICLEV 

Borrowings; Contributions; Other Matters 

5.1 Capital Contributions. Except as otherwise expressly provided in this 

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

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

obligations ofthe Company. This Section 5.1 is in furtherance of, and not in limitation of, 

Section 18-303(a) ofthe Act. 

5.2 No Reliance by Parties Extending Credit. Without limitation of the generality 

of Section 12.4 hereof, the provisions of Section 2.3 are hereby expressly stated not to be for the 

benefit of any Person other than the Member, the Initial Member and the Company, including 

any Person now or hereafter extending credit to the Company, and it is the intent ofthe Member, 

the Initial Member and the Company that reliance on the provisions of Section 2.3 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. 

5.3 No Liens. Notwithstanding anything to the contrary contained in this Agreement, 

except for the security interest granted to the Participant pursuant to the Participation and 

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

Loans or the proceeds therefrom. 

5.4 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 and Servicing Agreement, and the funds deposited therein shall 

be disbursed and used solely as provided therein. 

5.5 Establishment and Permitted Uses of Liquidity Reserve and Litigation 

Reserve Accounts. 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 and Servicing Agreement and, in the event the Company eleets to establish such 

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

Participation and Servicing Agreement. 

ARTICLE VI 

Distributions and Allocations 

6.1 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. 

6.2 Allocations. All income and Joss ofthe Company shall be allocated to the 

Member. 

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ANB LLC OPERATING AGREEMENT 

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ARTICLE VII 


Accounting and Taxation 


7.1 Fiscal Year. The books and records ofthe Company shall be kept on an accrual 

basis and the fiscal year of the Company shall commence on January I and end on December 31. 

7.2 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 referred to in 

Section 2.4, full and complete books of account. The books of account shall be maintained in a 

manner that provides sufficient assurance that: 

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

or specific authorization ofthe Manager consistent with the provisions ofthis 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. 

7.3 Annual 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. 

7.4 ·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. 

7.5 Records Retention. Until the date that is the later often (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 9.2, in addition to any requirements set forth in the 

Participation and Servicing 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 

8.1 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 

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ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
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, provided that the transferee is a Qualified Transferee). In addition, the Member 

shall not Dispose ofless than all ofits Company Interest. 

8.2 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 ofthe Participant (which consent shall not be unreasonably withheld, delayed or 

conditioned, provided that following such Change of Control, the Member would be a Qualified 

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

Transferee. 

8.3 Additional Provisions Relating to Permitted Dispositions. Except as otherwise 

expressly provided in this Section 8.3, the following provisions shall apply to each Permitted 

Disposition under this Article VIII: 

(a) The Member shall not take, or to 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 ofthe proposed Permitted Disposition) ofresulting 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," and without limitation of the generality of the foregoing, to be 

bound by the terms of Section 8.4 hereof, (ii) assume and agree to perform when due all of the 

obligations ofthe transferor Member under this Agreement, (iii) represent and warrant that it 

complies with the requirements set forth in Article X, and (iv) state that it is a Single Purpose 

Entity and has a net worth calculated in accordance with GAAP of not less than $5,000,000. 

(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. 

8.4 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; 

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ANB LLC OPERATING AGREEMENT 

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

the provisions of this Agreement, including the remainder ofthis 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 

Affiliate 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 8.4(b) and the last sentence of Section 12.9, the 

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

expressly otherwise provided in Section 8.4(b) or the last sentence of Section 12.9, shall cease to 

be responsible for the payment or performance of any of the obligations or liabilities under this 

Agreement ofthe 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 ofthe 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 

ofits Affiliates) of, or otherwise affect, any ofthe obligations or liabilities of the transferor 

Member or its Affiliates 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. 

8.5 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 ofthe 

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

ofthis 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 8.5 ("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 8.5 and 

the date they are actually made). 

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ANB LLC OPERATING AGREEMENT 

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8.6 Distributions After Disposition. Distributions with respect to a Company 

Interest made on or after the effective date ofthe Permitted Disposition ofsuch 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. 

8.7 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 ofthe 

Participant. 

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

with respect to itself. 

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

Section 8.7(c) shall limit the terms of Section 9.1 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 

9.1 Dissolution. A dissolution of the Company shall take plaee 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 ofthe 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. 

9.2 Winding-Up Procedures. !fa dissolution of the Company pursuant to Section 

9.1 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 ofthe affairs of the Company, the following steps will be 

taken: 

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ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
{a) The assets ofthe Company shall be sold except to the extent that some or 

all of the assets ofthe 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 ofreasonable provision 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 ofthe Act; 

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

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

(iii) next, to the Member. 

ARTICLE X 

Qualified Transferees 

10.1 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 

ofits 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 ofits 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 and will have 

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 and will have 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. 

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

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

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

Agreement, nor the consummation ofthe 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 

14 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
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 

the consummation ofthe transactions contemplated hereby and the performance ofits 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 

federal, state, municipal or governmental agency. 

(f) Third Party Consents. No consents, approvals, waivers or notifications of 

stockholders, creditors, lessors or other nongovernmental persons are required to be obtained by 

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

consummation of all the transactions herein contemplated and the performance of its obligations 

hereunder. 

(g) Net Worth. The Member is a business entity with a net worth, at the time 

of purchase, of at least $5,000,000 determined in accordance with GAAP, consistently applied, 

all of whose equity owners 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 loans secured by residential 

properties, 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 Loans to evaluate 

the merits and risks of a purchase of the Company Interest and, indirectly, the Loans, 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 ofthe 

Company Interest and, indirectly, the Loans, including the risk of a total loss of its investment in 

15 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
the Company and, indirectly, the Loans and/or the risk that it may be required to hold the 


Company Interest and, indirectly, the Loans for an indefinite period oftime. 


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

otherwise expressly provided in this Agreement or the Loan Contribution and Assignment 

Agreement, none of the Receiver 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 Loans or the value of any property securing the 

same. 

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

not information is available with respect to the Company Interest or the Loans 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 Loans, 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 Loans and the economic, credit or other risks involved in an 

acquisition of the Company Interest and, indirectly, the Loans. Except as is otherwise expressly 

provided in this Agreement or the Loan Contribution and Assignment Agreement, none ofthe 

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

directors, employees, agents or contractors makes and representation or warranty as to the 

completeness or accuracy of any information provided. 

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

offer nor the sale ofthe Company Interest (and, indirectly, the Loans) is intended to constitute an 

offer or sale of a "security" within the meaning ofthe Securities Act or any applicable federal or 

state securities laws, (ii) no inference that any ofthe Company Interest or the Loans 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 Loans 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 Loans) for its own account and not with a view toward resale in a distribution within the 

meaning ofthe Securities Act. 

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

sell or otherwise dispose ofthe Company Interest (or any interest therein) or any Loan (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 Loan (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 Loan (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 ofthe Company Interest or any interest in any Loan 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 

16 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
with respect to the Company Interest (or any interest therein) or any Loan (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 Loans 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 Loans by federal and state securities or Blue Sky laws, 

rules, regulations or requirements. 

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

evaluation of the Company and its assets (including the Loans and related Loan files and/or any 

electronic data made available to it pertaining to the Loans 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 ofthe Company Interest and the nature, validity, 

enforceability, collectibility and value of the Loans 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 in any jurisdiction. The Member 

further acknowledges that no employee or representative ofthe 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 Loan Contribution and Assignment Agreement. 

ARTICLE XI 

Manager Liability 

11.1 Liability of Manager. 

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

the other subsections of this Section 11.1 ), the duties (including fiduciary duties) and obligations 

owed to the Company and the Member by the Manager shall be as provided in Section 3.1(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. 

17 

ANB LLC OPERATJNG AGREEMENT 

EXECUTJON VERSJON 
(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 ofthis Section 

11.1 are cumulative and not exclusive. Nothing in this Section 11.1 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. 

(f) The provisions of this Section 11.1 are for the benefit ofthe Manager. 

This Section 11.1 may be amended, modified or repealed in the manner set forth elsewhere in 

this Agreement, but any amendment, modification or repeal ofthis Section 11.1 or any provision 

hereof (including as a result of any amendment, modification or repeal ofthe 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 11.1 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 

12.1 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. 

12.2 Entire Agreement. This Agreement, together with the Exhibits 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 or any of them and the Company with respect to 

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

instruments are being executed by the Company, the Member and/or Affiliates of the Member 

and the Participant simultaneously with the execution ofthis Agreement and that 

notwithstanding anything to the contrary contained in the foregoing sentence ofthis 

Section 12.2, such agreements shall be effective and binding on the parties thereto. 

12.3 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 

18 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
provisions ofthis Agreement and any mandatory, non-waivable provision of the Act, such 

provision ofthe 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. Nothing 

contained in this Agreement shall be construed to constitute a consent to jurisdiction by the 

FDIC in any capacity. 

12.4 Third Partv Beneficiaries. The Participant is hereby constituted an express third 

party beneficiary of this Agreement. Subject to Section 11.1, (i) this Agreement is for the benefit 

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

and (ii) this Agreement is not enforceable by any Person (including any creditor ofthe Company 

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

12.5 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 ofthe transactions contemplated by 

Section 2.3 hereof and the performance of its obligations hereunder. 

12.6 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 tbe 

Participant. Except where a specific period for action or inaction is provided herein, no failure 

on the part ofthe Member or the Participant to exercise, and no delay on the part ofthe Member 

or the 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. 

12.7 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, Capital Markets & Resolutions 


c/o Federal Deposit Insurance Corporation 


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


Washington, D.C. 20429-0002 


Attention: George Alexander 


Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

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ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
Arlington, VA 22226 


Attention: David Gearin 


If to the Company after the Closing, to: 

ANB Venture, LLC 

477 Shoup Avenue, Suite 207 

Idaho Falls, ID 83402 

Attention: David 0. Kingston 

ANB Venture, LLC 

477 Shoup A venue, Suite 207 

Idaho Falls, ID 83402 

Attention: Kari M. Campos 

If to the Member before the Closing, to: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: George Alexander 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3 50 I Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

If to the Member after the Closing, to: 

KMSSPELLC 

477 Shoup Avenue, Suite 207 

Idaho Falls, ID 83402 

Attention: David 0. Kingston 

20 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
KMS SPELLC 

477 Shoup Avenue, Suite 207 

Idaho Fails, ID 83402 

Attention: Kari M. Campos 

If to the Participant, to: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 I 7th Street, NW (Room F-7008) 

Washington, D.C. 20429-002 

Attention: George Alexander 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

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. 

12.8 Counterparts; Facsimile Signatures. 

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

which shall be an original and all ofwhich 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 means of a facsimile machine 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. 

12.9 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 and the Participant and their respective Successors and assigns. Without 

21 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
limitation of Section 8.4, 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. 

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 ofthis 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" or 

"Subsidiaries" of a specified Person refer to, and include, only other Persons which from time to 

time constitute "Affiliates" 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," or "Subsidiaries," 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 former other Person (such as, without 

limitation, any stockholder or member of or partner in the Member, or former 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 ofAccounting 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 this Agreement, or replacement hereof, 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. 

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ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
(i) Use of"During." The word "during" when used in this Agreement with 

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

period and continuing until the end of such period. 

(j) References to Time. All time explicitly or implicitly referenced in this 

Agreement shall be deemed to be Eastern Standard Time, or Eastern Daylight Time, as 

applicable. 

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 ofits 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) ifsuch provision is prohibited or unenforceable in such jurisdiction only as to a 

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

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

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

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

only as to such jurisdiction and only to the extent of such prohibition or unenforceability, and 

such prohibition or unenforceability in such jurisdiction shall not invalidate or render 

unenforceable such provision in any other jurisdiction; and (iii) without limitation of clauses (i) 

or (ii), such ineffectiveness shall not invalidate any of the remaining provisions ofthis 

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 ofthe 

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 ofsuch provision and/or the Persons 

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

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

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 

ofSection 12.3. 

12.12 Power of Attornev. 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 

4.1 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 ofthe Member granting the same or the transfer 

23 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
of all or any portion of the Member's Company Interest and (ii) extend to the Member's 


Successors, assigns and legal representatives. 


12.13 Submission to Jurisdiction; Waivers. Each ofthe Company and the Member 


(other than 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 ofor 

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 oftheir 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 Supreme Court ofthe State ofNew York, County ofNew York, or 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), as the Person instituting 

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

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

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

action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the 

judgment or in any other manner provided by law; 

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

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

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

12.7, 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 or he 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; and 

(d) WAIVES ANY RIGHT IT MAY HAVE TOA 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; and 

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

consent to jurisdiction by the FDIC or the Initial Member. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

24 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
IN WITNESS WHEREOF, the Member has caused this Agreement to be executed by its 

respective officer or agent thereunto duly authorized on the date first above written. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR ANB 

FINANCIAL, N.A. 

By:

Name: (/;eor Alexander 

Title: Attorney-in-Fact 

ANB VENTURE, LLC 

By: Federal Deposit Insurance Corporation as 

Receiver for ANB Financial, N.A. 

By 

Name:IGeorAlexandef 

Title: Attorney-in-Fact 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
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, (i) any other Person 

directly or indirectly controlling or controlled by or under common control with such specified 

Person, (ii) any Person owning or controlling ten percent (1 0%) or more of the outstanding 

voting securities, voting equity interests, or beneficial interests of the Person specified, (iii) any 

officer, director, partner, member, trustee, employee or promoter of the Person specified or any 

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

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

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

director, general partner, managing member, trustee or holder of 10% or more of 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 Participant shall not 

be deemed to be an Affiliate ofthe Company or any Affiliate ofthe Company. For the purposes 

ofthis definition, the term "control" (including the phrases "controlled by" and "under 

common control with") when used with respect to any specified Person means the possession, 

direct or indirect, ofthe power to direct or cause the direction ofthe management and policies of 

such Person, whether through the ownership of voting securities or interests, by contract or 

otherwise. 

"Agent" shall mean, with respect to any specified Person, the officers (or persons 

performing similar functions), directors (or persons performing similar functions), employees, 

attorneys, accountants and agents of such specified Person. 

"Agreement" shall have the meaning set forth in the Recitals. 

"Ancillary Documents" means the LLC Interest Sale Agreement (and the 

Guaranty required to be delivered thereby), the Loan Contribution and Assignment Agreement, 

and the Participation and Servicing Agreement, including the Servicing Agreement and the 

Custodial Agreement (which are exhibits thereto), in each case once executed and delivered, and 

the agreements and documents executed and delivered contemporaneously in connection with 

the Closing. 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
"Business" shall mean the acquisition ofthe Loans pursuant to the Loan 

Contribution and Assignment Agreement and the ownership, servicing, administration, 

management and liquidation ofthe Loans. 

"Business Day" shall mean any day except a Saturday, Sunday or other day on 

which the Participant or commercial banks in Washington D.C. are required or authorized by law 

or executive order to close. 

"Certificate" shall have the meaning set forth in Section 2.1 (a). 

"Change of Control" with respect to the Member shall mean (i) the Disposition 

of any equity or other interest in Member that would result in the Member failing to be a 

Majority-Owned Subsidiary ofKingston Properties L.P.; (ii) the Person who currently Controls 

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

Controls the Member into another Person. 

"Closing" shall have the definition set forth in the preamble. 

"Collection Account" shall have the meaning assigned thereto in the 

Pi!rticipation and Servicing Agreement. 

"Company" shall have the meaning set forth in the Recitals. 

"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. 

"Contribution Date" shall have the meaning set forth in Section 2.3(c). 

"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, ofthe power to direct or cause the direction ofthe management and policies ofsuch 

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

"Debt" of any Person shall mean (i) all indebtedness ofsuch 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 ofthe seller or lender 

2 

ANB LLCOPERATING AGREEMENT 

EXECUTION VERSION 
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 ofwhis;h 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 ofdoubt, 

it is understood and agreed that a statutory conversion of a Person into another form ofPerson 

does not constitute a Transfer. 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 limited partnership or a limited liability 

company, the dissolution and commencement of winding up of such partnership, limited 

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 ofits charter and the expiration of 90 days after the date of notice to the corporation 

ofrevocation 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 ofPerson 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 Hazards" 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 1 01 (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 oftemperature 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 federal, state, municipal or other 

governmental department, branch, commission, board, bureau, agency or instrumentality. 

"Guaranty" 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 

3 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
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 ofsuch 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 ofsuch 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 a!,>reement in favor of the obligee of such 

indebtedness or other obligation to grant such obligee, under any circumstances) by a Person 

other than the obligor with respect to such indebtedness or other obligation of a security interest 

in, or other lien on, any property or other interest ofsuch 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, descendents, nephews, nieces, brothers, sisters, brothers-inlaw, sisters-in-law, children (whether natural or adopted), children-in-law, 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 an assignment for the benefit of 

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 

4 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
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 (I) 

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) 	 within 90 days of any proceeding against the specified Person 

seeking reorganization, arrangement, composition, readjustment, 

liquidation, dissolution or similar relief under any statute, law or 

regulation ifthe proceeding has not been dismissed, or within 90 

days after 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, which appointment is not vacated or stayed, or ifthe 

appointment is stayed, for 90 days after the expiration ofthe stay if 

the appointment is not vacated. 

"Insolvency Proceeding" shall mean any proceeding under Title 11 of the United 

States Code (II 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. 

"Liens" shall mean any pledges, security interests, charges, restrictions on or 

conditions to transfer, voting or exercise or enjoyment of any right or beneficial interest, options, 

rights of first refusal and other liens, claims or encumbrances of any nature whatsoever. 

"Litigation Reserve Account" shall have the meaning assi!,'T1ed thereto in the 

Participation and Servicing Agreement. 

"Liquidity Reserve Account" shall have the meaning assigned thereto in the 

Participation and Servicing Agreement. 

"LLC Sale Agreement" shall have the meaning set forth in the Recitals. 

"Loan Contribution and Assignment Agreement" shall have the meaning set 

forth in Section 2.3(a). 

"Loans" shall have the meaning assigned thereto in the Loan Contribution and 

Assignment 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 

5 

ANB LLCOPERATING AGREEMENT 

EXECUTION VERSION 
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%) ofthe equity and 

profits interests at the time any determination thereof is being made, in the case ofboth 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 have the meaning set forth in Section 3.1(a). 

"Member" shall mean (i) prior to the Closing, the Initial Member, and (ii) 

following the Closing, KMS SPE LLC or any Successor thereto. 

"Omitted Distributions" shall have the meaning set forth in Section 8.5. 

"Participant" shall have the meaning assigned thereto in Section 2.3(b ). 

"Participation and Servicing Agreement" shall have the meaning ascribed to it 

in Section 2.3(b ). 

"Participation Interest" shall have the meaning assigned thereto in 

Section 2.3(b ). 

"Permitted Disposition" shall mean (i) the transfer of the entire Company 

Interest ofthe Initial Member to KMS SPE LLC contemplated by the recitals to this Agreement 

and (ii) a direct transfer of a Company Interest permitted pursuant to Section 8.1 

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

limited liability company, limited liability partnership, firm, joint venture, association, jointstock company, trust, estate, unincorporated organization, governmental or regulatory body or 

other entity. 

"Qualified Transferee" shall have the meaning set forth in Section I 0.1. 

"Receiver" shall have the meaning set forth in the Preamble. 

"Related Party Agreement" shall have the meaning set forth in Section 3.3. 

"Securities Act" shall have the meaning set forth in Section 10.1 (g). 

"Servicer" shall have the meaning assigned thereto in the Participation and 

Servicing Agreement. 

"Single Purpose Entity" shall mean a corporation or limited liability company 

that (i) is organized under the laws of any state ofthe United States or the District of Columbia, 

6 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
(ii) has no 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 ofits 

Company Interest, its status as the Member, the exercise of any ofits rights or powers under this 

Agreement or the other instruments contemplated by this 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; 

(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 ofthe 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) ofthe 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) ofthe 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 ofthe Treasury pursuant to and in respect of provisions ofthe 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 ofAmerica. 

7 

ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
EXHIBIT A 

FORM OF CERTIFICATE OF FORMATION 

OF 

ANB VENTURE, LLC 

Pursuant to and in accordance with the provisions of Section 18-201 ofthe 

Delaware Limited Liability Company Act, the under sign hereby certifies that: 

FIRST, the name of the limited liability company is ANB Venture, LLC (the 

~·company''). 

SECOND, the address of the registered office ofthe Company in the State of 

Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of 

New Castle. The name of the registered agent at such address is The Corporation Trust 

Company. 

IN WITNESS WHEREOF, the undersigned has executed this Certificate of 

Formation ofthe Company on this_ day of 2008. 

By:_____________ 


Name: 


Title: Authorized Person 


ANB LLC OPERATING AGREEMENT 

EXECUTION VERSION 
EXHIBJTB 


FORM OF LOAN CONTRIBUTION AND ASSJGNMENT AGREEMENT 


(Attached) 

SeeTabiO 

ANB LLCOPERATJNG AGREEMENT 

loXECUTJON VERSION 
EXHIBITC 


FORM OF PARTICIPATION AND SERVICING AGREEMENT 


[Attached] 

See Tab 11 

ANn LLC OPERATING AGREEMENT 

LXECUTION VERSION