SFR 2010-3 

EXECUTION COPY 

MORTGAGE LOAN CONTRIBUTION AND SALE AGREEMENT 


BY AND BETWEEN 


THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER 


FOR THE VARIOUS FAILED FINANCIAL INSTITUTIONS 


AND 


2010-3 SFR VENTURE, LLC 


Dated as of November 30,2010 


FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
TABLE OF CONTENTS 

Article I Defmitions and Construction 2 


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


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


Article II Contribution and Sale of Mortgage Loans 5 


Section 2.1 Terms and Conditions ....................................................................................... 5 


Section 2.2 Liabilities Assumed by the Company ............................................................... 6 


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


Section 2.4 Adjustments ....................................................................................................... 7 · 


Section 2.5 Rebates and Refunds ......................................................................................... 8 


Section 2.6 Interest Conveyed.............................................................................................. 8 


Section 2.7 Retained Claims ................................................................. , ............................... 9 


Section 2.8 Transfer Taxes................................................................................................... 9 


Article III Transfer ofMortgage Loans, Underlying Collateral Documents and Servicing 10 


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


Section 3.2 Recordation of Documents •............................................................................. 13 


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


Section 3.4 Grant of Power of Attorney by Company ...................................................... 16 


Article IV Covenants, Duties and Obligations of the Company 17 


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


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


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


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


Section 4.5 Mortgage Loans in Litigation •.......... ~ ............................................................. 18 


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


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


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


Section 4.9 (Reserved] ........................................................................................................ 22 


Section 4.10 Contracts for Deed .......................................................................................... 22 


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


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


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


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


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


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


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


FDIC SFR2010-3 

Mortgage Loan Contribution 

·and Sale Agreement 
Article V Mortgage Loans Sold "As Is" and WithoutRecourse 24 

Section 5.1 Mortgage Loans Conveyed "As Is"................................................................. 24 


Section 5.2 No Warranties or Representations with Respect to Escrow Accounts .......... 25 


Section 5.3 No Warranties or Representations as to Amounts of Unfunded Principal ... 25 


Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any Mortgage 


Loan ................................................................................................................. 25 


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


Section 5.6 Intervening or Missing Assignments .............................................................. 25 


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


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


Section 6.1 Repurchases at Company's Option··~······················································· ...... 26 


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


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


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


Article VII Notices 30 


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


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


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


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


Article VIII Miscellaneous Provisions 32 


Section 8.1 Severability ...................................................................................................... 32 


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


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


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


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


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


Section 8.7 Jurisdiction; Venue and Service ..................................................................... 34 


Section 8.8 Waiver of Jury Trial ....................................................................................... 36 


Section 8.9 Counterparts; Facsimile Signatures ............................................................... 36 


Section 8.10 Headings .......................................................................................................... 36 


Section 8.11 Compliance with Law ...................................................................................... 36 


Section 8.12 Right to Specific Performance ........................................................................ 3 7 


ii 


FDIC SFR 2010-3 


Mortgage Loan Contribution 

and Sale Agreement 
Attachments 

Attachment A 


Attachment B 


Attachment C 


Attachment D 


Attachment E 


Attachment F-1 


Attachment F-2 


Attachment G 


Attachment H 


FDIC SFR 2010-3 


Attachments and Schedule 

Mortgage Loan Schedule ................................................... u ............. A-1


Mortgage Loan Value Schedule .........................................................B-1 


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


Allonge .............................................................................................. D-1 


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


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


Assignment ofReal Estate Deed ofTrust.. ........................................ F-1 


Intentionally Omitted ........................................................................ G-1 


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


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Mortgage Loan Contribution 


and Sale Agreement 

MORTGAGE LOAN CONTRIBUTION AND SALE AGREEMENT 

THIS MORTGAGE LOAN CONTRIBUTION AND SALE AGREEMENT (as the same 

shall be amended or supplemented, this "Agreement") is made and entered into as ofthe 30th 

day ofNovember, 2010 (the "Closing Date") by and between the Initial Member and the 

Company. 

RECITALS 

WHEREAS the FDIC separately has been appointed as receiver for each ofthe Failed 

Banks; and 

WHEREAS the Initial Member owns the Mortgage Loans (as that term is hereinafter 

defmed) described on the Mortgage Loan Schedule attached hereto as Attachment A to this 

Agreement (the "Mortgage Loan Schedule"); and 

WHEREAS the Initial Member has determined to liquidate the Mortgage Loans; and 

WHEREAS the Initial Member has formed the Company and holds the sole membership 

interest in the Company (the "LLC Interest"); and 

WHEREAS the Initial Member desires to transfer the Mortgage Loans to the Company, 

partly as a capital contribution and partly as a sale, in the manner and on the terms and 

conditions more fully set forth herein; and 

WHEREAS the Initial Member and the Company desire that, in consideration ofthe 

transfer ofthe Mortgage Loans.to the Company to the extent such transfer constitutes a sale, the 

Company will issue, execute and deliver to the Initial Member the Purchase Money Note, as 

guaranteed by the Purchase Money Note Guarantor pursuant to the Purchase Money Note 

Guaranty; and 

WHEREAS the Company will be obligated to reimburse the Purchase Money Note 

Guarantor for any payments made by it pursuant to the Purchase Money Note Guaranty, and 

such reimbursement obligation will be secured by the assets ofthe Company and the Underlying 

Collateral Documents, all pursuant to the Reimbursement and Security Agreement; 

WHEREAS, pursuant to the Transferred LLC Interest Sale Agreement, the Initial 

Member has agreed to sell and transfer 40% ofthe issued and outstanding membership interests 

in the Company (the "Transferred LLC Interest") to the Private Owner for a purchase price 

equal to the Transferred LLC Interest Sale Price~ and 

WHEREAS the Transferred LLC Interest Sale Price has been allocated among the 

Mortgage Loans by the Private Owner, as set forth on Mortgage Loan Value Schedule 

(Attachment B to this Agreement); and 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
WHEREAS the Initial Member and the Company desire to memorialize their agreement 

relating to the contribution and sale ofthe Mortgage Loans to the Company and certain ·ather 

matters as set forth in this Agreement. 

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

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

sufficiency of which are hereby acknowledged, -the Initial Member and the Company hereby 

agree as follows: 

Article I 

Definitions and Construction 

Section 1.1 Definitions. For purposes of this Agreement, certain terms used in this 

Agreement shall have the meaning and definitions set forth in that certain Agreement of 

Common Defmitions dated the date herewith among the Initial Member, the Company and 

others. In addition, for purposes of this. Agreement, the following terms shall have the meanings 

and definitions hereinafter respectively set forth: 

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

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

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

equity, before or by a Governmental Authority. 

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

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

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

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

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

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

enforcement order or other similar action of a legal or regulatory nature effective on or before the 

Cut-Off Date, or (iii) the portion of any Dishonored Check that was applied to (and reflected in) 

the Cut-Off Date Unpaid Principal Balance. 

"Adjustment Percentage" means, with respect to any Mortgage Loan, the quotient 

(expressed as a decimal) of the Mortgage Loan Value for such Mortgage Loan divided by the 

Cut-Off Date Unpaid Principal Balance of such Mortgage Loan. 

"Advances" means the sum of all unreimbursed amounts advanced by or on behalf of a 

Failed Bank, the Initial Member or the Company for the benefit of a Borrower or a third-party 

that were advanced to meet required scheduled payments, or to protect a Failed Bank's or the 

Initial Member's lien position or the Collateral, including payment ofad valorem taxes and 

premiums for hazard and forced placed insurance as permitted by the terms of any Mortgage 

Loan Document. Advances do not include Corporate Advances. 

"Affected Mortgage Loan" has the meaning given that term in Section 4.5(d). 

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FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
"Affidavit and Assignment of Claim" means an Affidavit and Assignment of Claim in 

the form ofAttachment C to this Agreement. 

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

includes all exhibits, schedules and attachments to this Agreement. 

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

Instrument Affidavit in the form ofAttachment E to this Agreement. 

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

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

"Bid" has the meaning given that term in the Transferred LLC Interest Sale Agreement. 

"Bidder" means the entity or individual who submitted the Bid. 

"Company Acquired Property" means (i) Underlying Collateral to which title is 

acquired by or on behalf of the Company or any Ownership Entity by foreclosure, by deed in lieu 

of foreclosure, by power of sale or by sale pursuant to the Uniform Commercial Code, (ii) the 

equity interests in any Ownership Entity holding any such Underlying Collateral and (iii) the 

assets held directly or indirectly by any such Ownership Entity. 

"Corporate Advances" means the payment of appraisal fees, broker opinion fees, 

attorney fees and associated legal fees, foreclosure fees, trustee fees, property inspection fees, 

property preservation and operating cost fees, tax penalties, premiums for title insurance policies, 

lien search fees or any other cost that can be directly associated with the collection and servicing 

of a Mortgage Loan. 

"Cut-Off Date Unpaid Principal Balance" means, with respect to any Mortgage Loan, 

the estimate ofthe Unpaid Principal Balance ofthe Mortgage Loan as of the Cut-Off Date as 

stated on the Mortgage Loan Schedule. 

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

to insufficient funds or a stop payment order. 

"Escrow Balance" means, with respect to any Mortgage Loan, the positive escrow 

balance (if any) in the Escrow Account with respect to that Mortgage Loan, as reflected on the 

Mortgage Loan Schedule. 

"Excess Damage Liability" has the meaning given that term in Section 4.5(d) . 

. "Excess Principal" has the meaning given that term in Section 2.4(c). 

"Foreign Jurisdiction" means any jurisdiction other than the United States, and any 

subdivision of or in such other jurisdiction. 

"Foreign Loan" means a Mortgage Loan with respect to which the Borrower or any of 

the Underlying Collateral is located in any Foreign Jurisdiction. 

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FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
"Limited Power of Attorney" means the Limited Power ofAttorney in the form of 

Attachment H to this Agreement. 

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

Mortgage Loan pursuant to and in accordance with any ofthe related Notes, Underlying 

Collateral Documents, Mortgage Loan Documents or Related Agreements. 

"Order'' has the meaning given that term in Section 6.1. 

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

"Receiver Acquired Property" means (i) Underlying Collateral title to which has been 

acquired by or on behalf ofthe Initial Member or a Failed Bank by foreclosure, by deed in lieu of 

foreclosure, by power of sale or by sale pursuant to the Uniform Commercial Code, in any such 

case in accordance with the Mortgage Loan Documents ifthe foreclosure or other acquisition 

event occurs after the Cut-Off Date, (ii) the equity interests in any Ownership Entity holding any 

such Underlying Collateral and (iii) the assets held directly or indirectly by any such Ownership 

Entities. 

"Released Parties" has the meaning given that term in Section 4.17(b). 

"Repurchase Loan Value" means, with respect to any Mortgage Loan, the sum of (i) the 

product ofthe Mortgage Loan Value of such Mortgage Loan multiplied by 2.5 and (ii) the 

product of (x) the aggregate original principal face amount of the Purchase Money Note and (y) 

the quotient (expressed as a decimal) ofthe Mortgage Loan Value of such Mortgage Loan 

divided by the Transferred LLC Interest Sale Price. 

"Repurchase Percentage" means, with respect to any Mortgage Loan, the quotient 

(expressed as a decimal) ofthe Repurchase Loan Value for such Mortgage Loan divided by the 

Adjusted Cut-Off Date Unpaid Principal Balance of such Mortgage Loan. 

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

the Repurchase Percentage multiplied by the Unpaid Principal Balance ofthe Mortgage Loan as 

ofthe date ofthe repurchase plus (ii) unreimbursed Servicing Expenses that have been advanced 

by the Company with respect to such Mortgage Loan (excluding any expenses described in 

Section 12.7(b) ofthe LLC Operating Agreement) as of the date of the repurchase, minus (iii) the 

amount of any positive Escrow Balance with respect to the Mortgage Loan as of the date ofthe 

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

"Transfer Taxes" means any taxes, assessments, levies, imposts, duties, deductions, 

fees, withholdings or other charges of whatever nature (other than any taxes imposed on or 

measured by net income or any franchise taxes), including interest and penalties thereon, 

required to be paid to any taxing authority with respect to the transfer ofthe Mortgage Loans, the 

Underlying Collateral and the Underlying Collateral Documents or the rights in the Underlying 

Collateral or the assignment and assumption ofthe Obligations thereunder. 

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

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FDIC SFR2010-3 

Mortgage Loan Contribution 

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

accordance with the following: 

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

time constitute "Affiliates" ofsuch specified Person, and do not include, at any particular time, 

other Persons that might have been, but at such time have ceased to be, "Affiliates" of such 

specified Persori, except to the extent that any such reference specifically provides otherwise. 

(b) The term "or" is not exclusive. 

(c) A reference to a Law includes any amendment, modification or 

replacement to such Law. 

(d) Accounting terms have the meanings assigned to them by GAAP applied 

on a consistent basis by the accounting entity to which they refer. 

(e) References to any document, instrument or agreement (i) are deemed to 

include all appendices, exhibits, schedules and other attachments thereto and all documents, 

instruments or agreements issued or executed in replacement thereof, and (ii) mean such 

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

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

given time. 

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

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

provision ofthis Agreement. 

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

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

they are in fact followed by such words. 

(h) The word "during," when used with respect to a period oftime, is to be 

construed to mean commencing at the beginning of such period and continuing until the end of 

such period. 

(i) Unless the context otherwise requires, singular nouns and pronouns when 

used herein are deemed to include the plural and vice versa and impersonal pronouns are deemed 

to include the personal pronoun of the appropriate gender. 

Article II 


Contribution and Sale of Mortgage Loans 


Section 2.1 Terms and Conditions. The Initial Member hereby conveys to the 

Company, and the Company hereby acquires and accepts from the Initial Member, without 

recourse, by way of a sale to the extent ofthe initial aggregate principal amount of the Purchase 

5 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
Money Notes and otherwise as a capital contribution, all right, title and interest of the Initial 

Member in and to: 

(a) the Mortgage Loans (including all Receiver Acquired Property, equity and 

other interests in Ownership Entities formed by the Receiver or any predecessor in interest, 

Notes, the other Mortgage Loan Documents and Related Agreements), including all future 

advances made with respect thereto, effective as of the Cut-OffDate, and all rights in the 

Underlying Collateral pursuant to the Underlying Collateral Documents; 

(b) all amounts payable to the Initial Member under the Mortgage Loan 

Documents and all obligations owed to the Initial Member in connection with the Mortgage 

Loans and the Mortgage Loan Documents after the Cut-Off Date; 

(c) all claims, suits, causes of action and any other right of the Initial Member, 

whether known or unknown, against a Borrower or any Obligor or any oftheir respective 

Affiliates, agents, representatives, contractors, advisors or any other Person arising under or in 

connection with the Mortgage Loans or the Mortgage Loan Documents or that is in any way 

based on or related to any ofthe foregoing, including contract claims, tort claims, malpractice 

claims, statutory claims and all other claims at law or in equity arising under or in connection 

with the Mortgage Loan Documents or the transactions related thereto or contemplated thereby, 

excluding, however, any and all claims, suits, causes or action and other rights retained by the 

Initial Member pursuant to Section 2.7; 

(d) all cash, securities and other property received or applied by or for the 

account of the Initial Member under the Mortgage Loans after the Cut-Off Date, including all 

distributions received through redemption, consummation of a plan of reorganization, 

restructuring, liquidation or otherwise of a Borrower or Obligor under or with respect to the 

Mortgage Loans, and any securities, interest, dividends or other property that may be distributed 

or collected with respect to any ofthe foregoing; and 

(e) any and all distributions on, or proceeds or products of or with respect to, 

any of the foregoing, and the rights to receive such proceeds thereof. 

Section 2.2 Liabilities Assumed by the Company. The Company hereby assumes 

and agrees after the Cut-Off Date to perform and pay all ofthe Obligations. The Initial Member 

and the Company agree that the conveyance contemplated by Section 2.1 and the other 

provisions of this Agreement is intended to be an absolute conveyance and transfer of ownership 

ofthe Mortgage Loans in part by capital contribution and in part by sale. Notwithstanding 

anything to the contrary in this Agreement, however, it is understood and agreed that the Initial 

Member shall not assign and the Company shall not assume or be liable for any ofthe following 

liabilities (the "Excluded Liabilities"): 

(a) any monetary claim against or monetary liability ofthe FDIC in its 

capacity as receiver for a Failed Bank, was, is or will be subject to or is required to be asserted 

through the receivership administrative claims process administered by the FDIC in its capacity 

as receiver for a Failed Bank pursuant to 12 U.S.C. § 1821(d)(3) through (13); and 

6 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
(b) any monetary claim against or monetary liability based on any alleged act 

or omission of a Failed Bank that is not provable or allowable, or is otherwise barred against 

FDIC as receiver for a Failed Bank under applicable Law, including claims and liabilities that are 

barred under 12 U.S.C. §§ 1821(c), (d), (e) (including§ 1821(e)(3)), (i), G); 12 U.S.C. § 1822; 

12 U.S.C. § 1823; or 12 U.S.C. § 1825. 

Section 2.3 Allocation of Payments; Advances. 

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

Mortgage Loans or Underlying Collateral on or before the Cut-Off Date shall be retained by and 

shall be property ofthe Initial Member. Any and all Mortgage Loan Proceeds received at any 

time after the Cut-Off Date shall be allocated and distributed to and shall be property ofthe 

Company. 

(b) The Initial Member shall be paid or reimbursed as soon as practicable on 

or after the Servicing Transfer Date for Advances that an Existing Servicer pays after the CutOff Date through the Servicing Transfer Date out of its own funds (rather than withdrawing such 

funds from the Collection Account or the Liquidity Account or otherwise using Mortgage Loan 

Proceeds to pay for the respective expenses for which the Advances are made). In addition, the 

Initial Member shall be paid or reimbursed on the Servicing Transfer Date for Servicing 

Expenses or Pre-Approved Charges that an Existing Servicer pays after the Closing Date through 

the Servicing Transfer Date out of its own funds (rather than withdrawing such funds from the 

Collection Account or otherwise using Mortgage Loan Proceeds to pay for the respective 

Servicing Expenses or Pre-Approved Charges). Any such amounts for Servicing Expenses and 

Pre-Approved Charges paid after the Cut-Off Date through the Servicing Transfer Date owed to, 

but not reimbursed to, the Initial Member on the Servicing Transfer Date for the respective 

Mortgage Loan shall be reimbursed by the Company to the Initial Member on demand. 

(c) To the extent agreed to between the Initial Member and an Existing Servicer, the 

Initial Member shall be responsible for the payment of and reimbursement to each third-party 

Existing Servicer for (i) any advances of principal or interest made by such third-party Existing 

Servicer prior to the Servicing Transfer Date, (ii) other advances made by such third-party 

Existing Servicer with respect to a Mortgage Loan prior to the Cut-Off Date, (iii) fees under any 

existing servicing agreements with the Initial Member incurred prior to the Servicing Transfer 

Date and (iv) any fees or costs owing to an Existing Servicer in connection with the termination 

of any servicing agreement with such Existing Servicer. 

Section 2.4 Adjustments. 

(a) The Private Owner shall, and shall cause the Servicer to, cooperate with 

the Initial Member in reconciling the amounts ofAdvances made with respect to each Mortgage 

Loan prior to the Servicing Transfer Date for such Mortgage Loan to fund Servicing Expenses 

and Pre-Approved Charges or otherwise. As soon as practicable after the Servicing Transfer 

Date, the Initial Member shall provide the Company with a statement setting forth the amount of 

all outstanding Advances made with respect to any Mortgage Loan prior to the Servicing 

Transfer Date. 

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FDIC SFR20I0-3 

Mortgage Loan Contribution 

and Sale Agreement 
(b) As soon as practical;>le after the Servicing Transfer Date, the Initial 

Member shall provide the Company with astatement setting forth the Adjusted Cut-Off Date 

Unpaid Principal Balance, Adjusted Escrow Balance and the Unpaid Principal Balance as ofthe 

Servicing Transfer Date. Each such statement shall be accompanied by an explanation ofthe 

reasons for any adjustment to any Cut-Off Date Unpaid Principal Balance or Escrow Balance. 

(c) Ifthe Adjusted Cut-Off Date Unpaid Principal Balance of any Mortgage 

Loan exceeds the Cut-Off Date Unpaid Principal Balance of such Mortgage Loan (such excess, 

the "Excess Principal"), the Private Owner shall be liable to the Initial Member for an amount 

equal to the Adjustment Percentage multiplied by the Excess Principal. Ifthe Cut-Off Date 

Unpaid Principal Balance of any Mortgage Loan exceeds the Adjusted Cut-Off Date Unpaid 

Principal Balance of any Mortgage Loan (such deficiency, the "Principal Deficiency"), the 

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

Percentage multiplied by the Principal Deficiency. No adjustment will be made for any 

miscalculation of interest on any Mortgage Loan. 

(d) As soon as practicable after the SerVicing Transfer Date, the aggregate 

amount owed by the Private Owner to the Initial Member pursuant to Section 2.4(c} (excluding 

the amount of any Advances due to the Initial Member) shall be subtracted from the aggregate 

amount owed to the Private Owner by the Initial Member pursuant to Section 2.4(c). If the 

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

Owner, and if the resulting amount is a negative number, the Private Owner shall pay the 

absolute value of such amount to the Initial Member. In addition, an amount equal to the 

positive balance of any Escrow Accounts with respect to the Mortgage Loans as of each 

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

constitute Mortgage Loan Proceeds under the LLC Operating Agreement or Custodial and 

Paying Agency Agreement). Any monies due to the Private Owner or the Initial Member 

pursuant to this Section with respect to a given Mortgage Loan shall be paid on the respective 

Servicing Transfer Date. The Company shall adjust its records to reflect the Adjusted Cut-Off 

Date Unpaid Principal Balances, the Adjusted Escrow Balances and the Unpaid Principal 

Balances with respect to the Mortgage Loans. 

Section 2.5 Rebates and Refunds. The Company is not entitled to any rebates or 

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

Loan regardless ofwhen the Note matures. Further, on pre-computed interest Mortgage Loans, 

neither the Initial Member nor any Failed Bank will refund any unearned discount amounts to the 

Company. 

Section 2.6 Interest Conveyed. With respect to any Mortgage Loan which is or was 

the subject of a foreclosure sale or an acceptance of a deed-in-lieu of foreclosure during the 

period from the day after the Cut-Off Date through the Closing Date, the Initial Member shall 

convey to the Company the Deficiency Balance, if any, with respect to any Mortgaged Property 

together with the net proceeds, if any, of such foreclosure sale (if applicable). Ifthe Initial 

Member was the purchaser at such foreclosure sale (or ifthe Initial Member accepts a deed-inlieu of foreclosure), the Initial Member shall convey to the Company the Deficiency Balance, if 

any, with respect to any Mortgaged Property together with a special warranty deed to the 

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FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
Receiver Acquired Property purchased at such foreclosure sale. The Company acknowledges 

and agrees that the Company shall not acquire any interest in or to any performance or 

completion bond or letter of credit or other assurance filed with any GovernmentaLAuthority 

with respect to any Mortgage Loan for the purpose of ensuring that improvements constructed or 

to be constructed are completed in accordance with any governmental regulations or building 

requirements applicable to the proposed or completed improvement to the extent that any such 

performance or completion bond or letter of credit or other assurance constitutes a promise or 

obligation ofthe Initial Member or a Failed Bank to make any payment or otherwise provide any, 

performance or satisfaction. 

Section 2.7 Retained Claims. Notwithstanding anything to the contrary in this 

Agreement, the Company and the Initial Member agree that the contribution and sale of the 

Mortgage Loans pursuant to this Agreement will exclude the transfer to the Company of any 

right, title and interest ofthe Initial Member, any Failed Bank and any predecessors-in-interest 

thereto in and to any and all claims of any nature whatsoever that now might exist or hereafter 

might arise, whether known or unknown, that the Initial Member, any Failed Bank or 

predecessors-in-interest thereto have or had or that any might have or might have had, regardless 

ofwhen any such claim is discovered, against any ofthe following: (a) officers, directors, 

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

Failed Bank or any of its predecessors-in-interest, underwriters or any other similar Persons who 

might have caused a loss to the Initial Member, any Failed Bank or any ofits predecessors-ininterest in connection with the initiation, origination, servicing or administration of a Mortgage 

Loan; (b) any appraisers, accountants, auditors, attorneys, investment bankers or brokers, loan 

brokers, deposit brokers, securities dealers or other professional individuals or Persons who 

performed services for the Initial Member, any Failed Bank or any of its predecessors-in-interest 

relative to the initiation, origination, servicing or administration of a Mortgage Loan; (c) any 

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

initiation, origination or servicing of a Mortgage Loan; or (d) any appraiser or other Person with 

whom the Initial Member, any Failed Bank or any oftheir predecessors-in-interest or any 

servicing agent contracted for services, title insurance or closing protection services in 

connection with the initiation, origination, insuring or servicing of a Mortgage Loan; provided, 

however, that claims under and pursuant to a title insurance policy shall not constitute retained 

claims pursuant to this Agreement. 

Section 2.8 Transfer Taxes. Except as otherwise provided herein, the Company shall 

pay, indemnify and hold harmless the Initial Member from and against any Transfer Taxes, and 

shall timely file any returns required to be filed with respect to such Transfer Taxes; provided, 

however, that the Initial Member shall pay (and shall not be entitled to be reimbursed for) any 

Transfer Taxes in the nature of mortgage recording taxes and shall timely file any returns 

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

this Section shall constitute Pre-Approved Charges for purposes ofthe Custodial and Paying 

Agency Agreement. 

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FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
Article III 


Transfer of Mortgage Loans, Underlying Collateral Documents and Servicing 


Section 3.1 Delivery of Documents. The Company and the Initial Member agree to 

execute and deliver to one another the following: 

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

Member as the Initial Member elects to deliver to the Company. 

(b) Subject to the provisions ofthe LLC Operating Agreement, the Initial 

Member shall deliver the Notes, other Custodial Documents and Underlying Collateral 

Documents for each Mortgage Loan to the Custodian as soon as is practicable after the Closing 

Date and shall deliver the Mortgage Loan Files for such Mortgage Loan to either the Company 

or the Servicer (as directed by the Company), in either case on or within a reasonable period of 

time after the Servicing Transfer Date with respect to such Mortgage Loan. 

(c) (i) For any ofthe mortgages and/or other Underlying Collateral 

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

the "MERS Registered Mortgages"), except as provided otherwise in this Section 3.1(c), the 

Company shall cause the MERS Registered Mortgages to be transferred on the MERS® System 

on or within a reasonable time after the Servicing Transfer Date with respect to the applicable 

Mortgage Loans. To the extent the cost oftransferring the MERS Registered Mortgages is a cost 

imposed by MERS on the transferor of a mortgage loan, that cost shall be borne by the Initial 

Member. Otherwise, the costs imposed by MERS with respect to the transfer ofthe MERS 

Registered Mortgages shall be borne by the Company and all such costs shall constitute PreApproved Charges for purposes ofthe Custodial and Paying Agency Agreement, provided that 

any such expenses with respect to MERS Registered Mortgages as to which the Company has 

not initiated the transfer on the MERS System (in cooperation with the applicable Existing 

Servicer during the period prior to the applicable Servicing Transfer Date) within six months of 

the Closing Date shall not constitute Pre-Approved Charges for purposes ofthe Custodial and 

Paying Agency Agreement and such charges shall be borne by the Private Owner alone. The 

Company shall provide a report to the Initial Member on the progress and status ofthe transfers 

on the MERS System ofthe MERS Registered Mortgages on the first day ofthe seventh month 

following the Closing Date and again on the first anniversary ofthe Closing Date. 

(ii) For any ofthe mortgages and/or other Underlying Collateral Documents 

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

Ree:istered Mortgages"), except as provided otherwise in this Section 3.1(c), the Company shall 

cause the MERS Registered Mortgages to be transferred on the MERS System on or within a 

reasonable time after the Servicing Transfer Date with respect to the applicable Mortgage Loans. 

To the extent the cost oftransferring the MERS Registered Mortgages is a cost imposed by 

MERS on the transferor of a mortgage loan, that cost shall be borne by the Initial Member. 

Otherwise, the costs imposed by MERS with respect to the transfer ofthe MERS Registered 

Mortgages shall be borne by the Company and all such costs shall constitute Pre-Approved 

Charges for purposes ofthe Custodial and Paying Agency Agreement, provided that any such 

expenses with respect to MERS Registered Mortgages as to which the Company has not initiated 

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the transfer on the MERS System (in cooperation with the applicable Existing Servicer during 

the period to the applicable Servicing Transfer Date) within six months ofthe Closing Date shall 

not constitute Pre-Approved Charges for purposes ofthe Custodial and Paying Agency 

Agreement and such charges shall be home by the Private Owner alone. The Company shall 

provide a report to the Initial Member on the progress and status ofthe transfers on the MERS 

System ofthe MERS Registered Mortgages on the first day ofthe seventh month following the 

Closing Date and again on the first anniversary ofthe Closing Date. 

(iii) Notwithstanding any provision ofthis Agreement to the contrary, the 

Company (acting by and through the Manager in accordance with the applicable provisions of 

the LLC Operating Agreement) shall have the right to elect to remove any MERS Registered 

Mortgage from the MERS System prior to the Servicing Transfer Date for such MERS 

Registered Mortgage, in which event the Company (A) must inform the Initial Member and the 

Existing Servicer of its decision to remove such MERS Registered Mortgage from the MERS 

System at least two (2) weeks prior to the Servicing Transfer Date for such MERS Registered 

Mortgage and (B) must satisfy all applicable requirements ofthe LLC Operating Agreement with 

respect to the removal ofsuch MERS Registered Mortgage from the MERS System (including 

specifically the requirements of Section 12.3(g) ofthe LLC Operating Agreement). Ifthe 

Company has not notified the Initial Member and the Existing Servicer of its election to remove 

such MERS Registered Mortgage, it must be transferred on the MERS System in accordance 

with Section 3.l(c) (i) above. 

(d) (i) In the event that the Initial Member does not deliver all the 

Transfer Documents on the Closing Date, (A) the Company will prepare on behalf ofthe Initial 

Member, within the period specified in Section 3.1(d)(iii), all such Transfer Documents not 

delivered by the Initial Member to the Company on the Closing Date and (B) on or within a 

reasonable time following the Closing Date, the Initial Member shall grant a Limited Power of 

Attorney to selected representatives of the Company for the purpose of executing on behalf of 

the Initial Member such Transfer Documents prepared by the Company pursuant to Section 

3.l(d)(i)(A). The Limited Power ofAttorney shall be in the form attached to this Agreement as 

Attachment H. Reasonable and customary expenses paid to third parties actually incurred by the 

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

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

purposes ofthe Custodial and Paying Agency Agreement, provided that any such expenses with 

respect to a Transfer Document that is not properly prepared and submitted for recordation or 

filing within six months ofthe Closing Date shall not constitute Pre-Approved Charges for 

purposes ofthe Custodial and Paying Agency Agreement and shall be home by the Private 

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

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

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

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

information or otherwise take such steps as might be necessary or appropriate to complete and 

submit the Transfer Documents. All Transfer Documents prepared by the Company shall be in 

appropriate form suitable for filing or recording (if applicable) in the relevant jurisdiction and 

otherwise subject to the limitations set forth herein, and the Company shall be solely responsible 

for the preparation, contents and form of such documents. The Company hereby releases the 

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Initial Member from any loss or damage incurred by the Company due to the contents or form of 

any documents prepared by the Company pursuant to this Section 3.1 (d) (the form ofwhich was 

not provided by the Initial Member) and the Private Owner shall indemnify, defend and hold 

harmless the Initial Member from and against any claim, action or cause of action asserted by 

any Person, including the Company, arising out of the contents or form of any Transfer 

Document (the form ofwhich was not provided by the Initial Member), including any claim 

relating to the adequacy or inadequacy of any such document or instrument for the purposes 

thereof, and the use (or purported use) by the Company ofthe Limited Power of Attorney in any 

way not expressly permitted by its terms. ' 

(ii) The Company shall use the forms set forth in Attachments D to G, 

inclusive, in preparing the Transfer Documents. All documents of assignment, conveyance or 

transfer (not including special warranty deeds to the Receiver Acquired Property, which shall 

contain the special warranty included therein but no other warranties or representations, but 

including all other Transfer Documents) shall contain the following sentence: "This assignment 

is made without recourse, and without representation or warranty, express or implied, or by 

operation of law of any kind and nature whatsoever by the Federal Deposit Insurance 

Corporation in its corporate capacity or as Receiver for [Insert Name ofAppropriate Failed 

Bank]." In the event a Transfer Document is necessary to assign, convey or transfer any ofthe 

Underlying Collateral Documents but for which the forms in Attachments D to G will not 

suffice, Company shall prepare such Transfer Document; provided, the Company shall not use 

such Transfer Document without the prior written consent ofthe Initial Member. 

(iii) The Company shall complete all Transfer Documents, and record 

or.file them if and as appropriate in accordance with Section 3.2, as soon as is practicable 

following the Closing Date but in any event within six months after the Closing, except ifthe 

de_lay is due to a matter noted as an "Exception" on the "Collateral Certificate" (as such terms are 

defined in the Custodial and Paying Agency Agreement), provided that the Private Owner is 

working diligently to locate the missing information or otherwise take such steps as might be 

necessary or appropriate to complete and submit the relevant documentation. ·The Company 

shall provide a report to the Initial Member and the Purchase Money Notes Guarantor on the 

progress and status ofthe preparation, execution, recording and/or filing and delivery ofthe 

original documents to the Custodian as required by this Agreement promptly following a request 

therefor from the Initial Member and in any event upon the first day ofthe seventh month 

following the Closing Date and again on the first anniversary ofthe Closing Date. 

(e) As to Foreign Loans (if any), the Company, at its own expense, must 

retain counsel licensed in the Foreign Jurisdictions involved with the Foreign Loans. Such 

foreign counsel must draft the documents necessary to assign the Foreign Loans to the Company. 

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

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

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

purposes ofthis Agreement. Documents presented to the Initial Member to assign Foreign 

Loans to the Company must be accompanied by a letter on the foreign counsel's letterhead, 

signed by the foreign counsel preparing those documents, certifying that those documents 

conform to the Law of the Foreign Jurisdiction. Each such document and instrument shall be 

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delivered to the Initial Member in the English language; provided, however. that any document 

required for its purposes to be executed by the Initial Member in a language other than the 

English language shall be delivered to the Initial Member in such language, accompanied by a 

translation thereof in the English language, certified as to its accuracy by an executive officer or 

general counsel of the Company and, if such executive officer or general counsel shall not be 

fluently bilingual, by the translator thereof. 

(f) Nothing contained herein or elsewhere in this Agreement shall require the 

Initial Member to make any agreement, representation or warranty or provide any indemnity in 

any such document or instrument or otherwise (except with respect to the special warranty 

contained in a special warranty deed to any Receiver Acquired Property), nor is the Initial 

Member obligated to obtain any consents or approval to the sale or transfer ofthe Mortgage 

Loans or the related servicing rights, if any, or the assumption by the Company ofthe 

Obligations. 

(g) The Initial Member agrees to execute any additional documents required 

by applicable Law or necessary to effectively transfer and assign all ofthe Initial Member's 

right, title and interest in and to any and all Mortgage Loans to the Company (subject to .the 

rights of the Jnitial Member pursuant to the LLC Operating Agreement). The Initial Member 

shall have no obligation to provide, review or execute any such additional documents unless the 

same shall have been requested of the Initial Member within 365 calendar days after the Closing 

Date. 

Section 3.2 Recordation of Documents. 

(a) With respect to all recordable Transfer Documents prepared by the 

Company pursuant to Section 3.l(d), the Company shall promptly submit all such Transfer 

Documents for recordation or filing in the appropriate land, chattel, Uniform Commercial Code, 

and other records of the appropriate county, state or other jurisdictions (including any Foreign 

Jurisdiction) to effect the transfer ofthe Mortgage Loans to the Company. All Transfer 

Documents shall provide that all recorded documents be returned to the Custodian at its notice 

address set forth in Section 7.3, as such address might be modified in the manner provided in the 

Custodial and Paying Agency Agreement. The Company shall be responsible for diligently and 

promptly following up with respect to any non-conforming Transfer Documents that are returned 

and not recorded, gaps in the chain of title and the like to ensure that each and all ofthe Transfer 

Documents are properly filed or recorded as appropriate. The Company shall include in the 

reports described in and required pursuant to Section 3.l(d)(iii) all required information 

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

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

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

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

Charges for purposes ofthe Custodial and Paying Agency Agreement; provided, however, that 

any such expenses with respect to a Transfer Document that is not properly prepared and 

submitted for recordation or filing within six months ofthe Closing Date shall not constitute PreApproved Charges for purposes ofthe Custodial and Paying Agency Agreement and shall be 

borne by the Private Owner alone. Such six-month period for the preparation and submission of 

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a Transfer Document for recordation shall be extended ifthe delay is due to a matter noted as an 

"Exception" on the "Collateral Certificate" (as such terms are defined in the Custodial and 

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

missing information or otherwise take such steps as may be necessary or appropriate to complete 

and submit the Transfer Document(s). The Initial Member shall, if such is affirmatively required 

under the applicable Law of a relevant Foreign Jurisdiction, take such actions as are necessary in 

such Foreign Jurisdiction to effect the purposes of this Article III. 

Section 3.3 Transfer of Servicing. 

(a) The Mortgage Loans are conveyed to the Company on a servicingreleased basis as ofthe Closing Date. From and after the Closing Date, all rights, obligations, 

liabilities and responsibilities with respect to the servicing ofthe Mortgage Loans shall inure to 

the benefit of and be assumed by the Company, and the Initial Member shall be discharged from 

all responsibility and liability therefor, including any liability arising from any interim servicing 

provided by the Initial Member pursuant to this Section 3.3. The Company shall assume on and 

as of the Closing Date all obligations and liabilities with respect to any and all asset management 

and special servicing functions with respect to the Mortgage Loans, notwithstanding any interim 

servicing that the Initial Member and the Existing Servicers might perform during the Interim 

Servicing Period. The Company (or the Manager or the Servicer for the benefit ofthe 

Company) shall be entitled and authorized as ofthe Closing Date to endorse and deposit all 

instruments of payment related to the Mortgage Loans which it receives and which may be in 

favor of a Failed Bank or the Receiver. To facilitate communication among the Company, the 

Initial Member and the Existing Servicers, (i) the Company shall designate (and the Private 

Owner shall cause the Company to designate) a principal contact person to whom the Initial 

Member and the Existing Servicer will be authorized to refer during the respective Interim 

Servicing Period all asset management or special servicing inquiries and matters and all 

circumstances outside the scope ofthe Initial Member's and the Existing Servicers' limited 

interim servicing responsibilities and (ii) the Initial Member shall designate one or more 

principal contact persons whom the Company and the Servicer will be authorized to contact with 

inquiries, guidance or directions concerning the Initial Member's and the Existing Servicers' 

limited interim servicing responsibilities. Prior to the Closing Date, the Initial Member shall 

establish protocols with respect to those servicing inquiries, matters and circumstances that are to 

be referred to the Company's designated principal contact person or that are to be handled by the 

Initial Member and the Existing Servicers as part ofthe limited interim servicing described in 

Section 3.3(b). 

(b) To provide for the orderly transfer ofthe servicing to the Company, the 

Initial Member shall provide interim servicing of the Mortgage Loans, or will maintain 

agreements with third-party Existing Servicers to provide interim servicing ofthe Mortgage 

Loans, on the Company's behalf beginning on the day after the Cut-Off Date and ending, with 

respect to each Mortgage Loan, on the Servicing Transfer Date for such Mortgage Loan (the 

"Interim Servicing Period"), including provisions requiring that the Existing Servicers 

continue: (i) to receive payments and post them to the system ofrecord; (ii) to maintain records 

reflecting payments received; (iii) to provide the Company, on request, a schedule ofpayments 

processed; and (iv) to make payments (whether from its own funds or otherwise) to fund 

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Servicing Expenses and Pre-Approved Charges. The foregoing shall not limit the actions that 

the Initial Member may take with respect to any Mortgage Loan prior to the Servicing Transfer 

Date. In addition, unless the Company and the Initial Member agree otherwise, the Initial 

Member shall prepare and deliver the Monthly Reports (including the Distribution Date Reports) 

in accordance with the LLC Operating Agreement and the Custodial and Paying Agency 

Agreement for all Due Periods ending on or before the last day ofthe month in which the 

Servicing Transfer Date occurs. The Monthly Report shall be delivered by the Initial Member 

during the Interim Servicing Period not later than two Business Days before the following 

Distribution Date. The Initial Member may engage agents ofthe Initial Member's own choosing 

to perform such interim servicing. Each Existing Servicer shall be (and hereby is) authorized by 

the Company to use and withdraw funds from the Collection Account, the Liquidity Account and 

the Escrow Accounts and to request Excess Liquidity Advances (if necessary) in the 

performance of the interim servicing duties pursuant to this Section 3.3 during the Interim 

Servicing Period if it so chooses (including with respect to the payment and satisfaction of any 

Servicing Expenses or Pre-Approved Charges in full if the amount of Mortgage Loan Proceeds it 

has collected and is retaining is insufficient to pay and satisfy such Servicing Expenses .or PreApproved Charges in full). Subject to the provisions ofSections 4.5(a) and 4.6, the Initial 

Member's performance of this interim servicing shall cease with respect to the Mortgage Loans 

on the Servicing Transfer Date. For the Due Period in which the Servicing Transfer Date occurs, 

the Initial Member shall provide (or shall cause the applicable Existing Servicer to provide) the 

Company with a statement setting forth for the period from the first day ofthe Due Period to the 

Servicing Transfer Date (i) the amount of payments and other amounts received for each 

Mortgage Loan and (ii) the amount of payments made to fund Servicing Expenses made but not 

reimbursed by the applicable BQrrower or Obligor (including payments made from the applicable 

Existing Servicer's own funds), which amounts are to be reimbursed in accordance with 

Section 2.3(b). Any such statement also shall include any amounts to be paid to the Initial 

Member on the Servicing Transfer Date pursuant to Sections 2.3 and 2.4. This statement will be 

provided as soon as reasonably practicable after the Servicing Transfer Date, but in no event later 

than the due date for the Monthly Report for the Due Period in which the Servicing Transfer 

Date occurs. 

(c) The Initial Member shall cause all Mortgage Loan Proceeds received 

during the Interim Servicing Period (including any recoveries ofAdvances) remaining after 

reimbursement or payment of Servicing Expenses and Pre-Approved Charges to be remitted to 

the Collection Account on a monthly basis not later than two (2) Business Days prior to the 

Distribution Date (as such term is defined in the Custodial and Paying Agency Agreement) for 

such month. The Existing Servicers shall be (and hereby are) authorized by the Company to use 

Mortgage Loan Proceeds prior to the time Mortgage Loan Proceeds are required to be remitted to 

the Collection Account for payment or reimbursement of Servicing Expenses and Pre-Approved 

Charges (including for the reimbursement of any Advances that the Initial Member might make 

during the Interim Servicing Period). 

(d) In consideration ofthe services provided by the Initial Member with 

respect to Mortgage Loans pursuant to this Section 3.3, the Company shall pay the Interim 

Servicing Fee to the Initial Member for each Due Period in which the Initial Member provides 

interim servic · g in the manner described in the Custodial and Paying Agency Agreement. The 

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Interim Servicing Fee with respect to Mortgage Loans shall be calculated, earned and due as of 

the first day of each Due Period in which the Initial Member provides interim servicing with 

respect to such Mortgage Loans and shall be payable on each Distribution Date pursuant to the 

provisions of the Custodial and Paying Agency Agreement. For the avoidance of doubt, any 

such Interim Servicing Fee payable in connection with a Due Period including a Servicing 

Transfer Date shall be earned and due as ofthe first day of such Due Period and shall not be 

prorated on account of a Servicing Transfer Date that occurs during such Due Period. 

(e) The Company hereby ratifies any and all actions taken by the Initial 

Member in performance of interim servicing activities and functions prior to the Closing Date, 

including any oversight of the Existing Servicers and in connection with its role of Existing 

Servicer with respect to the Mortgage Loans. The Company acknowledges and agrees that the 

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

to the Company and that the Initial Member shall not have any liability for any acts or omissions 

taken in connection therewith (other than to correct calculation, allocation or distribution errors). 

Except for amounts for which the Company may be reimbursed as provided in the LLC 

Operating Agreement and the Custodial and Paying Agency Agreement, the Company hereby 

releases and forever discharges the Initial Member, the FDIC, the Failed Banks and their 

predecessors-in-interest and all oftheir respective officers, directors, employees, agents, 

attorneys, contractors and representatives and all oftheir respective successors, assigns and 

Affiliates, from any and all claims (including any counterclaim or defensive claim), demands, 

causes of action, judgments or legal proceedings and remedies ofwhatever kind or nature that 

the Company had, has or might have in the future, whether known or unknown, that are related 

in any manner whatsoever to the servicing of the Mortgage Loans at any time prior to the last 

Servicing Transfer Date. 

(f) The Initial Member and the Private Owner shall cooperate in their efforts 

to cause all Servicing Transfer Dates to occur prior to January 31, 2011 to the extent reasonably 

practicable, unless a later date is consented to by the Initial Member. 

Section 3.4 Grant of Power of Attorney by Company. The Company hereby 

irrevocably appoints the Initial Member its lawful attorney-in-fact, with full authority in the 

place and stead ofthe Company and in the name ofthe Company, the Initial Member or 

otherwise, and with full power ofsubstitution in the premises (which power of attorney, being 

coupled with an interest," is irrevocable for so long as the Company is in existence), from time to . 

time in the Initial Member's discretion, following a failure by the Company to satisfy promptly 

its obligations pursuant to Section 3.1, Section 3.2, Section 4.10 or Section 4.11 as they relate to 

the preparing, furnishing, executing and/or recording of any ofthe Transfer Documents or any 

other relevant matter set forth in any such provision to prepare, furnish, execute and/or record all 

relevant Transfer Documents and other documents as might be reasonably necessary to satisfy 

the transfer and recording obligations ofthe Company pursuant to Section 3.1, Section 3.2, 

Section 4.10 or Section 4.11. 

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Article IV 


Covenants, Duties and Obligations of the Company 


Section 4.1 Servicing ofMortgage Loans. From and after the Servicing Transfer 

Date, the Company shall service the Mortgage Loans in compliance with the LLC Operating 

Agreement. 

Section 4.2 Collection "Agency/Contingency Fee Agreements. The Company 

acknowledges and agrees that it accepts and acquires the Mortgage Loans subject to any 

agreements with collection agencies or contingency fee agreements with attorneys (in either case 

that are outstanding and in effect as ofthe Servicing Transfer Date) that relate only to the 

Mortgage Loans (or any ofthem) and are assignable, and assumes and agrees to fulfill all 

Obligations of the Initial Member and the Failed Banks thereunder. 

Section 4.3 Insured or Guaranteed Mortgage Loans. If any Mortgage Loans being 

transferred pursuant to this Agreement are insured or guaranteed by any Governmental 

Authority, and such insurance or guaranty is not being specifically terminated by the Initial 

Member, the Company acknowledges and agrees that such Mortgage Loans must be serviced by 

a servicer, lender or mortgagee approved by such Governmental Authority, if such approval is 

required. The Company further acknowledges and agrees that, upon assumption ofthe 

Obligations with respect to the Mortgage Loans, it assumes full responsibility for determining 

whether or not any such insurance or guarantees are in effect on the date of this Agreement and, 

with respect to those Mortgage Loans with respect to which any such insurance or guarantee is in 

effect on the date ofthis Agreement, the Company acknowledges and agrees that, upon 

assumption ofthe Obligations with respect to the Mortgage Loans, it assumes full responsibility 

for taking any and all actions as might be necessary to insure such insurance or guarantees 

remain in full force and effect. The Company acknowledges and agrees that, upon assumption of 

the Obligations with respect to the Mortgage Loans, it assumes and agrees to fulfill all ofthe 

Initial Member's and the Failed Banks' Obligations under the contracts of insurance or guaranty. 

Any out-of-pocket fees due to any insurer or guarantor incurred by the Company (or the 

Manager or the Servicer for the benefit ofthe Company) to fulfill its obligations set forth in the 

preceding sentence shall constitute Pre-Approved Charges for purposes ofthe Custodial and 

Paying Agency Agreement. 

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

each Mortgage Loan, the Initial Member shall be responsible for submitting all tax information 

returns with all applicable Governmental Authorities for all applicable periods prior to the 

respective Servicing Transfer Date, and the Company shall be responsible for submitting all tax 

information returns with all applicable Governmental Authorities for all applicable periods 

commencing with the respective Servicing Transfer Date. Information returns include reports on 

Internal Revenue Service Forms 1098 and 1099. The Company shall be responsible for 

submitting all information returns required under applicable Law of any Foreign Jurisdiction, to 

the extent such information returns are required to be filed by the Company or the Initial 

Member under such Law, relating to the Mortgage Loans, for the Galendar or tax year in which 

the Closing Date falls and thereafter. 

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Section 4.5 Mortgage Loans in Litigation. 

(a) (i) With respect to any Mortgage Loan that is the subject of any type 

ofpending litigation as ofthe Closing Date that consists solely of claims or actions based upon, 

arising out or involving Excluded Liabilities ("Excluded Liabilities Litigation"), the Company 

shall have no obligation to substitute its counsel to represent the Company's interests in the 

Excluded Liabilities Litigation. In such case, the Initial Member shall retain all rights and 

obligations, and shall remain the real party-in-interest, with respect to and shall retain control 

over the Excluded Liabilities Litigation. With respect to any Mortgage Loan that is the subject 

of any type of pending litigation that consists of both Excluded Liabilities Litigation and other 

claims or actions, that portion of any litigation that consists of Excluded Liabilities Litigation 

shall be bifurcated from such other claims or actions, with the Initial Member retaining all rights 

and.obligations, and remaining the real party-in-interest, with respect to and shall retain control 

over the Excluded Liabilities Litigation and the Company shall substitute itself as the real party 

in interest and taking control of the remaining claims in the litigation as is provided otherwise in 

this Section 4.5. The Initial Member shall pay all of the costs and expenses incurred by it in 

connection with any such Excluded Liabilities Litigation, including all legal fees and expenses 

and court costs. The Initial Member's determination whether or not pending litigation consists 

ofExcluded Liabilities Litigation and the extent to which pending litigation consists of both 

Excluded Liabilities Litigation and other claims or actions shall be conclusive and binding for all 

purposes with respect to this Agreement. 

(ii) With respect to any Mortgage Loan that is the subject of any type 

ofpending litigation as of the Closing Date other than pending litigation that consists entirely of 

Excluded Liabilities Litigation, the Company shall notify the FDIC's Regional Counsel, 1601 

Bryan Street, Dallas, Texas 75201-4586, within fifteen (15) Business Days before the respective 

Servicing Transfer Date or such other date as is agreed to by the Initial Member and the 

Company, of the name ofthe attorney selected by the Company to represent the Company's 

interests in the litigation. Before such date, the Company shall notify the clerk of the court or 

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

transferred from the Initial Member to the Company. Subject to the provisions of Sections 4.5(c) 

and 4.5(d), the Company shall have its attorney file appropriate pleadings and other documents 

and instruments with the court or other appropriate body before the respective Servicing Transfer 

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

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

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

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

litigation with respect to the Mortgage Loans, provided that, with respect to litigation referred to 

in Section 4.5(c), the Company shall not retain the same counsel that represents the Initial 

Member in connection with such litigation unless the FDIC's Regional Counsel (referred to 

above) agrees in writing to such dual representation. Subject to the provisions of Section 4.5(b) 

(and the Company's compliance with its obligations therein) and Section 4_._51dl, in the event the 

Companyfails, prior to the respective Servicing Transfer Date, to remove the Initial Member and 

the Failed Bank as parties to the litigation and substitute the Company as the real party-ininterest, (i) the Initial Member may, but shall have no obligation to, continue to pursue or defend 

such litigation on behalf ofthe Company and (ii) in the event the Initial Member does continue 

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to pursue or defend such litigation, the Company shall be liable for and hereby agrees to pay all 

costs and expenses (including reasonable attorneys fees) incurred by the Initial Member in 

connection therewith, which expenses shall constitute Reimbursable Company Administrative 

Expenses. 

(b) Ifthe Company is unable, as a matter of applicable Law or due to delays 

in court procedures and practices outside the control ofthe Company, to cause the Initial 

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

any pending litigation as required by Section 4.5(a), the Company shall so notify the FDIC's 

Regional Counsel, at the address specified above, no less than five (5) Business Days before the 

respective Servicing Transfer Date and shall provide such evidence to such effect and stating the 

reasons for such failure. In any such event, (i) the Company shall cause its attorney to conduct 

such litigation at the Company's expense, which expense shall constitute Reimbursable 

Company Administrative Expenses; (ii) the Company shall cause the removal ofthe Initial 

Member and the applicable Failed Bank and substitution ofthe Company as party-in-interest in 

such litigation at the earliest time possible under applicable Law; (iii) the Company shall use 

commercially reasonable efforts to cause such litigation to be resolved by judgment or settlement 

in as reasonably efficient a manner as practical; (iv) the Initial Member shall cooperate with the 

Company and the Company's attorney as reasonably required in the Initial Member's sole 

judgment to bring such litigation or any settlement relating thereto to a reasonable and prompt 

conclusion; and (v) no settlement shall be agreed upon by the Company or its agents or counsel 

without the express prior written consent ofthe Initial Member, unless such settlement includes 

an irrevocable and complete waiver and release of any and all potential claims against the Initial 

Member and the applicable Failed Bank (and any predecessor thereto) in relation to such 

litigation or the subject Mortgage Loans or Obligations by any Person asserting any claim in the 

litigation and any Borrower, and any and all losses, liabilities, claims, causes of action, damages, 

demands, taxes, fees, costs and expenses relating thereto shall be paid by the Company without 

recourse of any kind to the Initial Member or the applicable Failed Bank (other than to the extent 

the same constitute Reimbursable Company Administrative Expenses). The Company shall 

provide to the Initial Member no later than twenty (20) Business Days following the Closing 

Date a report showingthe status of each pending litigation with respect to the replaceme~t ofthe 

Company as the party-in-interest. The Company shall pay all ofthe costs and expenses incurred 

by it in connection with the actions required to be taken by it pursuant to Section 4.5(a) and this 

Section 4.5(b) (which expenses shall constitute Reimbursable Company Administrative 

Expenses), including all legal fees and expenses and court costs (which expenses shall constitute 

Reimbursable Company Administrative Expenses), and shall reimburse the Initial Member, upon 

demand, for all legal expenses the Initial Member incurs on or after the Cut-Off Date with 

respect to any such litigation, including costs incurred with the dismissal thereof or withdrawal 

therefrom (which costs incurred by the Initial Member shall constitute Reimbursable Company 

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

(c) In the event that there exists or is asserted against the Company after the 

Closing Date any Excluded Liability (and such claim or action is not b~sed upon and does not 

arise out of any act or omission ofor on behalf ofthe Company, the Private Owner or the 

Servicer), (i) the Company shall (A) notify the Initial Member, in writing in accordance with the 

notice provisions ofArticle VII, of such claim or action and (B) subject to the rights ofthe Initial 

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Member set forth below, be responsible for and control and assume the investigation and/or 

defense of such claim or action on behalf of the Company and the Company's interest in the 

Mortgage Loan(s), at the Company's expense and with counsel appointed by the Company; and 

(ii) the Initial Member shall be responsible for and control and assume any investigation and/or 

defense ofthe Initial Member and the applicable Failed Bank, at the Initial Member's own 

expense and with Initial Member's own counsel. The Initial Member's determination whether or 

not any claim or liability in any such litigation is an Excluded Liability and the extent to which 

any such litigation relates to both Excluded Liabilities and other claims or liabilities shall be 

conchisive and binding for all purposes with respect to this Agreement. The Company and the 

Initial Member shall cooperate in the defense of any such claim or action to the extent their 

interests are not in conflict and shall use commercially reasonable efforts to work together to 

resolve or settle such claims or action in a manner that is mutually agreeable and in their 

respective best interests. The Company shall obtain the prior written approval ofthe Initial 

Member before ceasing to defend against any such claims or action. Notwithstanding the 

foregoing, the Initial Member may at any time assume and control the defense ofthe Company 

in connection with any such claim or action at the Initial Member's expense. Subject to the 

provisions of Sections 4.5Cd)(i) and (ii) below, the costs and expenses incurred by the Company 

in connection with its defense of any claim or action described in this Section 4.5(c), including 

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

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

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

settlements described in Section 4.5Cd)(ii) below of such claim or action, shall constitute 

Reimbursable Company Administrative Expenses for purposes ofthe Custodial and Paying 

Agency Agreement. 

(d) If, as a result of any claim or action subject to the provisions of Section 

4.5Cc) above: 

(i) there is entered against the Company either (A) a final, nonappealable monetary judgment holding the Company liable for damages in excess of an amount 

equal to the Repurchase Loan Value ofthe Mortgage Loan relating to or that is the subject of 

such claim (such Loan, the "Affected Loan") (such excess amount, the "Excess Damage 

Liability"), or (B) a final monetary judgment that is appealable, which the Initial Member agrees 

in Writing need not be appealed further by the Company, and that imposes an Excess Damage 

Liability on the Company, or 

(ii) the Company enters into a final settlement agreement with the 

consent ofthe Initial Member (such consent not to be unreasonably withheld), pursuant to which 

the Company is obligated to pay an Excess Damage Liability, 

then, in any such case described in Clause (i) or (ii) above, the Initial Member shall reimburse 

the Company for the Excess Damage Liability and the Initial Member shall be entitled, at its 

option, to repurchase the Affected Mortgage Loan at its Repurchase Price in accordance with the 

repurchase provisions ofArticle VI; provided, however, that the Initial Member shall not be 

liable pursuant to this sentence for any liability imposed upon the Company that arises as a result 

of any act or omission of the Company or the Private Owner. 

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

the right ofthe Initial Member to retain claims pursuant to Section 2.7 ofthis Agreement, 

including any such claims as may have been asserted in litigation pending as ofthe Closing Date, 

and (ii) do not modify in any manner the limitations on liabilities assumed by the Company 

pursuant to Section 2.2 or the definition of Excluded Liabilities. At the Initial Member's 

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

remaining the real party-in-interest and retaining control over (and being responsible for 

pursuing and bearing the related costs to pursue) claims retained by it pursuant to Section 2. 7 and 

the Company substituting itself as the real party in interest and taking control of(and being 

responsible for pursuing and bearing the cost ofpursuing) the remainder ofthe litigation. The 

Initial Member's determination whether or not litigation consists of any such claims and the 

extent to which litigation consists of any such claims shall be conclusive and binding for all 

purposes with respect to this Agreement. 

(f) Notwithstanding any provision to the contrary in this Agreement, any 


payments by the Company ofReimbursable Company Administrative Expenses pursuant to 


Section 4.5(c) shall be subject to the obligation ofthe Private Owner to reimburse the Initial 


Member under Section 4.6 ofthe LLC Operating Agreement. 


(g) Further notwithstanding any provision to the contrary in this Agreement, 

in the event that there is instituted any litigation challenging the repudiation of any obligation 

with respect to any Mortgage Loan by the Initial Member and asserting that the Company has 

any liability arising from such repudiation, the Initial Member shall control and defend such 

litigation (including any claims or actions against the Company) and pay all costs and expense in 

respect thereof. 

Section 4.6 Mortgage Loans in Bankruptcy. In accordance with Bankruptcy Rules 

3001 and 3002, the Company shall take all actions necessary to file, prior to the respective 

· Servicing Transfer Dates (i) proofs of claims in pending bankruptcy cases involving any 

Mortgage Loans for which the Initial Member or the applicable Failed Bank have not already 

filed a proof of claim, and (ii) all documents required by Rule 3001 ofthe Federal Rules of 

Bankruptcy Procedure and to take all such similar actions as might be required in any relevant 

jurisdiction in any pending bankruptcy or insolvency case or proceeding in such jurisdiction 

involving any Mortgage Loan in order to evidence and assert the Company's rights. The 

Company shall prepare and provide to the Initial Member, on or prior to the respective Servicing 

Transfer Date, an Affidavit and Assignment of Claim in the form attached to this Agreement as 

Attachment Cor any similar forms as might be required in any relevant Foreign Jurisdiction and 

shall be acceptable to the Initial Member, for each Mortgage Loan where a Borrower under such 

Mortgage Loan is in bankruptcy as of the Closing Date. The Company hereby releases the Initial 

Member, the FDIC and the Failed Banks from any claim, demand, suit or cause of action the 

Company might have as a result of any action or inaction on the part ofthe Initial Member, the 

FDIC or the applicable Failed Bank with respect to such Mortgage Loan. In the event the 

Company fails, prior to the respective Servicing Transfer Date, to take the actions required by 

this Section 4.6, (a) the Initial Member may, but shall have no obligation to, file proofs of claim 

or other documents as the Initial Member determines to be necessary or appropriate to evidence 

and assert the Company's rights and, (b) in the event the Initial Member does take any such 

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actions, the Company shall be liable for and hereby agrees to pay all costs and expenses incurred 

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

constitute Reimbursable Company Administrative Expenses for purposes ofthe Custodial and 

Paying Agency Agreement). The provisions ofthis Section are subject to the right ofthe Initial 

Member to retain claims pursuant to Section 2. 7 ofthis Agreement, including any such claims as 

might have been asserted in litigation pending as ofthe Closing Date. At the Initial Member's 

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

remaining the real party-in-interest and retaining control over (and being responsible for 

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

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

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

Section 4.7 Mortgage Loan Related Insurance. On the Closing Date, (a) the Initial 

Member shall cause to be assigned, to the extent assignable, all existing insurance policies in 

respect of the Underlying Collateral for each Mortgage Loan; (b) the Company shall be 

responsible for having itself substituted as loss payee on all Mortgage Loan related insurance in 

which a Failed Bank or the Initial Member is currently listed as a loss payee; and (c) the 

Company shall cause to be put into place such insurance for the Underlying Collateral with 

respect to each Mortgage Loan with respect to which the Borrower has failed to maintain 

required insurance, fire, hurricane, flood and hazard insurance with extended coverage as is 

customary in the area in which the Underlying Collateral is located and in such amounts and with 

such deductibles as, in the reasonable judgment of the Company, are prudent. Upon the 

cancellation after the Cut-Off Date of any insurance policy maintained by the Initial Member or 

a Failed Bank with respect to any Mortgage Loan and the receipt by the Company or the Initial 

Member of any refund of any premiums previously paid with respect thereto, such refunded 

amount shall inure to the benefit of the Borrowers with respect to the affected Mortgage Loans, 

and such refunded amount shall be remitted to (or retained by) the Company and applied as 

appropriate to adjust the Escrow Accounts, if any, or other records with respect to such affected 

Mortgage Loans. 

Section 4.8 Mortgage Loans with Escrow Accounts. Amounts or balances related to 

the Mortgage Loans on deposit in Escrow Accounts held or controlled by the Initial Member or 

an Existing Servicer shall be transferred to the Company on the respective Servicing Transfer 

Date. On the Servicing Transfer Date, any positive escrow balances held in the Escrow 

Accounts, without offset against any negative escrow balances, shall be transferred to the 

Company. The Company agrees to assume, undertake and discharge any and all Obligations of 

the holder ofthe Mortgage Loans with respect to any Escrow Account and the maintenance of 

such Escrow Account and the Escrow Payments paid by or on account of the related Borrower. 

Section 4.9 [Reserved]. 

Section 4.10 Contracts for Deed. The Company agrees to comply with all Obligations 

set forth in any Contract for Deed contained in any Mortgage Loan subject to this Agreement. 

Pursuant to the provisions of Section 3.1 hereof, the Initial Member may require the Company to 

prepare and furnish special warranty deeds for the Initial Member's approval, conveying the real 

property subject to any such contract to the Company. The costs and expenses of the Company 

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(or the Manager or the Servicer for the benefit ofthe Company) of any title curative work, if 

required, shall constitute Pre-Approved Charges. 

Section 4.11 Acquired Property. The Company agrees to comply with all Obligations 

set forth in any Underlying Collateral Document relating to Acquired Property unless, in the 

opinion ofthe Company, complying with the Obligations under such Underlying Collateral 

Documents would not be in the best interest (in terms ofmaximizing the value of the Mortgage 

Loan) ofthe Company and the Initial Member. Pursuant to the provisions of Section 3.1 hereof, 

the Initial Member may require the Company to prepare and furnish special warranty deeds and 

other applicable Transfer Documents, for the Initial Member's approval, to convey the Receiver 

Acquired Property to the Company. 

Section 4.12 Leases. The Company agrees to comply with all Obligations set forth in 

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

the Obligations under such lease would not be in the best interests (in terms ofmaximizing the 

value ofthe Mortgage Loan) of the Company and the Initial Member. Pursuant to the provisions 

of Section 3.1 hereof, the Initial Member may require the Company to prepare and furnish 

applicable Transfer Documents for the Initial Member's approval and execution. 

Section 4.13 Notice to Borrowers. 

(a) The Company shall, on a timely basis in accordance with any applicable 

Laws, and pursuant to the Limited Powers of Attorney granted to it pursuant to Section 3.1(d)(i), 

prepare and transmit to each Borrower a joint "hello" and "goodbye" letter, at the Company's 

expense, which letter shall be subject to the review and reasonable approval ofthe Initial 

Member. 

(b) The Company shall, on a timely basis in accordance with the Helping 

Families Save Their Home Act of2009 (the "HFSH Act") and any other applicable United States 

federal or state legislation or regulation, prepare and transmit to each Borrower the notice 

required by such HFSH Act and any other legislation or regulation. 

Section 4.14 Notice of Claims. The Company shall immediately notify the Initial 

Member, in accordance with the notice provisions of Section 7.4, of any claim, threatened claim 

or litigation against the Initial Member or a Failed Bank arising out of any Mortgage Loan. 

Section 4.15 Use of the FDIC's Name and Reservation of Statutory Powers. The 

Company shall not use or permit the use by its agents, successors or assigns of any name or 

combination of letters that is similar to "FDIC" or "Federal Deposit Insurance Corporation." 

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

related to the FDIC except that, for so long as the FDIC is a member ofthe Company, the 

Company may represent that fact. The Company shall be entitled to assert (and claim the benefit 

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

acknowledges and agrees, however, that the assignment of any Mortgage Loan or Underlying 

Collateral Document pursuant to the terms ofthis Agreement shall not constitute the assignment 

of any other rights, powers or privileges granted to the Initial Member pursuant to the provisions 

the Federal Deposit Insurance Act, including those granted pursuant to 12 U.S.C. § 182l(d), 12 

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U.S.C. § 1823(e) and 12 U.S.C. § 1825, all such rights and powers being expressly reserved by 


the Initial Member; nor shall the Company assert or attempt to assert any such right, power or 


privilege in any pending or future litigation involving any Mortgage Loan transferred or 


purchased hereunder. 


Section 4.16 Prior Servicer Information. The Company acknowledges and agrees 

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

prior to the appointment of the FDIC as receiver of the applicable Failed Bank and that the Initial 

Member has not requested any information not in the possession of the Initial Member or its 

servicing contractor from any prior servicer of a Mortgage Loan. The Company acknowledges 

and agrees that the Initial Member shall not be required under the terms of this Agreement to 

request any information from any prior servicer. 

Section 4.17 Release of Initial Member. 

(a) Except as otherwise specifically provided in Article VI of this Agreement 

or in the LLC Operating Agreement or any other Ancillary Document, the Company hereby 

· releases and forever discharges the Initial Member, the FDIC, the Failed Banks and all oftheir 

respective officers, directors, employees, agents, attorneys, contractors and representatives, and 

all of their respective successors, assigns (other than the Company) and Affiliates, from any and 

all claims (including any counterclaim or defensive claim), demands, causes of action, judgments 

or legal proceedings and remedies of whatever kind or nature that the Company had, has or 

might have in the future, whether known or unknown, which are related in any manner 

whatsoever to the Mortgage Loans, the servicing of the Mortgage Loans (before or after the CutOff Date) by the Initial Member, the Failed Banks or their predecessors-in-interest, the FDIC or 

any Person acting on behalf of the Initial Member, the FDIC or the Failed Banks or their 

predecessors-in-interest, or the acquisition of the Mortgage Loans (other than gross negligence or 

willful misconduct); provided, however, that nothing contained in this Section 4.17(a) shall 

constitute or be interpreted as a waiver of any express right that the Company has under this 

Agreement or any ofthe Ancillary Documents. 

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

compromise, settle or release any Nate or Mortgage Loan or any right ofthe Company founded 

upon or growing out of this Agreement, except upon payment in full thereof, unless all 

Borrowers on said Note or Mortgage Loan shall first release and discharge the FDIC, the Initial 

Member and the Failed Banks with respect to such Mortgage Loan, and their respective agents 

and assigns, other than the Company (the "Released Parties"), from all claims, demands and 

causes of action that any such Borrower may have against any such Released Party arising out of 

or resulting from any act or omission occurring prior to the date of such release. 

Article V 


Mortgage Loans Sold "As Is" and Without Recourse 


Section 5.1 Mortgage Loans Conveyed "As Is". THE MORTGAGE LOANS 

(INCLUDING ANY OWNERSHIP ENTITIES AND RECEIVER ACQUIRED PROPERTY) 

ARE CONVEYED AND ASSIGNED TO THE COMPANY "AS IS" AND "WITH ALL 

FAULTS," WITHOUT ANY REPRESENTATION, WARRANTY OR GUARANTY 

WHATSOEVER, INCLUDING AS TO COLLECTABILITY, ENFORCEABILITY, VALUE 

24 

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and Sale Agreement 

OF COLLATERAL, ABILITY OF ANY OBLIGOR TO REPAY, CONDITION, FITNESS 

FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OR FITNESS FOR A 

SPECIFIC PURPOSE, WHETHER EXPRESS OR IMPLIED OR BY OPERATION OF LAW, 

BY ANY PERSON, INCLUDING THE INITIAL MEMBER, THE FAILED BANKS OR THE 

FDIC, OR ANY PREDECESSORS-IN-INTEREST OR AFFILIATES OF THE INITIAL 

MEMBER, THE FAILED BANKS OR THE FDIC, OR ANY OF THEIR RESPECTIVE 

OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS. THE INITIAL 

MEMBER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR 

REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, 

CONCERNING THE MORTGAGE LOANS, THE UNDERLYING COLLATERAL OR THE 

UNDERLYING COLLATERAL DOCUMENTS. 

Section 5.2 No Warranties or Representations with Respect to Escrow Accounts. 

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

representations of any kind or nature as to the sufficiency of funds held in any Escrow Account 

to discharge any obligations related in any manner to an escrow obligation, as to the accuracy of 

the amount of any monies held in any Escrow Account or as to the propriety of any previous 

disbursements or payments from any Escrow Account. 

Section 5.3 No Warranties or Representations as to Amounts of Unfunded 

Principal. Without limiting the generality of Section 5.1, the Initial Member makes no 

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

advances of principal the Company may be obligated to make under the Mortgage Loan 

Documents. 

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any 

Mortgage Loan. Without linliting the generality of Section 5.1, the Initial Member makes no 

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

adjustment of interest on any Mortgage Loan, including any adjustable rate Mortgage Loan, 

whether such calculation or adjustment is made by the FDIC, a Failed Bank, the Initial Member, 

an Existing Servicer or any Affiliate, agent or contractor of any of the foregoing, or any 

predecessor-in-interest of the Initial Member or any other party. 

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

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

completeness or accuracy of any information provided with respect to any Mortgage Loan. The 

Company acknowledges that, for example, and not by way of limitation, some Mortgage Loan 

Files might be missing forms or notices, or might contain incomplete or inaccurate forms or 

notices, that might be required by one or more federal or state consumer protection statutes. The 

Company's exclusive remedies with respect to any inaccurate or incomplete information 

provided by the Initial Member are an adjustment in accordance with Section 2.4 or an option to 

repurchase under Article VI, and such exclusive remedies are available only if all other 

conditions theretofore expressed in this Agreement have been met. 

Section 5.6 Intervening or Missing Assignments. The Company acknowledges and 

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

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intervening Mortgage Assignment or other assignment to the Initial Member or a Failed Bank 

that is not contained in the Mortgage Loan File or among the Underlying Collateral Documents. 

Neither the absence of any intervening Mortgage Assignment or any Mortgage Assignment to 

, the Initial Member, the FDIC or a Failed Bank, nor the existence of any Lien on the Mortgage 

Loan or its Underlying Collateral, nor any defect in the Lien or priority ofthe Initial Member's 

or the applicable Failed Bank's security interest in the Underlying Collateral shall give rise to 

any claim for re-purchase under Article VI. The Company shall bear all responsibility and 

expense of securing from the appropriate source any intervening Mortgage Assignment or any 

other assignment to the Initial Member, the FDIC or a Failed Bank that might be missing from 

the Underlying Collateral Documents, but the costs thereof of the Company (or the Manager or 

the Servicer for the benefit ofthe Company) shall constitute Pre-Approved Charges for purposes 

ofthe Custodial and Paying Agency Agreement. 

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

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

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

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

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

Article VI 


Repurchase by the Initial Member at the Company's Option 


Section 6.1 Repurchases at Company's Option. The Company may, at its option, 

and upon satisfaction ofthe procedures and other requirements set forth below, require the Initial 

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

events described in Section 6.1 (a) through (j) has occurred or (y) after the Closing Date, there is 

issued by a court of competent jurisdiction with respect to such Mortgage Loan a final, nonappealable order or judgment or there is entered into, with the consent ofthe Initial Member, a 

final settlement of any claim, action or litigation (the "Order'') that requires the assignment and 

transfer of such Mortgage Loan back to the Initial Member (unless the Initial Member has agreed 

in writing that no appeal need be taken). IN NO EVENT SHALL THE OCCURRENCE OF 

ANY SUCH EVENT OR THE OBLIGATION TO REPURCHASE A MORTGAGE LOAN 

HEREUNDER BE EVIDENCE OF ANY BAD FAITH, MISCONDUCT OR FRAUD ON THE 

PART OF THE INITIAL MEMBER, THE FDIC OR THE FAILED BANKS OR ANY 

PREDECESSOR-IN-INTEREST OR ANY AFFILIATE THEREOF, OR ANY OF THEIR 

RESPECTIVE DIRECTORS, EMPLOYEES, OFFICERS, CONTRACTORS OR AGENTS, 

EVEN IF IT IS SHOWN THAT THE INITIAL MEMBER, THE FDIC OR THE FAILED 

BANKS OR ANY PREDECESSOR-IN-INTEREST OR ANY AFFILIATE THEREOF, OR 

ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, OFFICERS, CONTRACTORS 

OR AGENTS, (A) KNEW OR SHOULD HAVE KNOWN OF THE EXISTENCE OF ANY 

FACTS RELATING TO THE OCCURRENCE OF SUCE:I EVENT, (B) CAUSED SUCH 

EVENT OR (C) FAILED TO MITIGATE SUCH EVENT OR ANY OF THE LOSSES 

RESULTING THEREFROM. 

26 

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

there is no Underlying Collateral securing such Mortgage Loan and out ofwhich such Mortgage 

Loan may be satisfied, and all guarantors or sureties ofthe Note, if any, or the obligations 

contained therein, have similarly been discharged in no asset bankruptcies. 

(b) A court of competent jurisdiction had entered a final, non-appealable 

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

other than a bankruptcy decree or judicial foreclosure order) holding that neither the Borrower 

nor any Obligors, sureties or other obligors owe an enforceable obligation to pay the holder of 

the Note or its assignees. 

(c) The Initial Member or the applicable Failed Bank had executed and 

delivered to the Borrower a release of liability from all obligations under the Note. 

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

Contract for Deed, which .title defect requires a prior order or judgment of a court to enable the 

Company to convey title to such property in accordance with the terms and conditions set forth 

in the Contract for Deed. 

(e) The Initial Member is not the owner ofthe Mortgage Loan and such is not 

curable by the Initial Member so as to permit ownership ofthe Mortgage Loan to be transferred 

to the Company. 

(f) There exists Environmental Hazards, in which case the Company's 

recourse with respect to this Section 6.1 Cf) shall be conditioned upon: (i) the presence of 

Environmental Hazards not being disclosed in the Mortgage Loan, Mortgage Loan File or other 

material provided by the FDIC to the Private Owner prior to submission ofthe Bid; (ii) such 

Mortgage Loan having an Adjusted Cut-Off Date Unpaid Principal Balance greater than 

$250,000.00; and (iii) the Company delivering, along with the notice required by Section 6.2, the 

following, each ofwhich must be satisfactory in form and substance to the Initial Member in its 

discretion: 

(i) A Phase I environmental assessment, from a qualified and 

reputable firm, ofthe Mortgaged Property securing the Mortgage Loan; and 

(ii) A Phase II environmental assessment or lead-based paint survey of 

such Underlying Collateral from a qualified and reputable firm, which assessment shall confirm 

(A) the existence ofEnvironmental Hazards on such Underlying Collateral and (B) that the 

regulator is likely to require such remediation; and, 

(iii) written certification of the Company under penalty of perjury that 

no action has been taken by or on behalf of the Company (A) to initiate foreclosure proceedings 

or (B) to accept a deed-in-lieu-of-foreclosure in connection with such Mortgage Loan. 

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

officers, directors or employees, fraudulently caused the Borrower to receive less than all ofthe 

proceeds and benefits of a Note. The Company's recourse with respect to this Section 6.1 (g) 

27 

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shall be conditioned upon the Company delivering, along with the notice required by Section 6.2, 

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

Initial Member in its discretion. 

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

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

Loans secured by the same· Underlying Collateral being considered a single Borrower for 

purposes ofthis Section) with respect to more than one Mortgage Loan (with multiple Mortgage 

Loans secured by the same Underlying Collateral being considered a single Mortgage Loan for 

purposes ofthis Section), (ii) includes allegations of fraud on the part ofthe Initial Member or 

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

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

defendant and that asserts liability on the part of the Initial Member or any Failed Bank for 

which the Company is not liable as assignee, as a matter of law, with respect to such Mortgage 

Loans. 

(i) The Mortgage Loan was (i) subject to the requirements ofthe Home 

Ownership and Equity Protection Act of 1994, as amended ("HOEPA"), or (ii) a "high cost," 

''threshold," "covered," "abusive" or "predatory" loan or a similar loan under any state, federal 

or local Law applicable to the originator of such Mortgage Loan as ofthe date of origination (or 

similarly classified loan using different terminology under a Law enacted to combat predatory 

lending) unless (i) all requirements ofHOEP A or such other applicable Law with respect to such 

Mortgage Loan were met or (ii) any violation of such Law is susceptible to cure in a manner that 

does not materially impact the outstanding principal balance of the Mortgage Loan as established 

on the Cut-OffDate. 

(j) The Mortgage Loan is void, voidable, subject to aright ofrescission or 

unenforceable due to a material violation ofthose requirements ofLaws applicable to the 

originator ofthe Mortgage Loan. 

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

of each Mortgage Loan with respect to which the Company seeks to exercise its rights under 

Section 6.1. Such notice shall be on the Company's letterhead and include the following 

information: (a) the Company's tax identification number, (b) the Company's wire transfer 

instructions, (c) the loan number and other identifying information related to the Mortgage Loan, 

(d) the subsection of Section 6.1 under which the Company is seeking to require the Initial 

Member to repurchase the Mortgage Loan, (e) a summary ofthe reasons the Company believes 

that the Mortgage Loan should be repurchased by the Initial Member and (f) a certification by 

the Company that the request for repurchase is being submitted in good faith and is complete and 

accurate in all respects to the best ofthe Company's knowledge. The notice shall be 

accompanied by evidence supporting the basis for the Initial Member's repurchase of such 

Mortgage Loan. Promptly upon request by the Initial Member, the Company shall supply the 

Initial Member with any additional evidence that the Initial Member may reasonably request. 

The Initial Member shall have no obligation to repurchase any Mortgage Loan pursuant to this 

Article VI for which notice and all supporting evidence reasonably required by the Initial 

Member have not been received by the Initial Member at the addresses specified in Article VII 

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no later than the first Business Day after the expiration of(x) in the case of any purchase demand 

pursuant to Section 6.l(a) through (h), 180 calendar days after the Closing Date, or in the case of 

a Contract for Deed, the first Business Day after the expiration of 360 calendar days after the 

Closing Date, and. (y) in the case of any purchase demand with respect to the issuance of an 

Order, thirty (30) days after the issuance of the Order. 

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

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

the Note to the Initial Member (or its designee); (b) assign all Underlying Collateral Documents 

associated with such Mortgage Loan and reconvey any real property subject to a Contract for 

Deed or any related Receiver Acquired Property or Company Acquired Property, together with 

such other documents or instruments as shall be necessary or appropriate to convey the Mortgage 

Loan (including any related Receiver Acquired Property or Company Acquired Property) back to 

the Initial Member (or its designee); (c) deliver to the Initial Member (or its designee) the · 

Mortgage Loan File, along with any additional records compiled or accumulated by the 

Company pertaining to the Mortgage Loan; (d) take such actions as are necessary to transfer 

from the Company to the Initial Member any litigation or bankruptcy action involving the 

subject Mortgage Loan, including substituting the duties ofthe Company for the Initial Member 

and the Initial Member for the Company, and with respect to the Affidavit and Assignment of 

Claim, the form ofwhich is attached to this Agreement as Attachment C, substituting the duties 

ofthe Assignor (as defined therein) for the Assignee (as defined therein) and the Assignee for the 

Assignor; and (e) deliver to the Initial Member (or its designee) a certification, notarized and 

executed under penalty ofperjury by a duly authorized representative of the Company, certifying 

that as of the date ofpurchase by the Initial Member none of the conditions relieving the Initial 

Member of its obligation to purchase the Mortgage Loan as specified in Section 6.4 has 

occurred. The documents evidencing the conveyance ofthe Mortgage Loan to the Initial 

Member shall be substantially the same as those executed pursuant to Article III of this 

Agreement to convey the Mortgage Loan to the Company. In all cases in which the Company 

recorded or filed among public records any document or instrument evidencing a transfer of the 

Mortgage Loan to the Company, the Company shall cause to be recorded or filed among such 

records a similar document or instrument evidencing the conveyance of the Mortgage Loan to 

the Initial Member. Upon compliance by the Company with the provisions hereof, the Initial 

Member shall pay to the Company the Repurchase Price, and such Repurchase Price shall be 

applied as provided in Section 5.1 ofthe Custodial and Paying Agency Agreement. 

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

relieved of its obligation to purchase any Mortgage Loan for any reason set forth in Section 6.1 if 

the Company: (a) modifies any ofthe terms ofthe Mortgage Loan (including the terms of any 

Underlying Collateral Document or Contract for Deed); (b) exercises forbearance with respect to 

any scheduled payment on the Mortgage Loan; (c) accepts or executes new or modified lease 

documents; (d) sells, assigns or transfers the Mortgage Loan or any interest therein; (e) fails to 

comply with the LLC Operating Agreement in the maintenance, collection, servicing and 

preservation of the Mortgage Loan, including delinquency prevention, collection procedures and 

protection of collateral as warranted; (f) initiates any litigation in connection with the Mortgage 

Loan or the Mortgaged Property securing the Mortgage Loan other than litigation to force 

payment or to realize on the Underlying Collateral securing the Mortgage Loan; (g) completes 

29 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

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

Underlying Collateral securing the Mortgage Loan; (h) causes, by action or inaction, the priority 

of title to the Mortgage Loan, Mortgaged Property and other security for the Mortgage Loan to 

be less than that conveyed by the Initial Member; (i) causes, by action or inaction, the security 

for the Mortgage Loan to be different than that conveyed by the Initial Member, except as might 

be required by the terms of the Underlying Collateral Documents; G) causes, by action or 

inaction, a claim ofthird parties to arise against the Company that, as a result ofpurchase under 

this Agreement, might be asserted against the Initial Member; (k) causes to arise, by action or 

inaction, a Lien of any nature to encumber the Mortgage Loan; (1) is the Borrower or any 

Affiliate thereof under such Mortgage Loan; or (m) makes any disbursement of principal or 

otherwise incrementally funds any Mortgage Loan. 

Article VII 

Notices 

Section 7.1 Notices. All notices, requests, demands and other communications 

required or permitted to be given or delivered under or by reason ofthe provisions ofthis 

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

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

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

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

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

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

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

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

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

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

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

shall be delivered to: · 

Initial Member: Assistant Director, Structured Transactions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email Address: RMalami@fdic.gov 

with a copy to: Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

30 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
Email Address: DGearin@fdic.gov 

Section 7.3 Transfer Documents. For purposes of designating the Custodian as the 

return addressee on Transfer Documents, the following address shall be used: 

Custodian: 	 388 Greenwich Street 


Frederick, MD 21703 


Attention: Loretta Badgett 


Section 7.4 All Other Notices. Any notice, request, demand or other communication 

required or permitted to be given pursuant to any provision ofthis Agreement and that is not 

governed by the provisions ofSection 7.2 or 7.3 shall be delivered to: 

Company before Closing: 	 Assistant Director, Structured Transactions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email Address: RMalami@fdic.gov 

with a copy to: 	 Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

Email Address: DGearin@fdic.gov 

Company after Closing: 	 2010-3 SFR Venture, LLC 


5032 Parkway Plaza Blvd. 


Charlotte, NC 28217 


Attention: Peter '-'"J'"....'" 

E-mail: 

Telephone 

Facsimile 

with a copy to: 	 Phillip Kardis, II 

K&L Gates LLP 

1601 K Street, NW 

W DC 20006 

31 


FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
Telephone No.: 


Facsimile No.: 


Initial Member: 	 Assistant Director, Structured Transactions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email Address: RMalami@fdic.gov 

with a copy to: 	 Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

Email Address: DGearin@fdic.gov 

Article VIII 


Miscellaneous Provisions 


Section 8.1 Severability. Any provision ofthis Agreement that is prohibited or 

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

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

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

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

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

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

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

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

unenforceable such provision in any other jurisdiction; and (c) without limitation of clauses (a) 

or (b), such ineffectiveness shall not invalidate any ofthe remaining provisions of this 

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

Agreement that in the event that in any court proceeding, such court determine~ that any 

provision ofthis Agreement is prohibited or unenforceable in any jurisdiction (because ofthe 

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

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

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

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

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

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

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

intended to, or shall, limit (x) the ability of any party to this Agreement to appeal any court 

ruling or the effect of any favorable ruling on appeal or (y) the intended effect of Section 8.2. 

32 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
Section 8.2 Governing Law. EACH PARTY TO TillS AGREEMENT AGREES 

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

OBLIGATIONS LAW OF THE STATE OF NEW YORK, TillS 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 

TillS AGREEMENT UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM 

TO ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN TillS 

AGREEMENT. NOTHING IN TillS AGREEMENT SHALL REQUIRE ANY UNLAWFUL 

ACTION OR INACTION BY ANY PARTY TO THIS AGREEMENT. 

Section 8.3 Cost, Fees and Expenses. Except as otherwise provided herein, each 

party hereto agrees to pay all costs, fees and expenses which it has incurred in connection with or 

incidental to the matters contained in this Agreement, including fees and disbursements to its 

accountants, brokers, financial advisors and counsel. 

Section 8.4 Waiver; Amendment and Assignment. 

(a) No provision ofthis Agreement may be amended or waived except in 

writing executed by all ofthe parties to this Agreement. This Agreement and the terms, 

covenants, conditions, provisions, obligations, undertakings, rights and benefits hereof shall be 

binding upon, and shall inure to the benefit ofthe undersigned parties and their respective heirs·, 

executors, administrators, representatives, successors and permitted assigns, and no other Person 

or Persons (including Borrowers or any co-lender or other Person with any interest in or liability 

under any ofthe Mortgage Loans) shall have any rights or remedies under or by reason ofthis 

Agreement. Notwithstanding the foregoing, this Agreement may not be transferred or assigned 

without the express prior written consent ofthe Initial Member and any attempted assignment 

without such consent shall be void ab initio. 

(b) Notwithstanding anything to contrary contained elsewhere in this Agreement 

(including the foregoing Section 8.4(a)) or in any Ancillary Document, in order to facilitate the 

possible restructuring and sale ofthe Purchase Money Note, the FDIC, without the consent ofthe 

Private Owner or the Company, may at any time that the FDIC is the holder of 100 percent ofthe 

Purchase Money Note or beneficial interest therein cause the Company to replace or reissue such 

Purchase Money Note (or any promissory note reissued in respect thereof) and make related 

changes, modifications or amendments to this Agreement and the Ancillary Documents as 

permitted therein; ID"QYided, however, that (i) (A) the maturity date of such replacement or 

reissued Purchase Money Notes shall not be later than the tenth (1Oth) anniversary ofthe Closing 

Date and (B) the outstanding principal amount of such replacement or reissued Purchase Money 

Note at the time ofits replacement or reissuance shall equal (1) the outstanding principal amount 

ofsuch Purchase Money Note at the time of its replacement or reissuance minus (2) the amount, 

if any, of any payments paid to the holders ofthe Purchase Money Note of any payments made 

pursuant to the Purchase Money Notes Guaranty and (ii) no modification contained in such 

replacement or reissued Purchase Money Note shall adversely affect in any material respect (A) 

the amount or timing of any payments or distributions to the Private Owner or any permitted 

33 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
successor or assign pursuant to the Priority ofPayments, (B) any other rights or obligations of, or 

the need for any advances, contributions or payments from, the Private Owner or its Affiliates or 

any permitted successor or assign pursuant to this Agreement or any Ancillary Document or 

otherwise or (C) the rights or interests of any Holder of any other Purchase Money Notes or any 

owner of an interest therein. Prior to effecting any such changes, amendments or modifications, 

the FDIC shall notify each ofthe Private Owner and the Company of any such contemplated 

changes, amendments or modifications, and the Private Owner and the Company agree that they 

will cooperate in good faith with the FDIC in effecting all such changes, amendments or 

modifications and will cause legal counsel for the Company to issue such legal opinions as may 

reasonably be requested or required in connection therewith and the cost ofthe issuance of such 

legal opinions shall constitute Reimbursable Company Administrative Expenses. 

Section 8.5 No Presumption. This Agreement shall be construed fairly as to each 

party hereto and, if at any time any such term or condition is desired or required to be interpreted 

or construed, no consideration shall be given to the issue ofwho actually prepared, drafted or 

requested any term or condition ofthis Agreement or any agreement or instrument subject 

hereto. 

Section 8.6 Entire Agreement. This Agreement and the Ancillary Documents 

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

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

oral or written provided that any Confidentiality Agreement between the FDIC and the Private 

Owner or any Affiliates ofthe Private Owner (including by way ofjoinder) with respect to the 

transaction that is the subject ofthis Agreement and the Ancillary Documents shall remain in full 

force and effect to the extent provided therein, except that the Company's rights under Article VI 

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

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

Transfer Document or other document or instrument executed in connection herewith or in 

connection with the transactions contemplated hereby, including any translation into a foreign 

language ofthis Agreement for the purpose of any Transfer Document, or any other document or 

instrument executed in connection herewith which is prepared for notarization, filing or any 

other purpose, the terms ofthis Agreement shall control, and furthermore, the terms ofthis 

Agreement shall in no way be or be deemed to be amended, modified or otherwise affected in 

any manner by the terms of such Transfer Document or other document or instrument. 

Section 8.7 Jurisdiction; Venue and Service. 

(a) The Company, on behalf of itself and its Affiliates, hereby irrevocably and 

unconditionally: 

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

the Southern District ofNew York and to the jurisdiction ofthe United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

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

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

34 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

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

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

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

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

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

District of Columbia; or 

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

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

inconvenient forum; 

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

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

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

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

any right to: 

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

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

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

State ofNew York, County ofNew York; or 

(C) assert that the Supreme Court ofthe State ofNew York, 

County ofNew Y ark, is an inconvenient forum; 

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

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

Agreement or any Ancillary Document, in only the United States District Court for the Southern 

District ofNew Yark or the United States District Court for the District of Columbia, and waives 

any right to remove or transfer such suit, action or proceeding to any other court or disputeresolution forum without the consent ofthe Initial Member, and agrees to consent thereafter to 

transfer ofthe suit, action or proceeding to either the United States District Court for the 

Southern District ofNew York or the United States District Court for the District of Columbia at 

the option ofthe Initial Member; and 

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

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

jurisdiction to hear a suit, action or proceeding falling within Section 8.7(a)(iii), to bring that 

suit, action or proceeding in only the Supreme Court ofthe State ofNew 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, on behalf of itself and its 

Affiliates, hereby irrevocably and unconditionally agrees that any final judgment entered against 

35 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
it in any suit, action or proceeding falling within Section~ may be enforced in any court of 

competent jurisdiction; 

(c) Subject to the provisions of Section 8.7(d), each of the Private Owner and 

the Company, on behalfof itself and its Affiliates, and the Initial Member hereby irrevocably 

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

proceeding pursuant to Section 8.7C_a) or Section 8.71hl may be effected by the mailing of copies 

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

Sections 7.1 and 7.4 (with copies to such other Persons as specified therein); provided, however, 

that nothing contained in this Section 8.7(c) shall affect the right of any party to serve process in 

any other manner permitted by Law; and 

(d) Nothing in this Section 8.7 shall constitute consentto jurisdiction in any 

court by the FDIC, other than as expressly provided in Section 8.7(a)(iii) and Section 8.7(a)(iv), 

or in any way limit the FDIC's right to remove, transfer, seek to dismiss, or otherwise respond to 

any suit, action, or proceeding against it in any forum. 

Section 8.8 Waiver of Jury Trial. EACH OF 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 mDGE SITTING WITHOUT 

A JURY. 

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

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

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

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

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

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

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

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

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

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

defense. 

Section 8.10 Headings. Article, section or paragraph titles or captions contained in this 

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

limit, extend or describe the scope ofthis Agreement or the intent of any provisions hereof. All 

article, section and paragraph references contained in this Agreement shall refer to articles, 

sections and paragraphs in this Agreement unless otherwise specified. 

Section 8.11 Compliance with Law. Except as otherwise specifically provided in this 

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

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

36 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
Section 8.12 Right to Specific Performance. THE COMPANY HEREBY 


ACKNOWLEDGES AND AGREES THAT THE DAMAGES TO BE INCURRED BY THE 


INITIAL MEMBER AS A RESULT OF THE COMPANY'S BREACH OF THIS 


AGREEMENT WILL BE DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN, THAT 


DAMAGES WILL NOT BE AN ADEQUATE REMEDY AND THAT ANY BREACH OR 


. THREATENED BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT BY THE 

COMPANY MAY CAUSE IMMEDIATE IRREPARABLE HARM FOR WHICH THERE 

MAY BE NO ADEQUATE REMEDY AT LAW. ACCORDINGLY, THE PARTIES AGREE 

THAT, IN THE EVENT OF ANY SUCH BREACH OR THREATENED BREACH, THE 

INITIAL MEMBER SHALL BE ENTITLED TO (I) IMMEDIATE AND PERMANENT 

EQUITABLE RELIEF (INCLUDING INJUNCTIVE RELIEF AND SPECIFIC 

PERFORMANCE OF THE PROVISIONS OF THIS AGREEMENT) FROM A COURT OF 

COMPETENT JURISDICTION (IN ADDITION TO ANY OTHER REMEDY TO WHICH IT 

MAY BE ENTITLED AT LAW OR IN EQUITY), AND (II) SOLELY IN THE CASE OF A 

BREACH OF SECTION 4.15 HEREOF, LIQUIDATED DAMAGES IN THE AMOUNT OF 

$25,000 FOR EACH BREACH OF SUCH SECTION. THE PARTIES AGREE AND 

STIPULATE THAT THE INITIAL MEMBER SHALL BE ENTITLED TO EQUITABLE 

(INCLUDING INJUNCTIVE) RELIEF WITHOUT POSTING A BOND OR OTHER 

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

ACTION FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF THAT A REMEDY 

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

SECURITY AS A PREREQUISITE TO OBTAINING EQUITABLE RELIEF. NOTHING 

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

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

THIS AGREEMENT. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

37 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be 

executed as of the day and year first above written. 

INITIAL MEI\QJER: 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

AS RECEIVER FOR EACH OF THE FAlLED 

BANKS 

By: 

2010-3 SFR VENTURE, LLC 

By: 	 Federal Deposit Insurance Corporation. in its 

separate capacities as receiver for each of the Failed 

Banks 

By: 

Title: 	Attorney-in-Fact 

FDIC2010-3 

Mortgage Loan Conlribution and Sale Agreement 
ATTACHMENT A 


to 


Mortgage Loan Contribution and Sale Agreement 


MORTGAGE LOAN SCHEDULE 


[Attached] 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
ATTACHMENT B 


to 


Mortgage Loan Contribution and Sale Agreement 


MORTGAGELOANVALUESCHEDULE 


[Attached] 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
---------------

ATTACHMENT C 


to 


Mortgage Loan Contribution and Sale Agreement 


(For use with Mortgage Loans in Bankruptcy) 


(Note to Preparer: When preparing the actual Affidavit and Assignment, delete this instruction 

and the reference to Attachment C above.) 

State of § 

§ 

County of_______ § 

AFFIDAVIT AND ASSIGNMENT OF CLAIM 

The undersigned, being first duly sworn, deposes and states as follows: 

Federal Deposit Insurance Corporation as Receiver for _________ 

("Assignor"), acting by and through its duly authorized officers and agents, for good and 

valuable consideration, the receipt and sufficiency of which are hereby acknowledged does 

hereby sell, transfer, assign and set over to , LLC, a Delaware limited 

liability company ("Assignee") of and his/her/its successors and 

assigns, all ofthe Assignor's interest in any claim in the bankruptcy case commenced by or 

against {insert Obligor's name} ("Obligor") in the {insert appropriate U S. 

Bankruptcy Court, including the district ofthe court, such as for the Western District ofTexas, 

being designated as Case Number {insert docket number assigned case} ("Bankruptcy Claim"), 

or such part of said Claim as is based on the promissory note of {insert the names ofthe makers 

ofthe note exactly as they appear on the note}, dated {insert the date the note was made), and 

made payable to {insert the name ofthe payee on the note exactly as it appears on the note}, 

provided, however, that this assignment is made pursuant to the terms and conditions as set forth 

in that certain Mortgage Loan Contribution and Sale Agreement between the Assignor and the 

Assignee dated 2010 (the "Agreement"). 

For purposes of Rule 3001 of the Federal Rules of Bankruptcy Procedure ("Bankruptcy 

Rule 3001"), this assignment and affidavit represent the unconditional transfer of the Bankruptcy 

Claim or such part of the Claim as is based on the promissory note or notes above and shall 

constitute the statement of the transferor acknowledging the transfer and stating the consideration 

therefore as required by Bankruptcy Rule 3001. 

This transfer was not for the purpose of the enhancement of any claim in a pending 

bankruptcy. The transfer of the debt was pursuant to the Agreement, through which numerous 

debts were sold; no specific amount of the total consideration was assigned to the debt that forms 

the basis of claim. 

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

in any security held for the claim. 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
IN WITNESS WHEREOF, the Assignor has caused this Affidavit and Assignment of 

Claim to be executed this _day of __ 

FEDERAL DEPOSIT INSURANCE 


CORPORATION AS RECEIVER FOR 


By: 


Name: 


Title: Attorney-in-Fact 


ACKNOWLEDGMENT 

STATE OF _______________ § 

§ 

COUNTY OF _____________ § 

Before me, the undersigned authority, a Notary Public in and for the county and state 

aforesaid, on this day personally appeared , known to me 

to be the person whose name is subscribed to the foregoing instrument, as Attorney-in-Fact of 

the Federal Deposit Insurance Corporation as Receiver for acting 

in the capacity stated above, and acknowledged to me that s/he executed the same as the act of 

the Federal Deposit Insuranc.e Corporation as Receiver for , for 

the purposes and consideration therein expressed, and in the capacity therein stated. 

Given under my hand and seal of office on this the_ day of_____, ___ 

Notary Public 

[SEAL] My Commission expires:---------­

2 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
-------

ATTACHMENT D 


to 


Mortgage Loan Contribution and Sale Agreement 


(Note to Preparer: When preparing an actual Allonge, delete this instruction and the reference 

to Attachment D above.) 

ALLONGE 

THIS ALLONGE IS TO BE ATTACHED TO AND MADE AN INTEGRAL PART of 

the following instrument: 

Note [Insert proper name ofNote] 


Dated: [Insert Date ofExecution ofNote] 


Payable by [Insert Name ofBorrower], a ______ 


[Insert State ofFormationl [Kind ofEntityl [Ifknown] 


Payable to the Order of: [Insert name of Original~] 

Original Principal Amount: Dollars [Insert Original Principal 


Amount in words] ($ [Insert amount in numerals.] 


PAY TO THE ORDER OF , LLC, A DELAWARE LIMITED 


LIABILITY COMPANY, WITHOUT RECOURSE AND WITHOUT 


REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR BY OPERATION 


OF LAW, OF ANY KIND AND NATURE WHATSOEVER. 


FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

By: ----------------­

Name: ---------------­ Title: Attorney in Fact 

Dated as of , 2010 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
------

ATTACHMENT E 


to 


Mortgage Loan Contribution and Sale Agreement 


(Note to Pre parer: When preparing the actual Affidavit delete this instruction and the reference 

to Attachment E above.) 

STATE OF _____ § 


§ 


·COUNTY OF _____ § 


ASSIGNMENT AND LOST INSTRUMENT AFFIDAVIT 

Before me, the undersigned authority, personally appeared 

who upon being duly cautioned and sworn, deposes and says, to the best of his/her knowledge, as 

follows: 

1. That s/he is the for the Federal Deposit Insurance Corporation as 

Receiver for----------------~ whose address is 550 17th Street 


NW, Washington, DC 20429 (the "Initial Member"). 


2. That at the time ofthe preparation of transfer to , LLC, a 

Delaware limited liability company (the "Company"), the Initial Member was the owner of that 

certain loan, obligation or interest in a loan or obligation evidenced by a promissory note, 

evidencing an indebtedness or evidencing rights in an indebtedness (the "Instrument"), as 

follows: 

Loan Number: -------------------­

Name ofMaker: ---------------------­

Original Principal Balance: _________ 

Date oflnstrument: ---------------------­

3. That the original Instrument has been lost or misplaced. The Instrument was not 


where it was assumed to be, and a search to locate the Instrument was undertaken, without 


results. Prior to the transfer to the Company the Instrument had not been assigned, transferred, 


pledged or hypothecated. · 


4. That if the Initial Member subsequently locates the Instrument, the Initial Member 

shall use reasonable efforts to provide written notice to the Company and deliver and endorse the 

Instrument to the Company in accordance with written instructions received from the Company 

(or such other party designated in writing by the Company). 

FDIC SFR20J0-3 


Mortgage Loan Contribution 


and Sale Agreement 

5. That the purpose ofthis affidavit is to establish such facts. This affidavit shall not 

confer any rights or benefits, causes or claims, representations or warranties (including, without 

limitation, regarding ownership or title to the Instrument or the obligations evidenced thereby) 

upon the Company, its successors or assigns. All such rights, benefits, causes or claims, 

representations and warranties (if any) shall be as set forth in the Mortgage Loan Contribution 

and Sale Agreement between the Company and the Initial Member dated as of 2010 

(the "Contribution Agreement"). 

6. That pursuant to the terms and conditions ofthe Contribution Agreement, the 

Instrument (including, without limitation, any and all rights the Initial Member might have to 

enforce payment and performance ofthe Instrument, including any rights under Section 3-309 of 

the Uniform Commercial Code) is hereby assigned effective as ofthe date hereof, without 

recourse, representation or warranty, to the Company. A copy ofthe Instrument is attached to 

this affidavit, if available. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

By: --------------------------------­

Name: ---------------------------------­ Title: Attorney-in-Fact 

Signed and sworn to before me this __day of _________________________, 2010. 

Notary Public 

[SEAL] My Commission expires:-----------,---------­

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
ATTACHMENT F-1 


to 


Mortgage Loan Contribution and Sale Agreement 


Upon recordation, return to: 

[Insert name and address of Person to whom recorded original Assignment is to be returned. 

Note to preparer, delete this instruction upon completion ofdocumentation andprior to 

submission for execution.] 

Name: 

Address: 

Tax Map No. or Tax Parcel Identification No.: _________ 


[Insert if local recording office r~quires.] [Note to vrevarer. delete the instruction upon 


comvletion ofdocumentation andprior to submission for execution.! 


ASSIGNMENT OF REAL ESTATE MORTGAGE 

(Book __, Page__) 

KNOW ALL MEN BY THESE PRESENTS: 

THAT, THE FEDERAL DEPOSIT INSURANCE CORPORATION (acting in any 

capacity, the "FDIC") AS RECEIVER FOR , at 550 17th Street, NW, 

Washington, D.C. 20429-0002 (hereinafter referred to as "Assignor" or "Grantor"), for value 

received, does by these presents, grant, bargain, sell, assign, transfer and set over to the 

--::-~------~L~L~C~ a Delaware limited liability company, its successors and assigns 

(hereinafter referred to as "Assignee" or "Grantee"), at 5032 Parkway Plaza Blvd., Charlotte, NC 

2821 7, all right, ~itle and interest in and to that certain: 

Note and Real Estate Mortgage, each dated [Insert Date], executed by nnsert Name of 

Borrower], a Unsert Kind ofEntity] (the "Grantor"), each being in the original principal 

sum of [Write out amount] and __11 00 Dollars ($[Insert Numerals]) and which Note 

was made payable to [Insert name of original lender) and which Mortgage was recorded 

on [Insert Date], in Book __, Page __with the [Register of Deeds, [Insert] 

County, State of [Insert]] ("Register's Office"). 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
-------

[Insert the following paragraph only iforiginal real estate mortgage was originated by 

and executed in favor of another lender and then transferred to the applicable Failed 

Bank. Note to preparer, delete this instruction upon completion ofdocumentation and 

prior to submission/or execution: 

Such Note and Mortgage were assigned by [Name oforiginal lender] to [Insert Name of 

Failed Bank] pursuant to that certain Assignment ofReal Estate Mortgage dated [Insert 

Date] and recorded on [Insert Date] in Book __, Page __in the Register's Office 

("Assignment").] 

[Insert the following paragraph only ifthe Real Estate Mortgage was modified or 

amended and a document was recorded to reflect the modification and amendment. Note 

to preparer, delete this instruction upon completion ofdocumentation andprior to 

submission for execution: 

Such Note and Real Estate Mortgage were modified pursuant to that certain [Insert 

Correct Name ofDocument, e.g., Modification and Ratification ofNote and Real Estate 

Mortgage Agreement] dated [Insert Date] and recorded on [Insert Date] in Book____, 

Page __in the Register's Office ("Modification").] 

The Mortgage, as such may have been assigned and modified, covers the following described 

property: 

SEE ATTACHED EXHIBIT A 

TO HAVE AND TO HOLD the same unto said , LLC, ITS 

SUCCESSORS AND ASSIGNS. 

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR 

WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY THE FDIC AS 

RECEIVER FOR OR IN ITS CORPORATE CAPACITY. THE LOAN IS 

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

OR WARRANTY WHATSOEVER, INCLUDING AS TO COLLECT ABILITY, 

ENFORCEABILITY, VALUE OF COLLATERAL, ABILITY OF ANY OBLIGOR TO 

REPAY, CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, 

MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, BY ANY 

PERSON, INCLUDING THE FDIC OR ITS OFFICERS EMPLOYEES, AGENTS OR 

CONTRACTORS. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
--------------

---------------

IN WITNESS WHEREOF, FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECENER FOR has caused this instrument to be executed this ___ 

day of '2010, effective as ofthe day of '2010. 

Signed, sealed and delivered 

in the presence of: 

ATTEST: 

Print Name: ·-------------­ Title: 

Witness #1 

Print Name: 

Witness #2 

Print Name: ----~-------

ASSIGNOR: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

By: __________________________ 

Name: _________________ 

Title: Attorney-in-Fact 

SEAL 

Note: State law has various execution requirements, including att~stations or witnesses or both. 

Preparer delete foregoing note once local requirements are determined. 

3 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
ACKNOWLEDGMENT 

[UNIVERSAL FORM OF ACKNOWLEDGMENT] [Note to Prevarer. delete the 

designation. Universal Form o[Acknowledgement prior to execution. Use only one o[the two 

acknowledgements: this designation or the CalifOrnia form.] 

STATE OF ________ ) 

) SS: 

COUNTY OF ____________ } 

On this day of 2010, before me personally appeared 

--------~ known to me or proved to me on the basis of satisfactory evidence to be 

the person(s) who executed the foregoing instrument, and he/she thereupon duly acknowledged 

to me that he/she executed the same to be his/her free act and deed. 

WITNESS my hand and official seal. 

NameofNomry:________________ 

My commission expires:. _______ 

4 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
[CALIFORNIA FORM OF ACKNOWLEDGMENT] Note to Preparer. delete the 

designation. California Form ofAcknowledgement prior to execution i{vou using this 

acknowledgement. Use only one o(the two acknowledgements: this designation or the Universal 

form.] 

STATE OF CALIFORNIA 

COUNTY OF _______ 

) 

) 

) 

SS: 

On before me, (here insert name and title ofthe officer), personally 

appeared who proved to me on the basis of satisfactory evidence to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 

he/she/they executed the same in his/her/their authorized capacity(ies ), and that by his/her/their 

signature(s) on the instrument the person(s), or the entity upon behalf ofwhich the person(s) 

acted, executed the instrument. 

I certify under PENALTY OF PERJURY under the laws of the State of California that the 

foregoing paragraph is true and correct. 

WITNESS my hand and official seal. 

Signature ___________(Seal) 

5 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
EXHIBIT A 


(Legal Description) 


6 


FDIC SFR 2010-3 


Mortgage Loan Contribution 


and Sale Agreement 

ATTACHMENT F-2 


to 


Mortgage Loan Contribution and Sale Agreement 


Upon recordation, return to: 

[Insert name and address ofPerson to whom of recorded original Assignment is to be returned. 

Note to preparer, delete this instruction upon completion ofdocumentation andprior to 

submission for execution.] 

Name:-----­ Address: 

Tax Map No. or Tax Parcel Identification No.:------:-:---­

[Insert if local recording office requires.] !Note to vreparer. delete the instruction upon 

completion ofdocumentation and prior to submission for execution.! 

ASSIGNMENT OF REAL ESTATE DEED OF TRUST 

(Book __, Page__) 

KNOW ALL MEN BY THESE PRESENTS: 

THAT, THE FEDERAL DEPOSIT INSURANCE CORPORATION (acting in any 

capacity, "FDIC") AS RECEIVER FOR , at 550 17ih Street, NW, 

Washington, D.C. 20429-0002, (hereinafter referred to as "Assignor" or "Grantor"), for value 

received, does by these presents, grant, bargain, sell, assign, transfer and set over to the 

_______.....z•-=L-=L=-C=', a its successors and assigns (hereinafter referred to 

as "Assignee" or "Grantee"), at Charlotte, NC 28217, all right, title and 

interest in and to that certain: 

Real Estate Deed of Trust executed by [Insert.name of Borrower], a [Insert Kind of 

Entity], organized and existing under the laws of [Insert State], dated [Insert Date of 

Execution], in the original principal sum of [Insert Amount in words] and _/100 Dollars 

($[Insert Numbers]) ofDeed of Trust in favor of [Name ofTrustee], a resident of 

___________ [if more than one Trustee and [Name ofTrustee], a 

resident of , ,] Trustee [or Trustees] for, and on 

behalf of, [Insert Name ofFailed Bank] (the "Mortgage"), which Mortgage was recorded 

on [Insert Date], in the Clerk's Office [of the Circuit Court of the City of 

=-------'or of the Court of 1[State] ("Clerk's Office") in Book___, 

Page __. 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
[Insert the following paragraph only if original real estate date oftrust was originated by 

and executed in favor ofanother lender and then transferred to the applicable Failed 

Ban1c Note to preparer, delete this instruction upon completion ofdocumentation and 

prior to submission for execution: 

Such Mortgage was assigned by [original lender] to [Insert Name of Failed Bank] 

pursuant to that certain Assignment ofReal Estate Deed of Trust dated [Insert Date] 

("Assignment"), which Assignment was recorded on [Insert Date] in the Clerk's Office in 

Book Page __.] 

[Insert the following paragraph only ifthe Real Estate Deed ofTrust was modified or 

amended and a document was recorded to reflect the modification and amendment. Note 

to preparer, delete this instruction upon completion ofdocumentation andprior to 

submission for execution: 

The Mortgage was modified by that certain [Insert Correct Name of Document, e.g., 

Modification and Ratification ofNote and Real Estate Deed of Trust] dated 

________("Modification"), which Modification was recorded on 

_______in the Clerk's Office in Book_, Page __.] 

The Mortgage, as such may have been assigned and modified, covers the following described 

property: 

SEE ATTACHED EXHIBIT A 

TO HAVE AND TO HOLD the same unto said ________, LLC, ITS 

SUCCESSORS AND ASSIGNS. 

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR 

WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY THE FDIC AS 

RECEIVER FOR OR IN ITS CORPORATE CAPACITY. THE 

MORTGAGE LOAN, AS ASSIGNED AND MODIFIED, IS CONVEYED "AS IS" AND 

"WITH ALL FAULTS," WITHOUT ANY REPRESENTATION OR WARRANTY 

WHATSOEVER, INCLUDING AS TO COLLECTABILITY, ENFORCEABILITY, VALUE 

OF COLLATERAL, ABILITY OF ANY OBLIGOR TO REPAY, CONDITION, FITNESS 

FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER 

WARRANTY, EXPRESS OR IMPLIED, BY ANY PERSON, INCLUDING THE FDIC OR 

ITS OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
----------------------- ---------------------------

-----------------------

-----------------------

IN WITNESS WHEREOF, FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR . has caused this instrument to be executed this 

___ day of , 2010, to be effective as of the __ day of , 2010. 

ASSIGNOR: 

Signed, sealed ~nd delivered FEDERAL DEPOSIT INSURANCE 

in the presence of: CORPORATION AS RECEIVER FOR 

ATTEST: _________________ 	 By: ___________________ 

Name: _____________________________ Print Name: 


Title: Title: Attorney-in-Fact 


Witness #1 

Print Name: 

SEAL 

Witness #2 

Print Name: 

Note: State law has various execution requirements, including attestations or witnesses or both. 

Prepare delete foregoing note once local requirements are determined. 

3 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
ACKNOWLEDGMENT 

[UNIVERSAL FORM OF ACKNOWLEDGMENT] [Note to Preparer, delete the 

designation. Universal Form o(Acknowledgement prior to execution. Use only one ofthe two 

acknowledgements: this designation or the California form.] 

STATE OF ______________ ) 

) SS: 

COUNTY OF ---------------­ ) 

On this day of , 2010, before me personally appeared 

___________, known to me or proved to me on the basis of satisfactory evidence to be 

the person(s) who executed the foregoing instrument, and he/she thereupon duly acknowledged 

to me that he/she executed the same to be his/her free act and deed. 

WITNESS my hand and official seal. 

Name ofNotary: __--=---------­ My commission expires: _______ 

4 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
[CALIFORNIA FORM OF ACKNOWLEDGMENT] [Note to Preparer. delete the 

designation. Universal Form oiAc_knowledgement prior to execution. Use onlv one o(the two 

acknowledgements: this designation or the Universal form.] 

STATE OF CALIFORNIA ) 

) SS: 

COUNTY OF ---------------­ ) 

On before me, (here insert name and title ofthe officer), personally 

appeared who proved to me on the basis of satisfactory evidence to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 

he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 

signature(s) on the instrument the person(s), or the entity upon behalf ofwhich the person(s) 

acted, executed the instrument. 

I certify under PENALTY OF PERJURY under the laws of the State of California that the 

foregoing paragraph is true and correct. 

WITNESS my hand and official seal. 

Signature---------------------(Seal) 

5 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
EXIDBITA 


(Legal Description) 


6 

FDIC SFR20I0-3 

Mortgage Loan Contribution 

and Sale Agreement 
ATTACHMENTG 


to 


Mortgage Loan Contribution and Sale Agreement 


INTENTIONALLY OMITTED 


FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
ATTACHMENTH 


to 


Mortgage Loan Contribution and Sale Agreement 


(Note to FDIC Preparer: When preparing the actual Limited Power ofAttorney, delete this 

instruction and the reference to Attachment H above) 

LIMITED POWER OF ATTORNEY 


MULTIBANK SFR 2010-3 


KNOW ALL PERSONS BY THESE PRESENTS that th~ FEDERAL DEPOSIT. 

INSURANCE CORPORATION, a corporation organized and existing under an Act of Congress, 

hereafter called the "FDIC," pursuant to the applicable resolutions of the Board of Directors of 

the FDIC, and redelegations thereof, hereby designates the individual(s) set forth on Exhibit A, 

attached hereto and made a part hereof (the "Attomey(s)-in-Fact"), to act on behalf of the FDIC 

in any of its Receivership or Corporate capacities related to the various failed financial 

institutions listed on Exhibit B, attached hereto and made a part hereof, for the sole purpose of 

executing the documents outlined below; and 

WHEREAS the undersigned has full authority to execute this Limited Power of Attorney 

on behalf ofthe FDIC. 

NOW THEREFORE, the FDIC grants to the Attomey(s)-in-Fact the authority, subject to 

the limitations herein, as follows: 

1. To execute, acknowledge, seal and deliver on behalf ofthe FDIC, individually 

and not jointly by and through the FDIC, acting in any capacity, any and all instruments of 

transfer and conveyance, appropriately completed, with all ordinary or necessary endorsements, 

acknowledgments, affidavits and supporting documents as may be necessary or appropriate to 

evidence the sale and transfer of any asset contained in the Structured Transaction enumerated 

above. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

FDIC SFR2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
-------

The form which the Attorney(s)-in-Fact shall use for endorsing promissory notes or preparing 

allonges to promissory notes is as follows: 

Pay to the order of 

LLC ------------------~ Without Recourse 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR [insert 

name Q[avplicable failedfinancial institution! 

By: ______________________________ 

Name: 


Title: Attorney-in-Fact 


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

assignment is made without recourse and without representation or warranty, express, implied or 

by operation of law of any kind and nature whatsoever, by the Federal Deposit Insurance 

Corporation in any capacity. 

2. To endorse deposit all instruments ofpayment received after the closing of the 

Structured Transaction and made payable to [insert name ofapplicable failed financial 

institution! or the FDIC, as receiver for [insert name ofapplicable failed financial institution!, 

related to the assets transferred pursuant to the Structured Transaction. 

3. To grant to each Attorney-in-Fact full power and authority to do and perform all 

acts necessary to carry into effect the powers granted by this Limited Power of Attorney as fully 

as the FDIC in any capacity might or could do with the same validity as if all and every such act 

had been herein particularly stated, expressed and especially provided for. 

This Limited Power of Attorney shall be effective from [insert date ofClosingJ and shall 

continue in full force and effect through [one vear' duration], unless otherwise terminated by an 

official of the FDIC or its successors and assigns authorized to do so ("Revocation"). At such 

time this Limited Power of Attorney will be automatically revoked. Any third party may rely 

upon this document as the named individual(s)' authority to continue to exercise the powers 

herein granted unless a Revocation has been recorded in the public records of the jurisdiction 

where this Limited Power of Attorney has been recorded, or unless a third party has received 

actual notice of a Revocation. 

2 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
IN WITNESS WHEREOF, the FDIC by its duly authorized officer empowered to act on 

its behalfby appropriate resolution of its Board ofDirectors, or redelegations thereof, has 

caused these presents to be executed and subscribed in its name this day of July, 2010. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

3 


FDIC SFR 2010-3 


Mortgage Loan Contribution 


and Sale Agreement 

-----------------------------

-----------------------------

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

By:________________ 

Name: 

Title: Attorney-in-Fact 

Signed, sealed and delivered 

in the presence of 

By:_____________ 

Name: 

Witness 

By:._____________ 

Name: 

Witness 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

4 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
ACKNOWLEDGMENT 

UNITED STATES OF AMERICA) 

) 

DISTRICT OF COLUMBIA ) 

_________:, affiant, for himself/herself says that he/she is a 

_________:, of the Federal Deposit Insurance Corporation, the Corporation in 

whose name the foregoing Limited Power of Attorney has been subscribed, that the said Limited 

Power of Attorney was subscribed on behalf of the said Corporation by due authority ofthe 

Corporation's Board of Directors, and that the 

said , acknowledges the said Limited Power of 

Attorney to be the free act and deed of the said Corporation. 

Notary Public, District of Columbia 


United States of America 


My Commission Expires: 

5 

FDIC SFR 2010-3 

Mortgage Loan Contribution 

and Sale Agreement 
EXHffiiTA 


TO LIMITED POWER OF ATTORNEY 


Attorneys-in-Fact 


Attorneys-in-Fact 


[list names and organizations ofAttorney(s)-in-Fact] 

TIDS EXHIBIT A TO LIMITED POWER OF ATTORNEY HAS BEEN PREPARED BY 

THE FDIC AND MAY NOT BE AMENDED, REVISED, ALTERED OR SUBSTITUTED 

IN ANY WAY WITHOUT THE EXPRESS WRITTEN CONSENT OF THE FDIC. 

Multibank Transaction - SFR 20 I 0-3 

Mortgage Loan Contribution 

and Sale Agreement 
EXHIBITB 


TO LIMITED POWER OF ATTORNEY 


Failed Financial Institutions 


[To Be Attached]