Multibank Structured Transaction 2010-1 CRE

EXECUTION COPY

LIMITED LIABILITY COMPANY INTEREST SALE AND ASSIGNMENT
 

AGREEMENT
 

by and among
 

COLFIN AXLE FUNDING, LLC,
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

AS RECEIVER WITH RESPECT TO THE SEPARATE RECEIVERSHIPS FOR
 

EACH OF THE VARIOUS FAILED FINANCIAL INSTITUTIONS LISTED ON
 

SCHEDULE I HERETO
 

and
 

2010-1 CRE VENTURE, LLC
 

Dated as of July 2, 2010

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LIMITED LIABILITY COMPANY INTEREST

SALE AND ASSIGNMENT AGREEMENT

THIS LIMITED LIABILITY COMPANY INTEREST SALE AND ASSIGNMENT

AGREEMENT (this “Agreement”) is made as of July 2, 2010, by and among ColFin Axle

Funding, LLC, a limited liability company organized and existing under the laws of Delaware

(the “Private Owner”), and the Federal Deposit Insurance Corporation (in any capacity, the

“FDIC”), in its separate capacities as receiver with respect to the separate receiverships for each

of the various failed financial institutions listed on Schedule I hereto (including its successors

and assigns thereto) (collectively, the “Initial Member”), and 2010-1 CRE Venture, LLC, a

limited liability company organized and existing under the laws of Delaware (the “Company”).

Capitalized terms used and not defined in this Agreement shall have the respective meanings set

forth in the LLC Operating Agreement (as hereinafter defined).

RECITALS

WHEREAS, the FDIC has separately been appointed receiver for each of the various

failed financial institutions listed on Schedule I hereto (individually or collectively, the “Failed

Bank”); and

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

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

June __, 2010 holds the sole limited liability company interest (as such term is defined in the

Act) in the Company (an “LLC Interest”), and has entered into that certain Agreement dated as

of June __, 2010 with the Company as the “limited liability company agreement” (as such term

is defined in the Act) of the Company (the “Original LLC Operating Agreement”); and

WHEREAS, the Initial Member and the Company have entered into a Loan Contribution

and Sale Agreement dated of even date hereof (the “Contribution Agreement”), pursuant to

which the Initial Member has contributed in part and sold in part to the Company all of the Initial

Member’s right, title and interest in and to the Loans (as defined in the Contribution Agreement,

and as so defined, the “Loans”); and

WHEREAS, after conducting a sealed bid sale for a forty percent (40%) LLC Interest

(the “Transferred LLC Interest”), the FDIC selected ColFin Axle Funding, LLC (the

“Sponsor”) as the successful bidder pursuant to the bid submitted by it (the “Bid”) and, in

accordance with the instructions governing the sealed bid sale, the Sponsor has deposited

$21,820,350.00 (the “Earnest Money Deposit”) with the FDIC; and

WHEREAS, following its selection as the successful bidder, the Sponsor formed the

Private Owner as a Qualified Transferee; and

WHEREAS, the Initial Member desires to transfer the Transferred LLC Interest to the

Private Owner (upon which the Initial Member will retain a sixty percent (60%) LLC Interest

(the “Initial Member’s LLC Interest”)) and enter into the Amended and Restated Limited

Liability Company Operating Agreement among the Company, the Private Owner and the Initial

Member dated as of the date hereof attached hereto as Exhibit A (the “LLC Operating

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Agreement”), and the Private Owner desires to acquire the Transferred LLC Interest and enter

into the LLC Operating Agreement; and

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

the Company pro rata in accordance their proportionate LLC Interests (after giving effect to the

transfer of the Transferred LLC Interest), to fund the Working Capital Reserve with an aggregate

amount of $7,500,000 (such sum, the “WCR Account Deposit”);

WHEREAS, the Initial Member’s pro rata share of such WCR Account Deposit is

$4,500,000 (the “Initial Member WCR Account Deposit”) and Private Owner’s pro rata share

of such WCR Account Deposit is $3,000,000 (the “Private Owner WCR Account Deposit”);

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

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

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

Company hereby agree as follows:

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

Closing.

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

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

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

the Transferred LLC Interest for a purchase price of $218,203,500.00 (the “Transferred LLC

Interest Sale Price”). On the date hereof, in satisfaction of its obligation to pay the Transferred

LLC Interest Sale Price, the Private Owner shall (i) remit to the Initial Member, by wire transfer

of immediately available funds, to such account as the Initial Member may direct in writing, an

amount (the “Purchase Price Payment”) equal to the positive difference (if any) between (x)

the Transferred LLC Interest Sale Price and (y) the sum of (A) the Earnest Money Deposit and

(B) the Initial Member WCR Account Deposit, and (ii) (x) remit, on behalf of the Initial

Member, by wire transfer of immediately available funds, an amount equal to the Initial Member

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

and (y) remit, on its own behalf, by wire transfer of immediately available funds, an amount

equal to the Private Owner WCR Account Deposit to the Paying Agent for credit to the Working

Capital Reserve Account.

(b) Closing Procedure. Upon (i) the receipt by the Initial Member of (x) the

Purchase Price Payment, (y) evidence of the establishment of the Working Capital Reserve

Account in accordance with the provisions of Section 3.6 of the Custodial and Paying Agency

Agreement, and (z) confirmation of receipt of the Initial Member WCR Account Deposit and the

Private Owner WCR Account Deposit by the Paying Agent, (ii) the delivery of the executed LLC

Operating Agreement by the parties thereto (as required by Section 2), (iii) the delivery of the

Additional Security (as required by Section 3), (iv) the delivery of the completed Loan Value

Schedule, in the form attached hereto as Exhibit B allocating the Transferred LLC Interest Sale

Price among the Loans (the “Loan Value Schedule”), which shall be appended to the

Contribution Agreement as the Loan Value Schedule thereunder, (v) the delivery of the executed

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Transferee Acknowledgment and Certification, in the form attached hereto as Exhibit C, and (vi)

the delivery of the executed Joinder and Consent Agreement, in the form attached hereto as

Exhibit D, the sale and assignment of the Transferred LLC Interest to the Private Owner and the

closing of the other transactions contemplated hereby (collectively, the “Closing”) shall be

effective.

2. LLC Operating Agreement. Contemporaneously with the execution and

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

Initial Member the LLC Operating Agreement.

3. Additional Security. Contemporaneously with the execution of this Agreement

and the LLC Operating Agreement, the Private Owner shall, pursuant to the applicable

provisions in the LLC Operating Agreement and the Custodial and Paying Agency Agreement,

establish the Private Owner Pledged Account. The Private Owner shall deliver (or cause to be

delivered) (i) the Additional Security to the Initial Member, if in the form of a Qualifying Letter

of Credit, or (ii) the Additional Security to the Paying Agent (for deposit into the Private Owner

Pledged Account), if in the form of Qualifying Cash Collateral, in an aggregate amount greater

than or equal to $7,500,000.

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

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

(a) The Private Owner is a “Qualified Transferee,” as such term is defined in

the LLC Operating Agreement, and as such, represents and warrants that each item included in

such definition is true and correct in all respects as of the date hereof as if set forth herein.

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

agents by or on behalf of the Private Owner or any Affiliate thereof (including the Sponsor) in

connection with this Agreement and the transactions contemplated hereby, including, but not

limited to, the Purchaser Eligibility Certification, the Bid Certification, the Structured

Transaction Qualification Request, the Bidder Qualification Request and the Confidentiality

Agreement, are true and correct in all respects as of the date hereof and do not fail to state any

fact necessary to make the information contained therein not misleading.

5. Exclusivity of Representations. THE TRANSFERRED LLC INTEREST IS

SOLD “AS IS” AND “WITH ALL FAULTS,” WITHOUT ANY REPRESENTATION,

WARRANTY, GUARANTY OR RECOURSE WHATSOEVER, INCLUDING AS TO ITS

VALUE (OR THE VALUE, COLLECTABILITY OR CONDITION OF THE LOANS HELD

BY THE COMPANY OR ANY OF THE COLLATERAL FOR SUCH LOANS), FITNESS

FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, FITNESS FOR A SPECIFIC

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

OPERATION OF LAW OR OTHERWISE, AND INITIAL MEMBER SPECIFICALLY

DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR

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

TRANSFERRED LLC INTEREST, THE LOANS, OR THE COLLATERAL SECURING THE

LOANS.

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

upon and inure to the benefit of the parties hereto and their respective heirs (in the case of any

individual), successors and permitted assigns; provided, however, that the Private Owner may

not assign this Agreement or any of its rights, interests or obligations hereunder. Any purported

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

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

by, the Initial Member, the Private Owner and the Company and their respective successors and

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

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

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

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

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

9. Failure to Consummate Transaction. If for any reason, without fault of the

Initial Member, the Private Owner fails to consummate the purchase of the Transferred LLC

Interest, upon the terms and conditions set forth in this Agreement, the Initial Member’s

liquidated damages, and sole and exclusive remedy, shall be to retain the Earnest Money

Deposit. The Private Owner and the Initial Member agree that the failure or refusal of the Initial

Member to alter or modify, in any way, the terms or conditions of this Agreement, the LLC

Operating Agreement or any Ancillary Document shall not constitute fault on the part of the

Initial Member. The Private Owner shall not be liable for any of the foregoing damages if the

Private Owner is forced to withdraw its Bid after award as the result of a supervisory directive

given by the FDIC or any other federal or state financial regulatory agency, provided that the

Initial Member shall be satisfied that such supervisory directive is legally effective. In such

event, the Initial Member shall refund the Earnest Money Deposit.

10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND

CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK,

EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW

OF ANOTHER JURISDICTION. Nothing in this Agreement shall require any unlawful action

or inaction by any party hereto.

11. Jurisdiction; Venue and Service.

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

itself and its Affiliates, hereby irrevocably and unconditionally:

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

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

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

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

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

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

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

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

District of Columbia; or

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

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

inconvenient forum;

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

New York, County of New York, for any suit, action or proceeding against it or any 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 of the Initial Member);

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

State of New York, County of New York; or

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

County of New York is an inconvenient forum;

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

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

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

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

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

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

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

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

Court for the District of Columbia at the option of the Initial Member;

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

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

jurisdiction to hear a suit, action or proceeding falling within Section 11(a)(iii), to bring that suit,

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

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

dispute-resolution forum without the consent of the Initial Member; and

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(v) agrees that any final judgment entered against it in any suit, action

or proceeding falling within Section 11(a) may be enforced in any court of competent

jurisdiction.

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

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

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

in any court of competent jurisdiction.

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

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

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

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

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

notices pursuant to Section 11 (with copies to such other Persons as specified therein); provided,

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

process in any other manner permitted by Law.

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

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

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

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

IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A

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

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

JUDGE SITTING WITHOUT A JURY.

13. Notices. All notices, requests, demands and other communications required or

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

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

hand or by nationally recognized courier service, or by electronic mail, in each case mailed or

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

provided in, this Section 13 below. All such notices, requests, demands and other

communications shall be deemed to be given or made upon the earlier to occur of (i) actual

receipt (or refusal thereof) by the relevant party hereto and (ii) (A) if delivered by hand or by

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

relevant party hereto; (B) if delivered by mail, when delivered (or refused), and (C) if delivered

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

delivered and capable of being accessed from the recipient’s office computer, provided that any

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

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

the next business day of the recipient. In no event shall a voice mail message be effective as a

notice, communication or confirmation hereunder. From time to time, any party may designate a

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new address for purposes of notice to it hereunder by notice to such effect to the other parties

hereto in the manner set forth in this Section 13.

If to the Initial Member, to:

Manager, Capital Markets & Resolutions
 

c/o Federal Deposit Insurance Corporation
 

550 17th Street, NW (Room F-7014)
 

Washington, D.C. 20429-0002
 

Attention: Ralph Malami
 

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

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

ColFin Axle Funding, LLC
 

2450 Broadway, 6th Floor
 

Santa Monica, CA 90404
 

Attention: Paul Fuhrman
 

Email Address:
 

with a copy to:

Colony Capital, LLC
 

660 Madison Avenue
 

New York, NY 10065
 

Attention: Ron Sanders
 

Email Address:
 

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

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

constitute one and the same instrument. It shall not be necessary for any counterpart to bear the

signature of all parties hereto. This Agreement and any amendments hereto, to the extent signed

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

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

were the original signed version thereof delivered in person. No signatory to this Agreement

shall raise the use of a facsimile machine or other electronic means to deliver a signature or the

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fact that any signature or agreement was transmitted or communicated through the use of a

facsimile machine or other electronic means as a defense to the formation or enforceability of a

contract and each such Person forever waives any such defense.

15. Headings. Paragraph titles or captions contained in this Agreement are inserted

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

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

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

otherwise specified.

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

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

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

hereunder. Section 1.2 of the Contribution Agreement (Construction) is hereby incorporated by

reference into this Agreement.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly 

executed as of the date first written above. 

PRIVATE OWNER: 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSIDPS FOR EACH OF THE 

VARIOUS FAILED FINANCIAL 

INSTITUTIONS LISTED ON 

SCHEDULE I HERETO 

By:______________ 

Name: Ralph Malami 

Title: Attorney-in-Fact 

COMPANY: 

2010-1 CRE VENTURE, LLC 

By: Federal Deposit Insurance Corporation, 

as Receiver For Each ofThe Various 

Financial Institutions Listed on Schedule I 

Hereto 

By:_____________ 

Name: Ralph Malami 

Title: Attorney-in-Fact 

[Signature Page to Limited Liability Company Interest Sale and Assignment Agreement) 

Multibank Structured Transaction 2010-1 CRE 
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly 

executed as of the date first written above. 

PRIVATE OWNER: 

COLFIN AXLE FUNDING, LLC 

By:_____________ 

Name: Mark M. Hedstrom 

Title: Vice President 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

VARIOUS FAILED FINANCIAL 

INSTITUTIONS LISTED ON 

SCHEDULE I HERETO 

Name: Ralph Malami 

Title: Attomey"in"Fact 

COMPANY: 

2010-1 CRE VENTURE, LLC 

By: Federal Deposit Insurance Corporation, 

as Receiver For Each ofThe Various 

Financial Institutions Listed on Schedule I 

Hereto 

By· 

Name: Ralph Malami 

Title: Attomey"in-Fact 

[Signature Page to Limited Liability Company Interest Sale and Assignment Agreement] 

Multibank Structured Transaction 2010-1 CRE 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE I

List of Failed Financial Institutions

Bank Name City State Fund Closing Date

Silver State Bank Henderson NV 10013 September 5, 2008

First Georgia Community Bank Jackson GA 10025 December 5, 2008

Bank of Clark County Vancouver WA 10029 January 16, 2009

Ocala National Bank Ocala FL 10032 January 30, 2009

First City Bank Stockbridge GA 10047 March 20, 2009

Omni National Bank Atlanta GA 10048 March 27, 2009

New Frontier Bank Greeley CO 10050 April 10, 2009

American Southern Bank Kennesaw GA 10053 April 24, 2009

First Bank of Beverly Hills Calabasas CA 10054 April 24, 2009

First Bank of Idaho Ketchum ID 10055 April 24, 2009

Michigan Heritage Bank Farmington Hills MI 10056 April 24, 2009

America West Bank Layton UT 10057 May 1, 2009

Citizens Community Bank Ridgewood NJ 10058 May 1, 2009

Silverton Bank Atlanta GA 10059 May 1, 2009

Westsound Bank Bremerton WA 10060 May 8, 2009

Bank of Lincolnwood Lincolnwood IL 10064 June 5, 2009

Community Bank of West Georgia Villa Rica GA 10068 June 26, 2009

Integrity Bank Jupiter FL 10095 July 31, 2009

Community Bank of Nevada Las Vegas NV 10100 August 14, 2009

Community Bank of Arizona Phoenix AZ 10101 August 14, 2009

Union Bank Chandler AZ 10102 August 14, 2009

Corus Bank Chicago IL 10117 September 11, 2009

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Exhibit A

Form of LLC Operating Agreement

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Exhibit B

Form of Loan Value Schedule

B-1
 

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Exhibit C

[FORM OF TRANSFEREE ACKNOWLEDGMENT AND CERTIFICATION]

TRANSFEREE ACKNOWLEDGMENT AND CERTIFICATION

Reference is made to the Limited Liability Company Interest Sale and

Assignment Agreement dated July 2, 2010 (the “Transferred LLC Interest Sale

Agreement”) by and among ColFin Axle Funding, LLC, a Delaware limited liability

company (the “Private Owner”), the Federal Deposit Insurance Corporation, as receiver

for the various failed financial institutions listed on Schedule I hereto (including its

successors and assigns thereto, the “Initial Member”), and 2010-1 CRE Venture, LLC, a

Delaware limited liability company (the “Company”). Capitalized terms used, and not

otherwise defined, in this Transferee Acknowledgement and Certification have the

meanings given in the Transferred LLC Interest Sale Agreement.

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

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

comply with, the obligations imposed upon the Company under the Contribution

Agreement and the Transaction Documents (as defined in the Contribution Agreement).

Without limiting the foregoing, and subject to the provisions of the Contribution

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

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

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

litigation or actions with respect to the Loans (as defined in the Contribution Agreement)

(including without limitation the actions on the List (as defined below)), and to substitute

the Company as the real party-in-interest in any such litigation or actions and (ii) to take

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

any Loans for which the Initial Member or the Failed Bank has not already filed a proof

of claim, and (y) all documents required by Rule 3001 of the Federal Rules of

Bankruptcy Procedure and to take all such similar actions as may be required in any

relevant jurisdiction in any pending bankruptcy or insolvency case or proceeding in such

jurisdiction involving any Loans in order to evidence and assert the Company’s rights.

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

the Loans (the “List”). The undersigned acknowledges that the Initial Member makes no

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

information contained or referred to therein and that (without limitation of the foregoing)

there may be additional litigation or bankruptcy actions pending against the Failed Bank

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

COLFIN AXLE FUNDING, LLC, a Delaware

limited liability company

By: ________________________________

Name: Mark M. Hedstrom

Title: Vice President

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SCHEDULE I TO TRANSFEREE ACKNOWLEDGEMENT AND
 

CERTIFICATION
 

LIST OF FAILED FINANCIAL INSTITUTIONS
 

Bank Name City State Fund Closing Date

Silver State Bank Henderson NV 10013 September 5, 2008

First Georgia Community Bank Jackson GA 10025 December 5, 2008

Bank of Clark County Vancouver WA 10029 January 16, 2009

Ocala National Bank Ocala FL 10032 January 30, 2009

First City Bank Stockbridge GA 10047 March 20, 2009

Omni National Bank Atlanta GA 10048 March 27, 2009

New Frontier Bank Greeley CO 10050 April 10, 2009

American Southern Bank Kennesaw GA 10053 April 24, 2009

First Bank of Beverly Hills Calabasas CA 10054 April 24, 2009

First Bank of Idaho Ketchum ID 10055 April 24, 2009

Michigan Heritage Bank Farmington

Hills MI 10056 April 24, 2009

America West Bank Layton UT 10057 May 1, 2009

Citizens Community Bank Ridgewood NJ 10058 May 1, 2009

Silverton Bank Atlanta GA 10059 May 1, 2009

Westsound Bank Bremerton WA 10060 May 8, 2009

Bank of Lincolnwood Lincolnwood IL 10064 June 5, 2009

Community Bank of West Georgia Villa Rica GA 10068 June 26, 2009

Integrity Bank Jupiter FL 10095 July 31, 2009

Community Bank of Nevada Las Vegas NV 10100 August 14, 2009

Community Bank of Arizona Phoenix AZ 10101 August 14, 2009

Union Bank Chandler AZ 10102 August 14, 2009

Corus Bank Chicago IL 10117 September 11, 2009

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SCHEDULE II TO TRANSFEREE ACKNOWLEDGEMENT AND
 

CERTIFICATION
 

LIST OF LITIGATION
 

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Exhibit D

[FORM OF JOINDER AND CONSENT AGREEMENT]

JOINDER AND CONSENT AGREEMENT

THIS JOINDER AND CONSENT AGREEMENT, dated as of _________ __, 20__, is

delivered pursuant to Section 1(b) of the Limited Liability Company Interest Sale and

Assignment Agreement, dated as of July 2, 2010, by and among ColFin Axle Funding, LLC, a

limited liability company organized and existing under the laws of Delaware (the “Private

Owner”), the Federal Deposit Insurance Corporation (in any capacity, the “FDIC”), in its

separate capacities as receiver with respect to the separate receiverships for each of the various

failed financial institutions listed on Schedule I hereto (including its successors and assigns

thereto) (collectively, the “Initial Member”), and 2010-1 CRE Venture, LLC, a limited liability

company organized and existing under the laws of Delaware (the “Company”) (the

“Transferred LLC Interest Sale Agreement”). Capitalized terms used herein without

definition are used as defined in the Transferred LLC Interest Sale Agreement.

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

hereby becomes a party to the Loan Contribution and Sale Agreement, dated as of the date of this

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

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

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

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

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

purposes as a party to the Contribution Agreement.

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

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

COLFIN AXLE FUNDING, LLC, as the Private Owner

By: ______________________________________

Name: Mark M. Hedstrom

Title: Vice President

ACKNOWLEDGED AND AGREED as of the date

first above written:

FEDERAL DEPOSIT INSURANCE

CORPORATION, as receiver for various failed

financial institutions listed on Schedule I hereto, as

the Initial Member

By: ______________________________________

Name: Ralph Malami

Title: Attorney-in-Fact

2010-1 CRE VENTURE, LLC, as the Company

By:	 Federal Deposit Insurance Corporation as

receiver for various failed financial

institutions listed on Schedule I hereto, as

Sole Member and Manager

By: ________________________________
 

Name: Ralph Malami
 

Title: Attorney-in-Fact
 

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SCHEDULE I TO JOINDER AND CONSENT AGREEMENT

LIST OF FAILED FINANCIAL INSTITUTIONS

Bank Name City State Fund Closing Date

Silver State Bank Henderson NV 10013 September 5, 2008

First Georgia Community Bank Jackson GA 10025 December 5, 2008

Bank of Clark County Vancouver WA 10029 January 16, 2009

Ocala National Bank Ocala FL 10032 January 30, 2009

First City Bank Stockbridge GA 10047 March 20, 2009

Omni National Bank Atlanta GA 10048 March 27, 2009

New Frontier Bank Greeley CO 10050 April 10, 2009

American Southern Bank Kennesaw GA 10053 April 24, 2009

First Bank of Beverly Hills Calabasas CA 10054 April 24, 2009

First Bank of Idaho Ketchum ID 10055 April 24, 2009

Michigan Heritage Bank Farmington Hills MI 10056 April 24, 2009

America West Bank Layton UT 10057 May 1, 2009

Citizens Community Bank Ridgewood NJ 10058 May 1, 2009

Silverton Bank Atlanta GA 10059 May 1, 2009

Westsound Bank Bremerton WA 10060 May 8, 2009

Bank of Lincolnwood Lincolnwood IL 10064 June 5, 2009

Community Bank of West Georgia Villa Rica GA 10068 June 26, 2009

Integrity Bank Jupiter FL 10095 July 31, 2009

Community Bank of Nevada Las Vegas NV 10100 August 14, 2009

Community Bank of Arizona Phoenix AZ 10101 August 14, 2009

Union Bank Chandler AZ 10102 August 14, 2009

Corus Bank Chicago IL 10117 September 11, 2009

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