LOAN CONTRIBUTION AND ASSIGNMENT AGREEMENT 

BY AND BETWEEN 

THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR FIRST 

NATIONAL BANK OF NEVADA 

AND 

FNBN I, LLC 

Dated as of December 29, 2008 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

TABLE OF CONTENTS 

Article I Definitions and Construction ...................................................................................2 

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

Section 1.2 Construction ...........................................................................................................8 

Article II Contribution and Conveyance of Loans ..................................................................9 

Section 2.1 Terms and Conditions ...........................................................................................9 

Section 2.2 Allocation of Payments Made on Loans; Advances..........................................10 

Section 2.3 Adjustments..........................................................................................................10 

Section 2.4 Rebates and Refunds ...........................................................................................11 

Section 2.5 Interest Conveyed ................................................................................................11 

Section 2.6 Retained Claims and Release..............................................................................11 

Section 2.7 Taxes......................................................................................................................12 

Article III Transfer of Loans, Collateral Documents and Servicing .......................................12 

Section 3.1 Delivery of Documents.........................................................................................12 

Section 3.2 Recordation of Documents ..................................................................................14 

Section 3.3 Transfer of Servicing ...........................................................................................15 

Article IV Covenants, Duties and Obligations of the Company .............................................16 

Section 4.1 Servicing of Loans................................................................................................16 

Section 4.2 Collection Agency/Contingency Fee Agreements .............................................16 

Section 4.3 Insured or Guaranteed Loans.............................................................................16 

Section 4.4 Reporting to or for the Applicable Taxing Authorities....................................16 

Section 4.5 Loans in Litigation...............................................................................................17 

Section 4.6 Loans in Bankruptcy ...........................................................................................19 

Section 4.7 Loan Related Insurance ......................................................................................20 

Section 4.8 Loans with Escrow Accounts ..............................................................................20 

Section 4.9 Initial Member As Lead Lender in Participated Loans ...................................20 

Section 4.10 Contracts for Deed...............................................................................................20 

Section 4.11 Leases ....................................................................................................................20 

Section 4.12 Notice to Borrowers .............................................................................................20 

Section 4.13 Notice of Claim.....................................................................................................21 

Section 4.14 Use of the FDIC’s Name and Reservation of Statutory Powers. .....................21 

Section 4.15 Prior Servicer Information .................................................................................22 

Section 4.16 Release of Initial Member ...................................................................................22 

Section 4.17 Indemnification. ...................................................................................................22 

Article V Loans Sold “As Is” and Without Recourse............................................................24 

Section 5.1 Loans Conveyed “As Is”......................................................................................24 

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Section 5.2 No Warranties or Representations with Respect to Escrow Accounts ...........24 

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

Section 5.4 Disclaimer Regarding Calculation or Adjustment of Interest on any Loan ..25 

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

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

Section 5.7 No Warranties or Representations as to Documents........................................25 

Article VI Repurchase by the Initial Member at the Company’s Option................................25 

Section 6.1 Repurchases at Company’s Option....................................................................25 

Section 6.2 Notice to Initial Member .....................................................................................27 

Section 6.3 Re-delivery of Notes, Files and Documents .......................................................28 

Section 6.4 Waiver of Company’s Repurchase Option........................................................28 

Article VII Notices ...................................................................................................................29 

Section 7.1 Notices. ..................................................................................................................29 

Section 7.2 Article VI Notice: .................................................................................................29 

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

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

Article VIII Miscellaneous Provisions.......................................................................................31
 

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

Section 8.7 Jurisdiction; Venue and Service. ........................................................................32 

Section 8.8 Counterparts; Facsimile Signatures...................................................................33 

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

Attachments 

Attachment “A” — Loan Schedule................................................................................... A-1 

Attachment “B” — Loan Value Schedule .........................................................................B-1 

Attachment “C” — Affidavit and Assignment of Claim ...................................................C-1 

Attachment “D” — Assignment and Lost Instrument Affidavit....................................... D-1 

Attachment “E” — Limited Power of Attorney ................................................................E-1 

Loan Contribution and Assignment Agreement ii
 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 of the 29th day of 

December, 2008 (the “Effective Date”), by and between THE FEDERAL DEPOSIT 

INSURANCE CORPORATION (in any capacity, “FDIC”) AS RECEIVER FOR FIRST 

NATIONAL BANK OF NEVADA (including its successors and assigns, the “Initial 

Member”), and FNBN I, LLC, a Delaware limited liability company (the “Company”). 

RECITALS 

WHEREAS, on July 25, 2008, the FDIC was appointed receiver for First National Bank 

of Nevada (the “Failed Bank”); and 

WHEREAS, the Initial Member owns a number of Loans (hereinafter defined) as 

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 of the date hereof (the “Participation Agreement”), pursuant to 

which the Company will issue and convey to the Initial Member 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 PNMAC Mortgage Co. (FI), LLC, (the “LLC 

Interest Transferee”) for a purchase price of $43,237,216.44 (the “Bid Amount”), the 

completion of such sale, the “Closing”; and 

WHEREAS, the Bid Amount has been allocated among the Loans by the LLC 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 of the foregoing and the mutual promises and 

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

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Loan Contribution and Assignment Agreement 

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

agree as follows: 

Article I
 

Definitions and Construction 

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

have the meanings and definitions hereinafter respectively set forth: 

“Accounting Records” means the general ledger, supporting subsidiary ledgers and 

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

“Action” means any claim, action, suit (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 of the Cut-Off Date and to correct errors reflected in the 

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

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

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

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

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

Period, if any, expired on or before the Cut-Off Date, or (iv) the portion of any check that was 

applied to (and reflected in) the Escrow Balance but returned due to insufficient funds or a stop 

payment order. 

“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 of principal or other disbursements, or other accounting errors with 

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

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

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

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

(iv) the portion of any check that was applied to (and reflected in) the Unpaid Principal Balance 

but returned due to insufficient funds or a stop payment order. 

“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 of such 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 

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

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

and 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 

Cut-Off Date by or on behalf of the Initial Member. 

“Affected Loans” has the meaning given in Section 4.5(c). 

“Affidavit and Assignment of Claim” means an Affidavit and Assignment of Claim in 

the form of Attachment “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 of the outstanding voting securities, 

voting equity interests, or beneficial interests of the 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 of this Agreement, neither Participant nor the Initial 

Member shall be deemed to be an Affiliate of either the Company or any Affiliate of the 

Company. For the purposes of this definition, the term “control” (including the phrases 

“controlled by” and “under common control with”) when used with respect to any specified 

Person means the possession, direct or indirect, of the power to direct or cause the direction of 

the management and policies of such Person, whether through the ownership of voting securities 

or interests, by contract or otherwise. 

“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 and the Custodial Agreement (which are exhibits thereto) and the Electronic 

Tracking Agreement (which is an exhibit to the Custodial Agreement), in each case, once 

executed and delivered, the LLC Interest Sale Agreement and the Guaranty required to be 

delivered thereby, and the Company Operating Agreement, 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 of Attachment “D” to this Agreement. 

“Bid Amount” has the meaning given in the seventh recital. 

“Borrower” means any borrower with respect to any Loan. 

“Borrower Reimbursable Costs” has the meaning given in the Participation Agreement. 

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“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 subject to 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. 

“Company’s Share” 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 Documents” has the meaning given in the Participation Agreement. 

“Cut-Off Date” means as of the close of business 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. 

“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 

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 of temperature and pressure), at a level or in an amount that requires 

remediation or abatement under applicable environmental law. 

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“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” means the Federal Deposit Insurance Corporation, in any capacity. 

“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 of the 

Collateral is located in any jurisdiction other than the United States. 

“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. 

“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 of any Governmental Authority 

“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. 

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“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 of the Initial Member or the Failed Bank in or under the Collateral Documents; (iii) any 

Contract for Deed and the real property which is subject to any such Contract for Deed; and (iv) 

any lease and the related leased property. 

“Loan Documents” has the meaning given in the Participation Agreement. 

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

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

the servicing of the Loan, other than (i) the original Notes and other 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 of the 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 of the 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). 

“MERS” means Mortgage Electronic Registration Systems, Incorporated. 

“MERS Registered Mortgages” has the meaning given in Section 3.1(c). 

“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. 

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EXECUTION VERSION 
 

“Obligations” means all obligations and commitments of the Initial Member relating to a 

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

the related Notes, Collateral Documents or Related Agreements. 

“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 

inter-creditor agreement under which the Initial Member or the Failed Bank was lead or agent 

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

under which the Initial Member or the Failed Bank was a participating financial depository 

institution or purchased participations in a credit managed by another. 

“Participation Agreement” has the meaning given in the sixth recital. 

“Participation Interest” has the meaning given in the Participation Agreement. 

“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, 3.1(c), 3.1(d), 3.1(e)(1), 3.1(f), 

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 

of the 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. 

“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 

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. 

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“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) eighty percent (80%). 

“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 of the date of 

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

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

of the repurchase that is not transferred to Initial Member at the 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 1, 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 of the 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 of the Loans, the Collateral 

and the Collateral Documents or the rights in the Collateral or the assignment and assumption of 

the Obligations thereunder. 

“Uniform Commercial Code” means the Uniform Commercial Code as 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 of the Loan as stated on the Loan Schedule. 

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

accordance with the following: 

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(a) References to “Affiliates” include, only other Persons which from time to time 

constitute “Affiliates” of such specified Person, and do not include, at any particular time, other 

Persons that may have been, but at such time have ceased to be, “Affiliates” of such specified 

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

(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 (a) 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 (b) 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 of similar import shall refer to this Agreement as a whole and not to any particular 

provision of this 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 of time shall be construed 

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

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

herein 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. 

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 

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Loan Contribution and Assignment Agreement 

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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 

of the 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 of the 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 of the 

Loans and any or all of the Collateral at any time after the Cut-Off Date, 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 Advances are booked as 

of the 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. The statement shall be 

accompanied by an explanation of the reasons for any adjustment to any Unpaid Principal 

Balance or Escrow Balance. 

(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 (such deficiency, 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 makes 

Advances after the Cut-Off Date, the Company shall reimburse the Initial Member for all such 

Advances. 

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

pursuant to Section 2.3(b) (excluding Advances due to the Initial Member) shall be subtracted 

from the aggregate amount owed to the LLC Interest Transferee by the Initial Member pursuant 

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Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

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 of the 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 of when the Note matures. Further, on pre-computed interest Loans, neither the 

Failed Bank nor the Initial Member 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-Off Date, or 

occurred on or before the Cut-Off Date, 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, of such 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 of its 

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

any, had expired on or before the Cut-Off Date. 

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 

or unknown, that the Initial Member has or the Failed Bank had or that either might have, 

regardless of when any such claim is discovered, (a) against officers, directors, employees, 

insiders, accountants, attorneys, other persons employed by the Initial Member or any of its 

predecessors, underwriters or any other similar Persons who may have caused a loss to the Initial 

Member or any of its 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, the Failed Bank or any of its 

predecessors, relative to the initiation, origination or servicing of a Loan, (c) against any third 

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

origination 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 initiation, origination or servicing of a Loan. 

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Loan Contribution and Assignment Agreement 

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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 of mortgage recording taxes and shall timely file any returns 

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

this Section shall constitute Pre-Approved Charges for purposes of the 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 the other Custodial Documents 

and, on or within a reasonable period of time after the Servicing Transfer Date, shall deliver the 

Loan Files to the Company or the Servicer. 

(c) For any of the mortgages securing the Loans are registered on the MERS 

(Mortgage Electronic Registration Systems, Inc.) system (the “MERS Registered Mortgages”), 

the Company shall cause the MERS Registered Mortgages to be transferred on the MERS system 

on or within a reasonable time after the Servicing Transfer Date. To the extent the cost of 

transferring the MERS Registered Mortgages is a cost imposed by MERS on the transferor of a 

loan, that cost shall be borne by the Initial Member. Otherwise, the costs imposed by MERS 

with respect to the transfer of the MERS Registered Mortgages shall be borne by the Company 

and all such costs shall constitute Pre-Approved Charges for purposes of the Participation 

Agreement. 

(d) 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 of Attorney, the Initial Member will 

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

granted such a Limited Power of Attorney, the Company, at the Company’s expense, will 

prepare and execute on behalf of the 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 or anticipated by Section 3.1(c). Expenses incurred by the Company in 

complying with the obligations set forth in the preceding sentence shall constitute Pre-Approved 

Charges for purposes of the 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, contents and form of such documents. The 

Company hereby releases the Initial Member from any loss or damage incurred by the Company 

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Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

 

due to the contents or form of any documents prepared by the Company (the form of which 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 of the contents or form of any Transfer Document (the form of which 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 of the 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 

FNBN I, LLC 

Without Recourse 

Federal Deposit Insurance Corporation as Receiver 

for First National Bank of Nevada 

By: 

Name: Ralph Malami 

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 in its corporate capacity or as Receiver.” 

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

Power of Attorney in accordance with Section 3.1(d), then all Transfer Documents not delivered 

by the Initial Member to the Company on the Effective Date or pursuant to Section 3.1(c) shall 

be prepared and executed by one of the following methods, at the Initial Member’s option: 

1. 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 of the Participation Agreement. All Transfer Documents prepared by the 

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

in Section 3.1(d) 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 

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

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Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

 

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 of the 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. 

(f) 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 of the 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 of the Company and, if 

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

(g) 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. 

(h) 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 of the 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 

14 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

 

same 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 III. 

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 of the 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 behalf from the Cut-Off Date 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, and (v) make Advances. 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 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 4.01(a) of the Participation 

Agreement and distributed as required by Section 4.01(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 no later than the fifth (5th) Business Day after the Closing, to such account or 

accounts as the Company may, from time to time, direct. On the Servicing Transfer Date, all 

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

Section 3.3 shall be remitted to the Collection Account. Prior to the Servicing Transfer Date, the 

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

from the Collection Account and Borrower escrow accounts in performance of interim 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 

15 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

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 of their respective officers, directors, employees, agents, attorneys, 

contractors and representatives, and 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 at any time prior to the Servicing Transfer Date (other than gross 

negligence or willful misconduct). 

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 of the 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 of the Obligations with respect to the Loans, it 

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

in effect on the 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 of this 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 of the 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 PreApproved Charges for purposes of the Participation Agreement. 

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 

16 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

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

returns include reports on Forms 1098 and 1099. The Company shall be responsible for 

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

the extent such 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 of pending litigation as of the 

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 

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

litigation. The Company shall, before the Servicing Transfer Date, notify the clerk of the court 

or other appropriate official and all counsel of record that ownership of the 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 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 expenses shall constitute Borrower Reimbursable Costs); (ii) the 

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

17 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

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 of the 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 (which expenses shall 

constitute Borrower Reimbursable Costs as defined in the Participation Agreement), 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 in 

connection 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 of the 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 CutOff Date (and not any act or omission of or on behalf of the Company) and that alleges liability 

that, in the opinion of both the Initial Member and the Company, is reasonably likely to exceed 

the liability of the Company as the assignee and owner of the Loan after the Cut-Off Date, (i) the 

Company shall be responsible for, and shall control and assume the defense of, the Company and 

the Company’s interest in the Loans, 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 of the 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 cross-claims 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 of the Participation 

Agreement. If, as a result of any claim subject to the provisions of this Section, (i) there is 

entered against the Company either (x) a final, non-appealable monetary judgment holding the 

Company liable for damages in excess of an amount equal to the Loan Value of the Loans 

relating to or that are the subject of such claim (such Loans, the “Affected Loans”) divided by 

[the Company’s Share as of the Effective Date] (such excess amount, the “Excess Damage 

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

18 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

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 to repurchase the Affected Loans at their respective Repurchase Prices; 

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 of the 

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 of the litigation. 

Section 4.6 Loans in Bankruptcy. In accordance with Bankruptcy Rule 3001(e), 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(e)(2) 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 of the 

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, (1) 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 (regardless of whether such costs and expenses constitute 

Advances). The provisions of this Section are subject to the right of the 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 

19 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

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 of the litigation. 

Section 4.7 Loan Related Insurance. As of the 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 of the 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 of the holder of the Loans with respect to any 

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

the Borrower. 

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

hereby agrees to assume the role of lead lender for any Participated Loan with respect to which 

the Initial Member or any of its 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 3.1 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, if required, 

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. 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 its Servicer) shall provide the Initial Member with all 

information necessary to allow the Initial Member to prepare and send to Borrowers a “goodbye” 

letter meeting the requirements of, and in accordance with, RESPA. The Initial Member shall 

provide a “goodbye” letter to Borrowers meeting the requirements of and in accordance with 

RESPA. The Company (or the Servicer) shall provide a “hello” letter to Borrowers meeting the 

requirements of and in accordance with RESPA. If the Initial Member and the Company (or the 

Servicer) so agree, they may send a joint “hello/goodbye” letter to Borrowers meeting the 

20 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

requirements of and in accordance with RESPA. 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, to such allocation among them of their respective costs), 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 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 letters 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. § l82l(d)(14). However, the Company 

acknowledges and agrees that the assignment of any Loan or Collateral Document pursuant to 

the terms of this 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 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, INITIAL MEMBER 

SHALL BE ENTITLED TO (I) IMMEDIATE AND PERMANENT EQUITABLE RELIEF 

(INCLUDING INJUNCTIVE RELIEF AND SPECIFIC PERFORMANCE OF THE 

PROVISIONS OF THIS AGREEMENT) FROM A COURT OF COMPETENT 

JURISDICTION (IN ADDITION TO ANY OTHER REMEDY TO WHICH IT MAY BE 

ENTITLED AT LAW OR IN EQUITY), AND (II) 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 WAIVES ANY DEFENSE IN ANY SUCH 

ACTION FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF THAT A REMEDY 

AT LAW WOULD BE ADEQUATE AND ANY REQUIREMENT UNDER LAW TO POST 

SECURITY AS A PREREQUISITE TO OBTAINING EQUITABLE RELIEF. 

21 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

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 of this 

Agreement to request any information from any prior servicer. 

Section 4.16 Release of Initial Member. 

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

any Ancillary Document, the Company hereby releases and forever discharges the Initial 

Member, the FDIC, the Seller and the Failed Bank and all of their 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-Off Date) by the Initial Member, the Failed Bank 

or any Person 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 of the Ancillary Documents. 

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

settle or release any Note or Loan or any right of the 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 FDIC, the Initial Member and the Failed Bank 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. The provisions of this Section shall not be applicable with 

respect to Loan modifications effected in accordance with the Guidelines. 

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 of the 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 of their 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 

Initial Member against the Company to enforce its rights hereunder or by any third party), or any 

22 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

third-party allegation or claim based upon facts alleged that, if true, 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 of this 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 of the 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 of the 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 imposed upon the Indemnified Party or any of its 

Affiliates; and (iv) the Company will not, without the prior written consent of the 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 such Indemnified Party 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 if the 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 Party in connection with such defense, 

settlement or compromise): (i) any Third Party Claim that seeks an order, injunction or other 

23 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

equitable relief against the 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 of interest between such parties may exist in 

respect of such 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 of its 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 Party), 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 

of this 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 

representations of any kind or nature as to the sufficiency of funds held in any escrow 

account to discharge any obligations related in any manner to an escrow obligation, as to 

the accuracy of the amount of any monies held in any escrow account or as to the propriety 

of any previous disbursements or payments from any escrow account. 

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Loan Contribution and Assignment Agreement 

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 representations of any kind or nature as to the amount of any additional 

or future disbursements of principal 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 

representations of any kind as to the accuracy of any calculation or adjustment of interest on any 

Loan, including any adjustable rate Loan, whether such calculation or adjustment is made by the 

FDIC, the Failed Bank, the Initial Member or any Affiliate, any agent or contractor of any of the 

foregoing, or any predecessor-in-interest of the Initial Member or any other party. 

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

Initial Member makes no warranties or representations of any kind 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 of limitation, 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 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 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 of this Agreement or any other document or instrument 

delivered or prepared in connection herewith, whether or not prepared and executed in the forms 

provided herewith, all of such forms being provided for reference only. 

Article VI 

Repurchase by the Initial Member at the Company’s Option 

Section 6.1 Repurchases at Company’s Option. The Company may, at its option, 

and upon satisfaction of the procedures and other requirements set forth below, require the Initial 

25 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

Member to purchase a Loan, if, and only if, (x) prior to the Effective Date, one of the events 

described in Section 6.1(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 of the Initial Member or the Failed Bank 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 exceeds the unpaid principal balance of such 

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 PURCHASE 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 ITS 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 of which the Loan may be satisfied, and all guarantors or 

sureties of the 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 

assignees. 

(c) The Initial Member or Failed Bank had executed and delivered to the Borrower a 

release of liability from all obligations under the Note. 

(d) A title defect exists in connection with the property 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 of the Loan (or, in the case of a Participated 

Loan, the Initial Member is not the owner of the pro rata interest in such Participated Loan set 

forth on the attached Schedule of Loans) and such is not curable by the Initial Member so as to 

permit ownership of the Loan to be transferred to the Company. 

(f) There exists Environmental Hazards, in which case the Company’s recourse with 

respect to this Section 6.1(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, 

26 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

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: 

1. 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 of Environmental 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 of the Company 

under penalty of perjury that no action has been taken by or on behalf of the 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 6.1(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 of fraud on the part of the 

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 of the reasons the Company believes that the Loans should 

be purchased by the Initial Member. The notice shall be accompanied by evidence supporting 

the basis for the Initial Member’s purchase 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 purchase 

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 

27 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

of any purchase demand pursuant to Section 6.1(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 of the Order. 

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 perjury by a duly authorized 

representative of the Company, certifying that as of the date of purchase by the Initial Member 

none of the conditions relieving the Initial Member of its 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 of this 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 of the Loan to the Company, the 

Company shall cause to be recorded or filed among such records a similar document or 

instrument evidencing the conveyance of the 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 of the 

Participation Agreement. 

Section 6.4 Waiver of Company’s Repurchase Option. The Initial Member will be 

relieved of its obligation to purchase any Loan for any reason set forth in Section 6.1 if the 

Company: (a) except as permitted by the Guidelines, modifies any of the terms of the 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 of the 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 of foreclosure for any Collateral securing the Loan; (h) causes, by action or 

inaction, the priority of title to the Loan, Mortgaged Property and other security for the Loan to 

be less than that conveyed by the Initial Member; (i) causes, by action or inaction, the security 

for the Loan to be different than that conveyed by the Initial Member, except as may be required 

by the terms of the Collateral Documents; (j) causes, by action or inaction, a claim of third 

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 

28 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

encumber the Loan to arise; (l) is the Borrower or any Affiliate thereof under such Loan; or (m) 

makes any disbursement of principal or otherwise incrementally funds any Loan. 

Article VII 

Notices 

Section 7.1 Notices. All notices, requests, demands and other communications 

required or permitted to be given or delivered under or by reason of the 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 of this 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 of business on the next Business 

Day of the recipient. From time to time, any Person may designate a new address for purposes 

of notice hereunder by notice to such effect to the other Persons identified in this Article VII. 

Section 7.2 Article VI Notice. Any notice, request, demand or other communication 

required or permitted to be given to the Initial Member pursuant to the provisions of Article VI 

shall be delivered to: 

29 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

Initial Member: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami
 

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 Closing: PNMAC Mortgage Co. (FI), LLC 

27001 Agoura Road 

Calabasas, CA 91301 

Attention: Jeff Grogin, Esq. or Don Brewster, Esq. 

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 Closing: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami
 

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 

Company after Closing: PNMAC Mortgage Co. (FI), LLC 

27001 Agoura Road 

Calabasas, CA 91301 

Attention: David M. Walker 

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Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

with a copy to: PNMAC Mortgage Co. (FI), LLC 

27001 Agoura Road 

Calabasas, CA 91301 

Attention: Jeff Grogin or Don Brewster 

Initial Member: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami
 

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 

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 of the remaining provisions of this 

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

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

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

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

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

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

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

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

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

31 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

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 of this Agreement 

may be amended or waived except in writing executed by all of the 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 of the undersigned 

parties and their respective heirs, executors, administrators, representatives, successors and 

permitted assigns, and no other Person or Persons (including Borrowers or any co-lender or other 

Person with any interest in or liability under any of the Loans) shall have any rights or remedies 

under or by reason of this Agreement. Notwithstanding the foregoing, this Agreement may not 

be transferred or assigned without the express prior written consent of the 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 

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 the Initial Member (including in its capacity as Participant) 

and the Company with respect to the subject matter hereof and supersede any and all other prior 

agreements, whether oral or written. In the event of a conflict between the terms of this 

Agreement and the terms of any Transfer Document or other document or instrument executed in 

connection herewith or in connection with the transactions contemplated hereby, including any 

translation into a foreign language of this Agreement for the purposes of any Transfer Document, 

the terms of this 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: 

32 

Loan Contribution and Assignment Agreement 

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(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 of New York, or the U.S. District Court for 

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

Columbia (and appellate courts from any of the foregoing) as the party instituting such suit, 

action or proceeding may in its sole discretion elect, (ii) consents and submits, for itself and its 

property, to the jurisdiction of such courts for the purpose of any such suit, action or proceeding 

instituted against 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 of the foregoing; and 

(d) agrees that 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 Waiver of Jury Trial. EACH OF THE COMPANY, FOR ITSELF AND 

ITS AFFILIATES, AND THE INITIAL MEMBER HEREBY IRREVOCABLY AND 

UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF 

ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES 

THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT 

A JURY. 

Section 8.9 Counterparts; Facsimile Signatures. This Agreement may be executed 

in two (2) or more counterparts, each of which shall be deemed an original but all of which 

together shall constitute but one and the same agreement. This Agreement and any amendments 

hereto, to the extent signed and delivered by facsimile or other electronic means, shall be treated 

in all manner and respects as an original agreement and shall be considered to have the same 

binding legal effect as if it were the original signed version thereof delivered in person. No 

signatory to this Agreement shall raise the use of a facsimile machine or other electronic means 

to deliver a signature or the fact that any signature or agreement was transmitted or 

communicated through the use of a facsimile machine or other electronic means as a defense to 

the formation or enforceability of a contract and each such Person forever waives any such 

defense. 

33 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

Section 8.10 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] 

34 

Loan Contribution and Assignment Agreement 

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

as of the day and year first above wrtten. 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR FIRST 

NATI B ­

Name

Title: Attorney-in-Fact
 

COMPANY: 

FNBN I, LLC 

By: Federal Deposit Insurance Corporation as Nevada, as Sole Receiver fo

Memb B

Name

Title: Attorney-in-Fact
 

35 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION
 
ATTACHMENT “A”
 

to 

Loan Contribution and Assignment Agreement 

LOAN SCHEDULE 

[Attached] 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
ATTACHMENT “B”
 

to 

Loan Contribution and Assignment Agreement 

LOAN VALUE SCHEDULE 

[Attached] 

Loan Contribution and Assignment Agreement 

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 

The undersigned, being first duly sworn, deposes and states as follows: 

Federal Deposit Insurance Corporation as Receiver for First National Bank of Nevada 

(“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 FNBN I, LLC (“Assignee”) of {insert the Company’s 

address}______________ _______________________, ____________________ his/her/its 

successors and assigns, all of the Assignor’s interest in any claim in the bankruptcy case 

commenced by or against {insert Obligor’s name} (“Obligor”) in the {insert 

appropriate U. S. Bankruptcy Court, including the district of the court, such as for the Western 

District of Texas, 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 of the makers of the note exactly as they appear on the note}, dated {insert the date the 

note was made}, and made payable to {insert the name of the 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 December 29, 2008 (the “Agreement”). 

For purposes of Bankruptcy Rule 3001, this assignment and affidavit represent the 

unconditional transfer of the Bankruptcy Claim or such part of the Claim as is based on the 

promissory note or notes 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. 

C-1 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

 

 

 

 

 

 

 

This assignment shall also evidence the unconditional transfer of the 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 , . 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR FIRST NATIONAL BANK OF 

NEVADA 

By: 

Name: 

Title: Attorney-in-Fact 

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 First National Bank of Nevada acting 

in the capacity stated above, and acknowledged to me that s/he executed the same as the act of 

the Federal Deposit Insurance Corporation as Receiver for First National Bank of Nevada, 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: 

C-2 

Loan Contribution and Assignment Agreement 

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 

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 First National Bank of Nevada, whose address is 

________________________________________________________ (“Initial Member”). 

2. That at the time of the preparation of transfer to FNBN I, LLC (the ”Company”), 

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 Initial Member subsequently locates the Instrument, 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). 

D-1 

Loan Contribution and Assignment Agreement 

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 Initial Member dated December 29, 2008. 

6. That pursuant to the terms and conditions of the aforementioned Loan 

Contribution and Assignment Agreement the Instrument (including, without limitation, any and 

all rights Initial Member may have to enforce payment and performance of the Instrument, 

including any rights under Section 3-309 of the Uniform Commercial Code) is hereby assigned 

effective as of the 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 FIRST NATIONAL BANK OF 

NEVADA 

By: 

Name: 

Title: Attorney-in-Fact 

Signed and sworn to before me this day of , . 

Notary Public 

[SEAL] My Commission expires: 

D-2 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

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 First National Bank of Nevada acting 

in the capacity stated above, and acknowledged to me that s/he executed the same as the act of 

the Federal Deposit Insurance Corporation as Receiver for First National Bank of Nevada, 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 ___________________, 

20___. 

Notary Public 

[SEAL] My Commission expires: 

D-3 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

 

 

ATTACHMENT “E”
 

to 

Loan Contribution and Assignment Agreement 

(Note to Preparer: When preparing the actual Limited Power of Attorney, delete this instruction 

and the reference to Attachment E above.) 

LIMITED POWER OF ATTORNEY 

(___________________________) 

KNOW ALL PERSONS BY THESE PRESENTS, that the FEDERAL DEPOSIT 

INSURANCE CORPORATION AS RECEIVER FOR FIRST NATIONAL BANK OF 

NEVADA, 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. 

NOW THEREFORE, the Receiver grants to the above-named Attorney(s)-in-Fact the 

authority, subject to the limitations herein, as follows: 

1. To execute, acknowledge, seal and deliver on behalf of the Federal Deposit 

Insurance Corporation as Receiver for First National Bank of Nevada all instruments of transfer 

and conveyance, appropriately completed, with all ordinary or necessary endorsements, 

acknowledgments, affidavits and supporting documents as may be necessary or appropriate to 

evidence the sale and transfer of any asset contained in the Stated Bid Sale enumerated above. 

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 FIRST 

NATIONAL BANK OF NEVADA 

By: 
 

Name: 
 

Title:__________________________ 

E-1 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

 

 

 

 

 

 

 

 

 

 

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 

Receiver.” 

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 

of Attorney 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 of Attorney shall be effective from and 

shall continue in full force and effect through ___________________________________, unless 

otherwise terminated by an official of the Receiver or its successors and assigns authorized to do 

so (“Revocation”). At such time this Limited Power of Attorney will be automatically revoked. 

Any third party may rely upon this document as the named individual(s)’ authority to continue to 

exercise the powers herein granted unless a Revocation has been recorded in the public records 

of the jurisdiction where this Limited Power of Attorney has been recorded, or unless a third 

party has received actual notice of a Revocation. 

IN WITNESS WHEREOF, the Federal Deposit Insurance Corporation as Receiver for 

First National Bank of Nevada by its duly authorized officer has caused these presents to be 

executed and subscribed in its name this day of , 2008. 

FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECEIVER FOR FIRST NATIONAL BANK OF NEVADA 

By: 
 

Name: 
 

Title: 

(CORPORATE SEAL) ATTEST: 

Name: 

Title: 

Signed, sealed and delivered 

in the presence of 

By: 

Name:

 Witness 

By: 

Name:

 Witness 

E-2 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION 
 

 

ACKNOWLEDGMENT 

STATE OF _______ § 

§ 

COUNTY OF ______ § 

On this day of ________________, 200__, before me, a Notary Public in and for 

the county and state aforesaid appeared __________________________, to me personally 

known, who, being by me first duly sworn did depose that s/he is Attorney-in-Fact of the Federal 

Deposit Insurance Corporation as Receiver for First National Bank of Nevada (the 

“Corporation”), 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 Corporation by due authority of the Corporation, and the said Attorney-in-Fact 

acknowledged the said Limited Power of Attorney to be the free act and deed of said 

Corporation. 

Notary Public 

My Commission Expires: 

E-3 

Loan Contribution and Assignment Agreement 

EXECUTION VERSION