2011-SIP-2 Structured Transaction 

PRIVATE OWNER INTEREST 


SALE AND ASSIGNMENT AGREEMENT 


by and among 


SIPPO,LLC 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


in its capacity as Receiver, 


and 


2011-SIP-2 VENTURE, LLC 


Dated as ofJanuary 11, 2012 

2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
Table of Contents 

Page 

RECITALS ...................................................................................................................................... 1 


1. 	 Sale and Assignment; Purchase Price; Funding of Working Capital Reserve; 


Account Closing .................................................................................................................2 


2. 	 LLC Operating Agreement...............................................................................................3 


3. 	 Additional Security ............................................................................................................3 


4. 	 PO Owner Undertaking; LPOA Letter...........................................................................3 


5. 	 Representations and Warranties of Private Owner.......................................................3 


6. 	 Exclusivity of Representations..........................................................................................4 


7. 	 Assignment..........................................................................................................................4 


8. 	 Beneficiaries........................................................................................................................4 


9. 	 Waivers and Amendments................................................................................................4 


10. 	 Governing Law...................................................................................................................4 


11. 	 Jurisdiction; Venue and Service .......................................................................................5 


12. 	 Waiver of Jury Trial..........................................................................................................6 


13. 	 Notices.................................................................................................................................6 


14. 	 Counterparts; Facsimile Signatures .................................................................................8 


15. 	 Headings..............................................................................................................................8 


16. 	 Compliance with Law; Rules of Construction................................................................8 


Exhibit A Form ofLLC Operating Agreement 

Exhibit B Form of Private Owner Interest Asset Value Schedule 

Exhibit C Form ofTransferee Acknowledgment And Certification 

Exhibit D Form ofJoinder And Consent Agreement 

Exhibit E Form of PO Owner Undertaking 

Exhibit F Form of Letter Designating Individuals For Limited Power ofAttorney 

EXECUTION VERSION 
PRIVATE OWNER INTEREST 


SALE AND ASSIGNMENT AGREEMENT 


THIS PRIVATE OWNER INTEREST SALE AND ASSIGNMENT AGREEMENT (this 

"Agreement") is made as of January 11, 2012, by and among SIP PO, LLC, a Delaware limited 

liability company (the "Private Owner"), the Federal Deposit Insurance Corporation in its 

capacity as Receiver (the "Initial Member"), and 2011-SIP-2 Venture, LLC, a limited liability 

company organized and existing under the laws of Delaware (the "Company"). For purposes of 

this Agreement, all terms used in this Agreement (including in the preamble and recitals hereto) 

that are defined in, or by reference in, that certain Agreement of Definitions - 2011-SIP-2 

Structured Transaction dated as ofthe date hereof among the parties hereto and certain others (as 

the same may be amended from time to time in accordance with the terms set forth herein for the 

amendment of this Agreement) (the "Agreement ofDeimitions"), and are not otherwise defined 

herein, shall have the meanings and definitions given, or referred to, in the Agreement of 

Definitions. 

RECITALS 

WHEREAS, the Initial Member formed the Company by causing the Certificate of 

Formation of the Company to be filed with the Secretary of State of the State of Delaware on 

January 3, 2012, holds the sole limited liability company interest in the Company, and has 

entered into the Original LLC Operating Agreement; 

WHEREAS, pursuant to the Contribution Agreement, the Initial Member has contributed 

to the Company all of the Initial Member's right, title and interest in and to the Assets; 

WHEREAS, after conducting a sealed bid sale for a twenty-five percent (25%) limited 

liability company interest in the Company (the "Private Owner Interest"), the FDIC selected 

Mariner Real Estate Partners III, LLC, a Delaware limited liability company (the "Winning 

Bidder"), as the successful bidder pursuant to the bid form submitted by it (the "Bid Form") 

and, in accordance with the instructions governing the sealed bid sale, the Winning Bidder has 

deposited $300,000 with its bid and an additional $1,057,280.60 after its bid was selected 

(collectively, the "Earnest Money Deposit") with the FDIC; 

WHEREAS, following its selection as the successful bidder, the Winning Bidder formed 

the Private Owner as a Qualified Transferee; 

WHEREAS, the Initial Member desires to transfer the Private Owner Interest to the 

Private Owner (and the Initial Member will retain a seventy-five percent (75%) limited liability 

company interest in the Company) and enter into the LLC Operating Agreement in the form 

attached hereto as Exhibit A, and the Private Owner desires to acquire the Private Owner Interest 

and enter into the LLC Operating Agreement; 

WHEREAS, the Initial Member and the Private Owner desire, as capital contributions to 

the Company on a 50/50 basis, to fund the Working Capital Reserve Account with an aggregate 

amount of $1,000,000.00 (such sum, the "WCR Account Deposit"); and 

20 11-SIP-2 Structured Transaction 

Private Owner h1terest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
WHEREAS, the Initial Member's share of such WCR Account Deposit is $500,000.00 

(the "Initial Member WCR Account Deposit") and the Private Owner's share of such WCR 

Account Deposit is $500,000.00 (the "Private Owner WCR Account Deposit"); and 

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

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

sufficiency of which are hereby acknowledged, the Initial Member, the Private Owner and the 

Company hereby agree as follows: 

1. Sale and Assignment; Purchase Price; Funding of Working Capital Reserve; 

Account Closing. 

(a) Sale and Assignment. Subject to the terms and conditions of this 

Agreement, the Initial Member hereby sells to the Private Owner, and the Private Owner hereby 

purchases from the Initial Member, all of the Initial Member's right, title and interest in and to 

the Private Owner Interest for a purchase price of $13,572,806.00 (the "Private Owner Interest 

Sale Price"). On the date hereof, in satisfaction of its obligation to pay the Private Owner 

Interest Sale Price, the Private Owner shall: 

(i) remit to the Initial Member, by wire transfer of immediately 

available funds, to such account as the Initial Member may direct in writing, an amount (the 

"Purchase Price Payment") equal to the positive difference (if any) between (x) the Private 

Owner Interest Sale Price and (y) the sum of (A) the Earnest Money Deposit and (B) the Initial 

Member WCR Account Deposit; and 

(ii) (x) remit, on behalf of the Initial Member, by wire transfer of 

immediately available funds, an amount equal to the Initial Member WCR Account Deposit to 

the Paying Agent for credit to the Working Capital Reserve Account, and (y) remit, on its own 

behalf, by wire transfer of immediately available funds, an amount equal to the Private Owner 

WCR Account Deposit to the Paying Agent for credit to the Working Capital Reserve Account. 

(b) Closing Procedure. The sale and assignment of the Private Owner Interest 

to the Private Owner and the closing of the other transactions contemplated hereby (collectively, 

the "Closing") shall be effective upon: 

(i) the receipt by the Initial Member of (x) the Purchase Price 

Payment, (y) evidence of the establishment of the Working Capital Reserve Account in 

accordance with the provisions of Section 3.6 of the Custodial and Paying Agency Agreement, 

and (z) confirmation of receipt by the Paying Agent of each of the Initial Member WCR Account 

Deposit and the Private Owner WCR Account Deposit; 

(ii) the delivery of the executed LLC Operating Agreement by the 

parties thereto (as required by Section 2); 

(iii) the delivery of the Additional Security (as required by Section 3); 

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2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

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EXECUTION VERSION 
(iv) the delivery by each Person specified in Section 4(a) of a PO 

Owner Undertaking; 

(v) the delivery by the Private Owner of the letter described in Section 

(vi) the delivery of the completed Private Owner Interest Asset Value 

Schedule, in the form attached hereto as Exhibit B, allocating the Private Owner Interest Sale 

Price among the Assets (the "Private Owner Interest Asset Value Schedule"), which shall be 

appended to the Contribution Agreement as the Private Owner Interest Asset Value Schedule 

thereunder; 

(vii) the delivery of the executed Transferee Acknowledgment and 

Certification, in the form attached hereto as Exhibit C; and 

(viii) the delivery ofthe executed Joinder and Consent Agreement, in the 

form attached hereto as Exhibit D. 

2. LLC Operating Agreement. Contemporaneously with the execution and delivery of 

this Agreement, the Private Owner shall execute and deliver to the Company and the Initial 

Member the LLC Operating Agreement. 

3. Additional Security. Contemporaneously with the execution ofthis Agreement and the 

LLC Operating Agreement, the Private Owner shall (i) pursuant to the applicable provisions in 

the LLC Operating Agreement and the Custodial and Paying Agency Agreement, establish the 

Private Owner Pledged Account and (ii) deliver or cause to be delivered) to the Paying Agent the 

Additional Security (which, if in the form ofQualifying Cash Collateral, shall be remitted for 

deposit into the Private Owner Pledged Account). 

4. PO Owner Undertaking; LPOA Letter. 

(a) Contemporaneously with the execution of this Agreement, the Private 

Owner shall cause to be delivered to the Initial Member an instrument in the form attached 

hereto as Exhibit E (a "PO Owner Undertaking"), executed by each PO Owner. Each Person 

required pursuant to the preceding sentence to deliver a PO Owner Undertaking shall execute 

and deliver a separate PO Owner Undertaking. 

(b) Contemporaneously with the execution of this Agreement, the Private 

Owner shall execute and deliver to the Receiver a letter in the form attached hereto as Exhibit F, 

appropriately completed. 

5. Representations and Warranties of Private Owner. The Private Owner hereby 

represents and warrants separately to each ofthe Initial Member and the Company as follows: 

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2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

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EXECUTION VERSION 
(a) The Private Owner is a "Qualified Transferee," and, as such, represents 

and warrants that each item included in such definition is true and correct in all respects as ofthe 

date hereof as ifset forth herein. 

(b) All information and documents provided to the Initial Member or its 

agents by or on behalf of the Private Owner or any Affiliate thereof (or by or on behalf of any 

Specified Parent of the Private Owner or any Affiliate thereof) in connection with this 

Agreement and the transactions contemplated hereby, including, but not limited to, the 

"Purchaser Eligibility Certification," the "Bid Certification," the "Structured Transaction 

Qualification Request," the "Bidder Qualification Application," the "Bid Form" and the 

"Structured Transaction Confidentiality Agreement," are true and correct in all respects as ofthe 

date hereof and do not fail to state any fact necessary to make the information contained therein 

not misleading. 

(c) As of the date hereof, the only PO Owner is MREP III 2011-2 ADC 

Venture LLC. 

6. Exclusivity of Representations. THE PRIVATE OWNER INTEREST IS SOLD "AS 

IS" AND "WITH ALL FAULTS," WITHOUT ANY REPRESENTATION, WARRANTY, 

GUARANTY OR RECOURSE WHATSOEVER, INCLUDING AS TO ITS VALUE (OR THE 

VALUE, COLLECTABILITY OR CONDITION OF THE ASSETS HELD BY THE 

COMPANY OR ANY OF THE COLLATERAL FOR ANY SUCH ASSETS), FITNESS FOR 

ANY PARTICULAR PURPOSE, MERCHANTABILITY, FITNESS FOR A SPECIFIC 

PURPOSE OR ANY OTHER MATTER, WHETHER EXPRESS OR IMPLIED OR BY 

OPERATION OF LAW OR OTHERWISE, AND THE INITIAL MEMBER SPECIFICALLY 

DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR 

WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE PRIVATE 

OWNER INTEREST, THE ASSETS, OR THE COLLATERAL SECURING THE ASSETS. 

7. Assignment. This Agreement and all of the provisions hereof shall be binding upon and 

inure to the benefit of the parties hereto and their respective heirs (in the case of any individual), 

successors and permitted assigns; provided, however, that the Private Owner may not assign this 

Agreement or any of its rights, interests or obligations hereunder. Any purported assignment or 

delegation in violation of this Agreement shall be null and void ab initio. 

8. Beneficiaries. This Agreement shall inure to the benefit of, and may be enforced by, the 

Initial Member, the Private Owner and the Company and their respective successors and assigns. 

Except for the FDIC (in its corporate capacity), which shall be considered a third party 

beneficiary to this Agreement, there shall be no other third party beneficiaries hereunder. 

9. Waivers and Amendments. No amendment or waiver of any provision of this 

Agreement shall be effective unless the same shall be in writing and executed by the Initial 

Member, the Private Owner, the Company and the FDIC (in its corporate capacity). 

10. Governing Law. EACH PARTY TO THIS AGREEMENT AGREES AND ELECTS 

THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS 

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2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS TO BE GOVERNED BY 

AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW 

YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT 

REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE 

LAW OF ANOTHER JURISDICTION, AND EACH PARTY TO THIS AGREEMENT 

UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT 

THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS AGREEMENT. Nothing in 

this Agreement shall require any unlawful action or inaction by any party hereto. 

11. Jurisdiction; Venue and Service. 

(a) Each of the Private Owner and the Company, in each case on behalf of 

itself and its Affiliates, hereby irrevocably and unconditionally: 

(i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any such Affiliate 

commenced by the Initial Member arising out of, relating to, or in connection with this 

Agreement or any Transaction Document, and waives any right to: 

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

court or dispute-resolution forum (other than the court in which the Initial Member files the 

action, suit or proceeding) without the consent ofthe Initial Member; 

(B) assert that venue is improper in either the United States 

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

District ofColumbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

New York, County of New York, for any suit, action or proceeding against it or any such 

Affiliate commenced by the Initial Member arising out of, relating to, or in connection with this 

Agreement or any Transaction Document (other than the LLC Operating Agreement), and 

waives any right to: 

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

other court or dispute-resolution forum without the consent of the Initial Member; 

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

State ofNew York, County ofNew York; or 

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

County ofNew York is an inconvenient forum; 

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2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
(iii) agrees to bring any suit, action or proceeding by it or any such 

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

Agreement or any Transaction Document (other than the LLC Operating Agreement) in only the 

United States District Court for the Southern District ofNew York or the United States District 

Court for the District ofColumbia, and waives any right to remove or transfer such suit, action or 

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

Member, and agrees to consent thereafter to transfer of the suit, action or proceeding to either the 

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

Court for the District ofColumbia at the option of the Initial Member; and 

(iv) agrees, if the United States District Court for the Southern District 

of New York and the United States District Court for the District of Columbia both lack 

jurisdiction to hear a suit, action or proceeding falling within Section ll(a)(iii), to bring that suit, 

action or proceeding in only the Supreme Court ofthe State of New York, County of New York, 

and waives any right to remove or transfer such suit, action or proceeding to any other court or 

dispute-resolution forum without the consent ofthe Initial Member. 

(b) Each of the Private Owner and the Company, in each case on behalf of 

itself and its Affiliates, hereby irrevocably and unconditionally agrees that any final judgment 

entered against it in any suit, action or proceeding falling within Section 11(a) may be enforced 

in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 11 (d), each of the Private Owner and 

the Company, in each case on behalf of itself and its Affiliates, and the Initial Member, hereby 

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

suit, action or proceeding pursuant to Section ll(a) or Section 11(b) may be effected by the 

mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address for 

notices pursuant to Section 13 (with copies to such other Persons as specified therein); provided, 

however, that nothing contained in this Section 11(c) shall affect the right of any party to serve 

process in any other manner permitted by Law. 

(d) Nothing in this Section 11 shall constitute consent to jurisdiction in any 

court by the FDIC (in any capacity), other than as expressly provided in Section 11(a)(iii) and 

Section 11(a)(iv), or in any way limit the FDIC's (in any capacity) right to remove, transfer, seek 

to dismiss, or otherwise respond to any suit, action, or proceeding against it in any forum. 

12. Waiver of Jury Trial. EACH OF THE PRIVATE OWNER AND THE COMPANY, 

FOR ITSELF AND ITS AFFILIATES, AND THE INITIAL MEMBER, HEREBY 

IRREVOCABLY AND UNCONDITIONALLY W AlVES ANY RIGHT IT MAY HAVE TO A 

TRIAL BY JURY OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS 

AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A 

JUDGE SITTING WITHOUT A JURY. 

13. 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, by delivery by hand or 

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2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
by nationally recognized courier service, or by electronic mail, in each case mailed or delivered 

to the applicable address or electronic mail address specified in, or in the manner provided in, 

this Section 13 below. All such notices, requests, demands and other communications shall be 

deemed to be given or made upon the earlier to occur of (i) actual receipt (or refusal thereof) by 

the relevant party hereto and (ii) (A) if delivered by hand or by nationally recognized courier 

service, when signed for (or refused) by or on behalf of the relevant party hereto; (B) if delivered 

by mail, when delivered (or refused), and (C) if delivered by electronic mail (which form of 

delivery is subject to the provisions of this paragraph), when delivered and capable of being 

accessed from the recipient's office computer, provided that any notice, request, demand or other 

communication that is received other than during regular business hours of the recipient shall be 

deemed to have been given at the opening ofbusiness on the next Business Day of the recipient. 

In no event shall a voice mail message be effective as a notice, communication or confirmation 

hereunder. From time to time, any party may designate a new address for purposes of notice to it 

hereunder by notice to such effect to the other parties hereto in the manner set forth in this 

Section 13. 

If to the Initial Member, to: 

Assistant Director - Structured Transactions 


Federal Deposit Insurance Corporation 


550 17th Street, NW (Room F-7015) 


Washington, D.C. 20429-0002 


Attention: Ralph Malami 


E-mail Address: rmalami@fdic.gov 


with a copy: 

Supervisory Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room D-7102) 

Arlington, Virginia 22226 

Attention: Kathleen Russo 

E-mail Address: krusso@fdic.gov 

If to the Private Owner or to the Company, to: 

4200 W. 115th Street 


Suite 100 


Leawood, KS 66211 


Attention: Bryan Anderson and Kirk Lambright 


E-mail Address: 

with copies to: 

7 


20 11-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
Greenberg Traurig 

1750 Tysons Boulevard 

Suite 1200 

McLean, VA 22102 

Attention: Tom Galli 

E-mail Address: 

14. Counterparts; Facsimile Signatures. This Agreement may be executed in any number 

of counterparts, each of which shall be an original and all of which shall together constitute one 

and the same instrument. It shall not be necessary for any counterpart to bear the signature of all 

parties hereto. This Agreement and any amendments hereto, to the extent signed and delivered 

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

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

signed version thereof delivered in person. No signatory to this Agreement shall raise the use of 

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

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

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

Person forever waives any such defense. 

15. Headings. Section or paragraph titles or captions contained in this Agreement are 

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

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

paragraph references contained herein shall refer to Sections and paragraphs in this Agreement 

unless otherwise specified. 

16. Compliance with Law; Rules of Construction. Except as otherwise specifically 

provided herein, each party to this Agreement shall, at its own cost and expense, obey and 

comply with all Laws, as they may pertain to such party's performance of its obligations 

hereunder. The Rules of Construction apply to this Agreement. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

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2011-SlP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of 

the date first written above. 

PRIVATE OWNER: 

SIP PO, LLC 

By: 	MREP III 2011-2 ADC Venture LLC, as 

Manager 

By: Mariner Real Estate Partners III, LLC, as 

Manager 

By: Mariner Real Estate Management, LLC, as 

M ,. I " ' "' 

By 

/Name( Kirk Lambright 

Title: Chief Legal Officer 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION in its capacity as Receiver for THE 

BANK OF WHITMAN, COLFAX, WASHINGTON 

By· 

Name: 

Title: Senior Capital Markets Specialist 

COMPANY: 

2011-SIP-2 VENTURE, LLC 

By: FEDERAL DEPOSIT INSURANCE 

CORPORATION in its capacity as Receiver for THE 

BANK OF WHITMAN, COLFAX, WASHINGTON, 

as Sole Member and Manager 

By: 

Name: 

Title: Senior Capital Markets Specialist 

[Signature Page to Priv<te Owner Interest Sale and Assignment Agreement] 

20 11-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
Exhibit A 

FORM OF LLC OPERATING AGREEMENT 


2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
2011-SIP-2 Structured Transaction 

LIMITED LIABILITY COMPANY OPERATING AGREEMENT 


2011-SIP-2 VENTURE, LLC 


2011-SIP-2 Structured Transaction 

Initial Limited Liability Company Operating Agreement 

Version 3.1 

EXECUTION VERSION 
Table of Contents 

Page 

ARTICLE I Certain Definitions ................................................................................................... ! 


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


ARTICLE II Organization of the Company ..................................................................................3 


2.1 Formation..............................................................................................................3 


2.2 Name.....................................................................................................................3 


2.3 Registered Office; Chief Executive Office ...........................................................3 


2.4 Purpose; Duration .................................................................................................3 


ARTICLE III Management and Operations of the Company .........................................................3 


3.1 Management ofthe Company's Affairs ................................................................3 


ARTICLE IV Contributions; Other Matters ...................................................................................4 


4.1 Capital Contributions ............................................................................................4 


4.2 Interests Uncertificated .........................................................................................4 


ARTICLE V Distributions and Allocations ..................................................................................4 


5.1 Distributions..........................................................................................................4 


5.2 Allocations............................................................................................................5 


ARTICLE VI Accounting...............................................................................................................5 


6.1 Fiscal Year. ...........................................................................................................5 


6.2 Taxation.................................................................................... 5 


ARTICLE VII Dissolution and Winding-Up of the Company .......................................................5 


7.1 Dissolution............................................................................................................5 


7.2 Winding-Up Procedures .......................................................................................5 


7.3 Termination of the Company ................................................................................6 


ARTICLE VIII Manager Liability ...................................................................................................6 


8.1 Liability of Manager. ............................................................................................6 


ARTICLE IX Miscellaneous........................................................................................................6 


9.1 Entire Agreement. .................................................................................................6 


9.2 Governing Law ..................................................................................................... ? 


9.3 Waivers and Amendments ....................................................................................? 


9.4 Counterparts; Facsimile Signatures ......................................................................? 


9.5 Successors and Assigns ........................................................................................? 


9.6 Construction..........................................................................................................8 


9.7 Severability...........................................................................................................9 


Exhibit A Form of Certificate of Formation ofthe Company 

EXECUTION VERSION 
2011-SIP-2 VENTURE, LLC 


LIMITED LIABILITY COMPANY OPERATING AGREEMENT 


THIS LIMITED LIABILITY COMPANY OPERATING AGREEMENT (as the same 

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

"Agreement"), is made and effective as of January 11, 2012, by and among the Federal Deposit 

Insurance Corporation (the "FDIC"), as the Receiver defined below (the "Initial Member"), and 

20 11-SIP-2 Venture, LLC, a Delaware limited liability company (the "Company"). 

WHEREAS, the FDIC has been appointed receiver (in such capacity, the "Receiver") 

for The Bank of Whitman, Colfax, Washington; and 

WHEREAS, on January 3, 2012, the Initial Member formed the Company as a Delaware 

limited liability company; and 

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

govern the ownership and operation ofthe Company. 

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

agreements 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. For purposes of this Agreement, the following terms shall 

have the meanings and definitions hereinafter respectively set forth (terms defined in the singular 

to include the plural and vice versa). 

"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, general partner, managing member, trustee, employee or promoter ofthe Person 

specified or any Immediate Family Member of such officer, director, general partner, managing 

member, trustee, employee or promoter, (iv) any corporation, partnership, limited liability 

company or trust for which any Person referred to in clause (ii) or (iii) acts in that capacity, or (v) 

any Person who is an officer, director, general partner, managing member, trustee or holder of 

ten percent ( 1 0%) or more of the outstanding voting securities, voting equity interests or 

beneficial interests of any Person described in clauses (i) through (iv). 

"Agreement" shall have the meaning given in the preamble. 

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20II-SIP-2 Structured Transaction 

Initial Limited Liability Company Operating Agreement 

Version 3.1 

EXECUTION VERSION 
"Certificate" shall have the meaning given in Section 2.1 (a). 

"Company" shall have the meaning given in the preamble. 

"Control" (including the phrases "Controlled by" and "under common Control 

with") when used with respect to any specified Person shall mean the possession, direct or 

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

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

"FDIC" shall have the meaning given in the preamble. 

"GAAP" shall mean United States generally accepted accounting principles as in 

effect from time to time. 

"Governmental Authority" shall mean (i) any United States or non-United 

States national, federal, state, local, municipal, provincial or international government or any 

political subdivision of any thereof or (ii) any governmental, regulatory or administrative 

authority, agency or commission, or judicial or arbitral body of any of the foregoing described in 

clause (i). 

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

her spouse, parents, parents-in-law, grandparents, descendants, nephews, nieces, brothers, sisters, 

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

stepchildren, grandchildren (whether natural or adopted) and grandchildren-in-law. 

"Initial Member" shall have the meaning given in the preamble. 

"Law" shall mean any applicable statute, law, ordinance, regulation, rule, code, 

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

Authority. 

"Manager" shall have the meaning given in Section 3.1(a). 

"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. 

"Receiver" shall have the meaning given in the preamble. 

"Treasury Regulations" shall mean the regulations promulgated by the United 

States Department of the Treasury pursuant to and in respect of provisions of the Internal 

Revenue Code of 1986, as amended, and all references to sections of the Treasury Regulations 

shall include any corresponding provision or provisions of succeeding, substitute, proposed or 

final Treasury Regulations. 

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2011-SIP-2 Structured Transaction 

Initial Limited Liability Company Operating Agreement 

Version 3.1 

EXECUTION VERSION 
ARTICLE II 


Organization of the Company 


2.1 Formation. 

(a) On January 3, 2012, the Initial Member caused the Certificate of 

Formation in the form attached as Exhibit A hereto (the "Certificate") to be filed in the office of 

the Secretary of State of the State of Delaware. The Certificate shall not be amended except to 

change the registered agent or office of the Company. 

(b) The Initial Member hereby agrees to be, and is hereby admitted as, the 

sole member of the Company. 

2.2 Name. 

(a) The name ofthe Company shall be "2011-SIP-2 Venture, LLC". 

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

the Company or such other name or names that comply with applicable Law as the Initial 

Member may select from time to time. 

2.3 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 Initial Member from 

time to time and which shall be set forth in the Certificate. Initially, the registered office in 

Delaware shall be at, and the name and address of the Company's registered agent in Delaware 

shall be, as specified in the Certificate as originally filed. 

2.4 Purpose; Duration. 

(a) The Company may engage in any lawful business unless a more limited 

purpose is stated in the Certificate. 

(b) Subject to Section 7.1, the Company shall continue m existence 

perpetually. 

ARTICLE III 


Management and Operations of the Company 


3.1 Management ofthe Company's Affairs. 

(a) The management of the Company is vested exclusively in the manager of 

the Company (the "Manager"). The Initial Member is hereby appointed as the Manager. 

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 (including without limitation the power to incur any 

indebtedness of any nature whatsoever). 

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(b) 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 Initial Member; 

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

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

the Company; 

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

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

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

whatsoever involving the Company or the Initial Member. 

(c) Notwithstanding anything to the contrary contained in this Agreement, the 

parties hereto acknowledge and agree that: 

(i) nothing contained in this Agreement creates any fiduciary duty on 

behalf of the Initial Member or the Manager; and 

(ii) the Company hereby expressly waives any fiduciary duties that 

may otherwise be deemed to be owed by the Initial Member or the Manager to the Company. 

ARTICLE IV 


Contributions; Other Matters 


4.1 Capital Contributions. Except as otherwise expressly provided in this 

Agreement or the Act, the Initial Member shall not be obligated to make any contribution of 

capital to the Company or have any liability for the debts and obligations of the Company. This 

Section 4.1 is in furtherance of, and not in limitation of, Section 18-303(a) ofthe Act. 

4.2 Interests Uncertificated. No certificates shall be issued evidencing the 

membership interest of the Initial Member in the Company. 

ARTICLE V 


Distributions and Allocations 


5.1 Distributions. Subject to applicable Law and any limitations contained 

elsewhere in this Agreement, the Manager may elect from time to time to make distributions to 

the Initial Member. 

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

Initial Member. 

ARTICLE VI 


Accounting 


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

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

December 31. 

6.2 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 301.7701-3.1. 

ARTICLE VII 


Dissolution and Winding-Up of the Company 


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

to occur of the following: 

(a) An election to dissolve the Company made by written consent of the 

Initial Member; 

(b) The entry of a decree ofjudicial dissolution under the Act; or 

(c) Any other event which, under the Act, automatically causes dissolution, 

notwithstanding the provisions of this Section 7 .1. 

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

Section 7.1 occurs, subject to the Company's compliance with its obligations under the 

agreements to which it is a party and the other terms and conditions of this Agreement, 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 Manager. As part of the 

winding up of the affairs of the Company, the following steps will be taken: 

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

all of the assets of the Company are retained by the Company for distribution to the Initial 

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 Initial Member, to the extent 

permitted by Law, in satisfaction of liabilities of the Company (whether by payment or the 

making of reasonable provision for payment thereof) other than liabilities for which reasonable 

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EXECUTION VERSION 
provision for payment has been made and liabilities for distributions to the Initial Member under 

Section 18-601 of the Act; and 

(ii) next, to the Initial Member. 

7.3 Termination of the Company. Upon the dissolution of the Company and 

the completion of the winding up process set forth in Section 7 .2, the Manager (or such other 

Person or Persons as the Act may require or permit) shall cause the cancellation of the Certificate 

and shall take (or cause to be taken) such other actions as may be necessary to terminate the 

Company. 

ARTICLE VIII 


Manager Liability 


8.1 Liability of Manager. 

(a) 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. 

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

management consultants, investment bankers and other consultants and advisors 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. 

(c) The Manager shall not be liable to the Company for its good faith reliance 

on the provisions of this Agreement. 

(d) In addition to, and without limitation of, the foregoing, the Manager shall 

not have any liability to the Company or the Initial Member on account of any act or omission of 

the Manager, provided only that this sentence shall not apply in the case of intentional fraud. 

(e) The preceding Sections 8.1(a), (b), (c) and @ are in addition to, and 

without limitation of, Section 3.1(c). 

ARTICLE IX 


Miscellaneous 


9.1 Entire Agreement. This Agreement constitutes the entire agreement and 

understanding, and supersedes all other prior agreements and understandings, both written and 

oral, between the Initial Member or its Affiliates or any of them and the Company with respect to 

the subject matter hereof. 

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Initial Limited Liability Company Operating Agreement 

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EXECUTION VERSION 
9.2 Governing Law. THIS AGREEMENT IS GOVERNED BY AND IS TO 

BE CONSTRUED IN ACCORDANCE WITH THE LAWS 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 LAWS 

OF ANOTHER JURISDICTION, AND EACH PARTY TO THIS AGREEMENT 

UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT 

THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS AGREEMENT. In the event 

of a direct conflict between the provisions of this Agreement and any mandatory, non-waivable 

provision of the Act, such provision of the Act shall control to the extent necessary to eliminate 

such direct conflict. Nothing in this Agreement shall require any unlawful action or inaction by 

any Person. 

9.3 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 Initial 

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

the part of the Initial Member to exercise, and no delay on the part of the Initial Member in 

exercising, any right, power or privilege hereunder shall operate as a waiver thereof; nor shall 

any waiver on the part of the Initial Member 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. For the avoidance of doubt, any 

amendment, modification or waiver of, or in respect of, Section 3.1(c) or Section 8.1 of this 

Agreement shall (unless the Initial Member, specifically in its capacity as Manager, specifically 

shall agree otherwise) be prospective only and not in any way affect the limitations on fiduciary 

duties and liability of the Manager under said sections of this Agreement as in effect 

immediately prior to such amendment, modification or waiver with respect to claims arising 

from or relating to matters occurring, in whole or in part, prior to such amendment, modification 

or waiver, regardless of when such claims may be asserted. 

9.4 Counterparts; Facsimile Signatures. 

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

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

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

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

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

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

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

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

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

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

such Person forever waives any such defense. 

9.5 Successors and Assigns. Except as otherwise specifically provided in this 

Agreement, this Agreement shall be binding upon and inure to the benefit of the Initial Member 

and the Company and their respective successors and permitted assigns. This Agreement, as in 

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Initial Limited Liability Company Operating Agreement 

Version 3. I 

EXECUTION VERSION 
effect on the date that any particular Person shall cease to be the Initial Member, shall continue 

to bind such Person in relation to the period during which it was the Initial Member. 

9.6 Construction. 

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

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

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

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

(b) References to Persons Exclusive. References to "Affiliates" of a specified 

Person refer to, and include, only other Persons which from time to time constitute "Affiliates" 

of such specified Person, and do not include, at any particular time, other Persons that may have 

been, but at such time have ceased to be, "Affiliates," of such specified Person, except to the 

extent that any such reference specifically provides otherwise. A reference to the Initial 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 Initial Member or other Person (such as, without limitation, 

any stockholder or member of or partner in the Initial Member, or other Person). 

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

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

amendment, modification or replacement to such Law. 

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

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

which they refer. 

(f) References to Documents. References to any document, instrument or 

agreement (i) shall be deemed to include all appendices, exhibits, schedules and other 

attachments thereto and all documents, instruments or agreements issued or executed in 

replacement thereof, and (ii) shall mean such document, instrument or agreement, or replacement 

thereof, as amended, modified and supplemented from time to time in accordance with its terms 

and as the same is in effect at any given time. 

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

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

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

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

similar import when used in this Agreement are not limiting and shall be construed to be 

followed by the words "without limitation," whether or not they are in fact followed by such 

words. 

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

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

period and continuing until the end of such period. 

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Initial Limited Liability Company Operating Agreement 

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EXECUTION VERSION 
9.7 Severability. Any provision of this Agreement which is prohibited or 

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

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

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

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

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

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

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 (ill, such ineffectiveness shall not invalidate any of the remaining provisions of this 

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

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

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

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

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

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

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

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

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

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

Section 9.7(b) is intended to, or shall, limit (1) the ability of any party to this Agreement to 

appeal any court ruling or the effect of any favorable ruling on appeal or (2) the intended effect 

of Section 9.2. 

[Remainder ofPage Intentionally Left Blank] 

9 

2011-SIP-2 Structured Transaction 

Initial Limited Liability Company Operating Agreement 

Version 3.1 

EXECUTION VERSION 
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by 

their respective officers or agents thereunto duly authorized on the date first above written. 

INITIAL MEMBER 

FEDERAL DEPOSIT INSURANCE 

CORPORATION IN ITS CAPACITY AS 

RECEIVER FOR THE BANK OF WHITMAN, 

COLFAX, WASHINGTON 

Name: Jocelyn Spector 

Title: Senior Capital Markets Specialist 

COMPANY 

2011-SIP-2 VENTURE, LLC 

By: Federal Deposit Insurance Corporation in its 

capacity as receiver for The Bank of Whitman, 

Colfax, Washington, as Sole Member and Manager 

Name: Jocelyn Spector 

Title: Senior Capital Markets Specialist 

[Signature Page to Initial Limited Liabilty Company Operating Agreement] 

20ll-SIP-2 Structured Transaction 

Initial Limited Liability Company Operating Agreement 

Version 3.1 

13679335.5 
EXHIBIT A 


FORM OF 


CERTIFICATE OF FORMATION 


OF 


2011-SIP-2 VENTURE, LLC 


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

Delaware Limited Liability Company Act, the undersigned hereby certifies that: 

FIRST, the name of the limited liability company is 2011-SIP-2 Venture, LLC 

(the "Company"). 

SECOND, the address of the registered office of the 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 of the Company on this 3rd day of January, 2012. 

By: _________________________________ 

Name: 

Title: 

Schedule I-1 

2011-SIP-2 Structured Transaction 

Initial Limited Liability Company Operating Agreement 

Version 3.1 

13679335.5 
Exhibit B 

FORM OF PRIVATE OWNER INTEREST ASSET VALUE SCHEDULE 

2011-SlP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
-----------------------------

Exhibit C 

[FORM OF TRANSFEREE ACKNOWLEDGMENT AND CERTIFICATION] 

TRANSFEREE ACKNOWLEDGMENT AND CERTIFICATION 

Reference is made to the Private Owner Interest Sale and Assignment Agreement dated 

January 11, 2012 (the "Private Owner Interest Sale Agre~ment") by and among SIP PO, LLC, 

a Delaware limited liability company (the "Private Owner"), the Federal Deposit Insurance 

Corporation in its capacity as Receiver (the "Initial Member"), and 2011-SIP-2 Venture, LLC 

(the "Company"). Capitalized terms used, and not otherwise defined, in this Transferee 

Acknowledgment and Certification have the meanings given in the Private Owner Interest Sale 

Agreement (including without limitation in the Agreement ofDefinitions referred to therein). 

The undersigned, the Private Owner, hereby acknowledges and certifies to the Initial 

Member that it has read and understands, and is prepared to cause the Company to comply with, 

the obligations imposed upon the Company under the Contribution Agreement and the 

Transaction Documents. Without limiting the foregoing, and subject to the provisions of the 

Contribution Agreement and the Transaction Documents, the Private Owner is aware of and 

prepared to cause the Company to comply with the obligations as specified in the Contribution 

Agreement (i) to remove the Initial Member and the Failed Bank as a party to any Assumed 

Closing Date Asset Litigation (including without limitation the actions on the List (as defined 

below) constituting Assumed Closing Date Asset Litigation), and to substitute the Company as 

the real party-in-interest in any such Assumed Closing Date Asset Litigation and (ii) to take all 

actions necessary to file (x) proofs of claims in pending bankruptcy cases involving any Assets 

for which the Initial Member or the Failed Bank has not already filed a proof of claim, and (y) all 

documents required by Rule 3001 of the Federal Rules of Bankruptcy Procedure and to take all 

such similar actions as may be required in any relevant jurisdiction in any pending bankruptcy or 

insolvency case or proceeding in such jurisdiction involving any Assets in order to evidence and 

assert the Company's rights. 

Attached hereto as Schedule I is a list of litigation made available with respect to the 

Assets (the "List"). The undersigned acknowledges that the Initial Member makes no 

representation or warranty as to the completeness or accuracy of the List or the information 

contained or referred to therein and that (without limitation of the foregoing) there may be 

additional litigation or bankruptcy actions pending against the Failed Bank or the Initial Member 

with respect to the Assets or with respect to other parties with respect to the Assets. 

Date: January 11, 2012 SIP PO, LLC, a Delaware limited liability company 

By: MREP III 2011-2 ADC Venture LLC, as Manager 

By: Mariner Real Estate Partners III, LLC, as Manager 

By: Mariner Real Estate Management, LLC, as 

Manager 

By: 

N arne: Kirk Lambright 

Title: Chief Legal Officer 

2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
SCHEDULE I TO TRANSFEREE ACKNOWLEDGEMENT AND CERTIFICATION 


LIST OF LITIGATION 


[Attach] 

2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
Exhibit D 

[FORM OF JOINDER AND CONSENT AGREEMENT] 

JOINDER AND CONSENT AGREEMENT 

THIS JOINDER AND CONSENT AGREEMENT, dated as of January 11, 2012, is 

delivered pursuant to Section l(b) of the Private Owner Interest Sale and Assignment 

Agreement, dated as of January 11, 2012, by and among SIP PO, LLC, a limited liability 

company organized and existing under the laws of Delaware (the "Private Owner"), the Federal 

Deposit Insurance Corporation, in its capacity as Receiver (the "Initial Member"), and 2011­

SIP-2 Venture, LLC, a limited liability company organized and existing under the laws of 

Delaware (the "Company") (the "Private Owner Interest Sale Agreement"). Capitalized 

terms used herein without definition are used as defined in the Private Owner Interest Sale 

Agreement (including without limitation in the Agreement of Definitions referred to therein). 

By executing and delivering this Joinder and Consent Agreement, the Private Owner 

hereby becomes a party to the Asset Contribution Agreement, dated as of the date of this Joinder 

and Consent Agreement, by and between the Initial Member and the Company (the 

"Contribution Agreement") with the same force and effect as if originally named as a party to 

the Contribution Agreement and, without limiting the generality of the foregoing, consents to 

and assumes all obligations and liabilities imposed upon the Private Owner pursuant to the 

Contribution Agreement. The Private Owner hereby agrees to be bound for all intents and 

purposes as a party to the Contribution Agreement. 

(remainder ofpage intentionally left blank) 

20 11-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
IN WITNESS WHEREOF, the Private Owner has caused this Joinder and Consent 

Agreement to be duly executed and delivered as ofthe date first above written. 

PRIVATE OWNER: 

SIPPO,LLC 

By: MREP III 2011-2 ADC Venture LLC, as Manager 

By: Mariner Real Estate Partners III, LLC, as Manager 

By: Mariner Real Estate Management, LLC, as Manager 

By:_____________ 

Name: Kirk Lambright 

Title: Chief Legal Officer 

ACKNOWLEDGED AND AGREED as ofthe date 

first above written: 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE CORPORATION, in its capacity as Receiver for THE 

BANK OF WHITMAN, COLFAX, WASHINGTON 

By:________________ 


Name:[_________~ 

Title: [_______. 


COMPANY: 

2011-SIP-2 VENTURE, LLC 

By: Federal Deposit Insurance Corporation, in its capacity as Receiver for The Bank of 

Whitman, Colfax, Washington, as Sole Member and Manager 

Name:[__________~ 

Title: [________J 

20 11-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
Exhibit E 

[FORM OF PO OWNER UNDERTAKING] 

PO OWNER UNDERTAKING 

This PO OWNER UNDERTAKING (this "Undertaking"), dated as of January 11, 20121 

is made by [ , a [ ] (the "Promisor"), for the severable benefit of each of the 

Company and the Initial Member (as such terms are defined hereinbelow) (collectively, the 

"Beneficiaries"). 

W IT N E S S E T H: 

WHEREAS, Promisor and/or Affiliates of the Promisor, either alone or together with one 

or more other Persons, Control and/or hold an Ownership Interest in, [PRIVATE OWNER], a 

[ ] (the "Private Owner"); 

WHEREAS, it is contemplated that contemporaneously with the execution and delivery 

hereof, (i) the Transferor and the Company will execute and deliver the Contribution Agreement, 

pursuant to which, inter alia, the Assets will be contributed to the Company and (ii) the Federal 

Deposit Insurance Corporation in its capacity as Receiver, the Company and the Private Owner 

will execute and deliver that certain Private Owner Interest Sale and Assignment Agreement 

dated of even date herewith (the "Private Owner Interest Sale Agreement"), pursuant to which, 

inter alia, the Private Owner will acquire the Private Owner Interest and become a member of the 

Company; 

WHEREAS, the parties to the Contribution Agreement and the Private Owner Interest 

Sale Agreement (other than the Private Owner) are not willing to proceed with the execution and 

delivery thereof unless the Promisor, contemporaneously therewith, executes and delivers this 

Undertaking (and the Private Owner is required to cause the Promisor to execute and deliver this 

Undertaking pursuant to the Private Owner Interest Sale Agreement);2 and 

WHEREAS, prior to the date hereof, (i) the Transferor and the Company executed and 

delivered the Contribution Agreement, pursuant to which, inter alia, the Assets were contributed 

to the Company, and (ii) the Federal Deposit Insurance Corporation in its capacity as Receiver, 

the Company and the Private Owner executed and delivered that certain Private Owner Interest 

Sale and Assignment Agreement dated January _, 2012 (the "Private Owner Interest Sale 

Agreement"), pursuant to which, inter alia, the Private Owner acquired the Private Owner 

Interest and become a member ofthe Company; and 

1. 	 To be dated as of the Closing Date in the case of any Undertaking delivered on the Closing Date. To be dated 

as of the date of delivery in the case of any Undertaking delivered after the Closing Date. 

2. 	 This "Whereas" clause, and the immediately preceding "Whereas" clause, are to be included in an Undertaking 

executed on the Closing Date. 

2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
2 

WHEREAS, pursuant to one or more undertakings executed and delivered pursuant to the 

Private Owner Interest Sale Agreement, one or more other Persons covenanted that the Promisor 

would execute and deliver this Undertaking (and in any event the failure of the Promisor to 

execute and deliver this Undertaking would constitute an "Event of Default" under the LLC 

Operating Agreement to the detriment of the Private Owner and the Promisor);]3 

NOW, THEREFORE, in order to induce the parties to the Contribution Agreement and 

the Private Owner Interest Sale Agreement (other than the Private Owner) to proceed with the 

execution and delivery thereof, and for other good and valuable consideration, the receipt and 

adequacy of which are hereby acknowledged,4 [in order to fulfill the requirements of the prior 

undertaking(s), and to avoid the Event of Default, described above,]S the Promisor hereby 

irrevocably and unconditionally undertakes and covenants, for the several benefit of each of the 

Beneficiaries, as follows: 

1. Certain Definitions. Capitalized terms used, but not otherwise defined, in 

this Undertaking (including in the preamble and recitals hereto) shall have the respective 

meanings ascribed to such terms in the Private Owner Interest Sale Agreement (including in the 

Agreement of Definitions referenced therein). 

2. Representations and Warranties. The Promisor hereby represents and 

warrants to each ofthe Beneficiaries that: 

(a) The Promisor has all power and authority necessary to enter into this 

Undertaking and to perform its obligations hereunder; 

(b) This Undertaking has been duly executed and delivered by the Promisor, 

and constitutes the valid and legally binding agreement of the Promisor, enforceable in 

accordance with its terms against the Promisor subject to the effect of bankruptcy, insolvency, 

moratorium and other similar laws relating to creditors' rights generally; 

(c) The execution, delivery and performance of (including compliance by the 

Promisor with) this Undertaking will not result in any violation or breach of, or default under, 

any contract, agreement or other instrument to which the Promisor or any of its Affiliates is a 

party or by which the Promisor or any of its Affiliates is bound, any fiduciary duty owed by the 

Promisor or any of its Affiliates to any third party, or any judgment, order, decree, statute, law, 

ordinance, rule or regulation applicable to the Promisor or any of its Affiliates or to the 

properties ofthe Promisor or any ofits Affiliates; and 

3. 	 This "Whereas" clause, and the immediately preceding "Whereas" clause, are to be included in an Undertaking 

executed after the Closing Date. 

4. 	 Bracketed language to be included in an Undertaking executed on the Closing Date. 

5. 	 Bracketed language to be included in an Undertaking executed after the Closing Date. 

2011-SIP-2 Structured Transaction 

Private Owner Interest Sale Agreement 

Version 3.1 

EXECUTION VERSION 
3 

(d) No consent, approval, order, or authorization of, or registration, 

declaration or filing with, any governmental authority remains to be obtained or made by the 

Promisor or any of its Affiliates in connection with the execution and delivery of this 

Undertaking by the Promisor or the performance of its obligations hereunder. 

3. Undertakings. 

(a) The Promisor (i) shall not, and it shall procure that none of its Affiliates, 

shall, at any time prior to the first day after the sixth anniversary of the Final Distribution, 

institute or join, or join or assist any other Person in instituting or joining, or cause the Private 

Owner or the Company to institute, a Specified Proceeding, and (ii) without limitation of clause 

(i), shall procure that (x) the Private Owner shall not, at any time prior to the first day after the 

sixth anniversary of the Final Distribution, institute or join, or join or assist any other Person in 

instituting or joining, or cause the Company to institute, a Specified Proceeding (for this purpose 

disregarding references in the definition of the term "Specified Proceeding" to the Private 

Owner), in each case without the consent of the Initial Member, (y) the Private Owner shall not, 

prior to the Final Distribution, institute any Specified Proceeding (for this purpose disregarding 

references in the definition of the term "Specified Proceeding" to the Company) and (z) without 

limiting the generality of clause .(jj).{y)., no Dissolution Event shall occur with respect to the 

Private Owner prior to the Final Distribution. 

(b) The Promisor shall procure that each other PO Owner shall, 

contemporaneously with its first becoming a PO Owner, execute and deliver to the Beneficiaries 

an instrument in the form of this Undertaking. 

4. Binding Effect; Beneficiaries; Assignment. This Undertaking shall be 

binding upon the successors and assigns of the Promisor. This Undertaking is for the benefit of 

(but solely for the benefit of) each of the Beneficiaries and their respective successors or assigns 

(each of whom is hereby constituted an express third-party beneficiary of this Undertaking) and 

no other Person shall be deemed to have any rights or remedies hereunder or by reason of the 

existence ofthis Undertaking or any term hereof. 

5. Waivers and Amendments. This Undertaking may not be amended, and 

no waiver of any provision of this Undertaking shall be effective, in each case except by an 

instrument in writing and executed by the Promisor and each Beneficiary. 

6. Specific Enforcement. The Promisor agrees that there can be no adequate 

remedy at law for any failure by it to comply with the terms hereof and, accordingly, (i) each 

Beneficiary shall be entitled to equitable relief, including but not limited to injunction, in the 

event of any such failure (or any threat thereof), in addition to whatever remedies such 

Beneficiary might have at law, and (ii) the Promisor shall not oppose the granting of such relief 

and hereby irrevocably waives any requirement for the security or posting of any bond in 

connection with such relief. The Promisor agrees to indemnify and hold harmless each 

Beneficiary from and against any Losses incurred by such Beneficiary in connection with or 

arising out of any breach of this Undertaking by the Promisor. 

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7. Governing Law. IN ACCORDANCE WITH SECTION 5-1401 OF THE 

GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS UNDERTAKING 

IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF 

THE STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR 

PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF 

THIS UNDERTAKING TO THE LAW OF ANOTHER JURISDICTION, AND PROMISOR 

UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT 

THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS AGREEMENT. 

8. Jurisdiction; Venue and Service. 

(a) The Promisor hereby irrevocably and unconditionally: 

(i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it commenced by any 

Beneficiary arising out of, relating to, or in connection with this Undertaking, and waives any 

right to: 

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

court or dispute-resolution forum (other than the court in which such Beneficiary files the action, 

suit or proceeding) without the consent of such Beneficiary; 

(B) assert that venue is improper in either the United States 

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

District ofColumbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

New York, County ofNew York, for any suit, action or proceeding against it commenced by any 

Beneficiary arising out of, relating to, or in connection with this Undertaking, and waives any 

right to: 

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

other court or dispute-resolution forum without the consent ofsuch Beneficiary; 

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

State ofNew York, County ofNew York; or 

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

County ofNew York is an inconvenient forum; 

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(iii) agrees to bring any suit, action or proceeding by it against any 

Beneficiary arising out of, relating to, or in connection with this Undertaking in only the United 

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

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

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

Beneficiary, and agrees to consent thereafter to transfer of the suit, action or proceeding to either 

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

District Court for the District ofColumbia at the option of such Beneficiary; and 

(iv) agrees, if the United States District Court for the Southern District 

of New York and the United States District Court for the District of Columbia both lack 

jurisdiction to hear a suit, action or proceeding falling within Section 8(a)(iii), to bring that suit, 

action or proceeding in only the Supreme Court of the State of New York, County ofNew York, 

and waives any right to remove or transfer such suit, action or proceeding to any other court or 

dispute-resolution forum without the consent ofthe applicable Beneficiary. 

(b) The Promisor hereby irrevocably and unconditionally agrees that any final 

judgment entered against it in any suit, action or proceeding falling within Section 8(a) may be 

enforced in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 8(d), the Promisor hereby irrevocably 

and unconditionally agrees that service of all writs, process and summonses in any suit, action or 

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

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

Section 9; provided, however, that nothing contained in this Section 8(c) shall affect the right of 

any party to serve process in any other manner permitted by Law. 

(d) Nothing in this Section 8 shall constitute consent to jurisdiction in any 

court by the FDIC (in any capacity), other than as expressly provided in Section 8(a)(iii) and 

Section 8(a)(iv), or in any way limit the FDIC's (in any capacity) right to remove, transfer, seek 

to dismiss, or otherwise respond to any suit, action, or proceeding against the FDIC m any 

forum. 

9. 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 

Undertaking to the Promisor shall be in writing and shall be given by certified or registered mail, 

postage prepaid, by delivery by hand or by nationally recognized courier service, or by electronic 

mail, in each case mailed or delivered to the applicable address or electronic mail address 

specified in, or in the manner provided in, this Section 9 below. All such notices, requests, 

demands and other communications shall be deemed to be given or made upon the earlier to 

occur of (i) actual receipt (or refusal thereof) by the Promisor and (ii) (A) if delivered by hand or 

by nationally recognized courier service, when signed for (or refused) by or on behalf of the 

Promisor; (B) if delivered by mail, when delivered (or refused), and (C) if delivered by 

electronic mail (which form of delivery is subject to the provisions of this paragraph), when 

delivered and capable of being accessed from the Promisor's office computer, provided that any 

notice, request, demand or other communication that is received other than during regular 

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business hours of the Promisor shall be deemed to have been given at the opening of business on 

the next Business Day of the Promisor. In no event shall a voice mail message be effective as a 

notice, communication or confirmation hereunder. From time to time, the Promisor may 

designate a new address for purposes of notice to it hereunder by notice to such effect to each of 

the Beneficiaries in the manner set forth in the Custodial and Paying Agency Agreement. 

[PROMISOR] 

[_____ [_____ Attention: [______. 


Email Address: [ ______, 


with copies to: 

[_____ [_____ Attention: 


Email Address: [ ______. 


10. Counterparts; Facsimile Signatures. This Agreement may be executed in 

any number of counterparts, each of which shall be an original and all of which shall together 

constitute one and the same instrument. This Agreement and any amendments hereto, to the 

extent signed and delivered by facsimile or other electronic means, shall be treated in all manner 

and respects as an original agreement and shall be considered to have the same binding legal 

effect as ifit were the original signed version thereof delivered in person. The Promisor shall not 

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 the Promisor forever waives any such defense. 

11. Headings. Section or paragraph titles or captions contained in this 

Undertaking are inserted only as a matter of convenience and for reference and in no way define, 

limit, extend or describe the scope of this Undertaking or the intent of any provisions hereof. All 

Section and paragraph references contained herein shall refer to Sections and paragraphs in this 

Undertaking unless otherwise specified. 

12. Rules of Construction. The Rules of Construction apply to this 

Undertaking. 

13. Severability. Any provision of this Undertaking which is prohibited or 

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

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

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

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

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

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

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

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

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

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

Undertaking. Without limitation ofthe preceding sentence, it is the intent of the Promisor that in 

the event that in any court proceeding, such court determines that any provision of this 

Undertaking is prohibited or unenforceable in any jurisdiction (because of the duration or scope 

(geographic or otherwise) of such provision, or for any other reason), such court shall have the 

power to, and shall, (x) modify such provision (including, to the extent applicable, by limiting 

the duration or scope of such provision and/or the Persons against whom, and/or the 

circumstances under which, such provision shall be effective in such jurisdiction) for purposes of 

such proceeding to the minimum extent necessary so that such provision, as so modified, may 

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

clause (x), in such proceeding. Nothing in this Section 13 is intended to, or shall, limit the ability 

of any Beneficiary to appeal any court ruling or the effect of any favorable ruling on appeal or 

the intended effect of Section 7. 

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IN WITNESS WHEREOF, the undersigned has executed and delivered this Undertaking 

as ofthe date first above written. 

[NAME OF SIGNATORY] 


By: _______________________ 


Name:[___________ 


Title: 
L-------' 

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Exhibit F 

[FORM OF LETTER DESIGNATING INDIVIDUALS FOR 

LIMITED POWER OF ATTORNEY] 

January_, 2012 

Federal Deposit Insurance Corporation, 

as Receiver (as such term is defined 

in the Agreement of Definitions referred 

to herein) 

550 17th Street, NW (Room F-7015) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Attention: Kathleen Russo 

Re: Designation of Individuals for Limited Power of Attorney 

Ladies and Gentlemen: 

We refer to (i) that certain Private Owner Interest Sale and Assignment Agreement dated as of 

the date hereof, by and among a [ , the Federal Deposit 

Insurance Corporation in its capacity as Receiver, and 2011-SIP-2 VENTURE, LLC, a limited 

liability company organized and existing under the laws of Delaware (the "Private Owner 

Interest Sale Agreement") and (ii) the Contribution Agreement (as defined in the Agreement of 

Definitions referred to herein). For purposes of this letter, all terms used in this letter that are 

defined in, or by reference in, that certain Agreement of Definitions - 2011-SIP-2 Structured 

Transaction dated as of the date hereof among the parties to the Private Owner Interest Sale 

Agreement and certain others (the "Agreement of Definitions"), and are not otherwise defined 

herein, shall have the meanings and definitions given, or referred to, in the Agreement of 

Definitions. This letter is being delivered pursuant to Section 4(b) of the Private Owner Interest 

Sale Agreement. 

We hereby designate the following individuals as the individuals that should be listed in Exhibit 

A to the Limited Power ofAttorney: 

[_________. 

[________________ 

We hereby certify that we have complied with the requirements of Section 3.l(d)(iv) of the 

Contribution Agreement in relation to the designation set forth in the preceding sentence. 

This letter shall be deemed to be a Transaction Document. This letter may be executed and 

delivered by facsimile or other electronic means, and in any number of counterparts, each of 

which shall be deemed to be an original and all of which shall together constitute one instrument. 

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2 

Very truly yours, 

PRIVATE OWNER: 

By: 

Name: [ ______, 

Title: Authorized Signatory 

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