b4 J
 

Corus Transaction 

EXECUTION VERSION
 

\ \ MAlER1 A~OA~O 

LOAN CONTRIBUTION AND SALE AGREEMENT 

by and between
 

THE FEDERAL DEPOSIT INSURANCE CORPORATION as RECEIVER for CORUS
 

BANK,N.A.
 

and 

CORUS CONSTRUCTION
 

VENTURE, LLC
 

Dated as of October 16, 2009 

no.I!SI 57~4514\'21
 
T ABLE OF CONTENTS
 

Page 

ARTICLE I Definitions and Construction .. ... .......... ........... .................... .......... .................. ...2
 

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

Section 1.2 Construction..... ............. .... ......... ............ ..................... .......... ....... ........... .13
 

ARTICLE II Contribution and Sale of Loans .......... .......... ................... .............. ........ ... ... ....14
 

Scction 2.1 Tenns and Conditions ................ ........... ................................................ ...14
 

Section 2.2 Liabilities Assumed by the Company ......................................................15
 

Scction 2.3 Allocation of Paymcnts; Closing Adjuslmcnt........................................15
 

Scction 2.4 Rebatcs and Rcfunds ........... ................... ............................. .............. .......16
 

Section 2.5 Interest Conveyed ......... ................. .......................... ................ ............... .16
 

Section 2.6 Retaincd Clainis.......................................................................................16
 

Section 2.7 Transfcr Taxes............ ...... .......... .............. ......... ......... ............ ..... .... ....... .16
 

ARTICLE ILL Transfcr of Loans, Collatcral Documcnts and Scrvicing. ................ ................ i 6
 

Section 3.1 Delivery of Documents .......................... ......... ........................ .................16
 

Scction 3.2 Recordation of Documents ...................................... ............ ....................19
 

ARTICLE IV Covenants, Duties and Obligations of the Company....... ............. ...................19
 

Section 4.1 Servicing of Loans ....... ............ .................. ........ .......... ... ........ ....... ......... .19
 

Scction 4.2 Collection Agency/Contingency Fee Agrcements...................................21
 

Section 4.3 Insured or Guaranteed Loans ...... ........... ...................... .... ....... ............. ....21
 

Scction 4.4 Reporting to or for thc Applicable Taxing Authorities............................21
 

Scction 4.5 Loans in Litigation...................................................................................22
 

Scction 4.6 Loans in Bankruptcy.... ......... ......... ......... ..................... ........... ................ .24
 

Scction 4.7 Loan Relatcd Insurancc.......................... ......... .................... .............. ...... .25
 

Section 4.8 Loans with Escrow Accounts.... ... ........... ..................... .... ........ ............... .25
 

Section 4.9 Initial Member as Lead Lender in Loan Participations ...........................25
 

Section 4.10 Lellers of Credit .......................................................................................25
 

Scction 4.11 Notice to Borrowers ... ......... ..... ......... ......... ................... ................... ...... ..26
 

Section 4.12 Notice of Claims .......... ......... ................................... ............. ........... ........26
 

Section 4.13 Use of the FDIC's Name and Reservation of Statutory Powers..............26
 

Scction 4. i 4 Prior Serviecr Information .... .......... ........... .......... ............ .................. ..... .26
 'o~\ Section 4.15 Release of Initial Member........................................................................26
 

Section 4.16 oan .............................................................................27
 

ARTICLE V Loans Sold "As Is" and Without Recourse......................................................29
 

Scction 5. i Loans Conveyed "As 1s"..........................................................................29
 

Section 5.2 No Warranties or Reprcscntations with Rcspect to Escrow
 

Accounts ............................................................................................... ...30
 

floO USI:744S14v21
 
Section 5.3
 

Section 5.4
 

Section 5.5
 No Warranties or Representations with Regard to Infonnation ..............30
 

...................................... ............ .....30
 

............. ................ ...31
 

Section 5.6
 Intervening or Missing Assib'lments 

Section 5.7
 No Warranties or Reprcsentations as to Documents

ARTICLE VI
 

Section 6.1
 Repurchases at Company's Option ........ ..................................................31
 

...................32
 

............................................33
 

.............................................33
 

Section 6.2
 Notice to Initial Member; Detennination ofPurehasc Price 

Scction 6.3
 Re-delivery of Notes, Files and Documcnts 

Section 6.4
 Waiver of 
 Company's Repurchase Option 

ARTICLE VII
 

Scction 7.1
 Tax Indemnity... ............ ........................................... ................... ... ........34
 

...................... ................................35
 

.. ................ ........... ................. ..... ........... ....... ..........35
 

....................................................................................................36
 

.. ............ ....... ...... ............. ... ................. .......... .............. ...36
 

..............................................................................36
 

....................................................................................................36
 

..........................................................................37
 

Section 7.2
 Tax Returns of the REO Subsidiaries 

Section 7.3
 Cooperation; Records

Scction 7.4
 Refunds 

Seetion 7.5
 Straddle Pcriods 

Scction 7.6
 Net Operating Losses. 

Section 7.7
 Survival

Section 7.8
 Tax Sharing Agreements

ARTICLE VII
 

Section 8.1
 Notices ......................................................................................................37
 

......................................................................................37
 

.................................................................................39
 

................ ...... .... ........... .................... ..................... .... ...39
 

Section 8.2
 Article VI Notice

Section 8.3
 Transfer Documents

Section 8.4
 All Other Noticcs 

ARTICLE IX
 

Scction 9.1
 Severability... ................ ................................................ ............................42
 

......... ............................. .... .............................. ......... .......43
 

.........................................................................43
 

................... ............... .................43
 

.......... ........... ........ .............................. ........... ... ........ .... ..43
 

.... ..................... ........... .............................. ............... ....44
 

...............................................................44
 

.................................................................................45
 

.........................................................46
 

Seclion 9.2
 Governing Law

Section 9.3
 Cost, Fees and Expenses 

Section 9.4
 Waivers; Amendment and Assignment 

Section 9.5
 No Presumption 

Section 9.6
 Entire Agrcenicnt 

Section 9.7
 Jurisdiction; Venue and Service

Section 9.8
 Waiver of Jury Trial

Section 9.9
 Counterparts; Facsimile Signatures 

No Warranties or Representations as to Amounts ofUnfunùed
 

Principal '" .................................................................. ........... ... ....... .........30
 

Disclaimer Rcgarding Calculation or Adjustment of Interest on
 

any Loan...................................................................................................30
 

Repurchase by the Initial Member at the Company's Option....... ................ ...31
 

Tax Matters ........................ ........... ............................................... ....................34
 

Notices .............................................................................................................37
 

Miscellancous Provisions. .......... ..... ............... ............. ..................... ... ..... .......42
 

Section 9. 1 0 Headings ............... .............................. .....:............... ........... ........... ..........46
 

Section 9.11 Compliancc with Law ..............................................................................46
 

Scction 9.12 Right to Speci f1c Performance...... .......... ....... ......................... ............... ..46
 

II
 

Uu"lI. IISI 514HI4"21 
Exhibits 

Exhibit A Loan Schedule ......................................................................... .............. ........ A-I
 

Exhibit B Affdavit and Assignment of Claim ........... ........ ......... ........ .... .......... ....... ..... B-1
 

Exhibit C Assignent and Lost Instrument Affidavit... .... ... .... ........... ....... ...... ...... ...... C-L
 

Exhibit D Limited Power of Attorney ...........................................................................D-l
 

Annex 

Annex I Maturity Dates and Principal Amounts of Purchase Money Notes ... Annex 1-1
 

11
 

IJoe' lISU744514,"1 
LOAN CONTRIBUTION AND SALE AGREEMENT
 

THIS LOAN CONTRIBUTION AND SALE AGREEMENT (as the same shall be the 16th day of amended or supplemented, this "Agreement") is made and entered into as of 


Octobcr, 2009, by and between thc FEDERAL DEPOSIT INSURNCE CORPORATION (in any 

capacity, "FDIC") AS RECEIVER FOR CORUS BANK, N.A. (the "Initial Member"), and 

CORUS CONSTRUCTION VENTUR, LLC, a Delaware limited liability company (the 

"Company"). 

RECITALS 

WHEREAS, on Septembcr 11, 2009, the FDIC was appointed receiver (the "Receiver") 

for CORUS BANK, N.A. (the "Failed Bank"); and 

WHEREAS, the Initial Member owns the Loans (as hereinafter defined to include, among 

other things, real and personal propcrty directly or indircctly owned by the Initial Member, as a 

result of foreclosure procecdings, deeds in lieu or forcclosure or otherwise, and equity intcrests of 

special purpose entities that hold such rcal property), all as described on the Loan 

Schcdule attached hercto as Exhibit A; and 

WHEREAS, the Initial Member has fonned the Company and holds the sole mcmbership 

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

WHEREAS, the Initial Member desires to transfer thc Loans to thc Company, partly as a 

capital contribution and partly as a sale as more fully sct forth herein; and 

the WHEREAS, the Initial Member and the Company dcsire that, in considcration of 


the Loans to the Company to the extent such transfer constitutes a sale, the Company 

will execute and delivcr to the Initial Member thc Company's Purchase Money Notes dated as of 

the date hercof with maturity dates and in the principal amounts set forth on Annex I hereto (the 

"Purchase Money Notes"), guaruntecd by the FDIC pursuant to that certain Guaranty Agreement 

transfer of 


between the FDlC in its corporate capacity and the Receivcr (the 

"Purchase Money Note Guaranty"); and 

dated as of the date hereof 


WHEREAS, the Company will be obligated to reimburse thc FDIC for any guaranty 

paymcnts made pursuant to the Purchase Money Note Guaranty, and such reimbursement 

obligation will be secured by the assets of the Company and its subsidiarics, all pursuant to thc 

Reimbursemcnt, Security and Guaranty Agreement datcd as of 
 the date hercofbetwecii the

Company and thc FDlC (thc .'Reimbursement, Security and Guaranty Agreement") and the 

Collateral Documents; and 

WHEREAS, the FDIC has agreed to provide additional funding to the Company to cnable 

it, among othcr things, to makc additional advances pursuant to certain of thc Loans, which 

funding shall bc provided pursuant to, and in accordancc with the tenns of, the Credit Agrccment 

datcd thc date hcrcofbetween the FDIC and thc Company (thc "Advance Facility"), with the 

repayment obligations under thc Advance Facility being sccurcd by the assets ofthc Company and 

lJoc_: IISU7~~~I~v2J 
its subsidiaries pursuant to thc Reimbursement, Security and Guaranty Agreemcnt and the 

Collateral Documents; and 

WHEREAS, pursuant to the Limited Liability Company Interest Sale and Assignment 

Agreemcnt dated as of 
 the datc hereof
 (the "LLC Interest Sale Agreement") between thc Initial 

Membcr and CCV Managing Member, LLC, a Delaware limited liability company (the "LLC the issued and Interest Transferee"), the Initial Member has agreed to sell and transfer 40% of 


outstanding LLC Interests to the LLC Interest Transferec for the Purchase Price (as defined in the 

LLC Interest Sale Agreement); and 

WHEREAS, the lnitial Member and the Company dcsire to mcmorialize their agreement 

the Loans and certain other matters as sct forth in this 

Agreement; 

rclatil1g to thc contribution and sale of 


the foregoing and the mutual promises and 

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

NOW, THEREFORE, in consideration of 


suffciency of 
 which are hcrcby acknowledged, the Initial Membcr and thc Company hcrcby agree

as follows:
 

ARTICLE I 

Definitions and Construction 

this Agreement, the following tcrms shall have 

the meanings and definitions hereinafter respectively set forth: 

Scction 1.1 Definitions. For purposes of 


"Account Control Agreement(s)" shall havc the meaning givcn in the Custodial and 

Paying Agency Agreement. 

"Accounting Records" shall mean the generalledgcr, supporting subsidiary ledgers and ,.,1# the Initial Mcmber. schcdules, and loan scrvicing systcm rccords of 


"Acquired Collateral" shall mean (i) Collateral to which title is acquircd by or on behalf 

of the Company or any Ownership Entity, the Failed Bank or the Recciver by foreclosure, by deed 

in lieu of forcclosure, by power of sale or by sale pursuant to the Unifomi Commercial Code; 

(ii) the cquity interests in the Ownership Entitics and (iii) the assets held directly or indircctly by 

the Ownership Entities. 

"Action" shall mcan any claim, action, suit (at law or in equity), arbitration or proceeding 

bcforc or by a Governmental Authority. 

"Adjusted Unpaid Principal Balance" shall mean, with respect to any Loan, the Loan 

Schcdule Balance as of the Cut-Off Date adjusted (i) up or down, as appropriate, to rcflect the the Loan as of
 the Closing Datc on the Accounting Records, actual Unpaid Principal Balance of 


(ii) up or down, as appropriate, to correct errors reflected in the Cut-Off Date Loan Schedule due to principal (A) miscalculations, misapplied payments, unapplied paymcnts, unrccordcd advances of 


or othcr disbursements, or the effcct of any final court decrce, unappealable regulatory 

enforcemcnt order or other similar action of a legal or rcgulatory naturc effective Oil or bcfore the 

Closing Date, and (B) the portion of any Dishonored Check that was applied to (and reflected in) 

2 

DocA': lISI~7"..5,I.i'¥!1 
the Cut-Off Date; and (iii) without duplication of any adjustments the Loan Schedule Balance as of 


madc pursuant to clause (i) or (ii) above, in the case of any Acquired Collateral, up in the amount 

of any capital expenditures made after the Cut-Off Date, or down in the amount of net proceeds 

the Acquired CollateraL. received after the Cut-Off Date from any sales of any portions of 


"Advance Facilty" shall have the meaning given in the preamble, and shall include all 

exhibits, schedulcs and attachments thereto. 

"Affected Loan" shall havc the meaning given in Section 4.5(c). 

"Affdavit and Assian ment of Claim" shall mean an Affdavit and Assignment of Claim
 

in the form of Exhibit B to this Agreement. 

"Affiiate" shall mean, with respect to any specified Person, (i) any othcr Person directly
 

or indirectly controlling or controlled by or undcr common control with such specificd Person, 

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


the Pcrson spccified, (iii) any offcer, 

director, gcncral partner, managing member, trustee, employee or promoter ofthe Person spcci tied 

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

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

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

securities, voting equity interests, or beneficial interests of 


the 

outstanding voting sceuritics, voting equity intercsts or beneficial intcrcsts of any Person described 

director, gcneral partncr, managing member, trustee or holder of ten percent (10%) or more of 


in clauses (i) through (iv); provided, however, that for purpses of 
 this Agreement, nonc of the

Initial Member, the initial Lcnder undcr the Advance Facility, the administrativc agcnt under the 

Advance Facility, the collateral agent undcr the Rcimbursement, Security and Guaranty 

Agrccmcnt, or the Purchase Moncy Notc Guarantor shall bc decmed to be an Affliate of the , "

..-,,1 this definition, the terni "control" 

(including the phrascs "controlled by" and "under common control with") when used with 

Company or of any Aff liate of the Company. For purposes of 


the power to direct 

or cause the dircction of the management and policies of such Person, whether through the 

respcct to any specified Person shall mean the possession, direct or indirect, of 


ownership of 
 voting securities or interests, by contract or otherwise.

"Agreement" shall have thc mcaning givcn in the preamble, and shall include all cxhibits, 

schedules and attachments hcreto. 

"Allocated Loan Costs" means the product of (i) the aggregate of all outstanding Working 

Capital Advances (as defined in the Custodial and Paying Agency Agrecment) as of the 

Repurchasc Oatc multiplied by (ii) the Allocation Ratio. 

"Allocation Ratio" means, with respect to any Loan, the quotient (expressed as a dccimal) 

the Repurchase Datc divided by the aggregate 

Unpaid Principal Balancc of all Loans outstanding as of the Repurchase Date. 

of the Unpaid Principal Balance of such Loan as of 

"Ancilary Documents" shall mean the LLC Operating Agreement, the Servicing 

Agreement, the Custodial and Paying Agency Agreement, one or morc Account Coiitrol 

Agreements, the LLC Interest Salc Agrcement, the Purchasc Money Notes (and any promissory 

note reissucd in respect thereof 
 pursuant to Section 2.8 of
 the Custodial and Paying Agency

3 

DucN'llSI 5744514v~1
 
Agreement), the Purchase Money Note Guaranty, the Reimburscment, Security and Guaranty 

Agreement and the Advance Facility, in each casc oncc cxecutcd and delivered, and any and all 

other agreements and instruments executed and delivered in connection with the Closing and the 

transactions eontemplated thereby. 

"Assignment and Lost Instrument Affidavit" shall mean an Assignment and Lost 

Instrument Affdavit in the fonn of Exhibit C to this Agreement. 

"Bankruptcy Rule" shall mean any of the rules set forth under the Federal Rules of 

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

"Borrower" shall mean any borrower or other obligor with respcct to any Loan. 

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

commercial banks in Washington, D.C. or Unitcd States federal govcrnment offces arc requircd 

or authorized by Law to close. 

the transactions contemplated in the LLC 

Intercst Sale Agreement. 

"Closing" shall mean thc consummation of 


"Closing Adjustment" shall have the mcaning givcn in the LLC Intcrest Sale Agreement. 

"Closing Date" shall mean the date on which the Closing occurs. 

"Closin Dat Loan Valuation Amount" shall mcan the sum of each product obtained by 'o~	 multiplying (A fthc Adjusted Unpaid Principal Balance of each Loan as ofthc Closing 

Date by (B) the applicable perccntage sct forth oppositc each Loan on the Loan Schedulc (which 

pcrcentage shall bc the percentage for each Loan as specified on the Cut-Off Date Loan 

Schedule (as defined in the LLC Interest Sale Agreement)). 

"Code" shall mcan the Intcrnal Revenuc Code of 1986, as amended. 

"Collateral" shall mean any and all real or personal property, whcther tangible or 

intangible, securing or pledged to secure a Loan, including any account, equipment, guarantee or 

contract right, cquity, partnership or other interest that is the subject of any Collateral Document 

and, as the context 
 requires, includes Acquired Collateral whether or not expressly so specified.

"Collateral Document" shall mcan any pledge agreement, security agreement, pcrsonal, 

trust, deed, trust deed, deed to secure debt, mortgage, contract 

for thc sale of real propcrty, assignment, collateral agrecment, stock power or other agreement or 

corporate or other guaranty, deed of 


document orany kind, whether an original or a copy, whethcr similar to or different from' 	 those 

enumeratcd, (i) securing in any manner the performance or payment by any Borrower of its 

obligations or the obligations of any other Borrower under any of the Loans or the Notes 

evidencing the Loans, or (ii) cvidencing ownership of any Acquired CollateraL. 

"Companv" shall havc the meaning given in the preamble. 

4 

Oo- US! HU~14v21
 
"Custodial and Paying Agency Agreement" shall mean the Custodial and Paying 

between the Company, the Purchased Money Note 

Guarantor, the Lender under the Advance Facility and the Custodian. 

"Custodial Documents" shall have the meaning given in the Custodial and Paying 

Agency Agreement. 

"Custodian" shall have the meaning given in the Custodial and Paying Agency 

Agreement. 

"Cut-Off Date" shall mean September 11, 2009. 

"Deficiency Balance" shall mean the remaining unpaid principal balance of any Notc 

purchased hereunder after crediting to it the procecds of a foreclosurc sale. 

"Dishonored Check" shall mean any chcck or similar instrument that has becn returned 

duc to insuffcicnt funds or a stop paymcnt order. 

"Escrow Account" shall mean, collectively, (a) any accounts maintained by the Initial 

Member or its agent for the deposit of Escrow Payments received in respect of one or more Loans 

or (b) 10ckbox accounts maintained in respect of a Loan. 

"Escrow Balance" shall mean, with respect to any Loan, the positive escrow balance (if 

any) in the Escrow Account with respect to that Loan, as rcflected on the Loan Schedule. 

Agency Agreement dated as of the date hereof 


paying ground rents, taxes, 

assessments, water rates, common charges in condominiums and planned unit developments, 

mortgage insurance premiums, fire and hazard insurance premiums and other payments, or for the 

purpose ofpaying construction and related costs, which have been eserowcd or designated by the 

Borrower with the Initial Member or its servicer or other agent pursuant to any Loan. 

"Excess Damage Liabilty Amount" shall have the meaning given in Section 4.5(c). 

"Excess Working Capital Advance" shall havc the meaning given in the Custodial and 

Paying Agency Agrcement. 

"Excluded Liabilties" shall have the mcaning given in Section 2.2. 

"Failed Bank" shall havc the meaning given in the rccitals. 

"FDIC" shall mean the Fcderal Deposit Insurance Corporation, in any capacity. 

"Escrow Payments" shall mean thc amounts for the purpose of 


"Foreign Jurisdiction" shall mcan any jurisdiction other than the United States. and any 

subdivision of or in such other jurisdiction. 

"Foreign Loan" shall mcan a Loan with respect to which the Borrower or any ofthc 

Collateral is located in any Foreign Jurisdiction. 

5 

nocNo USIS744S14v21 
"GAAP" shall mean United States generally accepted accounting principles as in effect 

from time to time. 

"Governmental Authority" shall mean any United States or non-United States national, 

federal, state, local, municipal or provincial or international government or any political 

subdivision of any governmental, regulatory or administrative authority, agency or commission, or 

judicial or arbitral body. 

"Guarantor" shall mean any guarantor of all or any portion of any Loan or all or any of 

any Borrower's obligations set forth and described in the Loan Documents and shall includc thc 

guarantor under any completion guaranty or similar document. 

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

spouse, parents, parents-in-law, grandparents, descendants, nephcws, nieces, brothers, sisters, 

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

stepchildren, grandchildren and grandchildren-in-Iaw. 

"Independent Accounting Firm" shall have the meaning given in the LLC Interest Sale 

Agreement. 

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

." shall have the meaning gi ven in Section 4.16. 

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

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

"Lender" shall mcan a lender under the Advance Facility. 

trust, deed to secure "Lien" shall mcan any pledge, security interest, mortgage, deed of 


debt, trust dced, charge, restriction on or condition to transfer, voting or exercise or enjoyment of 

first refusal, easement, covenant, restriction and any 

other lien, claim or encumbrance of any nature whatsoever. 

"Limited Power of Attorney" shall mean the Limited Power of Attorney in the fomi of 

Exhibit 0 to this Agreement. 

"LLC Interest" shall have the meaning given in the recitals. 

"LLC Interest Sale Agreement" shall have the meaning given in the recitals. 

"LLC Interest Transferee" shall have the meaning given in the recitals. 

"LLC Operating Agreement" shall mean the Amended and Restated Limited Liability 

Operating Company Agreement dated as of the date hereo f among the 1nitial Mcmber, the LLC 

any right or beneficial interest, option, right of 


Interest Transferee and the Company. 

6 

()u. i:SI S7HSl4v?1
 
"Loan" shall mean any loan, Loan Participation, Ownership Entity (including any cash 

and cash equivalents held directly or indirectly by such Ownership Entities (excluding security 

deposits, deposits made by prospective purchasers of condominium or cooperative units or other 

the interests in the Acquired Collateral and other cash and cash equivalents to the 

extent that such Ownership Entity has a corresponding liability to a third party) or Acquired 

Collateral listcd on the Loan Schedule, and any loan into which any listed loan or Loan 

Participation is refinanced or modified, and includes with respect to each such loan, Loan 

Participation. Ownership Entity, Acquired Collateral, or other related assct or any Related 

Agreemcnt: (i) any obligation evidenced by a Note; (ii) all rights, powcrs or Liens of the Initial 

Membcr or the Failed Bank in or undcr the Collateral and Collateral Documents and in and to 

Acquired Collateral (including all Ownership Entities and REO Property held by any Ownership 

Entity); (iii) all rights of the Initial Member or the Failed Bank undcr any lease and the rclated 

any 

portions of 


action, lawsuits,judgmcnts, claims and demands of
 leased propcrty; (iv) all rights to causes of 


nature available to or being pursucd by or for the benefit of the Initial Member or the Failed Bank 

with respect to the Loans, the Collateral or the ownership, use, function, value of or other rights 

pertaining thercto, whcther arising by way of counterclaim or otherwise, other than any claims 

retained by the Initial Mcmber pursuant to Section 2.6; (v) all guaranties, waminties, indemnities

the Initial Member or the Failed Bank with respect to any of
 the and similar rights in favor of 


Loans; and (vi) all rights of 
 the Initial Membcr or the Failed Bank under the Related Agreements.

"Loan Documents" shall mean all documents, agreements, certificatcs, instruments and 

othcr writings (including all Collatcral Documents) now or hcreafter executed by or delivered or 

caused to be delivered by any Borrower, any Guarantor or any other obligor cvidencing, creating, 

guaranteeing or securing, or otherwise executed or delivered in respcct of, all or any part of a Loan 

or any Acquired Collateral or evidencing any transaction contemplated thcrcby (including for this 

purpose, title insurance policies and endorsements thercto), and all Modifications thereto. 

"Loan File" shall mean all documents pertaining to any Loan, either copics or originals, 

that are in the possession of the Initial Member or any of its employees or contractors responsible 

the Note and other 

Custodial Documcnts and Collatcral Documcnts and (ii) confidential or privileged 

communications betwccn the Initial Membcr (or any prcdecessor-in-interest, including the Failed 

Bank) and its legal counsel; provided, however, that the Loan Files do not includc files maintained 

by other employees or agents of the Initial Member, or attorney-client or work product privileged 

materials held by the Initial Mcmber's legal counsel unlcss in thc opinion of such counsel, the 

disclosurc of thc matcrial is not likely to rcsult in the waivcr of thc attorney-client or work product 

privilege. 

for the servicing of the Loan, other than (i) the original Note, renewals of 


"Loan Participation" shall mean any Loan subject to a sharcd credit, participation, 

co-lending or similar intercreditor agrcement under which the Initial Membcr or thc Failed Bank 

was the lead or agcnt financial dcpository institution or otherwise managed or held the crcdit or 

sold participations, or under which the Initial Membcr or thc Failed Bank was a participating 

financial depository institution or purchased participations in a credit man'-ged by another Pcrson. 

"Loan Proceeds" shall havc the meaning givcn in the LLC Opcrating Agreement. 

7 

Doc': I:SIS;44Slh11 
b4
 

"Loan Schedule" shall mean the Loan Schedulc attached hereto as Exhibit A, as updated 

and adjusted in accordance with the tenns of 
 the LLC Interest Sale Agreement.

"Loan Schedule Balance" shall mean, with rcspect to any Loan, the unpaid principal 

balance of the Loan as stated on the Loan Schedule. 

"Loan Value" shall mean the allocation ofthc Closing Date Loan Valuation Amount 

among the Loans. 

an, (i) .. Repayment Percentage" shall mean with respect to th 

an the quotient (expressed as a decimal) of 5 timcs the Lom Value for the 

an as of the Closing divided by the Adjusted Unpaid Principal Balance ofth 

Date. 

. Repayment Date" shal i have thc meaning given in Scction 4. i 6. 

'~Repayment Amount" shall have the meaning given in Section 4.16. 

'.epayment Date" shall have the meaning given in Section 4.16. 

"Management Fee" shall have the meaning given in the LLC Operating Agreement. 

"Managing Member" shall have the meaning given in the LLC Operating Agreement. 

"Modification" shall mean any extension, rcncwal, substitution, rcplaeemcnt, supplement, 

amendment or modification of any agreement, certificate, document, instrument or other writing, 

whether or not contemplatcd in the original agrecment, document or instrument. 

trust, deed to secure deht, trust deed or othcr 

instrument, including any amendments or modifications thereto, creating a first or junior lien on or 

"Mortgage" shall mean the mortgage, deed of 


ownership interest in a Mortgaged Propcrty. 

the "Mortgage Assignment" shall mean, with rcspeet to any Mortgage, an assignment of 


Mortgage, notice of transfcr or cquivalent instrument in recordablc fonn, suffcient under the 

applicable Law of the jurisdiction whcrein the relatcd Mortgaged Propcrty is locatcd to reOect thc 

assignmcnt of 
 the Mortgagc.

8 

~)00 liS) -5744514'-21
 
the 

Collateral for any Loan, whether held in fee simple estate or subject to a ground lease or otherwise, 

and whether or not improved by buildings or facilities, and any personal property, fixtures, leases 

and other property or rights pertaining thereto. 

"Mortgaged Property" shall mean any underlying rcal property constituting part of 


"Note" shall mean cach note or promissory note, lost instrument affdavit, loan agreement, 

shared credit or Loan Participation agreement, intercreditor agreement, reimbursement agreement, 

any other evidence of indebtedness of any kind, or any other agreement, document or instrument 

evidencing a Loan, and all Modifications to the foregoing. 

"Obligations" shall mean (i) all obligations, commitments and liabilities relating to a Loan 

and arising or (solely with respect to contractual commitments becoming due or payable after the 

Closing Date in accordance with their temis) bccoming due or payable after the Closing Date, and 

(ii) allliabilitics, costs and expenses arising from any litigation (including any bankruptcy action) 

with respect to any Loan that has been commenced prior to the Closing Date (including any claims 

or counterclaims asserted therein, whether asscrted before or after the Closing Date), except 

litigation (or clainis therein) retained by the Receiver, by notice to the Company, pursuant to 

Section 2.6 or otherwise; provided, however, that no legal fees or other costs or expenses, 

including judgments incurred by the Initial Member or the Failed Bank prior to the Closing Date 

with respect to any such litigation pending on the Closing Datc shall constitutc an Obligation. 

"Order" shall have the mcaning given in Section 6.1. 

"Ownership Entity" shall mean a Single Purposc Entity that is a Subsidiary ofthc 

Company, whether contributed by the Initial Member on the Closing Date or fonned or acquired 

by the Company thereafter; Rrovided, that, with respect to any entity transferred to the Company 

on the Closing Date pursuant to this Agreemcnt that is not a Single Purpose Entity as of such date, 

any such entity shall he deemed to be an Ownership Entity; provided, further, that, the Company 

and the Managing Member shall take all necessary and appropriate actions to cause such entity to 

bccome a Single Purpose Entity as promptly as possible after the Closing. 

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

liability company, limited liability partnership, firm, joint venture, association, joint-stock 

company, trust, cstate, unincorporated organization, govemmental or regulatory body or other 

entity. 

"Pre-Approved Charges" shall mean the costs and expenses expressly designatcd as 

this Agreement, and 

no other costs or expcnses. 

"Pre-Approved Charges" in Sections 2.7, l., l., 3.2, 4.3 and 5.6 of 


"Pre-Closing Taxable Periods" shall mean all taxable periods or portions thereof ending 

on or before the Closing Date. 

"Pre-Closing Taxes" shall havc thc meaning given in Section 7.1. 

"Private Owner" shall have the meaning given in the LLC Operating Agreement. 

9 

Doc' US 1:744S i.v~ I 
"Purchase Money Note Guarantor" shall mean the FDIC, in its corporate capacity, as thc 

guarantor of the Purchase Money Notcs. 

"Purchase Money Note Guaranty" shall have the meaning given in the recitals. 

"Purchase Price" shall have the meaning given in the LLC Interest Sale Agreement. 

"Purchaser Monev Notes" shall have the meaning given in the recitals. 

"Receiver" shall have thc meaning given in the recitals. 

"Reimbursement and Security Agreement" shall have the meaning given in the recitals. 

"Related Agreement" shall mean (i) any agreement, document or instrument (other than 

thc Note and Collatcral Documents) relating to or evidencing any obligation to payor securing any 

Loan (including any equipment leasc, letter of credit, bankers' acceptance, draft, system 

transaction, loan history, affdavit, general collection information, and 

correspondence and comments relating to any obligation), (ii) any agreement relating to the 

confirmation of 


real property or rights in or to any rcal 

property (including leases, property or asset management agreements, brokerage agreements, 

servicer contracts, and concession agreements, license agreements or othcr agreemcnts granting 

rights of occupancy or use) relatcd specifically only to the Collateral or Acquired Collateral or any 

ownership, operation, management, sale or leasing of 


of them and (iii) any collection or contingency fee, and tax and other service agrcements 

them) and that (including those rcfcrred to in Section 4.2) that are specific to the Loans (or any of 


are assignable. 

"Related Party" shall mcan, any party related to the Borrowcr in the manner delineated in 

26 U.S.C.A § 267(b) and the regulations promulgated thereunder, as such law and regulations may 

be amended from timc to time. 

"Released Parties" shall havc thc meaning given in Scction 4.15(b). 

"REO Property" shall mean real property and rclated pcrsonal property to which title is 

acquired by or on behalf ofthe Company, the Failed Bank or the Receiver or any Ownership Entity 

by foreclosure, by deed in lieu of foreclosurc, by power of sale or by sale pursuant to the Uniform 

Commercial Code, in any such case, whether before or atìer the Closing. 

"REO Subsidiary" shall mean any entity classificd as an association taxable as a 

corporation for U.S. fcderal income tax purposes that is contributed to the Company by thc Initial 

Member pursuant to the tcnns of 
 this Agreemcnt and is treated as a "Loan" for the purpses ofthis

Agreement as of the Closing Date.

"Repurchase Diite" means the date specified in the notice delivered by the Company to 

the Initial Member pursuant to Section 6.2, which shall be between ten (10) and sixty (60) 

Business Days prior to the date such noticc is delivered. 

10 

Doc.. lIS)57445I'v~1 
"Repurchase Loan Amount" shall mean thc product of thc Repurchasc Pcrccntagc 

multiplied by the lesser of (A) the Adjusted Unpaid Principal Balance of such Loan as of the 

such Loan as of the Repurchase Date. Closing Date and (B) the Unpaid Principal Balance of 


"Repurchase Loan Value" means, with respect to any Loan, two times the product of 

(i) the Loan Value for such Loan multiplied by (ii) 2.5. 

"Repurchase Percental?e" shall mean, with respect to any Loan, (i) the quotient 

(exprcssed as a decimal) of 
 the Repurchase Loan Value for such Loan divided by (ii) thc Adjusted

Unpaid Principal Balance of such Loan as of 
 the Closing Date.

"Repurchase Price" shall mean, with respect to any Loan the sum of (i) the Repurchase 

Loan Amount, plus (ii) the excess, ifany, of the Unpaid Principal Balance of such Loan as of the 

the Closing Date plus (iii) thc 

amount of Allocated Loan Cosls with respeet to such Loan minus (iii) the positive amount of any 

Escrow Balance relating to such Loan that has not been transferred to the Initial Mcmber. 

"RESPA" shall mean the Real Estate Settlemcnt Procedurcs Act of 1974, as amendcd, and 

all rules and regulations promulgatcd thereunder. 

"Servicer" shall have the meaning given in the LLC Opcrating Agreement. 

Repurchase Date over the Adjusted Unpaid Principal Balance as of 


"Servicing Agreement" shall havc the meaning given in thc LLC Operating Agrecment.
 

"Servicing Expenses" shall havc the meaning givcn in the LLC Operating Agreemcnt.
 

"Servicing Support Period" shall have the meaning in Section 4.1 (b).
 

"Single Purpose Entity" shall havc the meaning givcn in the LLC Operating Agrccmcnt.
 

"Straddle Period" shall have the meaning given in Section 7.5.
 

"Tax Contest" shall havc the mcaning given in Scction 7.3.
 

"Tax Loss" shall have the mcaning given in Scction 7.1.
 

"Tax Returns" shall mcan any and all rcports, rcturns, declarations, claims for rcfund,
 

clections, disclosures, estimatcs, information rcports or returns or statemcnts required to be 

supplied to a Govcrnmental Authority in connection with Taxes, including any schedulc or 

attachmcnt thereto or amendment thcreof. 

"Tax Sharing Agreement" shall mean any agreement relating to the sharing, allocation or 

indemnification of Taxes, or any similar agrccment, contract or arrangement.

"Taxes" shall mean (i) any and all fedcral, state, provincial, 10cal, foreign and other taxes, 

levies, fees, imposts, duties, and similar governmental charges (including any interest, fines, 

assessments, penalties or additions to tax imposed in connection therewith or with respect thcrcto) 

including, without Iimitaiion (x) taxes imposed on, or measured by, income, franchisc, profits or 

i 1
 

nod LJSI~7'451~vil 
gross receipts, and (y) ad valorem, value added, capital gains, sales, goods and serviecs, use, real 

or personal property, capital stock, license, branch, payroll, estimated withholding, employment, 

social security (or similar), unemployment, compensation, utility, severance, production, 

liability for the payment occupation, premium, windfall profits, and customs duties, (ii) any and all 


being (or ceasing to be) a member of an 

affliated, consolidated, combined, unitary or aggregate group (or being included (or being 

required to be included) in any Tax Return related to such group), and (iii) any and all Iiability for 

the payment of any amounts as a result of any express or implied obligation to indemnify any other 

of any itcms described in clause (i) above as a result of 


person, or any successor or transferee liability, in respect of any items described in clause (i) or 

this Agreement, Taxes shall not include Transfer Taxes. (ii) above. For the purposes of 


"Term Loan" shall have the meaning given in the Advance Facility. 

"Transfer Documents" shall mean the cndorsements and allonges to Notcs, Assignment 

and Lost Instrument Affdavits (if applicable), Mortgage Assignmcnts, deeds, assignments of 

leases, and othcr documents of assignment, conveyance or transfcr required under any applicable 

Law to cvidence the transfer to the Company pursuant to this Agreement of the Loans, the 

Collateral and the Collateral Documents, including the transfer of any limited liability company, 

corporation or other cntity that may hold the Collateral (including REO Property) or the Loans. 

"Transfer Taxes" shall mean any taxes, assessments, levies, imposts, duties, dcductions, 

fees, withholdings or othcr charges ofwhatcvcr naturc (othcr than any taxcs imposcd on or 

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

the Loans, the Collateral and the 

Collateral DocumenlS or thc rights in thc Collateral or the assignmcnt and assumption of the 

Obligations thercundcr pursuant to this Agreement and the Transfer Documents. 

to be paid to any taxing authority with respect to the transfer of 


"Transition Completion Certificate" shall mean a certificate delivered by thc Managing 

Mcmber to the Initial Membcr certifying that the intcrim scrvicing and asset management support 

providcd by the Initial Member to the Managing Member, thc Scrvicer or any Subservicer 

pursuant to Section 4.1 hcreof is no longer required. 

"Treasury Regulations" shall mean thc Treasury regulations promulgatcd under the 

Code. 

"Uniform Commercial Code" shall mcan thc Uniform Commcrcial Code as in effect in 

any applicable jurisdiction, as amended from time to time. 

"Unpaid Principal Balance" shall mean, at any timc, (a) whcn used in connection with 

multi pIe Loans, an amount equal to thc aggregate then outstanding principal balance of such 

Loans, and (b) when used with respect to a single Loan, an amount equal to thc then outstanding 

principal balance of such Loan; provided, howcver, that: 

(i) with rcspect to any Loan Participation (and any rclated Acquired
 

Collateral), the Unpaid Principal Balance of such Loan Participation shall includc only the Initial 

Member's allocable sharc thcreofin accordance with the applicable Loan Participation Agreement 

(as defined in thc LLC Operating Agrecment); 

12 

i)(d LISU744~14\'?1
 
(ii) with respect to any Acquired Collateral that is included among the Loans on
 

the Closing Date, thc Unpaid Principal Balance of such Acquircd Collateral shall initially be the 

amount sct forth on the Cut-Off Date Loan Schedule (as defined in the LLC Interest Sale 

Agreement), adjusted as of the Closing Date to its Adjusted Unpaid Principal Balance, and 

thereafter determined in the samc manner as all other Acquired Collateral; 

(iii) in the casc of a Loan for which some or all ofthe related Collateral has been
 

converted to Acquired Collateral (including REO Property), until such time as the Acquired such Loan shall be Collateral (or any portion thcreof) is liquidated. the unpaid principal balance of 


deemed to cqual thc amount of the unpaid principal balance of such Loan (adjusted pro rata for 

debt forgiveness or retained indebtedncss) at the time at which such Loan was converted to the Aequired Collateral Acquired Collateral, less the net proceeds of any sales of any portions of 


effective aficr such conversion; and 

(iv) the Unpaid Prineipal Balance with rcspcct to any Acquired Collateral will
 

be increased by thc amount of (A) any Term Loan applied with respect thereto in accordance with 

the Advance Facility, (B) any Servicing Expenses capitalized thereto in accordance with 

applicable Law to the extent that capitalizing such Servicing Expenses would have bcen penniiied 

under the applicablc Loan Documents prior to the conversion of 
 the Loan to the Acquired

Collateral and (C) Excess Working Capital Advances used for the purposes for which the procceds 

ofTcmi Loans may be uscd under the Advance Facility. 

For purpses of Articlc VI and Section 4.5(c), any amount of capitalized Servicing 

Expcnses shall not be included in the Unpaid Principal Balance. 

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

accordance with the following: 

(a) Refcrenccs to "Affliates" include only other Persons which froni time to time
 

constitute "Affliates" of such specified Person. and do not include, at any particular time, other 

Persons that may have been, but at such time have ceased to be, "Affliatcs" of such specified 

Person, except to the extent that any such reference specifically provides othcrwise. 

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

(c) A reference to a law includes any amendment, modification or replacement to such
 

law. 

(d) Accounting tcmis shall have the meanings assigned to them by GAAP applied on a
 

consistent basis by the accounting entity to which they refer. 

(e) Rcferences to any document, instrument or agreement (i) shall be deemed to
 

include all appendices, exhibits, schcdules and other attachmcnts thercto and all documents, 

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

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

supplemcnted from time to timc in accordance with its tenns and as the same is in effect at aiiy 

given time. 

13 

Doc. IJSI5744SI.lv21
 
(f) Unless otherwise specified, the words "hereof," "herein" and "hcreunder" and
 

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

of this Agreemcnt. 

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

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

fact followed by such words. 

time shall be construed to (h) The word "during" when used with rcspcct to a pcriod of 


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 whcn used
 

hercin shall be deemed to include the plural and vice versa and impersonal pronouns shall be 

the appropriate gender. deemed to include the personal pronoun of 


ARTICLE II 

Contribution and Sale of Loans 

Section 2.1 Tcnns and Conditions. The Initial Membcr hcreby conveys to the 

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

recoursc, by way 0 f a sale to the extent of the principal amount of the Purchase Moncy Notes and 

otherwise as a capital contribution, in either casc without reprcsentation or warranty, express or 

the Initial Member, whether held directly or indirectly, in and 

to: 

implied, all right, titlc and interest of 


(a) the Loans (including, without limitation, all Acquired Collateral, equity 'lnd other
 

intcrests in Ownership Entities, REO Propcrty, Notes, the other Loan Documents and Related the Closing Agreements), including all future advances made with respect thereto, effective as of 


Date, and all rights in the Collateral pursuant to the Collateral Documents; 

(b) all amounls payable to the Initial Mcmber under the Loan Documents and all
 

obligations owed to the Initial Member in connection with the Loans and the Loan Documents 

after the Closing Date; 

action and any other right ofthc Initial Member, whether (c) all claims, suits, causes of 
 their rcspective known or unknown, against a Borrowcr, any Guarantor or other obligor or any of 


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

connection with the Loans or the Loan Documents or that is in any way based on or related to any 

the foregoing, including contract claims, tort claims, malpracticc claims, statutory claims and all 

other claims at law or in equity arising under or in connection with the Loan Documents or the 

of 

transactions related thereto or contemplated thereby, excluding, however, any and all claims, suits, 

causes or action and other rights retained by the Initial Member under Section 2.6; 

(d) all cash, securities and other property reccived or applied by or for the account of
 

the Initial Member undcr thc Loans after the Closing Date, including all distributions received 

through redcmption, consummation of a plan of reorganization, restructuring, liquidation or 

otherwise of a Borrower, Guarantor or other obligor under or with respect to the Loans, and any 

14 

Do": LJSI\744~14,21
 
securities, interest, dividends or other property that may be distributed or collected with respect to 

any of the foregoing; and

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


foregoing, and the rights to receive sueh proceeds thereof. 

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

agrecs to perfonn and pay all of the Obligations. The Initial Member and the Company agree that 

the conveyance contemplated by Section 2.2 and thc other provisions of 
 this Agreement is

intended to be an absolute conveyance and transfer of ownership of the Loans in part by capital 

contribution and in part by sale. Notwithstanding anything to the contrary herein, it is understood 

and agreed that, except for the Obligations, the Initial Member shall not assign and the Company 

shall not assume or be Iiablc for any ofthc following liabilities (thc "Excluded Liabilities"): 

(a) any liabilitics or obligations of 
 the Initial Member to the extcnt attributable to an

act, omission or circumstances that occurred or cxistcd prior to thc Closing Date and that 

constitutes a breach or dcfault under any contract (including any contra~t included in thc 

Obligations), a tort, willful misconduct, fraud or a violation of Law by the Initial Member or the 

Failed Bank; 

(b) any claim against or liability ofthc FDIC in its capacity as reccivcr for thc Failed
 

Bank that, undcr and in accordance with applicable Law, was, is or will bc subject to or is rcquired 

to be asserted through the rcceivership administrative claims processes administcred by the FDIC 

in its capacity as receiver for the Failcd Bank pursuant to 12 U.S.C. § 1821 (d)(3) through (13), 

including claims and liabilitics that arc aflmiative or defensive, now existing or arising in the 

future, contingcnt or fixed, monctary or non-monetary, equitable or legal, or declarative or 

injunctive; and 

the Failed (c) any claim against or liability based on any alleged act or omission of 


Bank which is not provable or allowable, or is otherwisc barred against FDIC as reccivcr for the 

Failed Bank under applicable Law, including claims and liabilities that are barred under 12 V.S.c. 

§§ 1821(c), (d), (e) (including § 1821(c)(3)), (i), (j); 12 U.S.c. § 1822; 12 U.S.c.§ 1823; or 

12 V.S.c. § 1825.
 

Payments; Closing Adjustment. Any and all Loan Proceeds 

received at any timc on or beforc the Closing Date shall belong to the Initial Member or in the case 

Section 2.3 Allocation of 


of cash Loan Proceeds held by REO Subsidiaries as of 
 the Closing Date, shall accrue to the bencfit

of the Initial Membcr as providcd in Section l(e) ofthc LLC Interest Sale Agreement (but, for 

avoidance of doubt, shall not be withdrawn from accounts of such REO Subsidiaries by the Initial 

Member prior to the Closing Date and shall be effcctively transferred to the control of the 

Company as the result ofthc conveyance provided for in Section 2.1 hereof). Subject to Scction 

4.16, any and all Loan Proceeds received at any time after the Closing Date shall bclong to the 

Company. Following the Closing Datc, the Private Owner and the Initial Member shall determine 

the LLC Interest Sale 

Agreement and shall effcct thc adjustments specificd therefor in such Scction I ofthc LLC Intcrest 

Sale Agreemcnt. 

the amount ofthc Closing Adjustmcnt in accordancc with Section i of 


15 

0.",.. US1.744514v2J 
Section 2.4 Rebates and Refunds. The Company is not entitled to any rebates or 

refunds from thc Initial Member or the Failed Bank from any pre-computed interest Loan, if any, 

regardless of when the Note matures. Further, on pre-computed interest Loans, if any, r.either thc 

Initial Member nor the Failed Bank will refund any unearned discount amounts to the Company. 

Section 2.5 Interest Conveyed. In the event a foreclosurc occurs prior to thc Closing 

Date and the Initial Member is a purchaser, the Initial Member (i) shall deliver to the Company a 

spccial warranty dced and other applicable Transfer Documents in order to convey the property or 

Ownership Entity, as the case may be, purchased at the sale or transferred by deed in lieu of 

foreclosure and (ii) shall convey to the Company the Deficiency Balance, if any, owing in respect 

of the Loan in question. 

Scction 2.6 Retaincd Claims. Notwithstanding anything to thc contrary in this 

the Loans Agrcement, the Company and the Initial Member agree that thc contribution and sale of 


pursuant to this Agreement will exclude the transfer to the Company of all right, title and interest 

ofthc Initial Member, the Receiver or the Failed Bank and any predecessors-in-intcrcst ihcrcto in 

and to any and all claims of any naturc whatsoever that might now exist or hereafter arise, whcther 

known or unknown, that the Initial Member, the Receiver or the Failed Bank or 

when predecessors-in-interest thcrcto have or had or that any ofthcm might have, regardless of 


any such claim is discovered, against any oflhc following, excluding Borrowers, Guarantors and 

their Affliates: (a) offcers, directors, employees, insiders, accountants, attorneys, other persons 

employed by thc Initial Membcr or any of its predecessors-in-interest, underwriters or any other 

similar Persons who may have caused a loss to the Initial Member, thc Receiver or the Failcd Bank 

or any of its predecessors-in-interest in connection with thc initiation, origination, servicing or 

administration of a Loan; (b) any appraisers, accountants, auditors, attorneys, investment bankers 

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

perfonncd services for the Initial Member, thc Receiver or the Failed Bank or any of its 

predecessors-in-intercst, relative to the initiation, origination, servicing or administration of a 

Loan; (c) any third parties for alleged fraud, misreprescntation or other misconduct in conncction 

with the initiation, origination or scrvicing of a Loan; or (d) against any appraiser or other Person 

with whom the Initial Member, the Receiver or the Failed Bank or any of its 

prcdecessors-in-intercst or any servicing agent contractcd for scrvices or titlc insurance (but 

excluding the titlc insurance providcr) in connection with the initiation, origination, insuring or 

scrvicing of a Loan. 

Section 2.7 Transfer Taxes. Except as otherwise provided herein, the Company shall
 

pay, indemnify and hold harniless the Initial Mcmber from and against any Transfer Taxcs, and 

shall timely file any returns required to bc filed with rcspect to such Transfer Taxes. Taxcs paid by 

the Company pursuant to this Scction 2.7 shall constitute Pre-Approved Charges for purposes of 

the Custodial and Paying Agcncy Agrecment. 

ARTICLE II
 

Transfer of Loans, Collateral Documents and Servicing 

Scction 3. i Delivcry of Documents. The Company and the Initial Menibcr agrec to 

execute and deliver to one anothcr the following: 

16 

00_. llSIS)~4514v!1
 
(a) Following the Closing Date, subject to the provisions ofihe LLC Opcrating
 

Agreement, the Initial Member shall deliver to the Custodian the Notes and othcr Custodial 

vcr the Loan Files for such Documents and Collateral Documents for a given Loan, and shall deli 


Loan, to either the Company or the Servicer (as directed by the Company). 

(b) (i) The Company, at the Company's expense, will prepare for execution by or
 

on behalf of 
 the Initial Member, within the period specified in Section 3.1 (b)(iv), all Transfer

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

Company in complying with the obligations set forth in thc preceding sentence shall constitutc 

the Custodial and Paying Agency Agreement, provided 

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

submitted for rccordation or filing sixty (60) days of the Closing Date shall not constitute 

Pre-Approved Charges for purposes of 


Pre-Approved Charges for purposes of 
 the Custodial and Paying Agency Agreement. Such sixty

(60) day period for the preparation and submission of a Transfer Document for recordation shall be 

the delay is due to a maller noted as an "Exception" on the "Collateral Certificate" (as 

such tenns arc dcfined in the Custodial and Paying Agency Agrecment), provided that thc 

Managing Member is working diligently to locatc the missing information or otherwise take such 

stcps as may be necessary or appropriate to complete and submit the Transfer Document(s). All 

Transfer Documents prepared by the Company shall be in appropriate form suitable for fiing or 

extended if 


jurisdiction and otherwise subjcctlo the limitations set 

forth herein, and the Company shall be solcly responsible for thc preparation, contents and form of 

such documents. The Company hercby releases the Initial Member from any loss or damage 

incurred by the Company due to the contents or form of any documents prepared by the Company 

recording (ifapplicable) in the relevant 


which was not provided by the Initial Member) and the 

LLC Intcrest Transferee shall indemnify and hold hannlcss 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 Documcnt (the forni of which was not provided by the Initial 

Member), including any claim rclating to the adcquacy or inadequacy of any such document or 

. instrument for the purposes thcreof, and the use (or purported use) by the Company ofthc Limited 

Power of Attorney in any way not expressly pcnnittcd by its temis. 

pursuant to this Scction 3.1 (b) (the form of 


(ii) On or within a reasonable timc following the Closing Datc, the Initial
 

Member will grant a Limitcd Powcr of Attorney to selected employecs ofihe Company for the 

purposes of 
 executing the Transfer Documents on behalfofthc Initial Member.

(iii) The Company shall use the following forms for endorsing or preparing 

allonges to Notes: 

17 

I)oc~ l:S i 5 7H514v2 I 
Pay to the order of 

Corus Construction Venture, LLC 

Without Recourse 

Federal Deposit Insurancc Corporation as Receiver 

for Corus Bank, N .A. 

By: 

Name: 

Title: Attorncy-in- Fact
 

All documents of assignent, conveyance or transfer (not including special warranty deeds to the 

REO Property, which shall contain the special warranty included thcrein but no othcr warrantics or 

representations) shall contain the following sentence: 'This assignment is made without recourse 

and without representation or warranty, express, implied or by operation of law of any kind or 

nature whatsoever, by the Federal Deposit Insurance Corporation in its corporatc capacity or as 

Receiver for Corus Bank, N.A." 

(iv) The Company will completc all Transfer Documents, and record or fie 

thcm if and as appropriate in accordancc with Section 3.2, within sixty (60) Business Days aftcr 

thc Closing Date to the extent reasonably possible. The Company shall provide a report to the 

Purchase Money Note Guarantor, thc Lendcr and the Initial Member on the progress and status of 

the original documents to the 

Custodian as required by this Agrcement promptly following a request therefor from the Purchase 

Money Note Guarantor, the Lender or the Initial Member and in any event on the seventieth (70th) 

Business Day following the Closing Date. 

the preparation, execution, recording and/or filing and delivery of 


(c) As to Foreign Loans, 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. Reasonablc and 

customary expenses paid to third parties actually incurred by thc Company in complying with thc 

- obligations set forth in thc preceding sentcnce shall constitute Pre-Approved Charges for purposes 

the Custodial and Paying Agency 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 

lettcrhead, signed by thc foreign counsel preparing those documents, certifying that those 

of 

the Foreign Jurisdiction. Each such document and instrument 

shall be delivered to the Initial Mcmbcr in the English language, provided, however, that any 

document required for its purposes to be executcd 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 thereofin the English language, certified as to its accuracy by an executivc offccr or 

gcneral counsel ofthc Company and, if such executivc offcer or general counsel shall not bc 

fluently bilingual, by the translator thereof. 

documents confonn to the Law of 


(d) Nothing contained herein or elsewhere in this Agrecmcnt shull require the Initial 

Member to make any agrecment, representation or warranty or provide any indemnity in any 

Transfcr Documcnt or othcrwise (cxccpt with respect to the special warranty contained in a special 

warranty deed to any REO Propcrty), nor is the Initial Member obligatcd to obtain any consents or 

18 

(Jo' lISUH4~14.il
 
approval to the sale or transfer of the Loans or the rclated servicing rights, if any, or the assumption 

by thc Company ofthc Obligations. 

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

the Initial Member's right, title applicable Law or necessary to effectively transfer and assign all of 


and interest in and to any and all Loans to the Company (subject to the immediately preccding 

the Initial Member under the LLC Operating Agreement). The Initial 

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

paragraph and the rights of 


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

Closing Datc. 

Section 3.2 Recordation of Documents. 

(a) With respect to all rccordable Transfer Documents preparcd by the Company
 

pursuant to Section 3.1 (b), the Company shall promptly submit all such Transfer Documents for 

recordation or filing in the appropriate land, chattel, Unifonn Commercial Code, and other records 

of the appropriate county, state or othcr jurisdictions (including any Foreign Jurisdiction) to effect 

the transfer ofthc Loans to the Company. All Transfcr Documents shall provide that all recorded 

documents be rcturned to the Custodian at its notice address set forth in the Custodial and Paying 

Agency Agreement. The Company shall diligently and promptly follow up with respect to any 

non-confonning Transfer Documents, gaps in the chain of 
 title and the like to ensure that each and

all of the Transfer Documents arc properly filed or recorded as appropriate.

(b) Reasonable and customary expcnses paid to third parties actually incurred by the 

Company in complying with the obligations sct forth in this Section 3.2 shall constitutc 

the Custodial and Paying Agency Agreement, providcd 

that any such expenscs with rcspect to a Transfer Documcnt that is not properly prcpared and 

the Closing Date shall not constitute 

Pre-Approved Charges for purposcs of 


submittcd for recordation or filing within sixty (60) days of 


Pre-Approved Charges for purposes of 
 the Custodial and Paying Agency Agreement. Such sixty

(60) day period for the preparation and submission of a Transfer Document for recordation shall be 

extended ifthc delay is due to a matter noted as an "Exception" on the "Collateral Certificate" (as 

such tenns are defined in the Custodial and Paying Agency Agreemcnt), provided that thc 

Managing Member is working diligently to 10cate the missing infonnation or otherwise take such 

steps as may be necessary or appropriate to complete and submit the Transfer Documcnt(s). The 

Initial Member shall, ifsuch is affnnatively rcquired under the applicable Law ofa relevant 

Foreign Jurisdiction, take such actions as are necessary in such Foreign Jurisdiction to effect the 

purposes of this Article 111.
 

ARTICLE IV 

Covenants, Duties and Obligations or the Companv 

Section 4.1 Scrvicing of Loans. 

(a) From and after the Closing Date (but subject to Section 4.l(b)), the Company shall
 

cause the Managing Member to scrvicc such Loans in compliance with the LLC Operating 

Agreement. 

19 

llucN,l1SU7445J4v21 
(b) Notwithstanding the abovc, from and aftcr the Closing Date through the ninetieth
 

(90th) calendar day following thc Closing Date or such earlier date as the Managing Membcr has 

delivered to the Initial Member a Transition Completion Certificate (such period, the "Servicin2 

Support Period"), the Initial Member (directly or through one more other third-party contractors) 

shall provide certain interim servicing and asset managemcnt support to the Managing Member 

and any Pcrson who has been appointed as Servicer following the Closing Date. Such interim 

servicing and asset management support shall bc limited to: 

(i) Receiving payments and posting thcm to the system of rccord; maintaining
 

records renecting paymcnts received, and keeping reasonably detailed records governing the 

operation, servicing, leasing, maintenance, and management ofthc Loans; and 

(ii) Providing accounting support serviccs to thc Company as fol1ows:
 

(i) continuing to account for thc Loans and the Collatcral using the existing information 

technology, computer and accounting systems and provide the Company and Managing Member 

with access to the same; (ii) handling cash management issues such as issuing checks made by the 

Company, accepting deposiis for ihe Company, and investing excess funds ofthc Company; 

(iii) recording all transactions involving the Loans; and (iv) preparing monthly consolidated the Company and the Ownership Entities (including balance sheets, incomc 

and expense reports and trial balances). 

financial statements of 


(c) In connection with providing such interim servicing support, the Initial Member
 

shall (i) endeavor to cause the individuals providing asset management services for the Loan and 

Collateral immediately prior to the Closing Date to be thc individuals responsible for providing thc 

above descrihed interim servicing and asset management support and in particular shall (a) not 

takc action to cause the reduction of employmcnt benefits currently received by such individuals 

or their temiination other than for cause and (b) waive any rcstrictive covenants that otherwise the Company; (ii) provide the Company with would affect thcir ability to bceomc cmployees of 


such resources and information as are mutually agreed upon with the Company, including 

personnel, offce space, facilities, utilities, equipment, technology and connectivity and access to the Closing Date, all in connection third party consultants employed by the Initial Membcr as of 


with the above described interim scrvicing and asset management support. 

(d) In full consideration for providing thc interim servicing and assct management
 

support pursuant to this Section 4.1, the Initial Member shall receive 50% of thc Management Fce 

during the Servicing Support Period. For the avoidance of doubt, no other amount shall be duc or 

payable by the Company, thc Managing Member and/or any Person who has been appointed as 

Serviccr following the Closing Datc as consideration for the Initial Member's provision of 

providing thc interim servicing and assct management support pursuant to this Section 4.1. 

(c) The Company and the Managing Member acknowledge and agree that the Initial 

Membcr's agreement to provide interim servicing and asset management support pursuant to this 

Section 4. i is an accommodation to the Company and the Managing Membcr, and that the Initial 

Member shall not have any liability for any acts or omissions takcn in connection therewith. Thc 

Company hereby releases and forever discharges thc Initial Mcmber, the FDIC, the Failed Bank 

and its predccessors-in-intercst and all of their respective officers, directors, employees, agents, 

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

20 

¡loO 11"1 ~7~HI4\'21 
Affiiates, from any and all claims (including any counterclaim or defensive claim), demands, 

causcs of action, judgments or Iegal proceedings and remedies ofwhatcver kind or nature that the 

Company had, has or might have in the future, whcther known or unknown, which are related in 

any manner whatsoever to the provision of interim servicing and asset managemcnt services to thc 

Company, the Managing Mcmbcr and any Servicers or subservicers thereof. Nothing containcd in 

this Section 4.1 shall (i) constitute or be interpreted as a waiver of any express right that the 

the Ancillary Documents or (ii) waive any rights 

this Company has under this Agrecment or any of 


under, or limit any liability with respect to a breach of, any tenns and conditions of 


Agreement. 

Section 4.2 Collection Agency/Contingency Fee Agreements. The Company
 

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

collection agencics or contingency fee agreements with attorneys (in either casc that are 

the Closing Date) that relate only to the Loans (or any ofihem) and 

are assignable, and assumes and agrccs to fulfill all Obligations thcreundcr. 

outstanding and in effect as of 


Scction 4.3 Insured or Guaranteed Loans. i f any Loans bcing transferred pursuant to 

this Agreement arc insured or guaranteed by any Governmental Authority, and such insurance or 

guaranty is not being specifically tcnninatcd by the Initial Member, the Company acknowledges 

and agrees that such Loans must bc serviced by a servicer, lender or mortgagee approved by such 

Governmcntal Authority, if such approval is rcquired. Thc Company further acknowlcdgcs and 

the Obligations with respect to the Loans, it assumes full 

responsibility for determining whether or not any such insurance or guarantees are in effect on the 

agrees that, upon assumption of 


this Agreemcnt and, with respect to thosc Loans with respect to which any such insurance 

or guarantee is in effect on the datc of this Agreement, the Company acknowledges and agrees 

that, upon assumption ofthe Obligations with respect to thc Loans, it assumes full responsibility 

for taking any and all actions as may be necessary to insure such insurance or guarantees remain in 

full forcc and cffect. Thc Company acknowlcdges and agrccs that, upon assumption ofthc 

Obligations with respcct to the Loans, it assumes and agrees to fulfill all of the Initial Member's 

date of 


out-of-pocket 

fees, costs or cxpcnses incurred by thc Company to fulfill its obligations set forth in thc prcccding 

sentcnce shall constitute Pre-Approved Charges for purposes of the Custodial and Paying Agcncy 

Agreement. 

insurance or guaranty. Any
 and the Failed Bank's Obligations under thc contracts of 


Section 4.4 Rcporting to or for thc Applicable Taxing Authoritics. The Initial Member 

shall be responsible for submitting all Intcrnal Revenue Service infonnation returns relatcd to thc 

Loans for all applicable pcriods prior to the Closing Date. The Company shall be responsible for 

submitting all Internal Revcnue Service infonnation returns related to the Loans for all applicable 

periods commencing with the Closing Date. Information returns include reports on Fonns 1098 

and 1099 and any other rcports required by the applicable taxing authorities. The Company shall 

be responsible for submitting all information rcturns required under applicable Law of any Foreign 

Jurisdiction, to the extent such are required to be filed by the Company or the Initial Mcmber under 

such Law, relating to the Loans, for the calcndar or tax ycar in which the Closing Date falls and 

thereafter. 

21 

D",~, USI S744514v~1
 
Section 4.5 Loans in Litigation. 

~ 

ft" 

(a) With respect to any Loan that is the subject of any type ofpending litigation as of
 

which thc Company or the Managing Member has knowledge, after due 

investigation, the Company shall notify the FDIC's Regional Counsel, 1601 Bryan Street, Dallas, 

the Closing Date of 


the name of 
 the Texas 75201-4586, within thirty (30) Business Days after the Closing Date of 


attorney selected by the Company to represent the Company's interests in the litigation. The 

Company shall, within thirty (30) Business Days after the Closing Date, notify the clerk of thc 

court or other appropriate offcial and all counsel of record that ownership of thc Loan was 

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


and 4.5(d), the Company shall have its attorney fie appropriate pleadings and othcr documents 

and instruments with the court or other appropriate body within such 30 Business-Day period, 

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

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

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

the same attorney retained by the Initial Member (or the Failed Bank) to handle litigation with 

rcspeci to the Loans, providcd, that, with respect to litigation referred to in Section 4.5(c), the 

Company shall not retain the same counsel that reprcsents thc 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 4.5(d), in the event thc Company fails to remove the 

Initial Member and the Failed Bank as parties to the litigation and substitute the Company as thc 

real party-in-interest pursuant to the tenns hereof, (1) the Initial Member may, but shall have no 

obligation to, continue to pursue or defend such litigation on behalf of 
 the Company and, (2) in the

event the Initial Member does continue to pursue or defend such litigation, the Company shall be 

liable for and hercby agrees to pay all costs and expenscs incurrcd by the Initial Member in 

eonnection therewith, which expenses shall constitute Servicing Expenses. 

the Company is unable, as a matter of applicable Law or due to delay!; in court 

procedures and practices outside the control of the Company, to cause the Initial Member and the 

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 FDlC's Regional Counsel, at the 

address specified above, within such 30 Business-Day period, and provide such evidencc to such 

cffect 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 expensc shall constitute 

(b) If 


the Initial Mcmber and the Failed 

Bank and substitution of the Company as party-in-intercst in such litigation at thc earliest time 

possible under applicable Law; (iii) the Company shall use commercially reasonable efforts to 

cause such litigation to bc rcsolved by judgment or scttlcmcnt in as reasonably cffcicnt a tnanncr 

as practical; (iv) the Initial Member shall cooperate with the Company and the Company's 

attorney as reasonably required in the InitialMember's sole judgmcnt 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 agcnts or counsel without thc express prior written consent 

Servicing Expenscs; (ii) the Company shall cause the removal of 


of the Initial Mcniber, unless such settlement includcs an irrevocable and completc waivcr and

any and all potential claims against the Initial Member, the Reccivcr and the Failcd Bank 

(and any predceessor-in-intcrcst thercto) in rclation to such litigation or the subjcet Loans or 

Obligations by any Pcrson asserting any claim in thc litigation and any Borrowcr, and any and all 

release of 


22 

DOd usln44Sf4v21 
losses, liabilities, claims, causcs of action, damagcs, demands, taxes, fees, costs and expenses 

relating thereto shall be paid by the Company without rccoursc of any kind to the Initial Member 

or the Failed Bank (other than to the extent the same constitute Servicing Expenses). The 

the 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 Servicing Expenses), including all legal fces and expenses and court costs (which 

expenses shall constitute Servicing Expenses), and shall rcimbursc thc Initial Member, upon 

demand, for all legal expenses the Initial Member incurs on or after the Closing Date with respect 

to any such litigation, including costs ineurred in connection with the dismissal thereof or 

withdrawal thcrefrom (which costs incurred by the Initial Member shall constitute Servicing 

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

Company shall pay all of 


(c) In the event there is asserted against the Company after the Closing Date any
 

Excluded Liability (and such claim or action is not based upon and does not arise out of any act or 

omission of or on behalf of the Company, the Managing Member, the Private Owncr or the 

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

the Initial 

Mcmber set forth bclow) be rcsponsiblc for and control and assume the investigation and/or 

defensc of such claim or action on behalf of the Company and the Company's intercst in the 

Loan(s), at the Company's expense and with counsel appointed by the Company and (ii) the Initial 

the 

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


Member shall be responsible for and control and assume any investigation and/or defense of 


Initial Member and thc Failed Bank, at the Initial Member's own expense and with Initial 

Member's own counseL. The Initial Member and the Company shall cooperate in the defense of 

any such claim or action to the cxtent thcir interests are not in conflct, and shall use commercially 

rcasonable cfforts to work together to resolve or settle such claims or action in a manner that is 

mutually agreeablc and in their respcctive best interests. The Company shall obtain the prior 

written approval of the Initial Member before ceasing to defcnd against any such claims or action. 

Notwithstanding the foregoing, the Initial Member may at any timc assumc and control the dcfense 

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

Subject to the provisions of clause (i) and (ii) below, thc costs and expenses incurred by the 

Company in conncction with its defense of any claim or action described in this Scction 4.5(c), 

including (x) rcasonablc attorneys' fees and expcnscs incurred to defcnd against (or investigate) 

the same or pursue counterclaims or cross-claims against other parties, (y) awards or judgments 

assessed againsi the Company with respeet to any such claim or aciion, or (z) the costs of any 

settlement as described in clause (ii) bclow of such claim or action, shall constitule Servicing 

Expense for purposcs of the Custodial and Paying Agcncy Agreement. If, as a rcsult of any claim 

or action subject to the provisions of 
 this Section 4.5(c):

(i) there is entered against the Company cithcr (1) a final, non-appealable
 

monetary judgmcnt holding the Company liable for damagcs in cxcess of an amount (such amount, 

the "Excess Damage Liabilty Amount") in respect ofthc Loan relating to or that is the subject of 

such claim or action (such Loan, the "Affected Loan") or (2) a final monetary judgment that is 

appealable, which the Initial Member agrces in writing need not be appealed further by the 

Company, and that imposes an Excess Damage Liability 011 the Company, or 

(ii) thc Company enters into a final scttlemcnt agrccl1cnt with the consent of the Initial Membcr (such consent not to be unreasonably withheld), pursuant 
 to which the

23 

l)(1cN'lISI5744514v21 
the Excess Damage Liability Amount, thcn, in 

the case of clause (i) or (ii) above, the Initial Member shall reimburse the Company for such 

excess amount and the Initial Membcr shall be entitled, at its option, to repurchase the Affected 

Loan at its Repurchase Price in accordance with the repurchasc provisions of Article VI; provided, 

however. that the Initial Member shall not be liablc pursuant to this Section 4.5(c) for any liability 

imposed upon the Company to the extent it arises as a result of any act or omission of the 

Company, the Managing Member or the Private Owner. The Excess Damage Liability Amount 

Company is obligated to pay an amount in cxcess of 


for any Loan shall be an amount equal to 50% of the Repurchase Loan Value for such Loan. 

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


this Agreement, including any such 

claims as may havc bcen asscrted in litigation pending as of the 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 Mcmber's discretion, litigation 

involving any such claims shall bc bifurcated, with the Initial Member rcmaining the real party in 

interest and retaining control over (and being responsiblc for pursuing and bearing the related costs 

to pursue) claims retained by it pursuant to Section 2.6 and the Company substituting itself as the 

real party in interest and taking control of (and being responsible for pursuing and bearing the cost 

Initial Member to retain claims pursuant to Section 2.6 of 


of pursuing) the remainder of the litigation.

(e) Notwithstanding any provision to the contrary, any payments by the Company of
 

Servicing Expenses pursuant to Section 4.5(c) shall bc subject to the obligation of the Managing 

the LLC Opcrating Agreemcnt. Member to rcimburse the Initial Mcmbcr under Section 4.6 of 


(f) Notwithstanding any provision to thc contrary in this Agreement, iii the event that 

thcre is institutcd any liiigation challcnging the repudiation of any obligation with respect to any 

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 Loans in Bankruptcy. In accordance with Bankruptcy Rules 3001 and
 

3002, the Company agrees to take all actions necessary to file, within thirty (30) Business Days 

after the Closing Date, (i) proofs of claims in pending bankruptcy cases involving any Loan for 

which thc Initial Member or the Failed Bank has not alrcady fied a proof of claim, and (ii) all 

documents requircd by Rule 300 I ofthc Federal Rulcs of Bankruptcy Procedurc and to take all 

such similar actions as may bc requircd in any relevant jurisdiction in any pending bankruptcy or 

insolvency case or proceeding in such jurisdiction involving any Loan in ordcr to evidence and 

assert the Company's righis. The Company shall preparc and providc to the Initial Member, on or 

prior to the Closing Date, an Affdavit and Assignment of Claim or any similar forms as may be 

required in any relevant Foreign Jurisdiction and shall be acceptable to thc Initial Member, for 

each Loan whcre a Borrower under such Loan is in bankruptcy as of thc Closing Date. The 

cases the Initial Member and thc Failed Bank from any claim, demand, suit or 

cause of action the Company may havc as a result of any action or inaction on the part of the lniiial 

Member or the Failed Bank with rcspect to such Loan. In thc event the Company fails, within 

thirty (30) Busincss Days after the Closing Datc, to takc thc actions required by this Section 4.6, 

Company hercby rei 


(1) the Initial Member may, but shallliave no obligation to, file proofs of claim or othcr documents 

as the Initial Member dctennines may be necessary or appropriate to evidence and assert thc 

24 

(À",ø'USI 574~514v21
 
Company's rights and, (2) in the evcnt thc Initial Mcmber docs take any such actions, the 

Company shall be liable for and hcreby agrees to pay all costs and expcnses incurrd by thc Initial 

Member in connection therewith (which costs incurred by the Initial Member shall constitutc 

the Custodial and Paying Agency Agreement). Thc provisions 

of this Section 4.6 are subject to the right of the Initial Member to retain claims pursuant to 

Servicing Expenses for purposcs of 


Section 2.6 of this Agreement, including any such claims as may have been asserted in litigation

pending as ofthc Closing Date. At thc 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 responsiblc for pursuing and bearing the related costs to pursue) 

claims retained by it pursuant to Section 2.6 and the Company substituting itself as the real 

party-in-intercst and taking control of (and being responsible for pursuing and bearing the cost of 

pursuing) thc remainder of thc litigation. 

Section 4.7 Loan Rclatcd Insurancc. On the Closing Date, (a) thc Initial Member shall 

cause to be assigned, to the extent assignable, all existing insurance policics in respect of the 

Collateral for each Loan; (b) the Company shall be rcsponsible for having itself substituted as loss 

payec on all Loan related insurancc in which the Failed Bank or thc Initial Member is currcntly 

listed as a loss payee; and (c) the Company shall cause to be put in place such insurance for the 

Collateral (including the Acquired Collatcral) as required under the Advance Facility. Upon the 

canccllation of any insurance policy maintaincd by thc Initial Membcr or the Failed Bank with 

respect to any Loan and the reccipt by the Company or the Initial Member of any refund of any 

premiums previously paid with rcspect thereto, such refunded amount shall inure to the benefit of 

the Borrowcrs with respect to thc affected Loans to the extcnt they arc cntitled thereto, and shall 

otherwise bcnefit the Initial Membcr, and such refunded amount shall, to the extent the right inures 

to the bencfit ofthc Borrowcr, be remitted to (or retained by) the Company and applicd as 

appropriatc to adjust the Escrow Accounts, if any, or other records with respect to such affccted 

Loans. 

Section 4.8 Loans with Escrow Accounts. Amounts or balances related to thc Loans on 

deposit in Escrow Accounts held or controllcd by the Initial Mcmber shall be transferred to thc 

Company as promptly as practicable following the Closing Date. Any negative Escrow Balances 

shall bc netted against thc amount of any positive Escrow Balances held in the Escrow Accounts 

transfcrred to the Company. The Company agrees to assume, undertake and discharge any and all 

the 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 Borrower. 

Obligations of the holder of 


Scction 4.9 Initial Member as Lead Lcndcr in Loan Participations. The Company
 

hercby agrees to assume the role of lead lender for any Loan Participation iii which a portion of a 

Loan was participated to onc or more entitics and in which the Initial Member or any of its 

prcdeeessors was the lead Icnder as of the Closing Datc. Thc Company hereby agrces to accept 

any such Loan Participation subject to all participants' right, title and interest in such Loan 

Participation. 

Section 4.10 Letters of Credit. The Company shall use its commercially reasonable bcst 

efforts to assist Borrowers to rcplace the outstanding letters of credit issucd by the Failed Bank as 

promptly as practicable within thrcc (3) months following the Closing Date (utilizing Authorized 

Overage Loans under the Advance Facility to the extent pcnniltcd thcreby) and thc Company 

25
 

00.IISI5744514.21
 
hercby agrees and acknowledges that thc Failed Bank's obligations under such letters of credit 

sha.ii be terminated without any liability on the part of the Failed Bank or the Initial Member, no 

later than three (3) months after the Closing Date, unless the Initial Member otherwise consents in 

writing to an extension thereof. 

Section 4.11 Noticc to Borrowers. The Company shall, on a timely basis in accordance 

with RESPA and any othcr applicable Laws, and pursuant to the Limited Powers of Attorney 

granted to it pursuant to Section 3.l(b)(ii), prepare and transmit to each Borrower a joint "hello" 

and "goodbye" lettcr, at the Company's expense, which shall be subject to thc review and 

rcasonable approval of the Initial Membcr. 

Section 4.12 Notice of Claims. The Company shall immcdiately noti fy the Initial 

icc provisions of Section 8.4, of any claim, threatcned claim or 

litigation against the Initial Membcr or the Failed Bank or any predecessors-in-interest thereto 

Member in accordancc with the not 


arising out of any Loan of which the Company or the Managing Mcmber has knowledge, after due 

investigation. 

Scction 4.13 Use of the FDIC's Namc and Rcservation 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 will not represcnt or imply that it is affliated with, authorized by or in any way related to 

thc FDIC except, for so 10ng as the FDIC is a Membcr, thc Company may rcprcscnt that fact. Thc 

Company shall be entitled to assert (and claim thc benefit 01) thc statute of limitations established 

under 12 U.S.c. § 1821(d)(14). The Company shall notify the Receiver in writing (such notice to 

be givcn in accordancc with Article VII below and to include all rclcvant details) prior to utilizing 

in any Icgal action any special legal power or right which the Company dcrives as a result of 

having acquired a Loan pursuant to this Agreement, and the Company shall not utilizc any such 

powcr unless thc Receivcr shall have consentcd in writing to the proposed usage. The Receiver 

shall have the right to direct such proposed usage by the Company and the Company shall comply 

in all respccts with such direction. Upon request of thc Receiver, the Company will advise the 

Receiver as to the status of any such legal action. The Company shall immediately notify the 

Receiver of any judgment in litigation involving any of thc aforesaid special powers or rights. 

Section 4.14 Prior Servicer Infonnation. The Company acknowledges and agrces that
 

the Initial Mcmbcr might not havc acecss to information from servicers of a Loan prior to the 

the Failed Bank and that the Initial Mcmbcr has not 

the Initial Member or its servicing contractor appointmcnt of the FDIC as recciver of 


rcquested any infomiation not in the possession of 


from any prior scrviccr of a Loan. The Company acknowledges and agrccs that the Initial Member 

this Agrecment to rcquest any information from any prior 

scrviccr. 

will not be required under the terms of 


Section 4.15 Releasc of Initial Mcmbcr. 

(a) Except as otherwise specifically providcd in this Agrcement or any Ancillary
 

cases and forevcr discharges the Initial Member, the FDIC, the 

Failed Bank and any predecessor-in-interest thereof and all of their respective offccrs, dircctors, 

Document, the Company hereby reI 


their rcspectivc employces, agents, attorneys, contractors and reprcscntatives, and all of 


26 

Do" USI :S744~14v~1
 
successors, assigns (other than the Company) and Affliates, from any and all claims (including 

any counterclaim or defensive claim), demands, eauses of action, judgments or legal proceedings 

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 thc Loans or 

and remedies of 


the Loans by the Initial Member, the Failcd Bank or its 

predecessors-in-intcrest, the FDIC or any Person acting on behalf of the Initial Member, the FDIC 

Collateral, the servicing of 


the Loans (other than for or the Failed Bank or its predecessors-in-interest, or the acquisition of 


acts or omissions constituting gross negligence or willful misconduct ofthc Initial Member); 

provided, however, that nothing contained in this Section 4.15(a) shall constitute or be interpreted 

as a waiver of any express right that the Company, the FDIC or thc Initial Member has under this 

Agrccment or any of 
 the Ancillary Documents.

(b) Thc Company agrees that it will not renew, extcnd, renegotiate, compromise, settle 

or release any Note or Loan or any right of the Company founded upon or growing out of such 

Note or Loan or Related Agreement, except upon payment in full thereof. unless all Borrowers on 

said Note or Loan shall first release and discharge the FDIC, the Initial Member and the Failed 

Bank with respect to such Loan, and thcir respcctive agents and assigns, othcr than the Company 

(the "Released Parties") from all claims, demands and causes of action which any such Borrower 

may have against any such Released Party arising from or growing out of any act or omission 

occurring prior to the date of such releasc. 

\o~ Scction4.16~. 

(a) Notwithstanding any provision hcrein to the contrary, loan numberf ti on the Loan Schedule, which consists of the debtor-in-possession loan relating t4
 

roject toget with thc related construction loan and REO Subsidiary the (collectively,
 

Loan") shall not be sold, c~ributed or transferred by the Initial Member to 

the ompany unless and until thcl WLoan is sold, contributed and transferred to the 

Company pursuant to Section 4.16 c below. Subject to Section 4.16(d), from and after the 

Closing Date, th an shall be treated as if it had becn sold, contributed and 

transferred to the Company on the losing Date for all purposes under this Ag~~

Ancillary Documents and (i) Article II of 
 this Agreemcnt shall not apply to th~

~~~ided in Section 4.16(c) below, (ii) litigation involving the transfer of the 

..an from the Initial Member to the Company shall bc governed cxclusively by
 

Section 4.16(b), and (iii) the Company shall consult with the Initial Member regarding actions to 

be taken with respect to th~oan. Following the Closing Date, thc Initial 

Member shall no later than~ter the Closing Date, remove the existing offcers 

and directors ofthCl jlnership Enlity and cause designees ofthc Managing
 

~er to be elected as offcers and directors with complete and sole control ovcr thefil: 

~wncrship Entity and th4z ¡Loan and provide the Company, the'fanaging
 

Me¡Lr and the Sc~i.ccr copies .of sucdh documents and other infonnd bation regfardhing ~h4d ¡ F 

oan as are in its possession an as arc reasona y requeste y any 0 t em in eonnection hI

with their obligations with respect thereto under this Agreement and the Ancillary Documents. 

the 

oan has filed for bankruptcy. The Initial Member expects that it will file a l& (b) Tf. Company acknowlcdges that the REO Subsidiary included as part of
 motion with the bankruptcy court and take such other actions as it deems necessary or appropriate 

27 llol' 'JSI574~514,ii
 
'04
 

to obtain any consents aniJrovide any n0tlcations that may be necessary or appropriate to sell, 

contribute and transfer th oan to the Company. The Company shall reasonably
 

cooperatc and assist the Initial Member in the Initial Membcr's efforts in this regard and, without 

limiting the foregoing, shall at no cost to the Company prcpare and file (at the request and direction 

of the Initial Member) such affidavits, motions or other pleadings as may be requested by the 

Initial Member or required by the court. Thc Initial Member shall otherwise control such litigation 

at its sole cost and expense and shall reimburse the Company for all reasonable and documented 

out-of-pocket eosts incurred by the Company in connection with the cooperation and assistance 

referred to in the preceding sentence. The Initial Member shall within five (5) BUsi¡: Days 

deliver to thc Company any payments it receives with respcet to th. an, which
 

shall be treated as Loan Proceeds. The Managing Member shall notify the Company and the Initial 

Member of any additional funding ofth4 jaoan to bc made by the Initial Member 

after the Closing Date, whercupon the Company shall proinptly pay to the Initial Member an 

amount equal to such additional funding with thc proceeds of borrowings under the Advance 

Facility. 

(c) Within thirty (30) Business Days following delivery by the Initial Member to the


Company of a notice that the transfer oft_oan to the Company is permitted 

by Law (as a result of court approval of such transfer or otherwise), the Initial Member and the 

Company shall execute and deliver the documents and take the actions set forth in Article III 

hereof with respect to the transfer ofth. JIan; provided that the sixty (60) day 

Transfer Documents spccified thercin shall commcncc 

on the date of the delivery of such notice rather than on the Closing Date. 

period for preparation and submission of 


(d) In the cvent that the Initial Member detemlines and delivers a notice to the
 

Company that the transfer of th4 .oan is not pennitted by Law (as a result of a 

court denial of such transfcr or otherwise) or on thc first anniversary of the Closing Date if no 

notice under ~ has been delivered prior to such annivcrsary, the Initial Member 

shall retain th.~an and thc Initial Member and the Company shall take thc
 

following actions: 

(i) Following its rcccipt of 
 the notice referred to above, the Compal~i!1

deliver a schedule to the Initial Member setting forth the Company's calculation ofth~ 

Repayment Amount, togethcr with calculations rclat~rcto (including Allocated Loan Costs,
 

Allocation Ratio, Unpaid Princip~~cc as ofth~Repayment Date and reasonably 

detailed supporting data), and th~epaymcnt Amount shall bc cst blished in accordance

with the procedures sct forth in Section 6.2(b) of 
 this Agrcement. The' Re a ment Date"

shall mcan the date of the notice refcrred to in the first sentence of this ection 4.16(d) or the first 

the Closing Date, ifno notice under Section 4.16(c) or (d) has been delivered prior 

to such anniversary. 

anniversary of 


(ii) Within five (5) Business Days following thc linal detemiination ofthc
 

~epayment Amount, thc Initial member shall pay, by wire transfers of 
 immediately availablc

~, the following amounts in respcct ofthcl .0al1 (iao he Private Owner an (A) and (B) the 

Repayment Amount plus the~ of (I) the amoiint of the aggregate xccss WOrking.1 

amount equal to the lesser of (i) Loan Value and (ii) the product of 


Advanccs outstanding on th~epayment Date multiplied by (II) the Allocation Ratio, (b) to 

28 

0u'N'lJSU74~51~vil 
b+
 

the Defeasance Account, an amount equal to the exccss, if any of (i) the product o~imes thc 

Loan Value minus (ii) the excess, ifany of 
 the Adjusted Unpaid Principal Balance ~h Loan as

such Loan as oftheiRepayment 

the of the Closing Date over the Unpaid Principal Balancc of 

Date, and (c) to the Administrative Agent (as defined in the Advance Facility)~spect of 


outstanding Temi Loans, an amount equal to thc sum of (I) t c Allocated Loan Costs and (II) the 

excess of the Unpaid Principal Balance of such Loan on the Repayment Date over the
 

Adjusted Unpaid Principal Balance of such Loan as of 
 the osing Date, if any.


(iii) From and after theÍIRepaymCnt Date, th' jLoan shall
 

no longer be deemcd a Loan under this Agreement and the Ancillary Documents, inc uding for 

purposes of Section 4. i and the offcers and directors designated by the Managing Member 

pursuant to Seetion 4.16(a) shall resign; provided that the foregoin shall not relieve any Party of 

rightso.~ions or liabilities with respect to th oan arising or occurring prior 

to th~epayment Date. Thc Company, thc anaging Mem er and the Servicer (and any 

Subservieers) shall provide the Initial Member and its Affliates and representatives such 

assistance and cooperation as may be reas~ith respect to the transition of
 

servicing and other maltcrs relating to th~oan. 

~thsianding thc foregoing, if 
 the Company at any time prior to thc transfer of

th~oan in accor~on (c) above is unablc to effectuate any of

its material rights with respect to th~Loan directly or indirectly (by the Initial 

Member on the Company's behalf following ~by the Company) primarily because 

of the Initial Member's failure to transfcr th~Loan during any period following 

thc Closing Date, and such inability has had or could reasonably be expected to have a material 

adverse effect on th~oan, thc Managing Member shall have the right to deliver
 

written notice thereo~ber (a' ilure Notice"). Upon the
 

~pt of -.ailure Notice, thc Initial Member shall retain the


~oan ~er and the Company shall take the actions described in 

clauses il of subsection (Q 0 f this Section 4. i 6.
 

ARTICLE V
 

Loans Sold "As Is" and Without Recourse 

Section 5.1 Loans Conveycd "As Is". THE LOANS (INCLUDING THE 

OWNERSHIP ENTiTIES, REO PROPERTY AND OTHER ACQUIRED COLLATERAL) ARE 

CONVEYED TO THE COMPANY "AS IS" AND "WITH ALL FAULTS," WITHOUT ANY 

REPRESENTATION, WARRANTY OR GUARANTY WHATSOEVER, INCLUDING AS TO 

COLLECTABILlTY, ENFORCEABILITY, VALUE 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 BANK OR THE FDIC, OR ANY PREDECESSORS-IN-INTEREST 

OR AFFILIATES OFTHE INITIAL MEMBER, THE FAILED BANK 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 

29 

Iluell lISl:S74J'14\':'1 
PRESENT, EXPRESS OR IMPLIED, CONCERNING THE LOANS, THE COLLATERAL OR 

THE 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 waranties or 

representations of any kind or nature as to the suffciency of funds held in any Escrow Account to 

discharge any obligations rclated in any manner to an cscrow 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 further makes no warranties or 

representations of any kind or nature as to the amount of any additional or future advances of 

principal thc Company may be obligated to make. 

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any Loan.
 

Without limiting the generality of Section 5.1, the Initial Member makes no warranties or 

represcntations of any kind or nature as to the accuracy of any calculation or adjustment of interest 

on any Loan, including any adjustable rate Loan, whcther such calculation or adjustment is made 

by the FDIC, the Failed Bank, the Initial Member or any Affliate, agent or contractor of any of the 

foregoing, or any predecessor-in-interest of 
 the Initial Member or any other party.

Scction 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 eompleteness or 

accuracy of any infomiation provided with respcet to any Loan. The Company acknowledges that, 

for examplc, and not by way of limitation, some Loan Files may be missing forms or notices, or 

may contain incomplete or inaccuratc fonns or notices, that may be required by one or morc 

federal or state consumer protection statutes. The Company's exclusive remedies with respect to 

any inaccurate or incomplete information provided by the Initial Membcr are an adjustment in 

accordance with Scction 2.3 or an option to rcpurchase under Article VI, and such exclusivc 

remedies arc available only if all other conditions theretofore expressed in this Agreement have 

been met. 

Section 5.6 Intervening or Missing Assignments. The Company acknowledgcs and
 

agrces that thc Initial Mcmbcr shall have no obligation to secure or obtain any missing intervening 

Mortgage Assignmcnt or othcr assignment to the Initial Member or the Failed Bank that is not 

contained in the Loan File or among thc Collateral Documcnts. Ncither the absence of any 

intervcning Mortgagc Assignment or other assignment to the Initial Member, the FDIC or the 

Failed Bank, nor thc existence of any Licn on thc Loan or its Collateral, nor any defcct in the Lien 

the Initial Mcmber's or thc Failcd Bank's security interest in the Collateral shall givc 

rise to any claim for purchase under Article VI. The Company shall bear all responsibility and 

or priority of 


expense of sccuring from thc appropriatc source any intervening Mortgage Assi gnment or othcr 

assignment to the Initial Member, thc FDIC or the Failed Bank that may be missing from the 

Collateral Documents, but thc cost thereof shall constitute a Pre-Approved Charge for purposes of 

the Custodial and Paying Agcncy Agrecmcnt. 

30 ix"," usi'S744514v~1
 
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 

this Agreement or any other document or instrument enforceability in any Foreign Jurisdiction of 


delivered or prepared in connection herewith, whether or not prepared and executed in the forms 

provided hercwith, all of such fonns 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 of the proeedures and other requirements set forth below, require the lnitial the events Member to rcpurchase a Loan, if, and only if, (x) prior to the Closing Date, one of 


described in Sections 6.1 (a) through W has occurred or (y) after thc Closing Date, there is issued 

by a court of competent jurisdiction with respect to such Loan a final, non-appealable ordcr or the Initial Membcr, a final settlement of any judgment or there is entered into, with the consent of 


claim, action or litigation (the "Order") that requircs the assignment and lransfer of such Loan 

back to the Initial Member (unless the Initial Member has agreed in writing that no appeal need bc 

taken). IN NO EVENT SHALL THE OCCURRENCE OF ANY SUCH EVENT OR THE 

OBLIGATION TO REPURCHASE A LOAN HEREUNDER BE EVIDENCE OF ANY BAD 

FAITH, MISCONDUCT OR FRAUD ON THE PART OF THE INITIAL MEMBER, THE 

FAILED BANK OR THE FDIC EVEN IF IT is SHOWN THAT THE INITIAL MEMBER, THE 

FAILED BANK OR THE FDIC, OR ANY AFF1UATE 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 SUCH EVENT, (B) CAUSED SUCH EVENT OR 

(C) FAILED TO MITIGATE SUCH EVENT OR ANY OF THE LOSSES RESULTING 

THEREFROM. 

(a) The Borrower had bcen discharged in a no asset bankruptcy proceeding, thcre is no 

Collateral securing such Loan and out of which such Loan may be satisfied, and all Guarantors or 

sureties of 
 the Note, ifany, or the obligations contained therein, have similarly been discharged in 

no assct bankruptcies. 

(b) A court of competent jurisdiction had entered a final, non-appealable order or
 

judgment (unless the Initial Membcr has agreed in writing that no appeal nced be taken and othcr 

than a bankruptcy decrec or judicial foreclosure order) holding that neither thc Borrowcr nor any 

Guarantors or sureties of thc Note owe an enforccable obligation to pay the holdcr of the Note or 

its assignees. 

(c) The Initial Membcr or Failed Bank had exccuted and delivercd to the Borrower a
 

rclease of liability from all obligations under the Note. 

(d) A court of competent jurisdiction had entcrcd a final, non-appealable order or
 

judgmcnt (unless thc Initial Mcmber has agrced in writing that no appeal necd bc taken) holding 

that the Initial Membcr is not the owner of thc Loan (or, in the case of a Loan Participation, the 

Initial Membcr is not the owner of a pro rata interest in such Loan Participation) and such is not 

31 

Doc.: llSU7HS14v21 
the Loan to be transferred to the curable by the Initial Member so as to pemiit ownership of 


Company. 

(e) The Initial Member or the Failed Bank, or their respective offccrs, directors or the proceeds and benefits employees, fraudulently caused the Borrower to receive less than all of 


of a Note. The Company's rccourse with respcct to this Section 6.1 (e) 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 fomi and substance to the Initial Member in its 

discretion. 

Purchase Price. Section 6.2 Notice to Initial Member; Detemiination of 


(a) The Company shall noti fy the Initial Member of each Loan with respect to which 

the Company seeks to cxercisc its rights under Section 6.1. Such notice shall be delivered to the 

Initial Mcmber no earlier than the Adjustment Date (as defined in the LLC Intcrest Sale 

Agreement) and shall be on the Company's letterhead and include the following information: 

(a) the Company's tax identification numbcr, (b) the Company's wirc transfer instructions, (c) the 

loan numbcr and other identifying information related to the Loan, (d) the subsection of 

Section 6.1 under which the Company is seeking to rcquire thc Initial Member to repurchase the 

Loan, (e) a summary ofthc rcasons the Company believes that the Loan should be repurchased by 

the Initial Member, (f) the Company's calculation of the Repurchase Price of such Loan, together 

with calculations relating thereto (including Allocated Loan Costs, Allocation Ratio, Unpaid 

Principal Balance as of thc Repurchase Date and reasonably detailed supporting data), and (g) a 

certification by thc Company that the request for repurchase is being submitted in good faith and is 

complcte and accurate in all rcspects to thc best ofthc Company's knowlcdgc. Thc notice shall be 

accompanied by evidence supporting the basis for the Initial Member's repurchase of such Loan. 

Promptly upon rcqucst by the Initial Member, the Company shall supply the Initial Member with 

any additional evidcnce, documentation, data and infonnation that the Initial Member may 

reasonably request. The Initial Membcr shall have no obligation to repurchasc any Loan pursuant 

to this Articlc VI for which notice and all supporting evidence reasonably required by thc Initial 

Member have not been received by the Initial Member at the addresses spccified in Article VII no 

later than (i) 180 calendar days aftcr the Closing Date or (ii) with rcspcct to an Order only, thirty 

the Order. (30) days aftcr thc issuance of 


(b) If the Initial Member disputes the Company's calculation of thc Repurchase Pricc,
 

the parties shall promptly commencc good faith ncgotiations with a view towards resolving all 

disagrcements relating thereto. If, within sixty (60) calendar days following the delivery by the 

Company of 
 the notice referrcd to in Section 6.2(a), the Initial Membcr and the Company havc not

the Repurchasc Price, the partics shall submit thc matter to the 

Independcnt Accountant Firm, who shall detennine the Repurchasc Price substantially in 

accordance with the procedures set forth in Section 1 (g) (including thc limitation contained in 

reached agreement on the amount of 


Section l(g)(iHiii) thereof) of 
 the LLC Intercst Sale Agreement, mulalis muiaiidi, as modified by

the mutual agrccment of 
 the parties, provided, that the Indepcndent Accountant Finn is authorized

the Repurchase Price only, and any other dispute 

relating to this Articlc Vi (including with respect to whcther an evcnt rcquiring thc Initial Member 

to repurchase the Loan has occurrcd) shall he rcsolved in the appropriate forum as sct forth in 

Section 9.7. 

by this Section 6.2(b) to detennil1e the amount of 


32 

D,,...IiSI H44514v21
 
Notes, Files and Documents. For any Loan that qualifies for 

purchase under this Article VI, the Company shall as promptly as practicable: (a) re-endorsc and 

deliver the Note to the Initial Member (or its designcc); (b) assign all Collateral Documents 

associated with such Loan and reconvey any rcal property transferred by special warranty decd 

pursuant to Section 2.5, together with such other documents or instruments as shall bc necessary or 

appropriate to convey the Loan back to the Initial Member (or its dcsignec); (c) deliver to the 

Initial Member (or its designee) the Loan File, along with any additional records compiled or 

accumulated by the Company pertaining to the Loan; (d) take such actions as are necessary to 

transfer from the Company to the Initial Member any litigation or bankruptcy action involving the 

subjeet Loan, including substituting the dutics ofthc Company for thc Initial Member and the 

Initial Member for the Company, and with rcspect to the Affdavit and Assignment of Claim, a 

Section 6.3 Re-delivery of 


the Assignor (as defined therein) 

for the Assignee (as defined therein) and thc Assignec for thc Assignor; (e) record or terminate any 

Mortgage Assignment or other filings or rccordings 10 the cxtent requircd by applicablc laws; and 

form of which is attached as Exhibit B, substituting the du1ics of 


(f) deliver to the Initial Member (or its designee) a certification, notarizcd and executcd under 

penalty ofpcrjury by a duly authorized represcntativc ofthc Company, certifying that as of the 

the conditions relieving the Initial Membcr of its date of purchase by thc Initial Member none of 


obligation to purchase the Loan as specified in Section 6.4 has occurred. The documents 

the Loan to the Initial Member shall be substantially the samc as 

those executed pursuant to Article II of this Agrcement to convcy the Loan to thc Company and 

shall include, if appropriate, any Transfcr Documents nccessary to trunsfcr an Ownership Entity to 

the Initial Mcmber. In all cases in which the Company recorded or filed among public records any 

evidcncing the convcyance of 


document or instrument evidencing a transfer of the Loan to thc Company, the Company shall 

causc to be recorded or fied among such records a similar document or instrument evidencing the 

conveyance of 
 the Loan to thc Initial Member. Upon compliancc by the Company with the

provisions hereof and the final detennination of 
 the amount ofthc Repurchase Pricc in accordance

with Section 6.2, the Initial Membcr shall pay thc Repurchase Price in rcspect of such Loan, which 

paymcnt obligation shall bc satisficd in full as follows: within five (5) Business Days following 

the final determination of 
 the Repurchase Price, the Initial Mcmber shall transfer. by wire transfcrs

of immcdiately available funds, the following amounts, all in respect of 
 the Loan subject to

repurchase: (a) to the Private Owner, an amount equal 10 the Repùrchasc Loan Amount plus the 

product of (I) the amount of thc aggregate Excess Working Capital Advances outstanding on the 

Repurchase Date multiplicd by (1I) the Allocation Ratio, (h) to the Defcasancc Account, an 

amount equal to the product of 2.5 timcs the Repurchase Loan Amount and (c) to thc 

Administrative Agcnt (as dcfinedin the Advancc Facility), in respect of 
 the outstanding Tcrm

Loans, an amount equal to the sum of the (I) thc Allocated Loan Costs and (11) the excess of 


Unpaid Principal Balance of such Loan on the Repurchase Date over the Adjusted Unpaid 

Principal Balance of such Loan as of the Closing Datc, if any. 

Scction 6.4 Waivcr of Company's Rcpurchasc Option. The Initial Member will be
 

rclievcd of its obligation to purchase any Loan for any rcason sct forth in ScetiQ..l 6.1 if the 

the tcnns of the Loan (including the terms of
 any Collatcral Company: (a) modifies any of 


Document); (b) exercises forbearancc with rcspcct to any schcduled paymcnt on the Loan; 

(c) accepts or executcs ncw or modificd lcasc documents assigned by the Initial Member to the 

Company; (d) sells, assigns or transfcrs the Loan or any intcrest therein; (c) fails to comply with 

thc LLC Operating Agrcemcnt in 1he maintenancc, collection, scrvicing and prcservation of the 

Loan, including delinqucncy prcvcntion, collection proccdures and protection of collatcral as 

33 

!)On lIsl.nu5l4vZI 
warranted; (f) initiates any litigation in connection with the Loan or the Mortgaged Property 

securing the Loan other than litigation to force paymcnt or to realize on the Collateral securing the 

Loan; (g) completes any action with respect to foreclosure on, or accepts a deed-in-lieu of 

foreclosure for any Collateral securing the Loan; (h) causes, by action or inaction, the priority of 

title to the Loan, Mortgaged Property and other security for the Loan to be less than that conveyed 

by the Initial Member; (i) causes, by action or inaction, the security for the Loan to be different 

the Collatcral than that conveyed by the Initial Member, except as may be required by the terms of 


Documents; (j) causes, by action or inaction, a claim of third partics to arise against the Company 

that, as a result of purchase under this Agreement, might be asserted against the Initial Mcmber;

(k) causes, by action or inaction, a Lien of any nature to encumber the Loan to arise; (I) is the 

under such Loan; or (m) makes any disbursement of 

principal or advances additional amounts to the Borrower or otherwisc incrementally funds any 

Loan other than with the proceeds of funds providcd under the Advance Facility that are borrowed 

and applied for such purpose. 

Borrower or any Related Party thereof 


ARTICLE VII 

Tax Matters 

Scction 7.1 Tax Indemnity. 

(a) Indemnification by Initial Member. Except as otherwise provided in Section 2.7,
 

from and after the Closing Date, the Initial Member shall indemnify and hold hamiless thc 

liabilities, 10sscs, damages, claims, costs, expenses, 

interest, awards, judgments and penalties (including, without limitation, reasonable fees for 

outside counsel, outside accountants and other outside consultants) suffered or incurrcd (each a 

Company from and against any and all 


"Tax Loss") arising out of (i) Taxes of 
 the REO Subsidiaries for periods or portions thereof ending

on or before the Closing Datc, other than those relating to or arising out of Section 597 of
 the Code 

("Pre-Closing Taxes"); (ii) Taxes of any mcmber of an affliated, consolidated, combined or 

unitary group of which any REO Subsidiary is or was a mcmber on or prior to the Closing Date by 

reason of liability under Treasury Regulations section 1.1502-6, Treasury Regulations section 

1.1502-78 or any comparable provision of foreign, state or local Tax law; and (iii) Taxes or other 

payments required to be paid after the date hereof by any of the REO Subsidiaries to any party 

under any Tax Sharing Agreement or by reason of being a successor-in-interest or transferec of

another entity, other than those relating to or arising out ofScction 597 of the Codc. 

(b) Indemnification by the Company. From and afìcr the Closing Date, the Company
 

shall indemnify and hold hannless the Initial Member from and against any and all Tax Losses 

(other than Tax Losses incurred as a result of acts or omissions constituting gross negligence or 

willful miscondiict of the Initial Membcr, FDIC or Failed Bank of 
 any predecessor in interest

thereof or any of their respcctive Affliates, employees or representatives) arising out of Taxes of
 

beginning after the 

Closing Date, other than amounts for which thc Company is indcmnified by lnitial Member under 

Section 7.l(a). 

thc Company or any ofthc REO Subsidiaries for periods or portions thereof 


34 Duc: lJSI:S744514v!1
 
the REO Subsidiaries. Section 7.2 Tax Returns of 


(a) The Initial Member shall prepare (or cause to be prepared) and timely fie at its own
 

expense all Tax Returns of each REO Subsidiary that are (i) required to be filed with respect to any 

taxable period that ends on or prior to thc Closing or (ii) required to bc ficd on a consolidated, 

unitary or combined basis with the Initial Member or any if its Affliates. The Initial Member shall 

pay (or cause to be paid) any Taxes due in respcct of such Tax Returns. 

(b) The Company shall prepare (or causc to bc preparcd) and file or cause to be filed at the REO Subsidiaries that are not required to be filed 

by the Initial Member pursuant to Section 7.2(a) and shall remit any Taxes due in respect of such 

Tax Rcturns. With respect to Tax Returns that arc required to bc filcd by or with respect to any 

REO Subsidiar for any Straddle Period ("Straddle Returns"), such Straddle Returns shall be 

prepared in a manner consisten1 with past practice, and the Initial Member shall be responsible for 

the Pre-Closing Taxes due in respect of such Straddle Returns. The Company shall deliver each 

Tax Return described in this Section 7.2(b) to thc Initial Member no later than thirty (30) days 

before thc due datc of such Tax Returns, shall permit thc Initial Member to review and comment 

on such Tax Returns before fiing, and shall make such revisions to such Tax Returns as arc vcr the final version of any 

its own expense when due all Tax Returns of 


reasonably rcqucsted by thc Initial Mcmber. The Company shall deli 


Tax Return prepared pursuant to this Section 7.2(b) to the Initial Member no later than five (5) 

business days after such Tax Return is fied. 

Section 7.3 Cooperation; Records.
 

(a) The Initial Membcr and thc Company agree to furnish or causc to be furnished to 

each other, upon request, as promptly as practicable, such infonnation (including access to books 

and records) and assistance relating to the Failed Bank, the Company, and thc REO Subsidiaries as 

is reasonably requcstcd for thc filing of any Tax Return or the preparation, prosccution, dcfcnse or 

conduct of any audit, claim for refund, or administrative or judicial proceeding involving any 

asserted Tax liability or rcfund with respcct to the Failed Bank, the Company or any of 
 the REO

Subsidiaries (each such audit, claim, or proceeding, a "Tax Contest"). The Initial Member and 

the Company shall reasonably cooperatc with each other in the conduct of any Tax Contest or 

other proceeding involving or otherwise relating to the Failed Bank, the Company or the REO 

Subsidiaries (or their income or assets) with respect to any Tax and cach shall execute and delivcr 

such documents as are necessary to carry out the intcnt of this Section 7.3(a). Any infonnation 

obtained under this Section 7.3(a) shall be kept confidcntial, exccpt as may be otherwise neccssary 

in connection with the filing of Tax Returns or in the conduct of a Tax Contest or other Tax 

proceeding or as may be required to bc disclosed by applicable Law including the Frcedom of 

Information Act. 

(b) Each of 
 the Company and the REO Subsidiaries shall (a) propcrly retain and

the .company and the REO Subsidiarics that relate to 

Pre-Closing Taxablc Pcriods for ten (10) years and shall thcreafter provide the Initial Member with 

writtcn notice prior to any destruction, abandonmcnt or disposition of all or any portions of such 

records, (b) transfer such records to the Initial Member upon its written request prior to any such 

destruction, abandonment or disposition, and (c) allow the Initial Member and its affliates and 

their rcspective agents and represcntatives, at times and datcs reasonably and mutually acceptable 

maintain the Tax and accounting records of 


35 

i~".. lISis744~14\'21
 
to the parties, to from time to time inspect and review such rccords as thc Initial Member may 

deem necessary or appropriate. 

Section 7.4 Refunds. Any Tax refunds that are received by an REO Subsidiary, and any 

amounts credited against Taxes to which an REO Subsidiary becomes entitled, in each case that 

ate to Pre-Closing Taxable Periods of such REO Subsidiary, shall be for the account of the 

Initial Member, and the Company shall pay over to the Initial Member any such refund or the 

amount of any such credit within fifteen (15) days after receipt or entitlemcnt thcreto. Under no 

circumstances shall Tax refunds be considered to be Loan Proceeds for the purposes of the LLC 

Operating Agreement or any Aneillary Document. 

reI 

this Agreement, in the case of any Taxes Section 7.5 Straddle Periods. For purposes of 


the Company or any REO Subsidiary that arc payablc with respect to any Tax period that begins 

before and cnds aftcr the Closing Date (a "Straddle Period"), the portion of any such Taxes that 

of 

Taxes that are either (x) based upon or related 

to income or reccipts, or (y) imposed in connection with any sale, transfer or assignmcnt or any 

decmed sale, transfer or assignment of property (rcal or personal, tangible or intangible), be 

the Tax year or period ended on the Closing 

constitutes Pre-Closing Taxes shall: (i) in the case of 


deem cd equal to the amount that would be payable if 

Date; and (ii) in the casc ofTaxcs (other than those described in clause (i) above) that arc imposed 

the Company or any REO Subsidiary or on a periodic basis with respect to the business or assets of 


any item, be deemed to be the amount of
 such Taxes for the otherwise measured by the level of 


entire Straddle Period (or, in the case of such Taxes detcnnined on an arrears basis, the amount of 

such Taxes for the immediately preceding Tax period) multiplied by a fraction the numerator of 

which is the number of calendar days in the portion of the Straddle Pcriod ending on the Closing 

Date and thc denominator of which is the number of calendar days in thc cntire Straddle Pcriod. 

For purposes of clause (i) of the preceding sentence, any exemption, deduction, credit or other 

Tax) that is calculated on item (including, without limitation, the effect of any graduated rates of 


the Straddle Period ending on the Closing Date an annual basis shall be allocated to the portion of 


on a pro rata basis dctermined by multiplying the total amount of such item allocated to the 

Straddle Pcriod times a fraction, the numerator of which is the number of calendar days in thc which is the portion of the Straddle Period ending on the Closing Date and the denominator of 


numbcr of calendar days in the entire Straddle Period. In the case of any Tax based upon or 

measured by capital (including net worth or long-tenn debt) or intangibles, any amount thcrcof such required to be allocated under this Section 7.5 shall be computed by reference to the level of 


items on the Closing Date. The parties hereto will, to the extent pcnniued by applicable Law, elect 

with thc relevant Governmental Authority to treat a portion of any Straddle Period as a short 

taxabié period ending as of the close of 
 business on the Closing Date.

Section 7.6 Net Operating Losses. The Company hereby acknowledges and agrees 1hat
 

none of 
 the Company or any of its subsidiaries will be pcnnitted to takc advantage of any tax

the Failed Bank or, to the extcnt such net operating 

losses relate to a Pre-Closing Taxable Period, the REO Subsidiarics. 

benefits relating to net operating losscs of 


Section 7.7 SurvivaL. Notwithstanding anything in this Agreement to the contrary, the 

Initial Mcmbcr's obligations under this Articlc VII shall survive for the duration of thc statutc of 

limita1ions for any Tax liability for which it is requircd to indemnify the Company under this 

Article VII.
 

36 

Doc" USl5744514vil
 
Section 7.8 Tax Sharng Agreements. All Tax Sharing Agreements relating to any 

the Closing Date, and after the Closing Date no REO 

Subsidiary shall be bound by any Tax Sharing Agreement or have any liability thereunder. 

REO Subsidiary shall be terminated as of 


ARTICLE VII
 

Notices 

Section 8. i Notices. All notices, requests, demands and other communications required
 

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


be in writing and shall be mailed or delivered to thc applicab1e address or electronic mail address 

ofthc parties specified below for such Person or to such other address or electronic mail address as 

shall be designated by such party in a notice to thc other parties. All such notices and other 

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

by the relevant party hcreto and (ii) (A) if delivercd by hand or by nationally (or refusal) thereof 
 the relevant party recognized courier service, when signed for (or refused) by or on behalf of 


hereto; (B) if delivcred by mail, four (4) Business Days after dcposit in the mails, postage prepaid; this and (C) if dclivered by electronic mail (which form of delivery is subject to the provisions of 


mail message be effective as a notice, paragraph), when dclivered. In no event shall a voice 


communication or confimiation hcreunder. 

Section 8.2 Article VI Notice. Any notice. request, demand or other communication
 

required or pemiitted to be given to the Initial Member pursiiantto the provisions of Article VI 

shall be dclivered to: 

Timothy A. Kruse Initial Mcmber: 

Senior Capital Markets Spccialist 

Fedcral Deposit Insurance Corporation 

550 1 in Street, NW 

Room 7-7026 

Washington. D.C. 20429 

Email Addrcss: TKrse(?fdie.gov 

with a copy to:	 Senior Capital Markets Specialist 

Fedcral Deposit Insurance Corporation 

550 1 ih Street, NW 

Room F-7036 

Washington. D.C. 20429 

Attention: Robert W. McComis 

Email Address: RMccomisêfdic.gov 

with a copy to:	 Manager, Capital Markets & Resolutions
 

c/o Federal Deposit Insurance Corporation
 

550 17th Street, NW 

Room r-7008 

Washington, D.C. 20429-0002 

Attention: George C. Alexander 

Email Address: GAlexandcrGJfdic.gov 

37 

DoeR' USI 5744~14vii
 
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, V A 22226 

Attention: David Gearin 

Email Address: DGearin~fdic.gov 

with a copy by email to: Thomas Rabum

Email Address: TRabum(gfdie.gov 

Receiver: Timothy A. Kruse

Senior Capital Markets Specialist 

Federal Dcposit Insurance Corporation 

550 i ih Street, NW 

Room 7-7026 

Washington, D.C. 20429 

Email Address: TKruse(gfdic.gov 

with a copy to:	 Senior Capital Markets Specialist 

Fedcral Deposit Insurancc Corporation 

550 1 ih Street, NW 

Room F-7036 

Washington, D.C. 20429 

Attcntion: Robert W. McComis 

Email Addrcss: RMccomis~fdic.gov 

with a copy to:	 Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW 

Room F-7008 

Washington, D.C. 20429-0002 

Attention: George C. Alexandcr 

Email Address: GAlexander~fdic.gov 

38 

Doc.: USIS744S14v21 
with a copy to:	 Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership 

Section 

Special Issucs Unit 

3501 Fairfax Drive 

Room E-7056 

Arlington, V A 22226 

Attention: David Gearin
 

Email Address: DGearin~fdic.gov 

with a copy by email to:	 Thomas Raburn 

Email Address: TRaburn~fdic.gov 

Section 8.3 Transfer Documents. For purposes of designating the Company as the
 

rcturn addressee on Transfer Documents, the following address shall be uscd: 

Company after Closing Date:	 Corus Construction Venture, LLC 

591 West Putnam Avenue 

Greenwich, CT 06830 

Attention: John McCarthy 

Scction 8.4 All Other Notices. Any notice, request, demand or othcr communication
 

required or pennitted to be given pursuant to any provision of this Agrecment and that is not 

governed by the provisions of Section 8.2 or 8.3, shall be delivcred to: 

Company before Closing Date:	 Timothy A. Kruse 

Senior Capital Markcts Specialist 

Fcderal Deposit Insurancc Corporation 

550 17th Street, NW 

Room 7-7026 

Washington, D.C. 20429 

Email Address: TKruse~fdic.gov 

with a copy to:	 Manager, Capital Markets & Resolutions 

c/o Federal Dcposit Insurance Corporation 

550 17th Street, NW 

Room F-7008 

Washington, D.C. 20429-0002
 

Attention: George C. Alexander 

Email Address: GA)exandcr~fdic.gov 

39 norM lISU744514v21
 
with a copy to: Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 17th Street, N.W. 

Room F-7036 

Washington, D.C. 20429 

Attention: Robert W. McComis 

Email Addrcss: RMccomis~fdic.gov 

with a eopy to: Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership 

Section 

Special Issues Unit 

3501 Fairfax Drive 

Room E-7056 

Arlington, V A 22226 

Attention: David Gearin 

Email Address: DGearin§fdic.gov 

with a copy by cmail to: Thomas Raburn 

Email address: TRabum§fdic.gov 

Company after Closing Date: Corus Construction Venture, LLC 

591 West Putnam Avenue 

Greenwich, CT 06830 

Attention: John McCarthy 

with a copy to: Rinaldi, Finkelstein & Franklin. LLC 

591 West Putnam Avenue 

Greenwich, CT 06830 

Attention: Ellis Rinaldi 

Email Address: Rinaldi§Starwood.com 

Initial Membcr: Timothy A. Kruse 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 17lh Street, NW 

Room 7-7026 

Washington, D.C. 20429 

Email Address: TKruse~fdic.gov 

40 Duc. ,!SI:S744SI4v21
 
with a copy to: 

with a copy to: 

with a copy to: 

with a copy by cmail to: 

Receiver: 

with a copy to: 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 1 ih Street, NW 

Room F-7036 

Washington, D.C. 20429 

Attention: Robert W. McComis 

Email Address: RMccomis~fdic.gov 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 1 ih Street, NW 

Room F-7008 

Washington, D.C. 20429-0002 

Attention: George C. Alexandcr 

Email Address: GAlexander~fdic.gov 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivcrship 

Section 

Special Issues Unit 

3501 Fairfax Drive 

Room E-7056 

Arlington, Virginia 22226 

Attcntion: David Gearin
 

Email Addrcss: DGearin~fdic.gov 

Thomas Raburn 

Email Address: TRabum~fdic.gov 

Timothy A. Kruse 

Scnior Capital Markcts Specialist 

Fcderal Deposit Insurance Corporation 

550 1 ih Street, NW 

Room 7-7026 

Washington, D.C. 20429 

Email Address: TKruse(ffdic.gov 

Senior Capital Markets Specialist 

Federal Deposit Insurance Corporation 

550 1 ih Street, NW 

Room F-7036 

Washington. D.C. 20429 

Attention: Robcrt W. McComis 

Email Addrcss: RMccomis~fdic.gov 

41 

lloLlI"lJSI ~744~14\'ii 
with a copy to:	 Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW 

Room F-7008 

Washington, D.C. 20429-0002 

Attention: George C. Alexander 

Email Addrcss: GAlexander§fdic.gov 

with a copy to:	 Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Rcceivership 

Section. 

Special Issues Unit 

3501 Fairfax Drive 

Room E-70S6 

Arlington, V A 22226 

Attcntion: David Gearin 

Email Address: DGearin~fdic.gov 

with a copy by email to:	 Thomas Raburn 

Email Address: TRaburn§fdic.gov 

ARTICLE IX
 

Miscellaneous Provisions
 

Section 9.1 Severability. Any provision of this Agreement which is prohibited or 

uncnforceable in any jurisdiction shall be ineffective, but such ineffcctiveness shall be limited as 

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

paricular Person or Persons and/or under any particular circumstance or circumstanccs, 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; 

provision shall be ineffective, but only in such 


(ii) without limitation of clause (i), such provision shall in any event be ineffective only as to such 

jurisdiction and only to the extent of such prohibition or uncnforccability, and such prohibition or 

unenforceability in such jurisdiction shall not invalidate or render unenforceable such provision in 

any other jurisdiction; and (iii) without limitation of clauses (i) or (ii), such ineffectivencss shall 

not iiivalidate any of the remaining provisions of 
 this Agreement. Without limitation ofthc

the partics to this Agreement that in the event that in any court 

proceeding, such court detcnnincs that any provision of this Agreement is prohibitcd or 

preceding sentence, it is the intent of 


the duration or scope (geographic or otherwise) of 

such provision, or for any other reason) such court shall have the power to, and shall, (x) modify 

such provision (including without limitation, to the extent applicable, by limiting the duration or 

scope of such provision and/or the Persons against whom, and/or the circumstances under which, 

such provision shall bc cffective in such jurisdiction) for purposes of such proceeding to the 

minimum extent nccessary so that such provision, as so modified, may then be enforced in such 

proceeding and (y) enforce such provision, as so modified pursuant to clause (x), in such 

unenforceable in any jurisdiction (because of 


proceeding. Nothing in this Section 9. I is intendcd 10, or shall, limit (1) the ability of any party to 

42 

noNo IISI-H44S14v21 
this Agrecment to appeal any court ruling or the effect of any favorable ruling on appeal or (2) the 

intended cffect of 
 Section 9.2.

Section 9.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY 

AND CONSTRUED IN ACCORDANCE WITH FEDERAL LA W, BUT IF FEDERAL LAW 

DOES NOT PROVIDE A RULE OF DECISION, IT SHALL BE GOVERNED BY AND 

CONSTRUED IN ACCORDANCE WITH THE LA W 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. 

Section 9.3 Cost. Fces and Expenses. Exccpt as otherwise provided hcrein, each party
 

hereto agrees to pay all costs, fees and expcnses which it has incurred in connection with or 

incidental to the mallcrs contained in this Agreement, including fees and disbursements to its 

accountants and counseL.
 

Section 9.4 Waivers; Amendment and Assignment.
 

(a) No provision of this Agrecment may be amended or waived cxcept in writing
 

cxecuted by all ofthc partics to this Agreement. This Agreement and the tenns, covenants, 

conditions, provisions, obligations, undcrtakings, rights and bencfits hereof shall be binding upon, 

the undersigned parties and their respective heirs, executors, 

administrators, represcntatives, successors and perritted assigns, and no other Person or Persons 

(including Borrowers or any co-Iendcr or other Person with any interest in or liability under any of 

the Loans) shall have any rights or remedies under or by reason of this Agreement. 

Notwithstanding the forcgoing, this Agreement may not be transferred or assigned without the 

and shall inure to the benefit of 


the Initial Member and any attempted assignment without such 

consent shall be void lIh iiiitio. 

express prior written consent of 


(b) Notwithstanding anything to contrary contained clscwhcre in this Agreement
 

limitation the foregoing Section 9.4(a)) or in any Ancillary Document, in order (including without 


to facilitate the possible restructuring and sale ofthe Purchase Money Notes, the FDIC, without the 

consent of the LLC Intcrest Transferee, may at any time replace the Purchase Money Notcs with 

one or more substitute notes reissued pursuant to Section 2.8 of the Custodial and Paying Agency 

Agreemcnt and make related revisions to this Agreement and the Ancillary Documents as 

pennitted ihercin. Prior to effecting any such changes, amendments or modifications, the FDIC 

shall notify LLC Interest Transfcree of any such contemplated changes, amendments or 

modifications, and LLC Intcrest Transferee agrees that it will cooperate in good faith with the 

FDIC in effecting all such changes, amendments or modifications. 

Section 9.5 No Presumption. This Agreement shall be construed fairly as to each party 

hereto and ¡fat any time any such tenn or condition is desired or required to bc interpreted or
 who actually prepared, drafted or
 construcd, no consideration shall bc givcn to the issue of 


this Agreement or any agreement or instrument subject hereto. rcqucsted any term or condition of 


43 

()ou- llSI. 744) I ~,21 
'l 

Section 9.6 Entire Agrecmcnt. This Agreement and thc Ancillary Documents contain 

the entire agreement between the Initial Member and the Company and its Affliates with respect 

to the subject matter hereof and supersede any and all other prior agreements, whether oral or 

written; provided that the Confidentiality Agreement, dated August 27, 2009, between the FDIC joinder) shall remain in and the Affliates of the Private Owner named iherein (including by way of 


fun force and effect to the extent provided thcrcin, except that the Company's rights under Article 

V I shall not be deemed a repurchase option for purposes of Section 2 of such Confidentiality 

Agreement. In the event of a conflict between the terms of this Agrecment and the tcnns 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 

any Transfer Document, or any other document or 

instrument exccuted in connection herewith which is prepared for notarization, filing or any other 

language of this Agreement for the purpose of 


this Agreement purpose, the tenns of this Agreement shall control, and furthermore, the terms of 


shall in no way be or be decmed to bc amendcd, modificd or otherwise affected in any manner by 

the tcrms of such Transfer Documcnl or othcr document or instrumcnt. 

Scction 9.7 Jurisdiction; Venue and Service.
 

(a) The Company, on bchalfofitselfand its Affliaics, hcreby irrevocably and 

unconditionally: 

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

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


District ofColumbia for any suit, action or proceeding against it or any of its Affliates 

commcnced by the Initial Member arising out of, rclating to, or in connection with this Agreement 

or any Ancillary Document, and waivcs any right to: 

(A) removc or transfer such suit, action or proceeding to any other court 

or disputc-resolution fonll1 (other than the court in which thc Initial Member fies the action, suit 

or procceding) without the consent of the Initial Member; 

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

Court for the Southern District of Ncw York or ihc United Statcs District Court for the District of 

Columbia; or 

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

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

forum; 

the State of 
 New York, (ii) consents to the jurisdiction ofthc Supremc Court of 


County ofNcw York, for any suit, action or procceding against it or any of its Affliates 

commcnced by the Initial Membcr arising out of, relating to, or in conncction with this Agreemcnt 

or any Ancillary Document (othcr than the LLC Opcrating 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 Membcr); 

44 

lJ'''II'IISI H44\14v~1 
(B) assert that venue is improper in the Supreme Court of the State of
 

New York, County of 
 New York; or

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


New York, is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding by the Company, or its
 

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

Agreement or any Ancillary Document, in only the United Stales District Court for the Southern Columbia, and waives District of New York or the United States District Court for the District of 


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

the Initial Member, and agrees to consent dispute-resolution forum without the consent of 


thereafter to transfer ofthc suit, action or proceeding to either the Unitcd States District Court for 

New York or the United Statcs District Court for thc District orColumbia 

at the option ofthc Initial Membcr; and 

the Southern District of 


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


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


to hear a suit, action or proceeding falling within Section 9.7(a)(iii), to bring that suit, action or

the State ofNcw York, County of
 New York, and waives proceeding in only the Supreme Court of 


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

the Initial Member. dispute-resolution forum without the consent of 


the Managing Member, the Private Owner and the Company, on bchalf of (b) Each of 


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

entered against it in any suit, action or procecding falling within Section 9.7(a) may be enforced in 

any court of competent jurisdiction; 

Section 9.7(d), each of
 the Managing Member, the (c) Subject to the provisions of 


Private Owner and the Company, on behalf of itself and its Affliates, and the Initial Mcmber 

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

any suit, action or proceeding pursuant to Section 9.7(a) or Section 9.7(b) may be effected by the 

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

notices pursuant to Sections 8.1 and 8.2 (with copies to such other Persons as specified therein); 

provided, however, that nothing contained in this Section 9.7(c) shall affect the right of any party 

to serve process in any other manner pennitted by Law; 

mailing of copies thereof 


(d) Nothing in this Section 9.7 shall constitute consent to jurisdiction in any court by 

the FDIC, other than as expressly provided in Section 9.7(a)(iii) and Section 9.7(a)(iv), or in any 

way limit the FDIC's right to remove, transfer, seek to dismiss, or otherwise respond tt- any suit, 

action, or proceeding against it in any forum. 

Section 9.8 Waiver of Jury TriaL. EACH OF THE COMPANY, FOR ITSELF AND 

ITS AFFILIATES, AND THE INITIAL MEMBER HEREBY IRREVOCABLY AND 

UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF 

ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES 

45 

nn..lJSI 5744~14,21
 
THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A 

JURY. 

Section 9.9 Counteæarts; Facsimile Signatures. This Agreement may be executed in 

two (2) or more counterpars, each of which shall bc deemed an original but all of which together 

shall constitute but one and the same agreement. This Agreemcnt 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 effcct as if it were the original signed version thercof delivered in person. No signatory to 

this Agreement shall raisc 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 ofa facsimile machine or other electronic means as a defense to the fonnation or enforceability 

of a contract and each such Person forever waives any such defense. 

Section 9.10 Headings. Paragraph titles or captions contained in this Agreement are 

cd 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 ïntent of any provisions hereof. All Scction and 

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

unless otherwise specified. 

insert 

Section 9.11 Compliance with Law. Exccpt 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 perfonnancc of its obligations hereunder. 

Section 9.12 Right to Specific Perfonnance. THE COMPANY HEREBY 

ACKNOWLEDGES AND AGREES THAT THE DAMAGES TO BE INCURRED BY 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 TI IE 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 MAYBE ENTITLED AT LAW OR IN EQUITY), 

AND (II) SOLELY IN THE CASE OF A BREACH OF SECTION 4.13 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 LA W WOULD BE ADEQUATE AND ANY 

REQUIREMENT UNDER LAW TO POST 

46 

nne. lJSIS74~514vil
 
SECURITY AS A PREREQUISITE TO OBTAINING EQUITABLE RELIEF. NOTHING 

CONTAINED IN THIS SECTION 9.12 SHALL LIMIT EITHER PARTY'S RIGHT TO ANY 

REMEDIES AT LAW, INCLUDING THE RECOVERY OF DAMAGES FOR BREACH OF 

THIS AGREEMENT. 

(Remainder of Page Iiientionally Left Blank) 

47 lxx' IJSI;744S14v11
 
IN WITNESS WHEREOF, the pares hereto have caused this Agreeent to be exected 

as of 
 the day and yea first above wrtten.

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURACE 

CORPRATION AS RECEIVER FOR CORUS 

BANK,N.A. 

COMPANY: 

CORUS CONSTRUCTION VENTURE, LLC, a 

Delaware Limited Liability Company 

By: Feder Depsit Insurace Corpration as 

Reciver for CORUS BANK, N.A., as Sole 

Member and Manager 

By: 

Name: T' othy A. Krse 

Title: enior Capital Market Specalist
 

Co Lo ColrbuiOl md Sa Ap-l 
EXHIBIT B
 

to 

Loan Contribution and Sale Agreement 

(For use with Loans in Bankruptcy) 

(Note to Preparer: When preparing the actual Affdavit and Assignment. delete this instruction 

and the reference to Exhibit B above.) 

State of § 

§ 

County of § 

AFFIDAVIT AND ASSIGNMENT OF CLAIM 

The undersigncd, being first duly sworn, deposes and states as follows: 

Fcderal Deposit Insurance Corporation as Rcceiver for CORUS BANK, N.A. 

("Assignor"), acting by and through its duly authorized offcers and agents, for go09.1lnd valuable


which are hereby acknowledged does hercby sell, 

trcmsfer, assign and set over to Corus Construction Venture, LLC ("Assignee") of (insert the 

consideration, the receipt and suffciency of 


Company's address) 

and his/her/its successors and assigns, all of 
 the Assignor's interest in any claim in the bankruptcy

case commenced by or against (insert Obligor's name) ("Obligor") in the lÎ1lsert
 

appropriate V. S. Bankniptcy Coiirt, including the district of the court. such as for the Western 

Texas) being designated as Case Number (insert docket numher assigned case) 

("Bankruptcy Claim"), or such part of said Claim as is based on the promissory note of (insert 

District of 


the names of the makers of the note exactly as they appear on the note), dated (insert the date th~' 

the payee on the iiote exactly as it 

appears 011 the note), provided. however, that this assignment is made pursuant to the tenns and 

conditions as set forth in that certain Loan Contribution and Sale Agreement between the Assignor 

and the Assignee dated as of __' _ (the "Agreement"). 

note was made), and made payable to (insert the name of 


the Federal Rules of Bankruptcy Procedure ("Bankruptcy 

transfer of the Bankrptcy For purposes of "Rule 3001 of 


Rule 3001 "), this assignment and affdavit represent the unconditional 


Claim or such part of 
 the Claim as is based on the promissory notc or notes above and shall

the transferor acknowledging the transfer and stating the consideration 

thcrefore as required by Bankruptcy Rule 3001. 

constitute the statement of 


This transfer was not for the purpose of the enhancement of any claim in a pcnding 

bankruptcy. The transfer ofthc debt was pursuant to thc Agrecment, through which numerous 'I debts were sold; no specific amount of 
 the total consideration was assigned to thc debt that fonns

the basis of claim. 

B-1
 

ri","USI5744514v2\
 
This assignment shall also evidence the unconditional transfer ofthe Assignor's interest in 

any security held for the claim. 

IN WITNESS WHEREOF, the Assignor has caused this Affdavit and Assignment of 

Claim to be executed this _ day of , _'
 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR CORUS BANK, N.A. 

By: 

Name: 

Title: (Attorney-in-Fact)
 

B-2 

ii..".. USI:S744S14v21 
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-Factl of the 

Federal Deposit Insurance Corporation as Receivcr for CORUS BANK, N.A. acting in thethe capacity stated above, and acknowledged to me that sle executed the same as the act of 


Federal Deposit Insurance Corporation as Receiver for CORUS BANK, N.A., for the purposes and 

consideration therein expressed, and in the capacity therein stated. 

Given under my hand and seal of offce on this thc _ day of ,-'


~ 

Notary Public
 

My Commission expires:
 (SEAL) 

B-3 

Dt,,11 IlSU744514v21 
EXHIBIT C
 

to 

LoaD ContributioD and Sale Agreement 

parer: When preparing the actual Affdavit delete this instruction and the reference to 

Exhibit C above.) (Note to Pre 


STATE OF § 

§ 

COUNTY OF § 

ASSIGNMENT AND LOST INSTRUMENT AFFIDAVIT 

Before me, the undersigned authority, personally appeared __ 

who upon being duly cautioned and swom deposes and says, to the best of his /her knowledge, as 

follows: 

(A) That sle is thc for thc Fcderal Dcposit Insurance 

Corporation as Receiver for CORUS BANK, N.A., whose addrcss is 550 1 ih Street, NW, 

Washington, DC 20429-0002 ("lniti:t1 Member"). 

(B) That at 
 the time of the preparation oftransfcr to Corus Construction

that ccrtain loan, obligation 

or interest in a loan or obligation evidenced by a promissory note, evidencing an indcbtedness or 

evidencing rights in an indebtedness (the "Instrument"), as follows: 

Vcnturc, LLC (the "Company"), the Initial Member was thc owner of 


Loan Number: 

Namc ofMakcr: 

Original Principal Balance: 

Date of Instrument: 

(C) That thc original Instrument has been lost or misplaced. The
 

Instrumcnt was not where it was assumed to be, and a search to locatc the Instrument was 

undcrtaken, without results. Prior to the transfer to the Company, thc Instrument had not been 

assigned, transferred, pledged or hypothecatcd. 

(D) That if 
 the Initial Mcmbcr subsequently locates the Instrument, the

Initial Mcmbcr shall use reasonable 
 efforts to provide written noticc to the Company and ùeliver

C-l Do.. IJSI.\7H~14v21
 
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). 

(E) That the purpose of this affdavit is to establish such facts. This 

affdavit 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, eauses 

or claims, representations and warranties (i f any) shall be as set forth in the Loan Contribution and 

Sale Agreement between the Company and the Initial Member dated as of 
 October _,2009 (the

"Contribution Agreement"). 

the Loan Contribution (F) That pursuant to the tenns and conditions of 


and Sale Agreement, the Instrument (including, without limitation, any and all rights the Initial 

Member may have to cnforce payment and pcrfonnance ofthc Instrumcnt, including any rights 

the date under Section 3-309 ofthc Uniform Commercial Code) is hereby assigned effective as of 


the Instrument is hereof, without recourse, representation or warranty to the Company. A copy of 


attached to this affdavit, if available. 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR CORUS BANK, N.A. 

By: 

Name: 

Title: 

¡Remainder of Page ¡'llelilioliaJiy Left BlankJ 

C-2 

IlocO-IIS! \74451~v?1 
20 

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 of the Federal 

Deposit Insurance Corporation as Receiver for CORUS BANK, N.A. acting in the capacity stated 

above, and acknowledged to me that s/he executed the same as the act of the Federal Deposit 

Insurance Corporation as Receiver for CORUS BANK, N.A., for the purposes and consideration 

therein expressed, and in the capacity therein stated. 

Given under my hand and seal of offce on this the _ day of 

Notary Public 

My Commission expires: (SEAL) 

C-3 

!loCM. I'SU744'i4v~1 
EXHIBITD
 

to
 

Loan Contribution and Sale Agreement
 

(Note to Pre 
 parer: When preparing the actual Limited Power of Attorney, delete this instruction

and the reference to Exhibit D above.) 

LIMITED POWER OF ATTORNEY 

KNOW ALL PERSONS BY THESE PRESENTS, that the FEDERAL DEPOSIT 

INSURANCE CORPORATION ("FDIC") as Receiver for CORUS BANK, N.A. (hcreafter the 

"Receiver"), hereby designates the individuals listcd on Exhibit A hereto (the 

"Attorneys-in-Fact") for the sole purpose of executing the documents referred to in Paragraph 1 

below. 

WHEREAS, the undersigned has full authority to execute this instrument on behalfofthe 

FDlC as Receiver under applicable Resolutions of thc FDIC's Board of Directors and 

redelegaiions thereof. 

NOW THEREFORE, the FDIC as Receiver grants to the above-named Attorneys-in-Fact 

the authority, subject to the limiiations herein, as follows:
 

1. To execute, acknowledge, seal and deliver on behalf of the FDIC as Receiver for
 

transfer and convcyance, appropriately completed, with 

all ordinary or neccssary endorsements, acknowledgments, affdavits and supporting documents as 

may be necessary or appropriate to evidence the sale and transfer of any asset pursuant to that 

certain Loan Contribution and Sale Agreemcnt between the FDlC as Receiver for CORUS BANK, 

CORUS BANK, N.A. all instruments of 


N.A. and CORUS CONSTRUCTION VENTURE, LLC. 

Thc fonn which the Attorneys-in-Fact shall use for endorsing promissory notes or 

preparing allonges to promissory notes is as follows: 

Pay to the order of 

CORUS CONSTRUCTION VENTURE, LLC 

Without Recourse 

FEDERAL DEPOSIT INSURANCE 

CORPORA TION as Receiver for CORUS BANK, 

N.A. 

By: 

Name: 

Title: Attorney-iii-Fact 

D-l 

Doc#-IJSI.7HSI4v!1 
All other documents of assignment, conveyance or transfer shall contain this sentence: "This 

assignment is made without recourse, representation or warranty, express or implied, by the FDIC 

in any capacity." 

2. To grant to each Attorney-in-Fact full power and authority to do and perfonn all
 

acts neccssary to carry into effcet the powers granted by this Limited Power of Attorney as fully as 

the FDIC or the Recei ver might or could do with the same validity as if all and every such act had 

been hercin particularly stated, cxpressed and especially provided for. 

This Limited Power of Attorney shall be effective from Oclober 16, 2009 and shall 

continue in full force and effect through October 16,2010, unless otherwise terminated by an 

Directors ("Revocation"). At such time 

this Limited Powcr of Attorney will be auiomatically revoked. Any third party may rely upon this 

document as the named individuals' authority to continue to exercise the powers herein granted 

unless a Revocation has been recorded in thc public records ofthcjurisdiction whcrc this Limited 

Power of Attorney has heen recorded, or unless a third party has received actual notice of a 

Revocation. 

offcial of the FDIC auihorized to do so by the Board of 


IN WITNESS WHEREOF, thc FDIC by its duly authorized offcer empowered by 

appropriate resolution of its Board of 
 Dircclors, has caused thesc prcscnts to be exccutcd and

subscribed in its name as of this _th day of October, 2009.
 

FEDERAI~ DEPOSIT INSURANCE CORPORATION as 

Receiver for CORUS BANK, N.A. 

By: 

Name: 

Title: 

ATTEST: (CORPORATE SEAL) 

Name: 

Title: 

Signed, scaled and delivercd
 

in the prcsence of 

By: 

Name: 

Witness 

By: 

D-2 

ii."w. \;SI5744514v21 
Name: 

Witness 

(ACKNOWLEDGMENT ON NEXT PAGE) 

D-3 

Oon IIS1:5744514.21 
ACKNOWLEDGMENT
 

UNITED STATES OF AMERICA ) 

)

DISTRICT OF COLUMBIA ) 

On this _ day of 
 October, 2009, before me, Notary Public in and for the District of

Columbia, personally appeared and , with a business address of 550 

nIh Street, NW, Washington, DC 20429, who, heing duly sworn, severally depose and say: 

First, , first affant, for herself/himself, says that s/he is (title), 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 thc said 

Corporation by due authority of the Corporation's Board of Directors, and that ihe said 

acknowledges that said Limited Power of Attorney to be the free act and deed of the 

said Corporation. 

Second, , second affant, for herself/himsclf, says that s/he is (title), Federal 

Deposit Insurance Corporation, the Corporation in whose name the foregoing Limited Power of 

Attorney has been subscribed, that the scal affxed to the said Limited Power of Attorney is the 

corporate seal ofthe said Fcderal Deposit Insurance Corporation, that the said Limitcd Power of 

Attorney was subscribed on behalf of the said Corporation and its seal thereto affxed by due 

authority ofthc Corporation's Board of Directors, and that thc said ____ acknowledged 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: 

D-4 nuell- ti~i S744S14v21 
Exhibit A 

To Limited Power of Attorney 

(list names and organizations of Attorney(s)-in-Fact) 

A-I
 

~)01/ lJSI5?44514,'~1 
ANNEX I 

Maturity Dates and Principal Amounts of the Purchase Monev Notes 

Maturity Date Principal Amount 

October 25, 20 II $150,000,000 

October 25, 2012 $850,000,000 

-~ 

October 25,2013 $377,351,000 

--_.~­

Annex I-I 

ii",. \lSi H44'lh21