LOAN CONTRIBUTION AND ASSIGNMENT AGREEMENT 


BY AND BETWEEN 


THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR ANB 


FINANCIAL, N.A. 


AND 


ANB VENTURE, LLC 


Dated as ofJanuary 12, 2009 


ANB Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
TABLE OF CONTENTS 


Article I 


Definitions and Construction 


Section 1.1 Definitions................................................................................................................3 


Section 1.2 Construction ........................................................................................................... 1 0 


Article II 


Contribution and Conveyance of Loans 


Section 2.1 Terms and Conditions ............................................................................................11 


Section 2.2 Allocation ofPayments Made on Loans; Advances .............................................. 11 


Section 2.3 Adjustments.................................................................................................... , ...... 11 


Section 2.4 Rebates and Refunds .............................................................................................. l2 


Section 2.5 Interest Conveyed ..................................................................................................12 


Section 2.6 Retained Claims and Release ................................................................................. l2 


Section 2.7 Taxes ......................................................................................................................13 


Article III 


Transfer ofLoans, Collateral Documents and Servicing 


Section 3.1 Delivery ofDocuments .......................................................................................... l3 


Section 3.2 Recordation ofDocuments .................................................................................... 15 


Section 3.3 Transfer of Servicing ............................................................................................. 16 


Article IV 


Covenants, Duties and Obligations ofthe Company 


Section 4.1 Servicing ofLoans ................................................................................................. 17 


Section 4.2 Collection Agency/Contingency Fee Agreements ................................................. !? 


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


Section 4.4 Reporting to or for the Applicable Taxing Authorities .......................................... l8 


Section 4.5 Loans in Litigation ............................................................................................. : ... 18 


Section 4.6 Loans in Bankruptcy ..............................................................................................20 


Section 4.7 Loan Related Insurance ..........................................................................................21 


Section 4.8 Loans with Escrow Accounts .................................................................................21 


Section 4.9 Initial Member As Lead Lender in Participated Loans ..........................................21 


Section 4.10 Contracts for Deed .................................................................................................21 


Section 4.11 Leases .....................................................................................................................21 


Section 4.12 Notice to Borrowers ...............................................................................................21 


Section 4.13 Notice ofClaim ......................................................................................................22 


Section 4.14 Use ofthe FDIC's Name and Reservation of Statutory Powers ............................22 


Section 4.15 Prior Servicer Information .....................................................................................23 


Section 4.16 Release of Initial Member. .....................................................................................23 


Section 4.17 Indemnification......................................................................................................23 


ANB Loan Contribution and Assignment Agreement 2 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
Article V 


Loans Sold "As Is" and Without Recourse 


Section 5.1 Loans Conveyed "As Is" ........................................................................................25 


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


Section 5.3 No Warranties or Representations as to Amounts ofUnfunded Principal ............26 


Section 5.4 Disclaimer Regarding Calculation or Adjustment oflnterest on any Loan ...........26 


Section 5.5 No Warranties or Representations With Regard to Information ...........................26 


Section 5.6 Intervening or Missing Assignments .....................................................................26 


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


Article VI 


Repurchase by the Initial Member at the Company's Option 


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


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


Section 6.3 Re-delivery ofNotes, Files and Documents ..........................................................29 


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


Article VII 


Notices 


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


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


Section 7.3 Transfer Documents ...............................................................................................30 


Section 7.4 All Other Notices ...................................................................................................30 


Article VIII 


Miscellaneous Provisions 


Section 8.1 Severability ............................................................................................................31 


Section 8.2 Governing Law ......................................................................................................32 


Section 8.3 Cost, Fees and Expenses ........................................................................................32 


Section 8.4 Waivers; Amendment and Assignment .................................................................32 


Section 8.5 No Presumption .....................................................................................................32 


Section 8.6 Entire Agreement ...................................................................................................33 


Section 8. 7 Jurisdiction; Venue and Service .............................................................................33 


Section 8.8 Counterparts; Facsimile Signatures ...................................................................... .34 


Section 8.9 Headings ................................................................................................................34 


ANB Loan Contribution and Assignment Agreement 3 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
Attachment "A" 

Attachment "B" 

Attachment "C" 

Attachment "D" 

Attachment "E" 

Attachments 

Loan Schedule ................................................................................... A-1 


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


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


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


Limited Power of Attorney ................................................................ E-1 


ANB Loan Contribution and Assignment Agreement 4 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
LOAN CONTRIBUTION AND ASSIGNMENT AGREEMENT 


THIS LOAN CONTRIBUTION AND ASSIGNMENT AGREEMENT (as the same shall 

be amended or supplemented, this "Agreement") is made and entered into as ofthe 12th day of 

January, 2009 (the "Effective Date"), by and between the FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR ANB FINANCIAL, N.A. (including its successors and 

assigns, the "Initial Member"), and ANB VENTURE, LLC, a Delaware limited liability 

company (the "Company"). 

RECITALS 

WHEREAS, on May 9, 2008, the Federal Deposit Insurance Corporation ("FDIC") was 

appointed receiver ("Receiver") for ANB Financial, N.A. (the "Failed Bank"); and 

WHEREAS, the Initial Member owns the Loans (hereinafter defined) described on the 

Loan Schedule attached hereto as Attachment A (the "Loan Schedule"); and 

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

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

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

WHEREAS, the Initial Member desires to contribute the Loans as a capital contribution 

to the Company, as more fully set forth herein; and 

WHEREAS, the Initial Member and the Company have also entered into a Participation 

and Servicing Agreement as ofthe date hereof (the "Participation Agreement"), pursuant to 

which the Company will issue and convey to the Initial Member as Participant a participation 

interest in the Loans, as more fully set forth therein; and 

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

Agreement dated of even date hereof (the "LLC Interest Sale Agreement"), the Initial Member 

has agreed to sell and transfer the LLC Interest to KMS SPE LLC (the "LLC Interest 

Transferee") for a purchase price of$20,196,000.00 (the "Bid Amount"), the completion of 

such sale, the "Closing"; and 

WHEREAS, the Bid Amount has been allocated among the Loans by the LLC Interest 

Transferee (such allocated amount with respect to a Loan, the "Loan Value"), as set forth on 

Attachment "B" (the "Loan Value Schedule"); and 

WHEREAS, the Initial Member and the Company desire to memorialize their agreement 

relating to the contribution and certain other matters as set forth in this Agreement; 

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

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

ANB Loan Contribution and Assignment Agreement 2 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
sufficiency ofwhich are hereby acknowledged, the Initial Member and the Company hereby 

agree as follows: 

Article I 


Definitions and Construction 


Section 1.1 Definitions. For purposes ofthis Agreement, the following terms shall 

have the meanings and definitions hereinafter respectively set forth: 

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


schedules, and loan servicing system records ofthe Initial Member. 


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


before or by a Governmental Authority. 


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

adjusted up or down, as appropriate, to reflect the actual balance of the escrow account as 

reflected on the Accounting Records as ofthe Cut-OffDate and to correct errors reflected in the 

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

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

Cut-OffDate, (ii) the effect of any final court decree, unappealable regulatory enforcement order 

or other similar action of a legal or regulatory nature effective on or before the Cut-OffDate, (iii) 

a foreclosure sale which occurred on or before the Cut-OffDate for which the Redemption 

Period, if any, expired on or before the Cut-OffDate, or (iv) the portion of any Dishonored 

Check that was applied to (and reflected in) the Escrow Balance. 

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

Principal Balance adjusted up or down, as appropriate, to reflect the actual unpaid principal 

balance of a Loan on the Accounting Records and to correct errors reflected in the Unpaid 

Principal Balance due to (i) miscalculations, misapplied payments, unapplied payments, 

unrecorded disbursements ofprincipal or other disbursements, or other accounting errors with 

respect to the period ending on the Cut-OffDate, (ii) the effect of any final court decree, 

unappealable regulatory enforcement order or other similar action of a legal or regulatory nature 

effective on or before the Cut-OffDate, (iii) a foreclosure sale which occurred on or before the 

Cut-OffDate for which the Redemption Period, if any, expired on or before the Cut-OffDate, or 

(iv) the portion of any Dishonored Check that was applied to (and reflected in) the Unpaid 


Principal Balance. 


"Adjustment Percentage" means, with respect to any Loan, the quotient (expressed as a 

decimal) of the Loan Value for such Loan divided by the Unpaid Principal Balance ofsuch 

Loan. 

"Advances" means, collectively, (i) any and all out-of-pocket fees, costs, expenses and 

indemnified amounts which a Borrower is obligated to pay to a third party or to reimburse to the 

lender pursuant to the applicable Note or any other Loan Documents, and (ii) any and all 

reasonable out-of-pocket expenses necessary to protect or preserve the value of the Collateral 

securing a Loan or the priority of the Liens and security interests created by the Loan Documents 

ANB Loan Contribution and Assignment Agreement 3 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
relating thereto, including taxes, insurance premiums (including forced place insurance 

premiums), payment of ground rent, the costs of prevention ofwaste, repairs and maintenance, 

foreclosure expenses, and legal fees and expenses relating to foreclosure or other litigation with 

respect to the Loans, and which, in the case of(i) or (ii), have been or are advanced after the CutOffDate by or on behalf ofthe Initial Member. 

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

"Affidavit and Assignment of Claim" means an Affidavit and Assignment ofClaim in 

the form ofAttachment "C" to this Agreement. 

"Affiliate" means, with respect to any specified Person, (i) any other Person directly or 

indirectly controlling or controlled by or under common control with such specified Person, (ii) 

any Person owning or controlling ten percent (10%) or more ofthe outstanding voting securities, 

voting equity interests, or beneficial interests ofthe Person specified, (iii) any officer, director, 

partner, member, trustee, employee or promoter of the Person specified or any Immediate Family 

Member of such officer, director, partner, member, trustee, employee or promoter, (iv) any 

corporation, partnership, limited liability company or trust for which any Person referred to in 

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

partner, managing member, trustee or holder of 10% or more of outstanding voting securities, 

voting equity interests or beneficial interests of any Person described in clauses (i) through (iv); 

provided, however, that for purposes ofthis Agreement, Initial Member shall not be deemed to 

be an Affiliate of either the Company or any Affiliate ofthe Company. For the purposes ofthis 

definition, the term "control" (including the phrases "controlled bv" and "under common 

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

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

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

"Agreement" has the meaning given in the preamble, and shall include all exhibits, 

schedules and attachments hereto. 

"Ancillary Documents" means the Participation Agreement, including the Servicing 

Agreement, the Custodial Agreement (which are exhibits to the foregoing), the LLC Interest Sale 

Agreement and the Guaranty required to be delivered thereby, and the Company Operating 

Agreement, in each case once executed and delivered and any and all other agreements and 

instruments executed and delivered contemporaneously in connection with the Closing. 

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

Instrument Affidavit in the form ofAttachment "D" to this Agreement. 

"Authorized Funding Draw" has the meaning given that term in the Participation 

Agreement. 

"Bid Amount" has the meaning given in the seventh recital. 

"Borrower" means any borrower or other obligor with respect to any Loan, including 

any guarantor or surety or any other Person liable for all or any portion ofthe Loan. 

ANB Loan Contribution and Assignment Agreement 4 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
"Borrower Reimbursable Costs" has the meaning given in the Participation Agreement. 

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

commercial banks in Washington, D.C. or United States federal government offices are required 

or authorized by Law to close. 

"Closing" has the meaning given in the seventh recital. 

"Collateral" means any and all real or personal property, whether tangible or intangible, 

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

right, or other interest that is the subject of any Collateral Document. 

"Collateral Document" means all pledge agreements, security agreements, personal or 

corporate guaranties, deeds of trust, mortgages, contracts for the sale of real property, 

assignments, collateral agreements or other agreements or documents of any kind, whether 

originals or copies, whether similar to or different from those enumerated, 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 Notes evidencing the Loans. 

"Collection Account" has the meaning given such term in the Participation Agreement. 

"Company" has the meaning given in the preamble. 

"Company Advances" has the meaning given in the Participation Agreement. 

"Contract for Deed" means an executory contract with a third party to convey real 

property, including any installment land contract. 

"Custodial Agreement" has the meaning given to it in the Participation Agreement. 

"Custodial Documents" has the meaning given in the Custodial Agreement. 

"Cut-Off Date" means as of the close ofbusiness on November 30, 2008. 

"Deficiency Balance" means the remaining unpaid principal balance of any Note 

purchased hereunder after crediting to it the proceeds of a foreclosure sale which occurred on or 

before the Cut-Off Date, and for which the Redemption Period, if any, expired on or before the 

Cut -Off Date. 

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

to insufficient funds or a stop payment order. 

"Document Custodian" has the meaning given in the Participation Agreement. 

"Effective Date" has the meaning given in the preamble. 

"Environmental Hazards" means the presence at, in or under any Mortgaged Property 

(whether held in fee simple estate or subject to a ground lease or otherwise, and including any 

ANB Loan Contribution and Assignment Agreement 5 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
improvements whether by buildings or facilities, and any personal property, fixtures, leases and 

other property or rights pertaining thereto), of any "hazardous substance," as defined in Section 

101 (14) of the Comprehensive Environmental Response, Compensation and Liability Act of 

1980,42 U.S.C. §9601(14), or any petroleum (including crude oil or any fraction thereof that is 

liquid at standard conditions oftemperature and pressure), at a level or in an amount that requires 

remediation or abatement under applicable environmental law. 

"Escrow Balance" means, with respect to any Loan, the positive escrow balance (if any) 

in the escrow account with respect to that Loan, as reflected on the Loan Schedule. 

"Excess Damage Liability" has the meaning given in Section 4.5( c). 

"Excess Principal" has the meaning given in Section 2.3(b ). 

"Failed Bank" has the meaning given in the first recitaL 

"FDIC", in any capacity, has the meaning given in the first recitaL 

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

subdivision of or in such other jurisdiction. 

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

Collateral is located in any Foreign Jurisdiction. 

"GAAP" has the meaning given in the Participation Agreement. 

"Governmental Authority" means 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. 

"Guarantors" shall mean, collectively, the guarantors 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. 

"Guidelines" has the meaning given in the Participation Agreement. 

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

spouse, parents, parents-in-law, descendents, nephews, nieces, brothers, sisters, brothers-in-law, 

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

grandchildren-in-law. 

"Indemnified Parties" has the meaning given in Section 4.17(a). 

"Initial Member" has the meaning given in the preamble. 

"Law" means any statute, law, ordinance, regulation, rule, code, injunction, judgment, 

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

ANB Loan Contribution and Assignment Agreement 6 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
"Lien" means any pledges, security interests, charges, restrictions on or conditions to 

transfer, voting or exercise or enjoyment of any right or beneficial interest, options, rights of first 

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

"Limited Power of Attorney" means the Limited Power of Attorney in the form of 

Attachment "E" to this Agreement. 

"LLC Interest" has the meaning given in the fourth recital. 

"LLC Interest Sale Agreement" has the meaning given in the seventh recital. 

"LLC Interest Transferee" has the meaning given in the seventh recital. 

"Loan" means any loan or Participated Loan listed on the Loan Schedule and any loan 

into which any listed loan or Participated Loan is refinanced, and includes with respect to each 

such loan or Participated Loan: (i) any obligation evidenced by a Note; (ii) all rights, powers or 

Liens ofthe Initial Member or the Failed Bank in or under the Collateral Documents; (iii) any 

Contract for Deed or installment land contract and the real property which is subject to any such 

Contract for Deed or installment land contract; and (iv) any lease and the related leased property. 

"Loan Documents" means all documents, agreements, certificates, instruments and other 

writings (including all Collateral Documents) now or hereafter executed by or delivered or 

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

creating, guaranteeing or securing, or otherwise executed or delivered in respect of, all or any 

part of a Loan or evidencing any transaction contemplated thereby, and all Modifications thereto. 

"Loan File" means all documents pertaining to any Loan, either copies or originals, that 

are in the possession ofthe Initial Member or any ofits employees or contractors responsible for 

the servicing of the Loan, other than (i) the original Notes and Collateral Documents and (ii) 

confidential or privileged communications between the Initial Member or the Failed Bank and its 

legal counsel; provided, however, that the Loan Files do not include files maintained by other 

employees or agents ofthe Initial Member, or attorney-client or work product privileged 

materials held by the Initial Member's legal counsel unless in the opinion of such counsel, the 

disclosure ofthe material is not likely to result in the waiver of the attorney-client or work 

product privilege. 

"Loan Proceeds" has the meaning given in the Participation Agreement. 

"Loan Schedule" has the meaning given in the second recital. 

"Loan Value" has the meaning given in the eighth recital. 

"Loan Value Schedule" has the meaning given in the eighth recital. 

"Losses" has the meaning given in Section 4.17(a). 

ANB Loan Contribution and Assignment Agreement 7 FDIC as Receiver for ANB Financial, N,A. 

EXECUTION VERSION 
"Modification" means any extension, renewal, substitution, replacement, supplement, 

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

whether or not contemplated in the original agreement, document or instrument. 

"Mortgaged Property" means the real property Collateral, including land, fixtures and 

improvements, if any, securing any Loan. 

"Note" means each note or promissory note, lost instrument affidavit, loan agreement, 

shared credit or Participated Loan 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" means all obligations and commitments ofthe Initial Member relating to a 

Loan and arising or due or payable after the Cut-OffDate under and in accordance with any of 

the related Notes, Collateral Documents or Related Agreements, including any commitment to 

make Authorized Funding Draws. 

"Order" has the meaning given in Section 6.1. 

"Participant" has the meaning given in the Participation Agreement. 

"Participant's Share" has the meaning given in the Participation Agreement. 

"Participated Loan" means any Loan subject to a shared credit, participation or similar 

intercreditor agreement under which the Initial Member was the lead or agent financial 

depository institution or otherwise managed or held the credit or sold participations, or under 

which the Initial Member was a participating financial depository institution or purchased 

participations in a credit managed by another Person. 

"Participation Agreement" has the meaning given in the sixth recital. 

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

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

company, trust, estate, unincorporated organization, governmental or regulatory body or other 

entity. 

"Pre-Approved Charges" means the costs and expenses expressly designated as "PreApproved Charges" in this Agreement, including Sections 2.7, 3.l(c), 3.l(d)(l), 3.l(e), 3.2, 4.3, 

4.5(c) and 5.6, and no other costs or expenses. 

"Principal Deficiency" has the meaning given such term in Section 2.3(b). 

"Receiver Advances" has the meaning given in the Participation Agreement. 

"Redemption Period" means the statutory time period, if any, during which a foreclosed 

owner may buy back foreclosed real property from the foreclosure sale purchaser under the Law 

ofthe jurisdiction in which the property is located, which period (if the jurisdiction provides for 

the same) may vary among the jurisdictions which do provide for a Redemption Period. 

ANB Loan Contribution and Assignment Agreement 8 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
"Related Agreement" means (i) any agreement, document or instrument (other than the 

Note and Collateral Documents) relating to or evidencing any obligation to pay or securing any ·.. t·. 

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

confirmation of transaction, loan history, affidavit, general collection information, and 

correspondence and comments relating to any obligation), (ii) any real property or rights in or to 

any real property (including leases, tenancies, concessions, licenses or other rights of occupancy 

or use and security deposits related thereto) related to any Loan, and (iii) any collection, 

contingency fee, and tax and other service agreements that are specific to the Loans (or any of 

them) and that are assignable. 

"Released Parties" has the meaning given in Section 4.16(b ). 

"Repurchase Percentage" means, with respect to any Loan, (i) the quotient (expressed 


as a decimal) of the Loan Value for such Loan divided by the Unpaid Principal Balance of such 


Loan, divided by (ii) .20. 


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

Repurchase Percentage multiplied by the unpaid principal balance of the Loan as ofthe date of 

the repurchase, plus (ii) outstanding Company Advances as ofthe date of the repurchase, 

reduced bv (iii) the amount of any positive escrow balance with respect to the Loan as ofthe date 

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

"RESPA" means the Real Estate Settlement Procedures Act of 1974, as amended, and all 

rules and regulations promulgated thereunder. 

"Servicer" has the meaning given in the Participation Agreement. 

"Servicing Transfer Date" means the date on which the transfer of the Loan servicing 

records to the Servicer's system of record is completed and the Servicer begins to service the 

Loans, which date shall be February 4, 2009 or such other date as is agreed to by the Initial 

Member and the Company. 

"Third Party Claim" has the meaning given such term in Section 4.17(a). 

"Transfer Documents" means the endorsements and allonges to Notes, Assignment and 

Lost Instrument Affidavits (if applicable), assignments, deeds and other documents of 

assignment, conveyance or transfer required under any applicable Law to evidence the transfer to 

the Company ofthe Loans, the Collateral Documents and the Initial Member's rights with 

respect to the Loans and the Collateral. 

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

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

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

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

Documents or the rights in the Collateral or the assignment and assumption ofthe Obligations 

thereunder. 

ANB Loan Contribution and Assignment Agreement 9 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
"Uniform Commercial Code" means the Uniform Commercial Code in effect in any 

applicable jurisdiction, as the same may be amended from time to time. 

"Unpaid Principal Balance" means, with respect to any Loan, the unpaid principal 

balance ofthe Loan as stated on the Loan Schedule. 

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

accordance with the following: 

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

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

Persons that may have been, but at such time have ceased to be, "Affiliates" ofsuch specified 

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

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

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

such law. 

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

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

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

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

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

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

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

given time. 

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

words ofsimilar import shall refer to this Agreement as a whole and not to any particular 

provision ofthis Agreement. 

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

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

they are in fact followed by such words. 

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

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

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

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

deemed to include the personal pronoun of the appropriate gender. 

ANB Loan Contribution and Assignment Agreement 10 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
Article II 


Contribution and Conveyance of Loans 


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

Company, and the Company hereby acquires and accepts from the Initial Member, by way of a 

capital contribution, without recourse, all right, title and interest of the Initial Member in and to 

the Loans (including all Notes, the other Loan Documents and Related Agreements) effective as 

of the Cut-Off Date, on a servicing-released basis (subject to the provisions of Section 3.3), and 

all rights in the Collateral pursuant to the Collateral Documents. The Company hereby assumes 

and agrees to perform and pay all of the Obligations of the Initial Member under and with respect 

to the Loans. The Initial Member and the Company agree that the conveyance contemplated by 

this Section and the other provisions of this Agreement is intended to be an absolute conveyance 

and transfer of ownership of the Loans by capital contribution. In the event the Initial Member 

notifies the Company, after the Effective Date, that it owns and has the right to transfer and sell 

any charge-offs related to, and secured by the same Collateral securing, any ofthe Loans, and, if 

the Company requests, the Initial Member shall transfer such charge-offs to the Company without 

any additional consideration being paid by the Company. 

Section 2.2 Allocation of Payments Made on Loans; Advances. All payments and 

other amounts received on account of any ofthe Loans on or before the Cut-Off Date shall belong 

to the Initial Member. Any and all proceeds received with respect to any or all ofthe Loans and 

any or all ofthe Collateral at any time after the Cut-OffDate, including principal, interest, 

prepayment fees, premiums and charges, extension and exit fees, late fees, assumption fees, other 

fees and charges, insurance proceeds and condemnation payments (or any portion thereof) that are 

not used and disbursed to repair, replace or restore the related Collateral in accordance with the 

terms of the Loan, proceeds from sales or other dispositions of any or all of the Loans or the 

Collateral, and any proceeds from making a draw under any letter of credit or certificate of deposit 

held with respect to any Loan, provided that such draw is permitted by the terms of the Loan, shall 

be allocated and distributed to the Company and the Participant in accordance with the provisions 

of Section 3.3 through the Servicing Transfer Date and, thereafter, in accordance with the 

Participation Agreement. The Company shall be liable for, and shall reimburse the Initial 

Member for, all Advances. To the extent that Advances are outstanding as ofthe Servicing 

Transfer Date, the Initial Member shall be reimbursed for the same on the Servicing Transfer 

Date. All Advances not reimbursed on the Servicing Transfer Date shall be reimbursed by the 

Company to the Initial Member upon demand. 

Section 2.3 Adjustments. 

(a) At least three (3) Business Days before the Servicing Transfer Date, the Initial 

Member shall provide the Company with a statement setting forth, for each Loan, the Adjusted 

Unpaid Principal Balance and the Adjusted Escrow Balance, and if the Loan was refinanced into 

a permanent loan after the Cut-OffDate upon the disbursement of the final Authorized Funding 

Draw, the date of such refinance and the new loan number (cross-referenced to the loan number 

for that Loan on the Loan Schedule). The statement shall be accompanied by an explanation of 

the reasons for any adjustment to any Unpaid Principal Balance or Escrow Balance. 

ANB Loan Contribution and Assignment Agreement 11 FDIC as Receiver for ANB Financial, N,A. 

EXECUTION VERSION 
(b) If the Adjusted Unpaid Principal Balance of any Loan exceeds the Unpaid 

Principal Balance of such Loan (such excess, the "Excess Principal"), the LLC Interest 

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

Percentage multiplied by the Excess Principal. If the Unpaid Principal Balance of any Loan 

exceeds the Adjusted Unpaid Principal Balance of any Loan (the "Principal Deficiency"), the 

Initial Member shall be liable to the LLC Interest Transferee for an amount equal to the 

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

any miscalculation of interest on any Loan. To the extent the Initial Member made advances of 

its own funds to make Authorized Funding Draws or Advances after the Cut-Off Date, the 

Company shall reimburse the Initial Member for such advances. 

(c) The aggregate amount owed by the LLC Interest Transferee to the Initial Member 

pursuant to Section 2.3(b) (excluding the amount of any Authorized Funding Draws and 

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

LLC Interest Transferee by the Initial Member pursuant to Section 2.3(b ). If the resulting 

amount is a positive number, the Initial Member shall pay such amount to the LLC Interest 

Transferee, and if the resulting amount is a negative number, the LLC Interest Transferee shall 

pay such amount to the Initial Member as if such number were a positive number. In addition, 

an amount equal to the positive balance of any Borrower escrow accounts as ofthe Servicing 

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

Proceeds under the Participation Agreement). Any monies due to the LLC Interest Transferee or 

the Initial Member pursuant to this Section shall be paid on the Servicing Transfer Date. The 

Company shall adjust its records to reflect the Adjusted Unpaid Principal Balances and the 

Adjusted Escrow Balances with respect to the Loans. 

Section 2.4 Rebates and Refunds. The Company is not entitled to any rebates or 

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

regardless ofwhen the Note matures. Further, on pre-computed interest Loans, neither the Initial 

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

Section 2.5 Interest Conveyed. The Initial Member shall convey all of its right, title 

and interest in and to each Loan. In the event a foreclosure occurs after the Cut-OffDate, or 

occurred on or before the Cut-OffDate, but the Redemption Period had not expired on or before 

the Cut-Off Date, the Initial Member shall convey to the Company the Deficiency Balance, if any, 

together with the net proceeds, if any, ofsuch foreclosure sale. If the Initial Member was the 

purchaser at such foreclosure sale, the Initial Member shall convey to the Company the 

Deficiency Balance, if any, together with a quitclaim deed to the property purchased at such 

foreclosure sale. The Company acknowledges and agrees that the Company shall not acquire any 

interest in or to any such property which was foreclosed by the Initial Member or any ofits 

predecessors-in-interest on or before the Cut-OffDate and for which the Redemption Period, if 

any, had expired on or before the Cut-OffDate. 

Section 2.6 Retained Claims and Release. The Company and the Initial Member 

agree that the sale of the Loans pursuant to this Agreement will exclude the transfer to the 

Company of all right, title and interest of the Initial Member and the Failed Bank in and to any 

and all claims of any nature whatsoever that might now exist or hereafter arise, whether known 

ANB Loan Contribution and Assignment Agreement 12 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
or unknown, that the Initial Member has or the Failed Bank had or that either might have (a) 

against officers, directors, employees, insiders, accountants, attorneys, other persons employed 

by the Initial Member or any ofits predecessors, underwriters or any other similar Persons who 

have caused a loss to the Initial Member or any ofits predecessors in connection with the 

initiation, origination or administration of a Loan, (b) against any appraisers, accountants, 

auditors, attorneys, investment bankers or brokers, loan brokers, deposit brokers, securities 

dealers or other professional individuals or entities who performed services for the Initial 

Member or any ofits predecessors, relative to a Loan, (c) against any third parties involved in 

any alleged fraud or other misconduct relating to the making or servicing of a Loan or (d) against 

any appraiser or other Person with whom the Initial Member or the Failed Bank or any servicing 

agent contracted for services or title insurance in connection with the making, insuring or 

servicing of a Loan. 

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

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

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

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

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

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

this Section shall constitute Pre-Approved Charges for purposes ofthe Participation Agreement. 

Article III 


Transfer of Loans, Collateral Documents and Servicing 


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

execute and deliver to one another the following: 

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

as the Initial Member elects to deliver to the Company. 

(b) Subject to the provisions of the Participation Agreement, the Initial Member shall 

deliver to the Company's Document Custodian the Notes and other Custodial Documents and, on 

or within a reasonable period oftime after the Servicing Transfer Date, shall deliver the Loan 

Files to the Company or the Servicer. 

(c) After the Effective Date, the Initial Member, in the Initial Member's sole 

discretion, may elect to grant a Limited Power of Attorney to selected Company employees. If 

the Initial Member elects to grant such a Limited Power ofAttorney, the Initial Member will 

provide it to the Company within a reasonable time after the Effective Date. Ifthe Company is 

granted such a Limited Power ofAttorney, the Company, at the Company's expense, will 

prepare and execute on behalfofthe Initial Member, within a reasonable time after the Effective 

Date, all Transfer Documents not delivered by the Initial Member to the Company on the 

Effective Date. Expenses incurred by the Company in complying with the obligations set forth 

in the preceding sentence shall constitute Pre-Approved Charges for purposes ofthe Participation 

Agreement. All Transfer Documents prepared by the Company shall be in appropriate form 

suitable for filing or recording (if applicable) in the relevant jurisdiction and otherwise subject to 

the limitations set forth herein, and the Company shall be solely responsible for the preparation, 

ANB Loan Contribution and Assignment Agreement 13 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
contents and form of such documents. The Company hereby 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 (the form ofwhich was not specified by the Initial Member) and shall 

indemnify and hold harmless the Initial Member from and against any claim, action or cause of 

action asserted by any Person, including the Company, arising out ofthe contents or form of any 

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

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

purposes thereof, and the use (or purported use) by the Company ofthe Limited Power of 

Attorney in any way not expressly permitted by its terms. 

The Company shall use the following forms for endorsing or preparing allonges to Notes: 

Pay to the order of 

ANB Venture, LLC 

Without Recourse 

Federal Deposit Insurance Corporation as Receiver 

for ANB Financial, N.A. 

By: ____________________ 

Name:,----=--=------­

Title: Attorney-in-Fact 

All other documents of assignment, conveyance or transfer shall contain the following sentence: 

"This assignment is made without recourse, representation or warranty, express or implied, by 

the Federal Deposit Insurance Corporation as Receiver for ANB Financial, N.A. or in its 

corporate capacity." 

(d) In the event the Initial Member elects not to provide the Company with a Limited 

Power of Attorney in accordance with Section 3.l(c), then all Transfer Documents not delivered 

by the Initial Member to the Company on the Effective Date shall be prepared and executed by 

one of the following methods, at the Initial Member's option: 

I. The Initial Member, at the Initial Member's expense, will prepare and 

execute all endorsements and allonges to Notes or Assignment and Lost Instrument 

Affidavits (if applicable) not delivered by the Initial Member to the Company on the 

Effective Date and provide them to the Company within a reasonable time after the 

Effective Date. The Company, at the Company's expense, will prepare all other Transfer 

Documents not delivered by the Initial Member to the Company on the Effective Date 

and shall deliver such documents to the Initial Member for execution within a reasonable 

time after the Effective Date. Expenses incurred by the Company in complying with the 

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

purposes ofthe Participation Agreement. All Transfer Documents prepared by the 

Company shall be subject to the terms and conditions for Transfer Documents specified 

in Section 3.l(c) above. If any Transfer Document delivered by the Company to the 

Initial Member for execution is unacceptable to the Initial Member for any reason 

whatsoever, the Initial Member may return such document to the Company along with an 

ANB Loan Contribution and Assignment Agreement 14 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
explanation as to why the document is unacceptable to the Initial Member. When 

requesting execution of any such document, the Company shall furnish the Initial 

Member with the Loan numbers set forth on the Loan Schedule, and a copy of the Notes, 

a copy of the Collateral Documents or other documents to be transferred, and copies of 

any previous assignments ofthe applicable Collateral Document or other document; or 

2. The Initial Member, at the Initial Member's expense, will prepare and 

execute all Transfer Documents not delivered by the Initial Member to the Company on 

the Effective Date and submit them for recordation in the applicable jurisdiction within a 

reasonable period of time after the Effective Date. All such documents shall be in 

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

and otherwise subject to the limitations set forth herein. 

(e) 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. Expenses 

incurred by the Company in complying with the obligations set forth in the preceding sentence 

shall constitute Pre-Approved Charges for purposes ofthe Participation Agreement. Documents 

presented to the Initial Member to assign Foreign Loans to the Company must be accompanied 

by a letter on the foreign counsel's letterhead, signed by the foreign counsel preparing those 

documents, certifying that those documents conform to the Law of the Foreign Jurisdiction. 

Each such document and instrument shall be delivered to the Initial Member in the English 

language, provided, however, that any document required for its purposes to be executed by the 

Initial Member in a language other than the English language shall be delivered to the Initial 

Member in such language, accompanied by a translation thereof in the English language, 

certified as to its accuracy by an executive officer or general counsel ofthe Company and, if 

such executive officer or general counsel shall not be fluently bilingual, by the translator thereof. 

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

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

such document or instrument or otherwise, nor is the Initial Member obligated to obtain any 

consents or approval to the sale or transfer of the Loans or the related servicing rights, if any, or 

the assumption by the Company of the Obligations. 

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


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


title and interest in and to any and all Loans to the Company (subject to the rights of the Initial 


Member under the Participation Agreement). The Initial Member shall have no obligation to 


provide, review or execute any such additional documents unless the same shall have been 


requested of the Initial Member within 365 calendar days after the Effective Date. 


Section 3.2 Recordation of Documents. The Initial Member shall use commercially 

reasonable efforts to submit for recordation in the appropriate land, chattel, Uniform Commercial 

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

Foreign Jurisdiction) Transfer Documents to effect the transfer ofthe Loans and the Collateral 

Documents to the Company. The Initial Member shall request that recorded documents be 

returned to the Initial Member at its notice address set forth in Section 7.3. To the extent the same 

ANB Loan Contribution and Assignment Agreement 15 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
is not completed by the Initial Member or there are Transfer Documents that are returned and not 

recorded, the Company shall be responsible for, and agrees to promptly deliver, at its expense, all 

appropriate documents and instruments with respect thereto for recordation or filing in the 

appropriate land, chattel, Uniform Commercial Code, and other records of the appropriate county, 

state or other jurisdictions (including any Foreign Jurisdiction) to effect the transfer of the Loans 

and the Collateral Documents and all rights in Collateral to the Company. The Initial Member 

shall also be responsible for following up on the status of Transfer Documents submitted for 

recordation. Expenses incurred by the Company in complying with the obligations set forth in 

this Section shall constitute Pre-Approved Charges for purposes of the Participation Agreement. 

The Initial Member shall, if such is affirmatively required under the applicable Law of a relevant 

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

purposes of this Article Ill. 

Section 3.3 Transfer of Servicing. The Loans are conveyed to the Company on a 

servicing-released basis as of the Cut-Off Date. From and after the Cut-Off Date, all rights, 

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

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

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

provided by the Initial Member pursuant to this Section 3.3. To provide for the orderly transfer of 

the servicing to the Company, the Initial Member will provide, at the Initial Member's expense, 

interim servicing of the Loans on the Company's behalffrom the Cut-OffDate through the 

Servicing Transfer Date. The obligations of the Initial Member to provide interim servicing for 

the Loans shall be as follows: (i) receive payments and post them to the system of record, (ii) 

maintain records reflecting payments received, (iii) provide the Company, on request, a schedule 

of payments processed, (iv) provide payoff information to the Company regarding particular 

Loans as applicable, (v) make Advances, and (vi) make Authorized Funding Draws permitted 

under the Participation Agreement. The foregoing shall not limit the actions that the Initial 

Member may take with respect to any Loan while the Initial Member is providing interim 

servicing for the Loans. The Initial Member may engage agents of the Initial Member's own 

choosing to perform such interim servicing. Subject to the provisions of Sections 4;5(a) and 4.6, 

the Initial Member's performance of this interim servicing shall cease on the Servicing Transfer 

Date. After reimbursement of Company Advances, including Advances, the remaining Loan 

Proceeds (including any recoveries of Receiver Advances) shall be allocated among the 

Participant's Share and the Company's Share as prescribed in Section 4.0l(a) ofthe Participation 

Agreement and distributed as required by Section 4.0l(b) of the Participation Agreement, with the 

Company's Share of all remaining Loan Proceeds received in the prior calendar month remitted to 

the Company on or prior to the fifteenth (15) day of each month (or if the fifteenth (15th) day is 

not a Business Day, the immediately following Business Day of the month), commencing on 

January 15, 2009, or if the Closing is after such date, the date that is no later than five (5) Business 

Days after the Closing, to such account or accounts as the Company may, from time to time, direct 

in accordance with the terms of the Participation Agreement. On the Servicing Transfer Date, all 

Loan Proceeds received and not yet remitted to the Company or the Initial Member pursuant to 

this Section 3.3 shall be remitted to the Collection Account. The Company hereby ratifies any and 

all actions taken by the Initial Member in performing interim servicing of the Loans prior to the 

Closing Date in accordance with the terms of this Section 3.3. From and after the Closing Date, 

the Initial Member shall be (and hereby is) authorized by the Company to use and withdraw funds 

ANB Loan Contribution and Assignment Agreement 16 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
from the Collection Account and Borrower escrow accounts in performance ofinterim servicing 

duties under this Section 3.3. The Company acknowledges and agrees that the Initial Member is 

performing interim servicing for the Company as an accommodation to the Company and shall not 

have any liability for any acts or omissions taken in connection therewith (other than to correct 

calculation, allocation or distribution errors), and, except for Company Advances for which the 

Company may be reimbursed as provided in the Participation Agreement, the Company hereby 

releases and forever discharges the Initial Member, the Failed Bank and its predecessors, and all 

oftheir respective officers, directors, employees, agents, attorneys, contractors and 

representatives, and all oftheir respective successors, assigns and Affiliates, from any and all 

claims (including any counterclaim or defensive claim), demands, causes of action, judgments or 

legal proceedings and remedies of whatever kind or nature that the Company had, has or might 

have in the future, whether known or unknown, which are related in any manner whatsoever to the 

servicing of the Loans (other than gross negligence or willful misconduct) prior to the Servicing 

Transfer Date. 

Article IV 


Covenants, Duties and Obligations of the Company 


Section 4.1 Servicing of Loans. From and after the Servicing Transfer Date, the 

Company shall service the Loans in compliance with the Participation Agreement. 

Section 4.2 Collection Agency/Contingency Fee Agreements. The Company 

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

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

outstanding and in effect as of the Servicing Transfer Date) that relate only to the Loans (or any of 

them) and are assignable, and assumes and agrees to fulfill all Obligations ofthe Initial Member 

and the Failed Bank thereunder. 

Section 4.3 Insured or Guaranteed Loans. If any Loans being transferred pursuant 

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

or guaranty is not being specifically terminated by the Initial Member, the Company 

acknowledges and agrees that such Loans must be serviced by a servicer, lender or mortgagee 

approved by such Governmental Authority, if such approval is required. The Company further 

acknowledges and agrees that, upon assumption ofthe Obligations with respect to the Loans, it 

assumes full responsibility for determining whether or not any such insurance or guarantees are in 

effect on the date of this Agreement and, with respect to those Loans with respect to which any 

such insurance or guaranty is in effect on the date ofthis Agreement, the Company acknowledges 

and agrees that, upon assumption of the Obligations with respect to the Loans, it assumes full 

responsibility for taking any and all actions as may be necessary to insure such insurance or 

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

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

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

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

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

ofthe Participation Agreement. 

ANB Loan Contribution and Assignment Agreement 17 FDJC as ReceivertOr Au"l\l"B Financial, N.A 

EXECUTION VERSION 
Section 4.4 Reporting to or for the Applicable Taxing Authorities. The Initial 

Member shall be responsible for submitting all Internal Revenue Service information returns 

related to the Loans for all applicable periods prior to the Servicing Transfer Date. The Company 

shall be responsible for submitting all Internal Revenue Service information returns related to the 

Loans for all applicable periods commencing with the Servicing Transfer Date. Information 

returns include reports on Forms I 098 and 1099. The Company shall be responsible for 

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

the extent such are required to be filed by the Company or the Initial Member under such Law, 

relating to the Loans, for the calendar or tax year in which the Effective Date falls and thereafter. 

Section 4.5 Loans in Litigation. 

(a) With respect to any Loan subject of any type ofpending litigation as ofthe 

Closing Date, the Company shall notify the FDIC's Regional Counsel, 1601 Bryan Street, 

Dallas, Texas 75201-4586, within fifteen (15) Business Days before the Servicing Transfer Date 

the name of the attorney selected by the Company to represent the Company's interests in the 

litigation. The Company shall, no later than the Servicing Transfer Date, notify the clerk ofthe 

court or other appropriate official and all counsel ofrecord that ownership ofthe Loan was 

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

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

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

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 Agreement shall preclude the Company from 

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

litigation with respect to the Loans, provided, that, with respect to litigation referred to in Section 

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

connection with such litigation unless the FDIC's Regional Counsel (referred to above) agrees in 

writing to such dual representation. Subject to the provisions of Section 4.5(b) (and the 

Company's compliance with its obligations therein) and Section 4.5(d), in the event the 

Company fails, prior to the Servicing Transfer Date, to remove the Initial Member and the Failed 

Bank as parties to the litigation and substitute the Company as the real party-in-interest, (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 hereby agrees to pay all costs and 

expenses incurred by the Initial Member in connection therewith, which expenses shall constitute 

Borrower Reimbursable Costs. 

(b) If the Company is unable, as a matter of applicable Law, 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 FDIC's Regional 

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

Transfer Date, and provide such evidence to such effect and stating the reasons for such failure. 

In any such event, (i) the Company shall cause its attorney to conduct such litigation at the 

Company's expense, which expense will constitute Borrower Reimbursable Costs; (ii) the 

Company shall cause the removal of the Initial Member and the Failed Bank and substitution of 

ANB Loan Contribution and Assignment Agreement 18 FDIC as Receiver for ANB Financial, N.A 

EXECUTJON VERSJON 
the Company as party-in-interest in such litigation at the earliest time possible under applicable 

Law; (iii) the Company shall use commercially reasonable efforts to cause such litigation to be 

resolved by judgment or settlement in as reasonably efficient a manner as practical; (iv) the 

Initial Member shall cooperate with the Company and the Company's attorney as reasonably 

required in the Initial Member's sole judgment to bring such litigation or any settlement relating 

thereto to a reasonable and prompt conclusion; and (v) no settlement shall be agreed upon by the 

Company or its agents or counsel without the express prior written consent ofthe Initial 

Member, unless such settlement includes an irrevocable and complete waiver and release of any 

and all potential claims against the Initial Member and the Failed Bank in relation to such 

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

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

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

any kind to the Initial Member or the Failed Bank (other than to the extent the same constitute 

Company Advances as defined under the Participation Agreement). The Company shall pay all 

of 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 Borrower 

Reimbursable Costs, including all legal fees and expenses and court costs, and shall reimburse 

the Initial Member, upon demand, for all legal expenses the Initial Member incurs on or after the 

Effective Date with respect to any such litigation, including costs incurred with the dismissal 

thereof or withdrawal therefrom (which costs incurred by the Initial Member shall constitute 

Advances hereunder). 

(c) In the event there is asserted against the Initial Member (or the Failed Bank) or 

the Company, any claim or action with respect to one or more Loans that is based upon or arises 

out of any act or omission of the Initial Member or the Failed Bank on or prior to the Cut-Off 

Date and that alleges liability that, in the opinion ofboth the Initial Member and the Company, is 

reasonably likely to exceed the liability ofthe Company as the assignee and owner ofthe Loan 

after the Cut-OffDate, (i) the Company shall be responsible for, and shall control and assume the 

defense of, the Company and the Company's interest in the Loan, at the Company's own 

expense and by the Company's own counsel, which counsel must be reasonably satisfactory to 

the Initial Member; and (ii) the Initial Member shall be responsible for and shall control and 

assume the defense of the Initial Member and the Failed Bank at the Initial Member's own 

expense. To the extent their interests are not in conflict, the Company and the Initial Member 

shall cooperate in the defense of any such claims or action and shall use commercially 

reasonable efforts to work together to resolve or settle such claims or action in a manner that is 

mutually agreeable and in their respective best interests. The Company shall obtain the prior 

written approval ofthe Initial Member before ceasing to defend against any such claims or 

action. The costs and expenses incurred by the Company in connection with its defense of any 

claim or action described in this Section 4.5(c), including (x) reasonable attorneys' fees and 

expenses incurred to defend against (or investigate) the same or pursue counterclaims or crossclaims against other parties, (y) awards or judgments assessed against the Company with respect 

to any such claim or action, or (z) the costs of any settlement of such claim or action, shall 

constitute Pre-Approved Charges for purposes ofthe Participation Agreement. If, as a result of 

any claim or action subject to the provisions ofthis Section 4.5(c), (i) there is entered against the 

Company either (I) a final, non-appealable monetary judgment holding the Company liable for 

damages in excess (such excess amount, the "Excess Damage Liability") ofthe Loan Value of 

ANB Loan Contribution and Assignment Agreement 19 FDJC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
any Loan that is the subject of such judgment (each such Loan, the "Affected Loan") divided by 

.20, or (2) a final monetary judgment that is appealable, which the Initial Member agrees in 

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

Liability on the Company, or (ii) the Company enters into a final settlement agreement with the 

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

the Company is obligated to pay an Excess Damage Liability, then, in any such case, the Initial 

Member shall reimburse the Company for the Excess Damage Liability and the Initial Member 

shall be entitled, at its option, to repurchase the Affected Loan at its respective Repurchase Price 

in accordance with the repurchase provisions of Article VI; provided, however, that the Initial 

Member shall not be liable pursuant to this sentence for any liability imposed upon the Company 

that arises as a result of any act or omission of the Company. 

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

Initial Member to retain claims pursuant to Section 2.6 of this Agreement, including any such 

claims as may have been asserted in litigation pending as of the Closing Date. At the Initial 

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

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

pursuing and bearing the related costs to pursue) claims retained by it pursuant to Section 2.6 and 

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

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

Section 4.6 Loans in Bankruptcy. In accordance with Bankruptcy Rule 300lg and 

3002, the Company agrees to take all actions necessary to file, prior to the Servicing Transfer 

Date, (i) proofs of claims in pending bankruptcy cases involving any Loans for which the Initial 

Member or the Failed Bank has not already filed a proof of claim, and (ii) all documents required 

by Rule 3001 of the Federal Rules of Bankruptcy Procedure and to take all such similar actions as 

may be required in any relevant jurisdiction in any pending bankruptcy or insolvency case or 

proceeding in such jurisdiction involving any Loans in order to evidence and assert the 

Company's rights. The Company shall prepare and provide to the Initial Member, on or prior to 

the Servicing Transfer Date, an Affidavit and Assignment of Claim or any similar forms as may 

be required in any relevant Foreign Jurisdiction and shall be acceptable to the Initial Member, for 

each Loan where a Borrower under such Loan is in bankruptcy as of the Effective Date. The 

Company hereby releases the Initial Member and the Failed Bank from any claim, demand, suit or 

cause of action the Company may have as a result of any action or inaction on the part ofthe 

Initial Member or the Failed Bank with respect to such Loan. In the event the Company fails, 

prior to the Servicing Transfer Date, to take the actions required by this Section 4.6, (I) the Initial 

Member may, but shall have no obligation to, file proofs of claim or other documents as the Initial 

Member determines may be necessary or appropriate to evidence and assert the Company's rights 

and, (2) in the event the Initial Member does take any such actions, the Company shall be liable 

for and hereby agrees to pay all costs and expenses incurred by the Initial Member in connection 

therewith (which expenses shall constitute Advances). The provisions of this Section are subject 

to the right ofthe Initial Member to retain claims pursuant to Section 2.6 of this Agreement, 

including any such claims as may have been asserted in litigation pending as of the Closing Date. 

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

the Initial Member remaining the real party in interest and retaining control over (and being 

responsible for pursuing and bearing the related costs to pursue) claims retained by it pursuant to 

ANB Loan Contribution and Assignment Agreement 20 FDIC as Receiver for ANB Financial, N,A 

EXECUTION VERSION 
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 ofpursuing) the remainder ofthe 

litigation. 

Section 4.7 Loan Related Insurance. As ofthe Effective Date, the Company shall 

cause to be put into place for the Collateral with respect to each Loan with respect to which the 

Borrower has failed to maintain required insurance, fire, hurricane, flood and hazard insurance 

with extended coverage as is customary in the area in which the Collateral is located and in such 

amounts and with such deductibles as, in the reasonable judgment ofthe Company, are prudent. 

Upon the cancellation of any insurance policy maintained by the Initial Member or the Failed 

Bank with respect to any Loan and the receipt by the Company or the Initial Member of any 

refund of any premiums previously paid with respect thereto, such refunded amount shall inure to 

the benefit of the Borrowers with respect to the affected Loans, and such refunded amount shall be 

remitted to (or retained by) the Company and applied as appropriate to adjust the escrow accounts 

with respect to such affected Loans. 

Section 4.8 Loans with Escrow Accounts. The Company agrees to assume, 

undertake and discharge any and all Obligations ofthe holder of the Loans with respect to any 

escrow, maintenance of escrow and payments from escrow of monies paid by or on account ofthe 

Borrower. 

Section 4.9 Initial Member as Lead Lender in Participated Loans. The Company 

hereby agrees to assume the role oflead lender for any Participated Loan in which a portion of the 

Loan was participated to one or more other entities and in which the Initial Member or any ofits 

predecessors was the lead lender as of the Effective Date. The Company hereby agrees to accept 

any such Participated Loan subject to all participants' right, title and interest in such Participated 

Loan. 

Section 4.10 Contracts for Deed. The Company agrees to comply with all Obligations 

set forth in any Contract for Deed contained in any Loan subject to this Agreement. Pursuant to 

the provisions of Section 3 .I hereof, the Initial Member may require the Company to prepare and 

furnish special warranty deeds for the Initial Member's approval and execution, conveying the 

real property subject to any such contract to the Company. Title curative work, ifrequired, shall 

be at the Company's sole cost and expense. 

Section 4.11 Leases. The Company agrees to comply with all Obligations set forth in 

any lease related to any Loan, unless in the opinion ofthe Company, complying with the 

Obligations of such lease would not be in the best interests (in terms ofmaximizing the value of 

the Loan) ofthe Company and the Initial Member. Pursuant to the provisions of Section 3.1 

hereof, the Initial Member may require the Company to prepare and furnish applicable Transfer 

Documents for the Initial Member's approval and execution. 

Section 4.12 Notice to Borrowers. No later than thirty (30) days prior to the Servicing 

Transfer Date, the Company (or the Servicer) shall provide the Initial Member with all 

information necessary (including information concerning the address to which Borrowers should 

begin sending their payments after the Servicing Transfer Date) to allow the Initial Member to 

prepare and send to Borrowers a "goodbye" letter meeting the requirements of, and in accordance 

ANB Loan Contribution and Assignment Agreement 21 FDJC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
with, RESP A, if applicable. Based upon the information provided by the Company, the Initial 

Member shall send to Borrowers such "goodbye" letter. The Company (or the Servicer) shall 

provide a "hello" letter to Borrowers meeting the requirements of and in accordance with RESP A, 

if applicable. Alternatively, ifthe Initial Member and the Company (or the Servicer) so agree, 

they may send a joint "hello/ goodbye" letter to Borrowers meeting the requirements of and in 

accordance with RESPA, if applicable. The Initial Member and the Company (and the Servicer) 

shall each bear their own costs and expenses incurred to comply with their respective obligations 

contained in this Section (or, in the case of a decision to send a joint "hello/goodbye" letter, their 

respective costs shall be allocated among them), and no such costs or expenses shall be considered 

Advances hereunder or Company Advances for purposes of the Participation Agreement. 

Section 4.13 Notice of Claim. The Company shall immediately notify the Initial 

Member, in accordance with the notice provisions of Section 7 .4, of any claim, threatened claim 

or litigation against the Initial Member or the Failed Bank arising out of any Loan. 

Section 4.14 Use of the FDIC's Name and Reservation of Statutory Powers. The 

Company shall not use or permit the use by its agents, successors or assigns of any name or 

combination of!etters that is similar to "FDIC" or "Federal Deposit Insurance Corporation." The 

Company will not represent or imply that it is affiliated with, authorized by or in any way related 

to the FDIC. The Company shall be entitled to assert (and claim the benefit of) the statute of 

limitations established under 12 U.S.C. § 1821 (d)(14). However, the Company acknowledges and 

agrees that the assignment of any Loan or Collateral Document pursuant to the terms ofthis 

Agreement shall not constitute the assignment of any other rights, powers or privileges granted to 

the Initial Member pursuant to the provisions the Federal Deposit Insurance Act, including those 

granted pursuant to 12 U.S.C. § 182l(d), 12 U.S.C. § l823(e) and 12 U.S.C. § 1825, all such rights 

and powers being expressly reserved by the Initial Member; nor, shall the Company assert or 

attempt to assert any such right, power or privilege in any pending or future litigation involving 

any Loan transferred or purchased hereunder. 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 SECTION WILL BE DIFFICULT, IF 

NOT IMPOSSIBLE, TO ASCERTAIN, THAT DAMAGES WILL NOT BE AN ADEQUATE 

REMEDY AND THAT ANY BREACH OR THREATENED BREACH OF ANY OF THE 

PROVISIONS OF THIS AGREEMENT BY THE COMPANY MAY CAUSE IMMEDIATE 

IRREPARABLE HARM FOR WHICH THERE MAY BE NO ADEQUATE REMEDY AT 

LAW. ACCORDINGLY, THE PARTIES AGREE THAT, IN THE EVENT OF ANY SUCH 

BREACH OR THREATENED BREACH, THE INITIAL MEMBER SHALL BE ENTITLED TO 

(I) IMMEDIATE AND PERMANENT EQUITABLE RELIEF (INCLUDING INJUNCTIVE 

RELIEF AND SPECIFIC PERFORMANCE OF THE PROVISIONS OF THIS AGREEMENT) 

FROM A COURT OF COMPETENT JURISDICTION (lN ADDITION TO ANY OTHER 

REMEDY TO WHICH IT MAY BE ENTITLED AT LAW OR IN EQUITY), AND (II) 

LIQUIDATED DAMAGES IN THE AMOUNT OF $25,000 FOR EACH BREACH OF THIS 

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 W AlVES 

ANY DEFENSE IN ANY SUCH ACTION FOR SPECIFIC PERFORMANCE OR 

INJUNCTIVE RELIEF THAT A REMEDY AT LAW WOULD BE ADEQUATE AND ANY 

ANB Loan Contribution and Assignment Agreement 22 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
REQUIREMENT UNDER LAW TO POST SECURITY AS A PREREQUISITE TO 

OBTAINING EQUITABLE RELIEF. 

Section 4.15 Prior Servicer Information. The Company acknowledges and agrees 

that the Initial Member might not have access to information from prior servicers of a Loan and 

that the Initial Member has not requested any information not in the possession of the Initial 

Member or its servicing contractor from any prior servicer of a Loan. The Company 

acknowledges and agrees that the Initial Member will not be required under the terms ofthis 

Agreement to request any information from any prior servicer. 

Section 4.16 Release oflnitial Member. 

(a) Except as otherwise specifically provided in Article VI of this Agreement or in 

the Participation Agreement or any Ancillary Document, the Company hereby releases and 

forever discharges the Initial Member, the Failed Bank and the FDIC, and all oftheir respective 

officers, directors, employees, agents, attorneys, contractors and representatives, and all of their 

respective successors, assigns (other than the Company) and Affiliates, from any and all claims 

(including any counterclaim or defensive claim), demands, causes of action, judgments or legal 

proceedings and remedies of whatever kind or nature that the Company had, has or might have in 

the future, whether known or unknown, which are related in any manner whatsoever to the 

Loans, the servicing of the Loans (before or after the Cut-OffDate) by the Initial Member, the 

Failed Bank or any Person acting on behalf of the Initial Member or the Failed Bank, or the 

acquisition of the Loans (other than gross negligence or willful misconduct); provided, however, 

that nothing contained in this Section 4.16(a) shall constitute or be interpreted as a waiver of any 

express right that the Company has under this Agreement, or any ofthe Ancillary Documents. 

(b) The Company agrees that it will not renew, extend, renegotiate, compromise, 

settle or release any Note or Loan or any right ofthe Company founded upon or growing out of 

this Agreement, except upon payment in full thereof, unless all Borrowers on said Note or Loan 

shall first release and discharge the Failed Bank, the FDIC and the Initial Member with respect to 

such Loan and their respective agents and assigns (other 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 release. 

Section 4.17 Indemnification. 

(a) The Company shall indemnifY and hold harmless the Initial Member and the 

Initial Member's Affiliates, and their respective officers, directors, employees, partners, 

principals, agents and contractors (the "Indemnified Parties") from and against any losses, 

damages, liabilities, costs and expenses (including reasonable attorneys' fees and litigation and 

similar costs, and other out -of-pocket expenses incurred in investigating, defending, asserting or 

preparing the defense or assertion of any ofthe foregoing), deficiencies, claims, interest, awards, 

judgments, penalties and fines (collectively, "Losses") arising out of or resulting from any 

breach by the Company or any of its Affiliates or any oftheir respective officers, directors, 

employees, partners, principals, agents or contractors of any of the Company's obligations under 

or covenants or agreements contained in this Agreement (including any claim asserted by the 

ANB Loan Contribution and Assignment Agreement 23 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
Initial Member against the Company to enforce its rights hereunder or by any third party), or any 

third-party allegation or claim based upon facts alleged that, iftrue, would constitute such a 

breach, or any gross negligence, bad faith or willful misconduct (including any act or omission 

constituting theft, embezzlement, breach of trust or violation of any Law). Such indemnity shall 

survive the termination ofthis Agreement. In order for an Indemnified Party to be entitled to any 

indemnification provided for under this Agreement in respect of, arising out of or involving a 

Loss or a claim or demand made by any Person against the Indemnified Party (a "Third Party 

Claim"), such Indemnified Party shall deliver notice thereof to the Company promptly after 

receipt by such Indemnified Party of written notice ofthe Third Party Claim, describing in 

reasonable detail the facts giving rise to any claim for indemnification hereunder, the amount of 

such claim (if known) and such other information with respect thereto as is available to the 

Indemnified Party and as the Company may reasonably request. The failure or delay to provide 

such notice, however, shall not release the Company from any of its obligations under this 

Section 4.17 except to the extent that it is materially prejudiced by such failure or delay. 

(b) If for any reason the indemnification provided for herein is unavailable or 

insufficient to hold harmless the Indemnified Parties, the Company shall contribute to the 

amount paid or payable by the Indemnified Parties as a result of the Losses of the Indemnified 

Parties in such proportion as is appropriate to reflect the relative fault ofthe Indemnified Parties, 

on the one hand, and the Company (including any Servicer or subservicer), on the other hand in 

connection with a breach of the Company's obligations under this Agreement. 

(c) If the Company confirms in writing to the Indemnified Party within fifteen 

(15) days after receipt of a Third Party Claim the Company's responsibility to indemnify and 

hold harmless the Indemnified Party therefor, the Company may elect to assume control over the 

compromise or defense of such Third Party Claim at the Company's own expense and by the 

Company's own counsel, which counsel must be reasonably satisfactory to the Indemnified 

Party, provided that (i) the Indemnified Party may, if such Indemnified Party so desires, employ 

counsel at such Indemnified Party's own expense to assist in the handling (but not control the 

defense) of any Third Party Claim; (ii) the Company shall keep the Indemnified Party advised of 

all material events with respect to any Third Party Claim; (iii) the Company shall obtain the prior 

written approval of the Indemnified Party before ceasing to defend against any Third Party Claim 

or entering into any settlement, adjustment or compromise of such Third Party Claim involving 

injunctive or similar equitable relief being asserted against any Indemnified Party or any of its or 

his Affiliates; and (iv) the Company will not, without the prior written consent of each 

Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending 

or threatened action in respect of which indemnification may be sought hereunder (whether or 

not any such Indemnified Party is a party to such action), unless such settlement, compromise or 

consent by its terms obligates the Company to satisfy the full amount of the liability in 

connection with such Third Party Claim and includes an unconditional release of all such 

Indemnified Parties from all liability arising out of such Third Party Claim. 

(d) Notwithstanding anything contained herein to the contrary, the Company shall not 

be entitled to control (and ifthe Indemnified Party so desires, it shall have sole control over) the 

defense, settlement, adjustment or compromise of (but the Company shall nevertheless be 

required to pay all Losses incurred by the Indemnified Parties in connection with such defense, 

ANB Loan Contribution and Assignment Agreement 24 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
settlement or compromise): (i) any Third Party Claim that seeks an order, injunction or other 

equitable relief against any Indemnified Party or any of its Affiliates; (ii) any action in which 

both the Company (or any Affiliate) and the Indemnified Party are named as parties and either 

the Company (or such Affiliate) or the Indemnified Party determines with advice of counsel that 

there may be one or more legal defenses available to it that are different from or additional to 

those available to the other party or that a conflict ofinterest between such parties may exist in 

respect ofsuch action; and (iii) any matter that raises or implicates any issue relating to any 

power, right or obligation of the Federal Deposit Insurance Corporation (in any capacity) under 

any Law. If the Company elects not to assume the compromise or defense against the asserted 

liability, fails to timely and properly notify the Indemnified Party ofits election as herein 

provided, or, at any time after assuming such defense, fails to diligently defend against such 

Third Party Claim in good faith, the Indemnified Party may pay, compromise or defend against 

such asserted liability (but the Company shall nevertheless be required to pay all Losses incurred 

by the Indemnified Party in connection with such defense, settlement or compromise). In 

connection with any defense of a Third Party Claim (whether by the Company or the 

Indemnified Parties), all of the parties hereto shall, and shall cause their respective Affiliates to, 

cooperate in the defense or prosecution thereof and to in good faith retain and furnish such 

records, information and testimony, and attend such conferences, discovery proceedings, 

hearings, trials and appeals, as may be reasonably requested by a party hereto in connection 

therewith. 

(e) Under no circumstances shall any liability of the Company under the provisions 

ofthis Section 4.17 constitute a Company Advance or otherwise be charged to the Initial 

Member or Participant or deducted from the Participant's Share. 

Article V 


Loans Sold "As Is" and Without Recourse 


Section 5.1 Loans Conveyed "As Is". THE LOANS ARE CONVEYED "AS IS" 

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

WHATSOEVER, INCLUDING AS TO COLLECTIBILITY, ENFORCEABILITY, VALUE OF 

COLLATERAL, ABILITY OF ANY OBLIGOR TO REPAY, CONDITION, FITNESS FOR 

ANY PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY, 

EXPRESS OR IMPLIED, BY ANY PERSON, INCLUDING THE INITIAL MEMBER OR ANY 

AFFILIATE, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, 

AGENTS OR CONTRACTORS. THE INITIAL MEMBER SPECIFICALLY DISCLAIMS 

ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR 

PRESENT, EXPRESS OR IMPLIED, CONCERNING THE 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 warranties or 

representation of any kind or nature as to the sufficiency of funds held in any escrow account to 

discharge any obligations related in any manner to an escrow obligation, as to the accuracy ofthe 

amount of any monies held in any escrow account or as to the propriety of any previous 

disbursements or payments from any escrow account. 

ANB Loan Contribution and Assignment Agreement 25 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
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 representation of any kind or nature as to the amount of any additional or future 

Disbursements ofPrincipal the 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 

representation of any kind as to the accuracy of any calculation or adjustment ofinterest on any 

Loan, including any adjustable rate Loan, whether such calculation or adjustment is made by the 

Failed Bank, the FDIC, the Initial Member, any agent or contractor of either, or any predecessorin-interest ofthe Initial Member or any other party. 

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

Initial Member makes no warranties or representation of any kind as to the completeness or 

accuracy of any information provided with respect to any Loan. The Company acknowledges 

that, for example, and not by way oflimitation, some Loan Files may be missing forms or notices, 

or may contain incomplete or inaccurate forms or notices, that may be required by one or more 

federal or state consumer protection statutes. The Company's exclusive remedies with respect to 

any inaccurate or incomplete information provided by the Initial Member are an adjustment in 

accordance with Section 2.3 or an option to repurchase under Article VI, and such exclusive 

remedies are available only if all other conditions theretofore expressed in this Agreement have 

been met. 

Section 5.6 Intervening or Missing Assignments. The Company acknowledges and 

agrees that the Initial Member shall have no obligation to secure or obtain any missing intervening 

assignment or any assignment to the Initial Member or the Failed Bank that is not contained in the 

Loan File or among the Collateral Documents. Neither the absence of any intervening assignment 

or any assignment to the Initial Member, the FDIC or the Failed Bank, nor the existence of any 

Lien on the Loan or its Collateral, nor any defect in the Lien or priority of the Initial Member's or 

the Failed Bank's security interest in the Collateral shall give rise to any claim for purchase under 

Article VI. The Company shall bear all responsibility and expense of securing from the 

appropriate source any intervening assignment or any assignment to the Initial Member, the FDIC 

or the Failed Bank that may be missing from the Collateral Documents, but the cost thereof shall 

constitute a Pre-Approved Charge for purposes of the Participation Agreement. 

Section 5.7 No Warranties or Representations as to Documents. The Initial 

Member makes no warranties or representations of any kind or nature as to the effectiveness or 

enforceability in any Foreign Jurisdiction ofthis Agreement or any other document or instrument 

delivered or prepared in connection herewith, whether or 110t prepared and executed in the forms 

provided herewith, all ofsuch forms being provided for reference only. 

Article VI 


Repurchase by the Initial Member at the Company's Option 


Section 6.1 Repurchases at Company's Option. The Company may, at its option, 

and upon satisfaction ofthe procedures and other requirements set forth below, require the Initial 

Member to purchase a Loan, if, and only if, (x) prior to the Effective Date, one ofthe events 

ANB Loan Contribution and Assignment Agreement 26 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
described in Section 6.l(a) through (g) has occurred or, (y) after the Cut-Off Date, there is issued 

by a court of competent jurisdiction with respect to such Loan a court order (the "Order") that is 

based upon or as a result of the acts or omissions ofthe Initial Member on or prior to the Cut -Off 

Date, and either requires the assignment and transfer of such Loan back to the Initial Member or is 

a final non-appealable order that holds the Company liable to a Borrower for damages (exclusive 

of damages arising from the Company's acts or omissions after the Servicing Transfer Date) in an 

amount that exceed the unpaid principal balance ofsuch Borrower's Loan at the time of such 

Order, and with respect to which, in either case, the Action in which such Order is issued meets 

the other conditions set forth in Section 6.1(h) below. IN NO EVENT SHALL THE 

OCCURRENCE OF ANY SUCH EVENT OR THE OBLIGATION TO REPURCHASE A 

LOAN HEREUNDER BE EVIDENCE OF BAD FAITH, MISCONDUCT OR FRAUD EVEN 

IN THE EVENT THAT IT IS SHOWN THAT THE INITIAL MEMBER, IN ANY CAPACITY, 

OR ANY AFFILIATE THEREOF, OR ANY OF THEIR RESPECTIVE DIRECTORS, 

EMPLOYEES, OFFICERS, CONTRACTORS OR AGENTS KNEW OR SHOULD HAVE 

KNOWN OF THE EXISTENCE OF ANY FACTS RELATING TO THE OCCURRENCE OF 

SUCH EVENT. 

(a) The Borrower had been discharged in a no asset bankruptcy proceeding, there is 

no Collateral securing the Loan and out ofwhich the Loan may be satisfied, and all guarantors or 

sureties ofthe Note, if any, or the obligations contained therein, have similarly been discharged 

in no asset bankruptcies. 

(b) A court of competent jurisdiction had entered a final judgment (other than a 


bankruptcy decree or judicial foreclosure order) holding that neither the Borrower nor any 


guarantors or sureties owe an enforceable obligation to pay the holder of the Note or its 


ass1gnees. 


(c) The Failed Bank or the Initial Member had executed and delivered to the 


Borrower a release ofliability from all obligations under the Note. 


(d) A title defect exists in connection with the property which is the subject of a 


Contract for Deed and which title defect requires a prior order or judgment of a court to enable 


the Company to convey title to such property in accordance with the terms and conditions set 


forth in the Contract for Deed. 


(e) The Initial Member is not the owner ofthe Loan (or, in the case of a Participated 

Loan, the Initial Member is not the owner ofthe pro rata interest in such Participated Loan set 

forth on the attached Schedule of Loans). 

(f) There exists Environmental Hazards, in which case the Company's recourse with 

respect to this Section 6.l(f) shall be conditioned upon: (i) the presence of Environmental 

Hazards not being disclosed in the Loan, Loan File or other material provided by the Initial 

Member to the LLC Interest Transferee prior to submission of the Bid; (ii) such Loan having an 

Adjusted Unpaid Principal Balance greater than $250,000.00; and, (iii) the Company delivering, 

along with the notice required by Section 6.2, the following, each of which must be satisfactory 

in form and substance to the Initial Member in its discretion: 

ANB Loan Contribution and Assignment Agreement 27 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
I. A Phase I environmental assessment, from a qualified and reputable firm, 

of the Mortgaged Property securing the Loan; and 

2. A Phase II environmental assessment or lead-based paint survey of such 

Collateral from a qualified and reputable firm, which assessment shall confirm (i) the 

existence ofEnvironmental Hazards on such Collateral and (ii) that the regulator is likely 

to require such remediation; and, 

3. The Company shall have submitted a written certification ofthe Company 

under penalty of peijury that no action has been taken by or on behalf ofthe Company (i) 

to initiate foreclosure proceedings or (ii) to accept a deed-in-lieu-of-foreclosure in 

connection with such Loan. 

(g) The Initial Member or the Failed Bank, or their respective officers, directors or 

employees, fraudulently caused the Borrower to receive less than all of the proceeds and benefits 

of a Note. The Company's recourse with respect to this Section 6.l(g) shall be conditioned upon 

the Company delivering, along with the notice required by Section 6.2, written evidence of such 

fraud, which evidence must be satisfactory in form and substance to the Initial Member in its 

discretion. 

(h) There is instituted after the Cut-Off Date any Action (i) that is asserted by more 

than one Borrower and any Affiliates (with multiple Borrowers with respect to Loans secured by 

the same Collateral being considered a single Borrower for purposes of this Section) with respect 

to more than one Loan (with multiple Loans secured by the same Collateral being considered a 

single Loan for purposes of this Section), (ii) that includes allegations offraud on the part ofthe 

Initial Member or the Failed Bank in connection with the Initial Member's, or the Failed Bank's 

origination of such Loans, and (iii) that names the Initial Member or the Failed Bank as a 

defendant and that asserts liability on the part of the Initial Member or the Failed Bank for which 

the Company is not liable as assignee, as a matter of law, with respect to such Loans. 

Section 6.2 Notice to Initial Member. The Company shall notify the Initial Member 

of each Loan with respect to which the Company seeks to exercise its rights under Section 6.1. 

Such notice shall be on the Company's letterhead and include the following information: (a) the 

Company's tax identification number, (b) the Company's wire transfer instructions, (c) the 

subsection of Section 6.1 under which the Company is seeking to require the Initial Member to 

purchase a Loan, and (d) a summary ofthe reasons the Company believes that the Loans should 

be repurchased by the Initial Member. The notice shall be accompanied by evidence supporting 

the basis for the Initial Member's repurchase of such Loan. Promptly upon request by the Initial 

Member, the Company shall supply the Initial Member with any additional evidence that the 

Initial Member may reasonably request. The Initial Member shall have no obligation to 

repurchase any Loan pursuant to this Article VII for which notice and all supporting evidence 

reasonably required by the Initial Member have not been received by the Initial Member at the 

addresses specified in Article VII no later than the first Business Day after the expiration of (i) in 

the case of any purchase demand pursuant to Section 6.l(a) through (g), 180 calendar days after 

the Effective Date, or in the case of a Contract for Deed, the first Business Day after the expiration 

of 360 calendar days after the Effective Date, and (ii) in the case of any purchase demand pursuant 

to Section 6.1 (h), thirty (30) days after the issuance ofthe Order. 

ANB Loan Contribution and Assignment Agreement 28 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
Section 6.3 Re-delivery of Notes, Files and Documents. For any Loan that qualifies 

for purchase under this Article, the Company shall: (a) re-endorse and deliver the Note to the 

Initial Member (or its designee), (b) assign all Collateral Documents associated with such Loan 

and reconvey any real property subject to a Contract for Deed or transferred by quitclaim deed 

pursuant to Section 2.5, together with such other documents or instruments as shall be necessary 

or appropriate to convey the Loan back to the Initial Member (or its designee), (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, and (d) deliver to the Initial Member (or its 

designee) a certification, notarized and executed under penalty of peijury by a duly authorized 

representative ofthe Company, certifying that as ofthe date of purchase by the Initial Member 

none ofthe conditions relieving the Initial Member ofits obligation to purchase the Loan as 

specified in Section 6.4 has occurred. The documents evidencing such conveyance shall be 

substantially the same as those executed pursuant to Article III ofthis Agreement to convey the 

Loan to the Company. In all cases in which the Company recorded or filed among public records 

any document or instrument evidencing a transfer ofthe Loan to the Company, the Company shall 

cause to be recorded or filed among such records a similar document or instrument evidencing the 

conveyance ofthe Loan to the Initial Member. Upon compliance by the Company with the 

provisions hereof, the Initial Member shall pay to the Company the Repurchase Price, and such 

Repurchase Price shall constitute Loan Proceeds for purposes ofthe Participation Agreement. 

Section 6.4 Waiver of Company's Repurchase Option. The Initial Member will be 

relieved ofits obligation to purchase any Loan for any reason set forth in Section 6.1 ifthe 

Company: (a) except as permitted by the Guidelines and other than the permanent refinance of a 

Loan in connection with the final Authorized Funding Draw with respect to such Loan, modifies 

any ofthe terms ofthe Loan (including the terms of any Collateral Document or Contract for 

Deed); (b) except as permitted by the Guidelines, exercises forbearance with respect to any 

scheduled payment on the Loan; (c) accepts or executes new or modified lease documents 

assigned by the Initial Member to the Company; (d) sells, assigns or transfers the Loan or any 

interest therein (other than the Participation Interest issued to the Initial Member pursuant to the 

Participation Agreement); (e) fails to comply with the Participation Agreement in the 

maintenance, collection, servicing and preservation ofthe Loan, including delinquency 

prevention, collection procedures and protection of collateral as warranted; (f) initiates any 

litigation in connection with the Loan or the Mortgaged Property securing the Loan other than 

litigation to force payment or to realize on the Collateral securing the Loan; (g) completes any 

action with respect to foreclosure on, or accepts a deed-in-lieu offoreclosure for any Collateral 

securing the Loan; (h) causes, by action or inaction, the priority oftitle 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 than that conveyed by the 

Initial Member, except as may be required by the terms ofthe Collateral Documents; G) causes, 

by action or inaction, a claim ofthird parties to arise against the Company that, as a result of 

purchase under this Agreement, might be asserted against the Initial Member; (k) causes, by 

action or inaction, a Lien of any nature to encumber the Loan to arise; (I) is the Borrower or any 

Affiliate thereof under such Loan; or (m) makes a disbursement other than an Authorized Funding 

Draw or a Company Advance, in each case as and to the extent permitted by the Participation 

Agreement. 

ANB Loan Contribution and Assignment Agreement 29 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
Article VII 

Notices 

Section 7.1 Notices. All notices, requests, demands and other communications 

required or permitted to be given or delivered under or by reason ofthe provisions of this 

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

or, delivered by hand or by nationally recognized air courier service, in any case directed to the 

address of such Person as set forth in the applicable Section ofthis Article VII. Any such notice 

shall become effective when received (or receipt is refused) by the addressee, provided that any 

notice or communication that is received (or refused) other than during regular business hours of 

the recipient shall be deemed to have been given at the opening ofbusiness on the next Business 

Day ofthe recipient. From time to time, any Person may designate a new address for purposes of 

notice hereunder by notice to such effect to the other Persons identified in this Article VII. 

Section 7.2 Article VI Notice. Any notice, request, demand or other communication 

required or permitted to be given to the Initial Member pursuant to the provisions ofArticle VI 

shall be delivered to: 

Initial Member: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: George Alexander 

with a copy to: Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

Section 7.3 Transfer Documents. For purposes of designating the Company as the 

return addressee on Transfer Documents, the following address shall be used: 

Company after the Closing: ANB Venture, LLC 

477 Shoup Avenue, Suite 207 

Idaho Fails, ID 83402 

Attention: David 0. Kingston 

Section 7.4 All Other Notices. Any notice, request, demand or other communication 

required or permitted to be given pursuant to any provision of this Agreement and that is not 

governed by the provisions of Section 7.2 or 7.3 shall be delivered to: 

Company before the Closing: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

ANB Loan Contribution and Assignment Agreement 30 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
550 17'h Street, NW (F-7008) 

Washington, D.C. 20429-0002 

Attention: George Alexander 

with a copy to: 	 Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

Company after the Closing: 	 ANB Venture, LLC 


477 Shoup Avenue, Suite 207 


Idaho Falls, ID 83402 


Attention: David 0. Kingston 


with a copy to: 	 ANB Venture, LLC 


477 Shoup Avenue, Suite 207 


Idaho Falls, ID 83402 


Attention: Kari M. Campos 


Initial Member: 	 Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 171

h Street, NW (F-7008) 

Washington, D.C. 20429-0002 

Attention: George Alexander 

with a copy to: 	 Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

Article VIII 


Miscellaneous Provisions 


Section 8.1 Severability. Any provision of this Agreement which is prohibited or 

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

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

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

ANB Loan Contribution and Assignment Agreement 31 	 FDIC as Receiver for ANB Financial, N.A. 

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

Person or Persons and/or under such particular circumstance or circumstances, as the case may be; 

(ii) without limitation of clause (i), such provision shall in any event be ineffective only as to such 

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

unenforceability in such jurisdiction shall not invalidate or render unenforceable such provision in 

any other jurisdiction; and (iii) without limitation of clauses (i) or (ii), such ineffectiveness shall 

not invalidate any ofthe remaining provisions ofthis Agreement. Without limitation ofthe 

preceding sentence, it is the intent ofthe parties to this Agreement that in the event that in any 

court proceeding, such court determines that any provision of this Agreement is prohibited or 

unenforceable in any jurisdiction (because ofthe duration or scope (geographic or otherwise) of 

such provision, or for any other reason) such court shall have the power to, and shall, (x) modify 

such provision (including without limitation, to the extent applicable, by limiting the duration or 

scope of such provision and/or the Persons against whom, and/or the circumstances under which, 

such provision shall be effective in such jurisdiction) for purposes ofsuch proceeding to the 

minimum extent necessary so that such provision, as so modified, may then be enforced in such 

proceeding and (y) enforce such provision, as so modified pursuant to clause (x), in such 

proceeding. Nothing in this Section is intended to, or shall, limit (1) the ability of any party to this 

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

intended effect of Section 8.2. 

Section 8.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY 

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

EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER 

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF 

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

inaction by any party hereto. 

Section 8.3 Cost, Fees and Expenses. Except as otherwise provided herein, each 

party hereto agrees to pay all costs, fees and expenses which it has incurred in connection with or 

incidental to the matters contained in this Agreement, including fees and disbursements to its 

accountants and counsel. 

Section 8.4 Waivers; Amendment and Assignment. No provision ofthis 

Agreement may be amended or waived except in writing executed by all ofthe parties to this 

Agreement. This Agreement and the terms, covenants, conditions, provisions, obligations, 

undertakings, rights and benefits hereof shall be binding upon, and shall inure to the benefit ofthe 

undersigned parties and their respective heirs, executors, administrators, representatives, 

successors and permitted assigns, and no other Person or Persons (including Borrowers or any colender or other Person with any interest in or liability under any ofthe Loans) shall have any 

rights or remedies under or by reason ofthis Agreement. Notwithstanding the foregoing, this 

Agreement may not be transferred or assigned without the express prior written consent ofthe 

Initial Member and any attempted assignment without such consent shall be void ab initio. 

Section 8.5 No Presumption. This Agreement shall be construed fairly as to each 

party hereto and if at any time any such term or condition is desired or required to be interpreted 

ANB Loan Contribution and Assignment Agreement 32 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
or construed, no consideration shall be given to the issue of who actually prepared, drafted or 

requested any term or condition of this Agreement or any agreement or instrument subject hereto. 

Section 8.6 Entire Agreement. This Agreement and the Ancillary Documents 

contain the entire agreement between Initial Member (including in its capacity as Participant) and 

the Company with respect to the subject matter hereof and supersedes any and all other prior 

agreements, whether oral or written. In the event of a conflict between the terms ofthis 

Agreement and the terms of any Transfer Document or other document or instrument executed in 

connection herewith and with the transactions contemplated hereby, including, without limitation, 

any translation into a foreign language of this Agreement for the purpose of any Transfer 

Document, or any other document or instrument executed in connection herewith which is 

prepared for notarization, filing or any other purpose, the terms ofthis Agreement shall control, 

and furthermore, the terms of this Agreement shall in no way be or be deemed to be amended, 

modified or otherwise affected in any manner by the terms of such Transfer Document or other 

document or instrument. 

Section 8.7 Jurisdiction; Venue and Service. The Company, for itself and its 

Affiliates, hereby irrevocably and unconditionally: 

(a) (i) agrees that any suit, action or proceeding instituted against it by any other 

party with respect to this Agreement may be instituted, and that any suit, action or proceeding by 

him, her or it against any other party with respect to this Agreement shall be instituted, only in 

the Supreme Court of the State of New York, County ofNew York, or the U.S. District Court for 

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

Columbia (and appellate courts from any ofthe foregoing) as the party instituting such suit, 

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

himself, herself or itself and its property, to the jurisdiction of such courts for the purpose of any 

such suit, action or proceeding instituted against him, her or it by any other party and (iii) agrees 

that a final judgment in any such suit, action or proceeding shall be conclusive and may be 

enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; 

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

proceeding pursuant to Section 8.7(a) may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to the Company at its address for notices pursuant to 

Article VII (with copies to such other Persons as specified therein); provided, however, that 

nothing contained in this Section 8.7 shall affect the ability of the Company to be served process 

in any other manner permitted by law; 

(c) (i) waives any objection that it may now or hereafter have to the laying of venue 

of any suit, action or proceeding arising out of or relating to this Agreement brought in any court 

specified in Section 8.7(a), (ii) waives any claim that any such suit, action or proceeding brought 

in any such court has been brought in an inconvenient forum and (iii) agrees not to plead or 

claim either ofthe foregoing. 

(d) Waiver ofJury 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 


ANB Loan Contribution and Assignment Agreement 33 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES 

THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT 

A JURY. 

(e) No FDIC Consent to Jurisdiction. Nothing contained in this Section 8.7 shall be 

construed to constitute a consent to jurisdiction by the Initial Member, the Failed Bank or the 

FDIC in any capacity. 

Section 8.8 Counterparts; Facsimile Signatures. This Agreement may be executed 

in two (2) or more counterparts, each ofwhich shall be deemed an original but all ofwhich 

together shall constitute but one and the same agreement. This Agreement and any amendments 

hereto, to the extent signed and delivered by means of a facsimile machine, shall be treated in all 

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

legal effect as ifit were the original signed version thereof delivered in person. No signatory to 

this Agreement shall raise the use of a facsimile machine to deliver a signature or the fact that any 

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

as a defense to the formation or enforceability of a contract and each such Person forever waives 

any such defense. 

Section8.9 Headings. Paragraph titles or captions contained in this Agreement are 

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

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

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

unless otherwise specified 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

ANB Loan Contribution and Assignment Agreement 34 FDIC as Receiver for A.J.~B Financial, N.A. 

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

as of the day and year first above written. 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR ANB 

FINANCIAL, N.A. 

~:Title: Attorney-in-Fact 

THE COMPANY: 

ANB VENTURE, LLC, A Delaware Limited 

Liability Company 

By: Federal Deposit Insurance Corporation as 

Receiver for ANB Financial, N.A., as Sole Member 

and Manager 

By 

Name: &orgd'\lexander 

Title: Attorney-in-Fact 

ANB Loan Contribution and Assignment Agreement 35 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
ATTACHMENT "A" 

to 

Loan Contribution and Assignment Agreement 

LOAN SCHEDULE 


ANB -08-04 Structured Sale 


[Attached] 


See Tab 23 

ANB Loan Contribution and Assignment Agreement A-1 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
ATTACHMENT "B" 

to 

Loan Contribution and Assignment Agreement 

LOAN VALUE SCHEDULE 


ANB-08-04 Structured Sale 


[Attached] 


See Tab 24 

ANB Loan Contribution and Assignment Agreement B-1 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
ATTACHMENT "C" 


to 


Loan Contribution and Assignment Agreement 


(For use with Loans in Bankruptcy) 

(Note to Preparer: When preparing the actual Affidavit and Assignment, delete this instruction 

and the reference to Attachment C above.) 

State of _______ § 

§ 

County of_______ § 

AFFIDAVIT AND ASSIGNMENT OF CLAIM 


ANB-08-04 Structured Sale 


The undersigned, being first duly sworn, deposes and states as follows: 

The Federal Deposit Insurance Corporation as Receiver for ANB Financial, N.A. 

("Assignor"), acting by and through its duly authorized officers and agents, for good and 

valuable consideration, the receipt and sufficiency of which are hereby acknowledged does 

hereby sell, transfer, assign and set over to ANB Venture, LLC, a Delaware limited liability 

company("Assignee") and its successors and assigns, all ofthe Assignor's interest in any claim 

in the bankruptcy case commenced by or against {insert Obligor's name} ______ 

("Obligor") in the {insert appropriate US. Bankruptcy Court, including the district ofthe court, 

such as for the Western District ofTexas, being designated as Case Number {insert docket 

number assigned case} ("Bankruptcy Claim"), or such part of said Claim as is based on the 

promissory note of {insert the names ofthe makers ofthe note exactly as they appear on the 

note}, dated {insert the date the note was made}, and made payable to {insert the name ofthe 

payee on the note exactly as it appears on the note}, provided, however, that this assignment is 

made pursuant to the terms and conditions as set forth in that certain Loan Contribution and 

Assignment Agreement between the Assignor and the Assignee dated January 12, 2009 (the 

"Agreement"). 

For purposes of Bankruptcy Rule 3001, this assignment and affidavit represent the 

unconditional transfer ofthe Bankruptcy Claim or such part ofthe Claim as is based on the 

promissory note or notes described in section one above and shall constitute the statement of the 

transferor acknowledging the transfer and stating the consideration therefore as required by said 

Rule 3001. 

This transfer was not for the purpose of the enhancement of any claim in a pending 

bankruptcy. The transfer of the debt was pursuant to the Agreement, through which numerous 

debts were sold; no specific amount of the total consideration was assigned to the debt that forms 

the basis of claim. 

ANB Loan Contribution and Assignment Agreement C-1 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
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 Affidavit and Assignment of 

Claim to be executed this __ day of , 20_. 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 


RECEIVER FOR ANB FINANCIAL, N.A. 


By: 


Name: __________________ 


Title: 


Signed and sworn to before me this-~ day of____________, 20 _ 

Notary Public 

[SEAL] My Commission expires: 

ACKNOWLEDGMENT 

STATE OF ________ § 


§ 


COUNTY OF------~ § 


Before me, the undersigned authority, a Notary Public in and for the county and state 

aforesaid, on this day personally appeared , known to me 

to be the person whose name is subscribed to the foregoing instrument, as Attorney-in-Fact of 

the Federal Deposit Insurance Corporation as Receiver for ANB Financial, N.A. acting in the 

capacity stated above, and acknowledged to me that s/he executed the same as the act ofthe 

Federal Deposit Insurance Corporation as Receiver for ANB Financial, N.A., for the purposes 

and consideration therein expressed, and in the capacity therein stated. 

Given under my hand and seal of office on this the_ day of ________, ___. 

Notary Public 

[SEAL] My Commission expires: ___________ 

ANB Loan Contribution and Assignment Agreement C-2 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
ATTACHMENT "D" 


to 


Loan Contribution and Assignment Agreement 


(Note to Preparer: When preparing the actual Affidavit delete this instruction and the reference 

to Attachment D above.) 

STATE OF __________ § 

§ 

COUNTY OF _________ § 

ASSIGNMENT AND LOST INSTRUMENT AFFIDAVIT 

ANB-08-04 Structured Sale 

Before me, the undersigned authority, personally appeared , 

who upon being duly cautioned and sworn deposes and says, to the best of his /her knowledge, as 

follows: 

1. That s/he is the for the Federal Deposit Insurance Corporation as 

Receiver for ANB Financial, N .A, whose address is 550 17th Street, NW, Washington, DC 

20429-0002 ("Initial Member"). 

2. That at the time of the preparation of transfer to ANB Venture, LLC (" the 

Company"), the Initial Member was the owner of that certain loan, obligation or interest in a loan 

or obligation evidenced by a promissory note, evidencing an indebtedness or evidencing rights in 

an indebtedness (the "Instrument"), as follows: 

Loan Number:-------------­

Name of Maker:------------­

Original Principal Balance: _________ 

Date of Instrument: -----------­

3. That the original Instrument has been lost or misplaced. The Instrument was not 

where it was assumed to be, and a search to locate the Instrument was undertaken, without 

results. Prior to the transfer to the Company the Instrument had not been assigned, transferred, 

pledged or hypothecated. 

4. That if the Initial Member subsequently locates the Instrument, the Initial Member 

shall use reasonable efforts to provide written notice to the Company and deliver and endorse the 

Instrument to the Company in accordance with written instructions received from the Company 

(or such other party designated in writing by the Company). 

ANB Loan Contribution and Assignment Agreement D-1 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
5. That the purpose of this affidavit is to establish such facts. This affidavit shall not 

confer any rights or benefits, causes or claims, representations or warranties (including, without 

limitation, regarding ownership or title to the Instrument or the obligations evidenced thereby) 

upon the Company, its successors or assigns. All such rights, benefits, causes or claims, 

representations and warranties (if any) shall be as set forth in the Loan Contribution and 

Assignment Agreement between the Company and the Initial Member dated January 12, 2009. 

6. That pursuant to the terms and conditions ofthe aforementioned Loan 

Contribution and Assignment Agreement the Instrument (including, without limitation, any and 

all rights the Initial Member may have to enforce payment and performance ofthe Instrument, 

including any rights under Section 3-309 ofthe Uniform Commercial Code) is hereby assigned 

effective as ofthe date hereof, without recourse, representation or warranty, to the Company. A 

copy of the Instrument is attached to this affidavit, if available. 

FEDERAL DEPOSIT INSURANCE CORPORATION 

AS RECEIVER FOR ANB FINANCIAL, N.A. 

By: -------------------­

Name: ------~------------­ Title: Attorney-in-Fact 

Signed and sworn to before me this ___day of ______________, ____. 

Notary Public 


[SEAL] My Commission expires: ________ 


ANB Loan Contribution and Assignment Agreement D-2 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
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 Attorney-in-Fact of 

the Federal Deposit Insurance Corporation as Receiver for ANB Financial, N.A acting in the 

capacity stated above, and acknowledged to me that slhe executed the same as the act of the 

Federal Deposit Insurance Corporation as Receiver for ANB Financial, N.A, for the purposes 

and consideration therein expressed, and in the capacity therein stated. 

Given under my hand and seal of office on this the ____ day of_________ 

Notary Public 

[SEAL) My Commission expires: ________ 

ANB Loan Contribution and Assignment Agreement D-3 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
ATTACHMENT "E" 


to 


Loan Contribution and Assignment Agreement 


(Note to Preparer: When preparing the actual Limited Power ofAttorney, delete this instruction 

and the reference to Attachment E above.) 

LIMITED POWER OF ATTORNEY 


ANB-08-04 Structured Sale 


KNOW ALL PERSONS BY THESE PRESENTS, that the FEDERAL DEPOSIT 

INSURANCE CORPORATION ("FDIC") AS RECEIVER FOR ANB FINANCIAL, N.A, 

hereafter called the "Receiver", hereby designates the individual(s) set out below (the 

"Attorney(s)-in-Fact") for the sole purpose of executing the documents outlined below: 

WHEREAS, the undersigned has full authority to execute this instrument on behalf of the 

Receiver under applicable Resolutions of the FDIC's Board of Directors and redelegations 

thereof. 

NOW THEREFORE, the Receiver grants to the above-named Attorney(s)-in-Fact the 

authority, subject to the limitations herein, as follows: 

I. To execute, acknowledge, seal and deliver on behalf of the FDIC as Receiver of 

ANB Financial, N.A. instruments of transfer and conveyance, appropriately completed, with all 

ordinary or necessary endorsements, acknowledgments, affidavits and supporting documents as 

may be necessary or appropriate to evidence the sale and transfer of any asset contained in the 

Structured Sale enumerated above. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

ANB Loan Contribution and Assignment Agreement E-1 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
The form which the Attorney(s)-in-Fact shall use for endorsing promissory notes or preparing 

allonges to promissory notes is as follows: 

Pay to the order of 

Without Recourse 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR ANB 

FINANCIAL, N.A. 

By: ___________________ 

Name: _____________________ 

Title:___________ 

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 as Receiver of ANB Financial, N.A.." 

2. The Receiver further grants to each Attorney-in-Fact full power and authority to 

do and perform all acts necessary to carry into effect the powers granted by this Limited Power 

ofAttorney as fully as the Receiver might or could do with the same validity as if all and every 

such act had been herein particularly stated, expressed and especially provided for. 

This Limited Power ofAttorney shall be effective from and 

shall continue in full force and effect through , unless 

otherwise terminated by an official ofthe Receiver or its successors and assigns authorized to do 

so by the Board of Directors ofthe FDIC or its successors and assigns ("Revocation"). At such 

time this Limited Power ofAttorney will be automatically revoked. Any third party may rely 

upon this document as the named individual(s)' authority to continue to exercise the powers 

herein granted unless a Revocation has been recorded in the public records of the jurisdiction 

where this Limited Power of Attorney has been recorded, or unless a third party has received 

actual notice of a Revocation. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

ANB Loan Contribution and Assignment Agreement E-2 FDIC as Receiver for ANB Financial, N.A 

EXECUTION VERSION 
IN WITNESS WHEREOF, the FDIC as Receiver ofANB Financial, N.A. by its duly 

authorized Attorney-in-Fact empowered by appropriate resolution ofthe FDIC's Board of 

Directors, has caused these presents to be executed and subscribed in its name this day 

of 200_.] 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR ANB FINANCIAL, N.A. 

By:________________ 

Name:____________________ 

Title: Attorney-in-Fact 

(CORPORATE SEAL) 	 ATTEST:_______________ 

Name:____________________ 

Title: 

Signed, sealed and delivered 

in the presence of 

By:_____________ 

Name:______________ 

Witness 

By:_____________ 

Name:______________ 

Witness 

ANB Loan Contribution and Assignment Agreement E-3 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION 
ACKNOWLEDGMENT 


STATE OF ___ § 

§ 

COUNTY OF __ § 

On this day of , 2009, before me, a Notary Public in and for 

the state and county of the aforesaid appeared , to me personal! y 

known, who, being by me first duly sworn did depose that slhe is Attorney-in-Fact ofthe Federal 

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

"Receiver"), in whose name the foregoing Limited Power of Attorney was executed and 

subscribed, and the said Limited Power of Attorney was executed and subscribed on behalf of 

the said Receiver by due authority ofthe Corporation's Board ofDirectors, and the said 

--:-::----:--::--:-:-=---:----acknowledged the said Limited Power ofAttorney to be the free act 

and deed of said Receiver. 

Notary Public 


My Commission Expires: _______ 


ANB Loan Contribution and Assignment Agreement E-4 FDIC as Receiver for ANB Financial, N.A. 

EXECUTION VERSION