"'est CRE Venture 2010-2 

ASSET CONTRIBUTION AND SALE AGREEMENT 


BY AND BETWEEN 


THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER 


FOR VARIOUS FAILED FINANCIAL INSTITUTIONS 


LISTED ON SCHEDULE I HERETO 


AND 


'VEST CRE VENTURE 2010-2, LLC 


Dated as ofDecember 14,2010 


West CRE Venture 2010-2 

Asset Contribution md Sale Agreement 

EXECUTION VERSION 
TABLE OF CONTENTS 


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


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


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


Article II Contribution and Sale of Assets................................................................................. 6 


Section 2.1 
 Terms and Conditions........................................................................ 6 


............................................... 7 


................................................... 7 


........................................................................................ 8 


......................................................................... 9 


.............................................................................. 9 


................................................................................. 9 


................................................................................. 10 


.......................................... 10 


Section 2.2 
 Liabilities Assumed by the Company 

Section 2.3 
 Allocation of Payments; Advances 

Section 2.4 
 Adjustments 

Section 2.5 
 Rebates and Refunds 

Section 2.6 
 Interest Conveyed 

Section 2.7 
 Retained Claims 

Section 2.8 
 Transfer Taxes 

Section 2.9 
 Assets Subject to Existing Agreements 

Article III Transfer of Assets, Collateral Documents and Interim Servicing •..................... 10 


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


Section 3.2 Recordation of Documents.............................................................. I 4 


Section 3.3 Transfer of Servicing....................................................................... I 4 


Section 3.4 Grant of Power of Attorney by Company ..................................... I 7 


Article IV Covenants, Duties and Obligations of the Company............................................ 17 


Section 4.1 
 Servicing of Assets............................................................................ I 7 


......................... I 8 


........................................................ 18 


Section 4.4 


........................................................................... I 8 


....................................................................... 22 


.................................................................. 23 


.......................................................... 23 


............... 23 


........................................................................... 23 


........................................................................... 23 


Section 4.2 
 Collection Agency/Contingency Fee Agreements 

Section 4.3 
 Insured or Guaranteed Assets 

Section 4.5 
 Assets in Litigation 

Section 4.6 
 Assets in Bankruptcy 

Section 4.7 
 Asset Related Insurance 

Section 4.8 
 Loans with Escrow Accounts 

Section 4.9 
 Initial Member as Lead Lender in Loan Participations 

Section 4.10 
 Contracts for Deed 

Section 4.11 
 Acquired Property 

Reporting to or for the Applicable Taxing Authorities ................ I8 


West CRE Venture 2010-2 


Asset Contribution llld Sale Agreetnent 


EXECUTION VERSION 

Section 4.12 
 Leases ................................................................................................ 24 


......................................................................... 24 


............................................................................... 24 


Section 4.13 
 Notice to Borro''\'ers 

Section 4.14 
 Notice of Claims 

Section 4.15 


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


Section 4.17 
 Release of Initial Member, FDIC and Failed Banks ..................... 25


Use of the FDIC's Name and Reservation of Statutory 


Po,vers ............................................................................................... 24 


Article V Assets Sold "As Is" and 'Vithout Recourse.................................•..••....................... 25 


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


Section 5.2 


Section 5.3 


Section 5.4 


Section 5.5 


.............................................. 26 


.................... 27 


Section 5.8 


Section 5.6 
 Intervening or Missing Assignments 

Section 5.7 
 No 'Varranties or Representations as to Documents 

No 'Varranties or Representations with Respect to Escrow 


Accounts ............................................................................................ 26 


No 'Varranties or Representations as to Amounts of 


Disclaimer Regarding Calculation or Adjustment of 


No Warranties or Representations With Regard to 


No Warranties or Representations as to Real Estate Taxes 


Unfunded Principal.......................................................................... 26 


Interest on any Loan ........................................................................ 26 


Information ....................................................................................... 26 


or Other Potential Liens Affecting Collateral ............................... 27 


Article VI Repurchase by the Initial Member at the Company's Optioll •...•.................•..... 27 


Section 6.1 Repurchases at Company's Option ................................................ 27 


Section 6.2 Notice to Initial Member ................................................................. 29 


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


Section 6.4 'Vaiver of Company's Repurchase Option .................................... 30 


Article VII Notices ..................................................................................................................... 31 


Section 7.1 
 Notices ............................................................................................... 31 


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


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


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


Section 7.2 
 Article VI Notice 

Section 7.3 
 Transfer Documents 

Section 7.4 
 All Other Notices 

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West CRE Venture 2010-2 


Asset Contribution md Sale Agreement 


EXECUTION VERSION 

Article \TJJI J\1isce1Janeous Provisions .......................................................•............................. 33 


Section 8.1 
 Severability ....................................................................................... 33 


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


.................................................................. 34 


......................................... 34 


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


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


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


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


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


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


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


........................................................ 38 


Section 8.2 
 Governing Law 

Section 8.3 
 Cost, Fees and Expenses 

Section 8.4 
 \Vaivers; Amendment and Assignment 

Section 8.5 
 No Presumption 

Section 8.6 
 Entire Agreement 

Section 8.7 
 Jurisdiction; Venue and Service 

Section 8.8 
 Waiver of Jury Trial 

Section 8.9 
 Counterparts; Facsimile Signatures 

Section 8.10 
 Headings 

Section 8.11 
 Compliance \Vith Law 

Section 8.12 
 Right to Specific Performance 

Attachments and Schedule 

Attachment A 
 Asset Schedule .................................................................................. A-1 


........................................................................B-1 


...................................................C-1 


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


....................................... E-1 


................................................ F-1 


.......................................... F-2 


.............................. G-1 


............................................................... H-1 


.............. I-1 


Attachment B 
 Asset Value Schedule 

Attachment C 
 Affidavit and Assignment ofClaim 

Attachment D 
 A11onge 

Attachment E 
 Assignment and Lost Instrument Affidavit. 

Attachment F-1 
 Assignment ofReal Estate Mortgage 

Attachment F-2 
 Assignment ofReal Estate Deed ofTrust 

Attachment G 
 Assignment ofAssignment of Leases and Rents 

Attachment H 
 Limited Power ofAttorney 

Attachment I 
 Assignment and Acceptance ofLimited Liability Company 

Schedule I 

Schedule 2 

List ofVarious Failed Financial Institutions ................................... S1-1 


List of Purchase Money Notes ......................................................... S2-1 


111 


Asset Contribution <nd Sale Agreement 


EXECUTION VERSION 


West CRE Venture 2010-2 

ASSET CONTRIBUTION AND SALE AGREEMENT 

THJS ASSET CONTRIBUTION AND SALE AGREEMENT (as the same sha11 be 

amended or supplemented, this "Agreement") is made and entered into as ofthe 14th day of 

December, 2010 (the "Closing Date"), by and between THE FEDERAL DEPOSIT 

INSURANCE CORPORATION (acting in any capacity, the "FDIC") AS RECENER FOR 

V ARJOUS FAILED FINANCIAL INSTITUTIONS LISTED ON SCHEDULE I HERETO 

(inc1uding its successors and assigns thereto, the "Initial Member"), and WEST CRE 

VENTURE 2010-2, LLC, a Delaware limited liability company (the "Company"). Capitalized 

terms used in this Agreement sha11 have the meanings assigned to them in, or by reference in, 

that certain West CRE 2010-2 Structured Transaction- Agreement of Common Definitions, 

dated as ofthe Closing Date, among the Initial Member, the Debtor and others, with respect to 

the Transaction (the "Agreement of Common Definitions"). 

RECITALS 

WHEREAS the FDIC separately has been appointed as Receiver for the Failed Banks; 


and 


WHEREAS the Initial Member owns the Assets described on the Asset Schedule 

attached hereto as Attachment A to this Agreement; and 

WHEREAS the Initial Member has determined to liquidate the Assets; and 

WHEREAS the Initial Member has formed the Company and holds all of the LLC 

Interest in the Company; and 

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

capita] contribution and partly as a sale, in the manner and on the terms and conditions more 

ful1y set forth herein; and 

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

transfer of the Assets to the Company to the extent such transfer constitutes a sale, the Company 

wi11 issue, execute and deliver to the Initial Member two dasses ofPurchase Money Notes with 

the maturity dates and in the principal amounts set forth on Schedule 2, which Purchase Money 

Notes may be guaranteed by the FDIC pursuant to that certain Guaranty Agreement upon 

election by the Initial Member as the Noteholder; and 

J 

WHEREAS the Company wi11 be obligated to reimburse the FDIC for any guaranty 

payments made pursuant to the Guaranty Agreement, and such reimbursement obligation wil1 be 

secured by the Assets of the Company, a11 pursuant to the Reimbursement, Security and 

Guaranty Agreement and the Co1latera1 Documents; and 

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

has agreed to se11 and transfer the Transferred LLC Interest to the Private Owner for the 

Transferred LLC Interest Sale Price; and 

West CRE Venture 2010-2 

Asset Contribution a1d Sale Agreetnent 

EXECUTION VERSION 
WHEREAS the Transferred LLC Interest Sale Price has been a11ocated among the Assets 

by the Private Owner and such Asset Value is set forth on the Asset Value Schedule attached to 

this Agreement as Attachment B; and 

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

relating to the contribution and sale ofthe Assets to the Company and certain other matters as set 

forth in this Agreement; · 

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


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


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


agree as fo11ows: 


Article I 


Definitions and Construction 


Section 1.1 Definitions. Certain terms used in this Agreement sha11 have the 

meanings and definitions set forth in that certain Agreement ofCommon Definitions of even date 

herewith among the parties to this Agreement, among others. In addition, for purposes ofthis 

Agreement, the fo11owing terms sha11 have the meanings set forth below. 

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


schedules, and Joan servicing system records ofthe Initial Member. 


"Action" means any daim, action, suit, arbitration or proceeding, whether at Law or in 

equity, before or by a Governmental Authority. 

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

adjusted higher or lower, as appropriate, to reflect the actual balance ofthe Escrow Account as 

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

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

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

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

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

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

if any, expired on or before the Cut-Off Date or (iv) the portion of any Dishonored Check that 

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

"Adjusted Unpaid Principal Balance" means, with respect to any Asset, the Cut-Off 

Date Unpaid Principal Balance adjusted higher or lower, as appropriate, to reflect the actual 

Unpaid Principal Balance ofthe Asset as ofthe Cut-OffDate on the Accounting Records and to 

correct errors reflected in the Cut-OffDate Unpaid Principal Balance due to (i) miscalculations, 

misapplied payments, unapplied payments, unrecorded advances of principal or other . 

disbursements, or other accounting errors with respect to the period ending on the Cut-OffDate, 

(ii) the effect of any final court decree, unappealable regulatory enforcement order or other 

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

foreclosure sale that occurred on or before the Cut-OffDate for which the Redemption Period, if 

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West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
any, expired on or before the Cut-Off Date or (iv) the portion of any Dishonored Check that was 

applied to (and reflected in) the Cut-OffDate Unpaid Principal Balance. 

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

decimal) ofthe Asset Value for such Asset divided by the Cut-Off Date Unpaid Principal 

Balance of such Asset. 

"Affected Asset" has the meaning given that tenn in Section 4.5(d)(i). 

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

the form ofAttachment C to this Agreement. 

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

includes all exhibits, schedules and attachments to this Agreement. 

"Asset Value Schedule" has the meaning given that term in the recitals. 

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

Instrument Affidavit in the form of Attachment E to this Agreement. 

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

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

"Cut-Off Date Unpaid Principal Balance" means, with respect to any Asset, the 

estimate ofthe Unpaid Principal Balance ofthe Asset as of the Cut-Off Date as stated on the 

Asset Schedule. 

"Deficiency Judgment Claim" shall mean any claim, right or demand in or to any 

deficiency judgment, or any similar claim, right, demand or any other recourse arising from, or 

in connection with, any Loan that is or was se_cured by any Acquired REO Property that became 

Acquired Property prior to the Closing Date, such Acquired REO Property being identified as · 

"REO" in the "Asset/REO" column ofthe Asset Schedule attached as Exhibit A to this 

Agreement, whether the title to such properties was acquired by foreclosure, by deed in lieu of 

foreclosure, by power of sale or by sale pursuant to the Uniform Commercial Code, and whether 

such claim, right, demand or other recourse is to or against the borrower or a guarantor with 

respect to such Asset. 

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

to insufficient funds or a stop payment order. 

"Equity Asset Value" means, respect to any Asset, the product of the Asset Value of 

such Asset multiplied by 2.5. 

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

in the Escrow Account with respect to that Asset, as reflected on the Asset Schedule. 

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

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West CRE Venture 20 I 0-2 

Asset Contribution <11d Sale Agreement 

EXECUTION VERSION 
"Excess Principal" has the meaning given that term in Section 2.4(c): 

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


subdivision of or in such other jurisdiction. 


"Foreign Asset" means an Asset with respect to which the Borrower or any of the 


Collateral is located in any Foreign Jurisdiction. 


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


Attachment H to this Agreement. 


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

an Asset and arising or due or payable after the Cut-Off Date pursuant to and in accordance with 

any of the related Notes, Collateral Documents, Asset Documents or Related Agreements. 

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

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

"Purchase Money Notes Asset Value" means, with respect to any Asset, the (i) product 

of (A) the aggregate original principal amount ofthe Purchase Money Notes and (B) the quotient 

(expressed as a decimal) ofthe Asset Value of such Asset divided by the Transferred LLC 

Interest Sale Price minus (ii) the result when the Unpaid Principal Balance ofthe Asset as ofthe 

date ofrepurchase is subtracted from the Adjusted Unpaid Principal Balance of the Asset (which 

result might be a negative number). 

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

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

the Equity Asset Value ofsuch Asset plus the Purchase Money Notes Asset Value of such Asset 

plus (ii) unreimbursed Servicing Expenses that have been advanced by the Company with 

respect to such Asset (excluding any expenses described in Section 12.7(b) ofthe LLC Operating 

Agreement) as ofthe date of the repurchase minus (iii) the amount of any positive Escrow 

Balance with respect to such. Asset as ofthe date of the repurchase that is not transferred to the 

Initial Member at the time of the repurchase. 

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

Lost Instrument Affidavits (if applicable), Mortgage Assignments, deeds, assignment ofleases, 

assignments ofOwnership Entity interests and other documents of assignment, conveyance or 

transfer required pursuant to any applicable Law to evidence the transfer to the Company ofthe 

Assets, the Collateral and the Collateral Documents and the Initial Member's rights with respect 

to the Assets and the Collateral. The form Allonge to be used in preparation ofthe Transfer 

Documents is attached to this Agreement as Attachment E, the form ofAssignment and Lost 

Instrument Affidavit to be used in preparation ofthe Transfer Documents is attached to this 

Agreement as Attachment F, the forms of Assignment of Real Estate Mortgage and Assignment 

of Real Estate Deed of Trust to be used in the preparation of the Transfer Documents are 

attached to this Agreement as Attachments G-1 and G-2, respectively, the form ofthe 

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West CRE Venture 2010-2 

Asset Contribution !lld Sale Agreement 

EXECUTION VERSION 
Assignment of Assignment of Leases and Rents and Other Loan Documents to be used in the 

preparation ofthe Transfer Documents is attached to this Agreement as Attachment Hand the 

form ofthe Assignment and Acceptance of Limited Liability Company Interest to be used in the 

preparation ofthe Transfer Documents is attached to this Agreement as Attachment I. 

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

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

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

required to be paid to any Taxing authority with respect to the transfer ofthe Assets, the 

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

assumption ofthe Obligations thereunder. 

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

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

accordance with the following: 

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

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

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

specified 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 have the meanings assigned to them by GAAP applied 

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

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

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

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

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

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

given time. 

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

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

provision ofthis Agreement. · 

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

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

they are in fact followed by such words. 

5 

West CRE Venture 2010·2 

Asset Contribution ll!d Sale Agreement 

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


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


such period. 


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

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

to include the personal pronoun ofthe appropriate gender. 

Article 11 


Contribution and Sale of Assets 


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

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

recourse, as of the Closing Date by way of a sale to the extent ofthe initial aggregate principal 

amount of the Purchase Money Notes and otherwise as a capital contribution, all right, title and 

interest ofthe Initial Member in and to: 

(a) the Assets (including all Receiver Acquired Property, equity and other 

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

other Asset Documents and Related Agreements), including all future advances made with 

respect thereto, effective as ofthe Closing Date, and all rights in the Collateral pursuant to the 

Collateral Documents; 

(b) all amounts payable to the Initial Member pursuant to the Asset 

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

Asset Documents after the Closing Date; 

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

whether known or unknown, against a Borrower or any Obligor or any of their respective 

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

connection with the Assets or the Asset Documents or that is in any way based on or related to 

any ofthe foregoing, including contract claims, tort claims, malpractice claims, statutory claims 

and all other claims at Law or in equity arising under or in connection with the Asset Docunients 

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

claims, suits, causes or action and other rights retained by the Initial Member pursuant to Section 

2.7; 

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

account ofthe Initial Member under the Assets after the Closing Date, including all distributions 

received through redemption, consummation of a plan ofreorganization, restructuring, 

liquidation or otherwise of a Borrower or Obligor under or with respect to the Assets, and any 

securities, interest, dividends or other property that may be distributed or collected with respect 

to any ofthe foregoing; and 

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

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

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West CRE Venture 2010-2 

Asset Contribution 3ld Sale Agreement 

EXECUTION VERSION 
For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, 

the Initial Member does not convey, nor does the Company acquire, any right; title and interest 

the Initial Member, the Receiver or any predecessors-in-interest thereto may have with respect to 

any Deficiency Judgment Claim pursuant to the Agreement. 

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

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

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

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

of the Assets in part by capital contribution and in part by sale. Notwithstanding anything to the 

contrary in this Agreement, however, it is understood and agreed that, except for the Obligations, 

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

following liabilities (the "Excluded Liabilities"): 

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


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


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


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


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

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

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

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

1822; 12 U.S.C. § 1823; or 12 U.S.C. § 1825. 

Section 2.3 Allocation of Payments; Advances. 

(a). All payments and other amounts received on account of any of the Assets 

or Collateral on or before the Cut-Off Date shall be retained by and shall belong to the Initial 

Member. Any and all Asset Proceeds received at any time after the Cut-OffDate shall be 

allocated and distributed to and shall belong to the Company. 

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

each Servicing Transfer Date for Interim Servicing Expenses and Pre-Approved Charges that an 

Existing Servicer pays after the Cut-Off Date through the Servicing Transfer Date out of its own 

funds (rather than withdrawing such funds from the Collection Account or the Working Capital 

Reserve Account or otherwise using Asset Proceeds to pay for the respective Interim Servicing 

Expenses or Pre-Approved Charges). Any such amounts for Interim Servicing Expenses or PreApproved Charges paid after the Cut-Off Date through the Servicing Transfer Date owed to but 

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

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

(c) The Initial Member shall be responsible for reimbursing each third-party 

Existing Servicer for any payments made by such third-party Existing Servicer to fund Interim 

Servicing Expenses or Pre-Approved Charges with respect to an Asset, as well as for any 

advances ofprincipal or interest or any other advances with respect to an Asset made by such 

third-party Existing Servicer. The Initial Member also shall be responsible for paying any fee 

7 

West CRE Venture 2010·2 

Asset Contribution md Sale Agreement 

EXECUTION VERSION 
owing to an Existing Servicer in connection with the termination of any servicing agreement 

with such Existing Servicer. 

Section 2.4 Adjustments. 

(a) The Private Owner shall, and sha11 cause the Servicer to, cooperate with 

the Initial Member in reconci1ing the amounts of advances made with respect to each Asset prior 

to the Servicing Transfer Date for such Asset to fund Interim Servicing Expenses, Pre-Approved 

Charges or otherwise. As soon as practicable after the respective Servicing Transfer Date, the 

Initial Member shall provide the Company with a statement setting forth, for each Asset that is 

the subject of such Servicing Transfer Date, the amount of all advances made with respect to 

such Asset prior to the Servicing Transfer Date for such Asset and the amount of any 

reimbursement of advances that the Initia1 Member has received from the respective Borrower or 

other Obligor. 

(b) As soon as practicable after each respective Servicing Transfer Date, the 

Initial Member sha11 provide the Company with a statement setting forth, for each Asset that is 

the subject of such Servicing Transfer Date, the Adjusted Unpaid Principal Balance, Adjusted 

Escrow Balance and the Unpaid Principal Ba1ance as ofthe Servicing Transfer Date. Each such 

statement shall be accompanied by an explanation ofthe reasons for any adjustment to any CutOff Date Unpaid Principal Balance or Escrow Balance. 

(<:) If the Adjusted Unpaid.Principa] Balance of any Asset exceeds the CutOff Date Unpaid Principal Balance of such Asset (such excess, the "Excess Principal"), the 

Private Owner sha11 be liable to the Initial Member for an amount equal to the Adjustment 

Percentage multiplied by the Excess PrincipaL If the Cut-Off Date Unpaid Principal Balance of 

any Asset exceeds the Adjusted Unpaid Principal Balance of any Asset (such deficiency, the 

"Principal Deficiency"), the Initial Member shaH be liable to the Private Owner for an amount 

equal to the Adjustment Percentage multiplied by the Principal Deficiency. No adjustment wil1 

be made for any miscalculation ofinterest on any Asset. 

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

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

the amount of any Interim Servicing Expenses or Pre-Approved Charges due to the Initial 

Member) shall be subtracted from the aggregate amount owed to the Private Owner by the Initial 

Member pursuant to Section 2.4(c). If the resulting amount is a positive number, the Initial 

Member shall pay such amount to the Private Owner, and ifthe resulting amount is a negative 

number, the Private Owner shaH pay the absolute value of such amount to the Initial Member. In 

addition, an amount equal to the positive balance of any Escrow Accounts with respect to the 

relevant Group ofAssets as of each Servicing Transfer Date shall be remitted to the Servicer 

(and shaH not be considered to constitute Asset Proceeds under the LLC Operating Agreement or 

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

Member pursuant to this Section with respect to a given Asset shaH be paid on the respective 

Servicing Transfer Date. The Company shall adjust its records to reflect the Adjusted Unpaid 

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

respect to the Assets. 

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West CRE Venture 2010-2 

Asset Contribution md Sale Agreement 

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

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

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

Member nor the Failed Banks wi11 refund any unearned discount amounts to the Company. 

Section 2.6 Interest Conveyed. In the event a foreclosure occurs after the Cut-Off 

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

before the Cut-Off Date, the Initial Member sha11 convey to the Company the Deficiency 

Balance, if any, and any related Underlying Loan, together with the net proceeds, if any, of such 

forec1osure sale. If the Initial Member was the purchaser at such forec1osure sale, the Initial 

Member sha11 convey to the Company the Deficiency Balance, if any, and any related 

Underlying Loan, together with a special warranty deed to the Receiver Acquired Property 

purchased at such forec1osure sale (unless the Receiver Acquired Property was purchased by an 

Ownership Entity, in which case the Initial Member sha11 convey to the Company all equity 

interests in such Ownership Entity). The Company acknowledges and agrees that the Company 

sha11 not acquire any interest in or to (a) any such Co11atera1 that was foreclosed by the Initial 

Member or any ofits predecessors-in-interest on or before the Cut-Off Date and fot which the 

Redemption Period, if any, had expired on or before the Cut-OffDate and (b) any performance 

or completion bond or Jetter of credit or other assurance filed with any Governmental Authority 

with respect to any Asset forthe purpose of ensuring that improvements constructed or to be 

constructed are completed in accordance with any governmental regulations or building 

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

performance or completion bond or Jetter ofcredit or other assurance constitutes a promise or 

obligation of the Initial Member or any Failed Bank to make any payment or otherwise provide 

any performance or satisfaction. For the avoidance of doubt, notwithstanding anything to the 

contrary in this Agreement, the Company and the Initial Member agree that the contribution and 

sale ofthe Assets pursuant to this Agreement will exdude the transfer to the Company of all 

right, title and interest the Initial Member, the Receiver or any predecessors-in-interest thereto 

may have with respeCt to any Deficiency Judgment Claim. 

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

Agreement, the Company and the lnit1al Member agree that the contribution and sale ofthe 

Assets pursuant to this Agreement will exclude the transfer to the Company of any right, title and 

interest of the Initial Member, any Failed Bank and any predecessors-in-interest thereto in and to 

any and a11 claims of any nature whatsoever that now might exist or hereafter might arise, 

whether known or unknown, that the Initial Member, any Failed Bank or predecessors-in-interest. 

thereto have or had or that any might have or might have had, regardless of when any such claim 

is discovered, against any of the fo11owing: (a) officers, directors, employees, insiders, 

accountants, attorneys, other Persons employed by the Initial Member, any Failed Bank or any of 

its predecessors-in-interest, underwriters or any other similar Persons who might have caused a 

Joss to the Initial Member, any Failed Bank or'any ofits predecessors-in-interest in connection 

with the initiation, origination, servicing or administration of an Asset; (b) any appraisers, 

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

securities dealers or other professional individuals or Persons who performed services for the 

Initial Member, any Failed Bank or any of its predecessors-in-interest relative to the initiation, 

origination, servicing or administration of an Asset; (c) any third parties for aiJeged fraud, 

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West CRE Venture 2010-2 

Asset Contnoution a1d Sale Agreement 

EXECUTION VERSION 
misrepresentation or other misconduct in connection with the initiation, origination or servicing 

of an Asset; or (d) any appraiser or other Person with whom the Initial Member, any Failed Bank 

or any oftheir predecessors-in-interest or any servicing agent contracted for services or title 

insurance or closing protection coverage in connection with the initiation, origination, insuring or 

servicing of a Asset; provided, however, that claims under and pursuant to a title insurance 

policy shall not constitute excluded or retained claims pursuant to this Section 2;7. 

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

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

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

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

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

required to be filed with respect to such Transfer Taxes required to complete the conveyance of 

any mortgage under Section 2.1. Taxes paid by the Company pursuant to this Section shall 

constitute Pre-Approved Charges for purposes ofthe Custodial and Paying Agency Agreement. 

Section 2.9 Assets Subject to Existing Agreements. Notwithstanding any provision 

ofthis Agreement to the contrary, and as contemplated by the Company's assumption ofthe 

Obligations pursuant to Section 2.2, the Company acknowledges and agrees that each Asset is · 

conveyed, contributed and sold to the Company subject to any and all contracts and agreements 

to which the Initial Member or any predecessor-in-interest is a party with respect to such Asset, 

as ofthe Closing Date, including any settlement agreements, restructuring agreements or sale 

and purchase agreements, all ofwhich contracts and agreements the Company hereby assumes 

and agrees as ofthe Closing Date to perform. 

Article III 


Transfer of Assets, Collateral Documents and Interim Sen,icing 


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

execute and deliver to one another the following: · · 

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

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

· (b) Subject to the provisions ofthe LLC Operating Agreement, at the expense 

ofthe Company, the Initial Member shall deliver the Notes, other Custodial Documents and 

Collateral Documents for each Asset to the Custodian as soon as is practicable after the Closing 

Date and shall deliver the Asset Files for such Asset to either the Company or the Servicer (as 

directed by the Company), in either case on or within a reasonable period oftime after the 

Servicing Transfer Date with respect to such Asset. 

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

securing the Assets that are registered on the MERS System (collectively, 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 with respect to the applicable Assets. To the extent the cost oftransferring the MERS. 

Registered Mortgages is a cost imposed by MERS on the transferor of an Asset, that cost shall be 

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West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
borne by the Initial Member. Otherwise, the costs imposed by MERS with respect to the transfer 

of the MERS Registered Mortgages sha11 be borne by the Company and a11 such costs shaH 

constitute Pre-Approved Charges for purposes ofthe Custodial and Paying Agency Agreement, 

provided. however, that any such expenses with respect to MERS Registered Mortgages as to 

which the Company has not initiated the transfer on the MERS System (in cooperation with the 

applicable Existing Servicer during the period prior to the applicable Servicing Transfer Date) 

within six months ofthe Closing Date shaH not constitute Pre-Approved Charges for purposes of 

the Custodia] and Paying Agency Agreement and such charges sha11 be borne by the Private 

Owner alone. The Company shaH provide a report to the Initial Member and the Purchase 

Money Notes Guarantor on the progress and status ofthe transfers on the MERS System ofthe· 

MERS Registered Mortgages on the first day ofthe seventh month foHowing the Closing Date 

a1;1d again on the first anniversary ofthe Closing Date. 

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

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

ofthe LLC Operating Agreement) shal1 have the right to elect to remove any MERS Registered 

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

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

Existing Servicer ofits decision to remove such MERS Registered Mortgage from the MERS® 

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

Mortgage and (B) must satisfy al1 applicable requirements ofthe LLC Operating Agreement with 

respect to the removal of such MERS Registered Mortgage from the MERS® System (induding 

specifica11y the requirements of Section 12.3(g) ofthe LLC Operating Agreement). Ifthe 

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

such MERS Registered Mortgage from the MERS® System at least two (2) weeks prior to the 

Servicing Transfer Date for such MERS Registered Mortgage, then such MERS Registered 

Mortgage must be transferred on the MERS® System in accordance with Section 3.l(c)(i) above. 

(iii) Further notwithstanding any provision of this Agreement to the 

contrary, the Company (acting by and through the Manager in accordance with the applicable 

provisions ofthe LLC Operating Agreement) shal1 have the right to elect to remove any MERS 

Registered Mortgage from the MERS® System after the Servicing Transfer Date for such MERS 

Registered Mortgage and after such MERS Registered Mortgage has. been transferred on the · 

MERS® System, in which event the Company must satisfy al1 applicable requirements ofthe 

LLC Operating Agreement with respect to the removal of such MERS Registered Mortgage from 

the MERS® System (induding specifica11y the requirements of Section 12.3(g) ofthe LLC 

Operating Agreement). 

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

Transfer Documents on the Closing Date, (A) the Company wil1 prepare on behalfofthe Initial 

Member, within the period specified in Section 3.1 (d)( iii), al1 such Transfer Documents not 

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

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

Attorney to selected representatives ofthe Company for the purpose of executing on behalfof 

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

3.1 ( d)(i)(A). The Limited Power ofAttorney wi11 be in the form attached to this Agreement as 

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Attachment H. Reasonable and customary expenses paid to third parties actua11y incurred by the 

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

obligations set forth above shall constitute Pre-Approved Charges for purposes of the Custodial 

and Paying Agency Agreement; provided, however, that any such expenses with respect to a 

Transfer Document that is not properly prepared and submitted for recordation or filing within 

six (6) months ofthe Closing Date (as such time period may be extended pursuant to the 

immediately fo11owing sentence) sha11 not constitute Pre-Approved Charges for purposes ofthe 

Custodial and Paying Agency Agreement and sha11 be borne by the Private Owner alone. Such 

six~month period for the preparation and submission of a Transfer Document for recordation 

sha11 be extended ifthe delay is due to a matter noted as an "Exception" on the "Co11ateral 

Certificate" (as such terms are defined in the Custodial and Paying Agency Agreement), 

provided that the Private Owner is working diligently to locate the missing information or 

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

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

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

subject to the limitations set forth herein, and the Company sha11 be solely responsible for the 

preparation, contents and form ofsuch documents. The Company hereby releases the Initial 

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

documents prepared by the Companypursuantto this Section 3.1 (d) (the form ofwhich was not 

provided by the Initial Member as an attachment hereto) and the Private Owner shall indemnify, 

defend and hold harmless the Initial Member from and agairist any claim, action or cause of 

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

Transfer Document (the form ofwhich was not provided by the Initial Member as an attachment 

hereto), including any claim relating to the adequacy or inadequacy of any such document or 

instrument for the purposes thereof, and the use (or purported use) by the Company of the 

Limited Power ofAttorney in any way not expressly permitted by its terms. 

(ii) The Company sha11 use the forms set forth in Attachment D to 

Attachment G, inclusive, in preparing the Transfer Documents. A11 documents of assignment, 

conveyance or transfer (not including special warranty deeds to the Receiver Acquired Property, 

which sha11 contain the special warranty included therein but no other warranties or 

representations, but including a]) other Transfer Documents) shall contain the fo11owing 

sentence: ·"This assignment is made without recourse, and without representation or warranty, 

express or implied, or by operation ofLaw of any kind and nature whatsoever by the Federal 

Deposit Insurance Corporation in its corporate capacity or as Receiver for [Insert Name of 

appropriate Failed Bank.]" 

(iii) The Company wi11 complete all Transfer Documents, and record or 

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

the Closing Date but in any event within six (6) months after the Closing, except if the delay is 

due to a matter noted as an "Exception" on the "Co11ateral Certificate" (as such terms are defined 

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

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

appropriate to complete and submit the relevant documentation. The Company sha]) provide a 

report to the Initial Member and the Purchase Money Notes Guarantor on the progress and status 

ofthe preparation, execution, recording and/or filing and delivery ofthe original documents to 

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Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
the Custodiim as required by this Agreement promptly fo11owing a request therefor from the 

Initial Member and in any event upon the first day ofthe seventh (7th) month fo11owing the 

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

(e) As to Foreign Assets, the Company, at its own expense, must retain 

counsel licensed in the Foreign Jurisdictions involved with the Foreign Assets. Such foreign 

counsel must draft the documents necessary to assign the Foreign Assets to the Company. 

Reasonable and customary ~xpenses paid to third parties and actua11y incurred by the Company 

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

obligations set forth in the preceding sentence sha11 constitute Pre-Approved Charges for 

purposes of this Agreement. Documents presented to the Initial Member to assign Foreign 

Assets 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 ofthe Foreign Jurisdiction. Each such document and instrument sha11 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 sha11 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 sha11 not be 

fluently bilingual, by the translator thereof. 

· (f) Nothing contained herein or elsewhere in this Agreement sha11 require the 

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

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

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

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

related servicing rights, if any, or the assumption by the Company of the Obligations. 

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

by applicable Law or necessary to effectively transfer and assign a11 ofthe Initial Member's· 

right, title and interest in and to any and a11 Assets to the Company (subject to the rights of the 

Initial Member pursuant to the LLC Operating Agreement). The Initial Member shall have no 

obligation to provide, review or execute any such additional documents unless the same sha11 

have been requested of the Initial Member within 365 calendar days after the Closing Date. 

(h) Notwithstanding any provision of this Agreement to the contrary, the 

Initial Member grants to the Manager, acting only by and through a duly authorized officer or 

representative ofthe Manager, the limited authority and agency to endorse to the Company any 

checks or the instruments made payable to the Initial Member or the Failed Bank if such checks 

or other instruments evidence or relate to amounts otherwise payable to the Company pursuant to 

this Agreement; provided, however, that any such endorsement must be made to the Company 

(as is provided elsewhere in this Agreement) without any representation, warranty or recourse of 

the Initial Member or the Failed Bank whatsoever in a form similar to the form set forth in 

Attachment E. 

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Asset Contnoution md Sale Agreement 

EXECUTION VERSION 
Section 3.2 Recordation of Documents. 

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

Company pursuant to Section 3.1 (d), the Company sha11 promptly submit a11 such Transfer 

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

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

Jurisdiction) to effect the transfer ofthe Assets to the Company. All Transfer Documents shall 

provide that all recorded documents be returned to the Custodian at its notice address set forth in 

Section 7.3, as such address might be modified in the manner provided in the Custodia] and 

Paying Agency Agreement. The Company shal1 be responsible for diligently and promptly 

following up with respect to any non-conforming Transfer Documents that are returned and not 

recorded, gaps in the chain oftitle and the like to ensure that each and all ofthe Transfer 

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

reports described in and required pursuant to Section 3.1 (d)(iii) all required information 

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

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

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

complying with the obligations set forth in this Section 3.2 shal1 constitute Pre-Approved 

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

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

submitted for recordation or filing within six (6) months ofthe Closing Date shall not constitute 

Pre-Approved Charges for purposes ofthe Custodial and Paying Agency Agreement and shall be 

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

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

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

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

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

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

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

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

Section 3.3 Transfer of Servicing. 

(a) The Assets are conveyed to the Company on a servicing-released basis as 

of the Closing Date. From and after the Closing Date, all rights, obligations, liabilities and 

responsibilities with respect to the servicing of the Assets 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. The Company shall assume on and as ofthe Closing 

Date a]] obligations and liabilities with respect to any and a11 asset management and special 

servicing functions with respect to the Assets, notwithstanding any interim servicing that the 

Initial Member and the Existing Servicers might perform during the Interim Servicing Period. 

Without limiting the generality ofthe foregoing, the Company shall assume on and as ofthe 

Closing Date all obligations with respect to funding any Funding Draws and sha11 consult and 

coordinate with the Paying Agent concerning any advances from the Working Capital Reserve 

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Asset Contribution ax! Sale Agreement 

EXECUTION VERSION 
Account and the provision of any Discretionary Funding Advances; provided, however, that if 

the Company fails to provide to the Initial Member or any Existing Servicer necessary or 

appropriate direction with respect to any special servicing or asset management ofthe Assets, the 

Initial Member sha11 have the right to proceed in compliance with the Initial Member's usual and 

customary servicing and asset management standards and procedures, which servicing and asset 

management standards and procedures the Company consents to, acknowledges and accepts. 

To faci1itate communication among the Company, the Initial Member and the 

Existing Servicers, (i) the Company sha11 designate (and the Private Owner sha11 cause the 

Company to designate) a principal contact Person to whom the Initial Member and the Existing 

Servicer wi11 be authorized to refer from the Closing Date through the Servicing Transfer Date 

for such Group of Assets a11 asset management or special servicing inquiries and matters and any 

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

interim servicing responsibilities and (ii) the Initial Member sha11 designate one or more 

principal contact Persons whom the Company and the Servicer wi11 be authorized to contact with 

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

limited interim servicing responsibilities. Prior to the Closing Date, the Initial Member wi11 

establish protocols with respect to tho.se servicing inquiries, matters and circumstances that are to · 

be referred to the Company's designated principal contaCt Person or that are to be handled by the 

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

Section 3.3(b), 

(b) To provide for the orderly transfer of the servicing to the Company; the 

Initial Member wi11 provide interim servicing ofthe Assets, or wi11 maintain agreements with 

third-party Existing Servicers to provide intenm servicing ofthe Assets, on the Company's 

behalf for such Asset during the Interim Servicing Period, inc1uding provisions requiringthat the 

Existing Servicers continue: (i) to receive payments and post them to the system of record; (ii) 

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

schedule of payments processed; (iv) to make payments (whether from its own funds or 

otherwise) to fund Interim Servicing Expenses and Pre-Approved Charges; and (v) to provide 

payoff information to the Company and the Servicer regarding particular Assets, as applicable. 

The foregoing shaH not limit the actions thatthe Initial Member may take with respect to any 

Asset prior to the respective Servicing Transfer Date and absent necessary or appropriate 

direction from the Company with respect to the servicing of the Assets, the Initial Member may 

take such actions with respect to any Asset prior to the respective Servicing Transfer Date as is 

in compliance with the Initial Member's usual and customary servicing standards and 

procedures, which servicing standards and procedures the Company consents to, acknowledges 

and accepts. In addition, unless the Company and the Initial Member agree otheiwise, the Initial 

Member sha11 prepare and deliver the Monthly Reports (inc1uding the Distribution Date Reports) 

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

Agreement for a11 Due Periods ending on or before the last day of the month in which the last 

-Servicing Transfer Date occurs. 	The Initial Member may engage agents of the Initial Member's 

own choosing to perform such interim servicing.· Each Existing Servicer shall be (and hereby is) 

authorized by the Company to use an:d withdraw funds from the Collection Account, the 

Working Capital Reserve Account and the Escrow Accounts and to request Excess Working 

Capital Advances (ifnecessary) in the performance of the interim servicing duties pursuant to 

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Asset Contribution aJd Sale Agreetnent 

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this Section 3.3 during the Interim Servicing Period if it so chooses (including with respect to the 

payment and satisfaction of any Interim Servicing Expenses or Pre-Approved Charges in full if. 

the amount of Asset Proceeds it has collected and is retaining is insufficient to pay and satisfy 

such Interim Servicing Expenses or Pre-Approved Charges in full). Subject to the provisions of 

Section 4.5(a) and Section 4.6, the Initial Member's performance ofthis interim servicing shall 

cease with respect to each Group of Assets on the Servicing Transfer Date for such Group of 

Assets. For the Due Period in which the Servicing Transfer Date with respect to each Group of 

Assets occurs, the Initial Member will provide (or will cause the applicable Existing Servicer to 

provide) the Company with a statement setting forth for the period beginning on the first day of 

the Due Period and ending on the applicable Servicing Transfer Date (i) the amount of payments 

and other amounts received for each Asset to which such Servicing Transfer Date relates and (ii) 

the amount of payments made to fund Interim Servicing Expenses made but not reimbursed by 

the applicable Borrower or Obligor (including payments made from the applicable Existing 

Servicer's own funds), which amounts are to be reimbursed in accordance with Section 2.3(b). 

Each such statement also shall include any amounts to be paid to the Initial Member on the 

respective Servicing Transfer Date pursuant to Sections 2.3 and 2.4. This statement will be 

provided as soon as is reasonably practicable after the SerVicing Transfer Date, but in no event 

later than the due date for the regular Monthly Report for the month in which the Servicing 

Transfer Date occurs. 

(c) The Initial Member shall cause all Asset Proceeds received by it during or 

after the Interim Servicing Period with respect to any Group of Assets for which the Servicing 

Transfer Date has not occurred (including any recoveries of advances) and remaining after 

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

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

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

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

Asset Proceeds with respect to any Group ofAssets for which the Servicing Transfer Date has 

not occurred, prior to the timeAsset Proceeds are required to be remitted to the Collection 

Accountfor payment or reimbursement oflnterim Servicing Expenses and Pre-Approved 

Charges (including for the reimbursement of any advances that the Init1al Member might make 

during the Interim Servicing Period). 

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

respect to each Group of Assets pursuant to this Section 3.3, the Company shaH pay the Interim 

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

interim servicing with respect to such Group of Assets (including the Due Period in which the 

Servicing Transfer Date with respect to such Group of Assets occurs) in the manner described in 

the Custodial and Paying Agency Agreement. The Interim Servicing Fee with respect to each 

Group ofAssets will be calculated, earned and due as ofthe first day of each Due Period in 

which the Initial Member provides interim servicing with respect to such Group ofAssets and . 

will be payable on each Distribution Date pursuant to the provisions of the Custodial and Paying 

Agency Agreement For the avoidance of doubt, any such Interim Servicing Fee payable prior to 

the last Servicing Transfer Date shall be net of any servicing fees payable to Existing Servicers 

and offset by them against Asset Proceeds. 

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

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

including any oversight ofthe Existing Servicers and in connection with its tole of Existing 

Servicer with respect to a Group ofAssets. The Company acknowledges and agrees that the 

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

to the Company and that the Initial Member sha11 not have any liability for any acts or omissions 

taken in connection therewith (other than to correct ca1cu1ation, a11ocation or distribution errors). 

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

Operating Agreement and the Custodia] and Paying Agency Agreement, the Company hereby 

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

predecessors-in-interest and a11 oftheir respective officers, directors, employees, agents, 

attorneys, contractors and representatives and a11 oftheir respective successors; assigns and 

Affiliates, from any and a11 c1aims·(inc1uding imy counterdaim or defensive daim), demands, 

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

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

in any manner whatsoever to the servicing ofthe Assets at any time prior to the last Servicing 

Transfer Date. 

(f) The Initial Member and the Private Owner sha11 cooperate in their efforts 

to cause a11 Servicing Transfer Dates to occur prior to January 31, 2011 to the extent reasonably 

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

(g) Notwithstanding the interim servicing provisions set forth above in this 

Section 3.3, the Company wi11 assume fu]] responsibility for property management of any 

Receiver Acquired Property immediately on the Closing Date. With respect to such property 

management, the Servicing Transfer Date sha11, in a11 cases, be the Closing Date. · 

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

irrevocably appoints the Initial Member its ]awful attorney-in-fact, with fu]] authority in the 

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

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

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

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

its obligations pursuant to Section 3.1, Section 3.2, Section 4.10, Section 4.11 or Section 4.12 as· 

they relate to the preparing, furnishing, executing and/or recording of any of tht;: Transfer 

Documents or any other relevant matter set forth in any such provision to prepare, furnish, 

execute and/or record a11 relevant Transfer Documents and other documents as might be 

reasonably necessary to satisfy the transfer and recording obligations of the Company pursuant 

to Section 3.1, Section 3.2, Section 4.10 or Section-4.12. 

Article IV 


Covenants, Duties and Obligations of the Company 


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

Company sha11 service the Assets in compliance with the LLC Operating Agreement. 

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West CRE Venture 2010-2 

Asset Contribution 111d Sale Agreement 

EXECUTION VERSION 
Section 4.2 Collection Agency/Contingency Fee Agreements. The Company 

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

co11ection agencies or contingency fee agreements with attorneys (in either case that are 

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

of them) and are assignable, and assumes and agrees to fu]fi]) a11 Ob1igations ofthe Initial 

Member and the Failed Banks thereunder. 

Section 4.3 Insured or Guaranteed Assets. If any Assets 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 Assets must be serviced by a servicer, lender or mortgagee 

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

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

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

in effect on the date ofthis Agreement and, with respect to those Assets with respect to which 

any such insurance or guarantee is in effect on the date ofthis Agreement, the Company 

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

assumes full responsibility for taking any and al1 actions as might be necessary to insure such 

insurance or guarantees remain in_ full force and effect. The Company acknowledges and agrees 

that, upon assumption ofthe Obligations with respect to the Assets, it assumes and agrees to 

fulfill all ofthe Initial Member's and the Failed Banks' Obligations under the contracts of 

insurance or guaranty. Any out-of-pocket fees due to any insurer or guarantor incurred by the 

Company (or the Manager or the Servicer for the benefit of the Company) to fulfill its 

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

purposes ofthe Custodial and Paying Agency Agreement. 

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

each Asset, the Initial Member shall be responsible for submitting all Tax information returns 

with a11 applicable Governmental Authorities for all applicable periods prior to the respective 

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

information returns with all applicable Governmental Authorities for all applicable periods 

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

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

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

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

Member under such Law, relating to the Assets, for the calendar or Tax year in which the 

Closing Date falls and thereafter. 

Section 4.5 Assets in Litigation. 

(a) (i) With respect to any Asset that is the subject of any type ()f pending 

litigation as ofthe Closing Date that consists solely of c1aims or actions based upon, arising out 

or involving Exc1uded Liabilities ("Excluded Liabilities Litigation"), the Company shall have 

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

Liabilities Litigation. In such case~ the Initial Member shal1 retain all rights and obligations, arid 

shall remain the real party-in-interest, with respect to and sha11 retain control over the Excluded 

18 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
Liabilities Litigation. With respect to any Asset that is the subject of any type of pending 

litigation that consists ofboth Excluded Liabilities Litigation and other claims or actions, that 

portion of any litigation that consists of Excluded Liabilities Litigation shall be bifurcated from 

such other claims or actions, with the Initial Member retaining all rights and obligations, and 

remaining the real party-in-interest, with respect to and shall retain control over the Excluded 

Liabilities Litigation and the Company substituting itself as the real party in interest and taking 

control ofthe remaining claims in the litigation as is provided otherwise in this Section 4.5. The 

Initial Member shall pay all of the costs and expenses incurred by it in connection with any such 

Excluded Liabilities Litigation, including all legal fees and expenses and court costs. The Initial 

Member's determination whether or not pending litigation consists ofExcluded Liabilities 

Litigation and the extent to which pending litigation consists ofboth Excluded Liabilities 

Litigation and other claims or actions shall be conclusive and binding for all purposes with 

respect to this Agreement. 

(ii) With respect to any Asset that is the subject of any type of pending 

litigation as ofthe Closing Date other than pending litigation that consists entirely ofExcluded 

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

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

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

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

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

other appropriate official and all counsel ofrecord that ownership ofthe Asset was transferred 

from the Initial Member to the Company. Subject to the provisions of Sections 4.5(c) and 4.5(d), 

the Company shall have.its attorney file appropriate pleadings and other documents and 

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

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

Member and the applicable 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 applicable Failed Bank) 

to handle such litigation with respect to the Assets, 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 respective Servicing Transfer Date, to remove the Initial 

Member and the applicable Failed Bank as parties to the litigation and substitute the Company as 

the real party-in-interest, (i) the Initial Member may, but shall have no obligation to, continue to 

pursue or defend such litigation on behalf ofthe Company and (ii) in the event the Initial 

Member does continue 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 Servicing Expenses. 

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

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

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

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

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West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

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

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

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

such litigation at the Company's expense, which expense shall constitute Servicing Expenses; 

(ii) the Company shall cause the removal of the Initial Member and the applicable 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 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 applicable Failed Bank 

(and any predecessor thereto) in relation to such litigation or the subject Assets or Obligations by 

any Person asserting any claim in the litigation and any Borrower, and any and all losses, 

liabilities, claims, causes of action, damages, demands, Taxes, fees, costs and expenses relating 

thereto shall be paid.by the Company without recourse of any kind to the Initial Member or the 

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

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

the Closing Date a report showing the status of each pending litigation with respect to the 

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

expenses incurred by it in connection with the actions required to be taken by it pursuant to 

Section 4.5( a) an·d this Section 4.5(b) (which expenses shall constitute Servicing Expenses), 

including all legal fees and expenses and court costs (which expenses shall constitute Servicing 

Expenses), and shall reimburse the Initial Member, upon demand, for all legal expenses the 

Initial Member incurs on or after the Cut-OffDate with respect to any such litigation, including 

costs incurred with the dismissal thereof or withdrawal therefrom (which costs incurred by the 

Initial Member shall constitute-Servicing Expenses for purposes ofthe·custodial and Paying 

Agency Agreement). 

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

Closing Date any Exc)u(led Liability (and such claim or action is not based upon and does not 

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

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

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

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

defense ofsuch claim or action on behalfofthe Company and the Company's interest in the 

Asset(s), at the Company's expense and with counsel appointed by the Company; and (ii) the 

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

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

with Initial Member's own counsel. The Initial Member's determination whether or not any 

claim or liability in any such litigation is an Excluded Liability and the extent to which any such 

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

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

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

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West CRE Venture 2010-2 

Asset Contribution a-~d Sale Agreement 

EXECUTION VERSION 
not in conflict and shall use conunercially 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. Notwithstanding the foregoing, the Initial Member 

may at any time assume and control the defense ofthe Company in connection with any such 

claim or action at the Initial Member's expense. Subject to the provisions of Sections 4.5(d)(i) 

and (ii) below, the costs and expenses incurred by the Company in connection with its defense of 

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

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

to any such claim or action, or (III) the costs of any settlements described in Section 4.5( d)(ii) · 

below ofsuch c) aim or action, shall constitute Servicing Expenses for purposes ofthe Custodial 

and Paying Agency Agreement. 

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

4.5(c) above: 

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

equal to the Total Asset Value ofthe Asset relating to or that is the subject of such claim (such 

Asset, the "Affected Asset") (such excess amount, the "Excess Damage Liability"), or(B) a 

final monetary judgment that is appealable, which the Initial Member agrees in writing need not 

be appealed furth.er by the Company, and that imposes an Excess Damage Liability on the 

Company, or 

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

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

the Company is obligated to pay an Excess Damage Liability, 

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

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

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

repurchase provisions ofArt]cle VI; provided, however, that the Initial Member shall not be 

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

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

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

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

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

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

pursuant to Section 2.2 or the definition ofExcluded Liabilities. At the Initial Member;s 

discretion, litigation involving any such claims shall be bifurcated, with t~e 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 2.7and the· 

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

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

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

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West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
extent to which litigation consists of any such claims sha11 be conc1usive and binding for a11 


purposes with respect to this Agreement. 


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


payments by the Company of Servicing Expenses pursuant to Section 4.5(c) sha11 be subject to 


the obligation of the Private Owner to reimburse the Initial Member under Section 4.6 ofthe 


LLC Operating Agreement. 


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

in the event that there is instituted any litigation cha11enging the repudiation of any obligation 

with respect to any Asset by the Initial Member and asserting that the Company has any liability 

arising from such repudiation, the Initial Member sha11 control and defend such Jitigation 

(inc1uding any daims or actions against the Company) and pay a11 costs and expense .in respect 

thereof. 

Section 4.6 Assets in Bankruptcy. In accordance with Bankruptcy Rules 3001 and 

3002, the Company sha11 take a11 actions necessary to file, prior to the respective Servicing 

Transfer Dates (i) proofs of c1aims in pending bankruptcy cases involving any Assets for which 

the Initial Member or the Failed Banks have not already filed a proof ofc1aim, and (ii) all 

documents required by Rule 3001 ofthe Federal Rules ofBankruptcy Procedure and to take a11 

such similar actions as might be required in any relevant jurisdiction in any pending bankruptcy 

or insolvency case or proceeding in such jurisdiction involving any Asset in order to evidence 

and assert the Company's rights. The Company sha11 prepare and provide to the Initial Member, 

on or prior to the respective Servicing Transfer Date, an Affidavit and Assignment of Claim in 

the form attached to this Agreement as Attachment C or any similar forms as might be required 

in any relevant Foreign Jurisdiction and sha11 be acceptable to the Initial Member, for each Asset 

where a Borrower or an Obligor with respect to such Asset is in bankruptcy as ofthe Closing 

Date. The Company hereby releases the Initial Member, the FDICand the Failed Banks from 

any daim, demand, suit or cause of action the Company might have as a result of any action or 

inaction on the part ofthe Initial Member, the FDIC or the Failed Banks with respect to such 

Asset. In the event the Company fails; prior to the respective Servicing Transfer Date, to take 

the actions required by this Section 4.6, (a) the Initial Member may, but shall have no obligation 

to, file proofs of daim or other documents as the Initial Member determines to be necessary or· 

appropriate to evidence and assert the Company's rights and, (b) in the event the Initial Member 

does take any such actions, the Company shaJJ be liable for and hereby agrees· to pay a11 costs 

and expenses incurred by the Initial Member in connection therewith (which costs incurred by 

the Initial Member sha11 constitute Servicing Expenses for purposes ofthe Custodia] and Paying 

Agency Agreement). the provisions ofthis Section are subject to the right of the Initial Member 

to retain claims pursuant to Section 2.7 ofthis Agreement, induding any such claims as might 

have been asserted in litigation pending as ofthe Closing Date. At the Initial Member's 

discretion, litigation involving any such c) aims shaY be bifurcated, with the Initial Member 

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

pursuing and bearing the related costs to pursue) daims retained ·by it pursuant to Section 2.7 and 

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

responsible for pursuing and bearing the cost of pursuing) the remaining daims in the litigation. 

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West CRE Venture 2010-2 

Asset Contribution 111d Sale Agreement 

EXECUTION VERSION 
Section 4. 7 Asset Related Insurance. On the Closing Date, (a) the Initial Member 

shall cause to be assigned, to the extent assignable, all existing insurance policies in respect of 

the Collateral for each Asset; (b) the Company shall be responsible for having itself substituted 

as loss payee or named as an additional insured, as applicable, on all Asset related insurance in 

which any Failed Bank or the Initial Member is currently listed as a Joss payee or named as 

additional insured, as applicable; and (c) the Company shall cause to be put into place such 

insurance for the Collateral with respect to each Asset with respect to which the Borrower has 

failed to maintain required insurance, fire, hurricane, flood and hazard insurance with extended 

coverage as required under the applicable Asset Documents and, ifnot so required in the Asset 

Documents, then as otherwise is customary in the area in which the Assets or the Collateral is 

located and in such amounts and with such deductibles as, in the reasonable judgment ofthe 

Company, are prudent. Upon the cancellation after the Closing Date of any insurance policy 

maintained by the Initial Member or any Failed Bank with respect to any Asset 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 ofthe Borrowers with respect to 

the affected Assets, and such refunded amount shall be remitted to (or retained by) the Company 

and applied as appropriate to adjust the Escrow Accounts, if any, or other records with respect to 

such affected Assets. · 

Section 4.8 Loans with Escrow.Accounts. Amounts otbalances related to the Loans 

on deposit in Escrow Accounts held or controlled by the Initial Member or an Existing Servicer 

shall be transferred to the Company on the respective Servicing Transfer Date. On such date, 

any positive escrow balances held in the Escrow Accounts, without offset against any negative 

escrow balances, shall be transferred to 'the Company. The Company agrees to assume, 

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

Escrow Account and the maintenance of slich Escrow Account and the Escrow Payments paid by 

or on account ofthe related Borrower. 

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

Member hereby assigns and the Company hereby assumes the role of lead lender for any Loan· 

Participations in which a portion ofan Asset was participated to one or more Persons and in 

which the Initial Member onmy ofits predecessors-in-interest was the lead lender as ofthe 

Closing Date. The Company hereby agrees to accept any such Loan Participations subject to all 

participants' right, title and interest in such Loan Participations. 

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

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

the provisions of Section 3.1 hereof, th~ Initial Member may require the Company to prepare and 

furnish special warranty deeds for the Initial !v1ember's approval, conveying the real property 

subject to any such contract.to the Company. The costs and expenses ofthe Company (or the 

Manager or the Servicer for .the benefit of the Company) for any title curative work, if required, 

shall constitute Pre-Approved Charges. 

Section 4.11 Acquired Property. The Company agrees to comply with all Obligations 

set forth in any Collateral Document relating to Acquired Property unless, in the opinion ofthe 

Company, complying with the Obligations under such Collateral Documents would not be in the 

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West CRE Venture 2010-2 

Asset Contribution ll:ld Sale Agreement 

EXEClJTJON VERSION 
best interest (in terms of maximizing the value of the Asset) ofthe Company and the Initial 

Member. Pursuant to the provisions of Section 3.1 hereof, the Initial Member may require the 

Company to prepare and furnish special warranty deeds and other applicable Transfer 

Documents, for the Initial Member's approval, to convey the Receiver Acquired Property to the 

Company. 

Section 4.12 Leases. The Company agrees to comply with all Obligations set forth in 

any lease related to any Asset unless, in the opinion of the Company, complying with the 

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

of the Asset) of the Company and the Initial Member. Pursuant to the provisions of Section 3.1 · 

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

Documents for the Initial Member's approval and execution. 

Section 4.13 Notice to Borrowers.. The Company shall on a timely basis in accordance 

with any applicable Laws, and pursuant to the Limited Powers of Attorney granted to it pursuant 

to Section 3.1 ( d)(i), prepare and transmit to each Borrower a joint "hello" and "goodbye" letter; 

at the Company's expense, which letter shall be subject to the review and reasonable approval of 

the Initial Member. 

Section 4.14 Notice of Claims. The Company shall immediately notify the Initial 

Member, in accordance with the notice provisions of Section 7.4, of any claim, threatened claim. 

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

Section 4.15 Use of the FDIC'~ 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 ofletters that is similar to "FDIC" or"Federal Deposit Insurance Coiporation." 

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

related to the FDIC except that, for so long as the FDIC is a member ofthe Company, the 

Company may represent that fact. The Company shall be entitled to assert (and claim the benefit 

of) the statute oflimitations established under 12 U.S.C. § 1821(d)(14). The Company 

acknowledges and agrees,. however, that the assignment of any Asset, Asset Document or 

Collateral Document pursuant to the terms ofthis Agreement shall not constitute the assignment 

of any other rights, powers or privileges granted to the Initial Member pursuant to the provisions 

the Federal Deposit Insurance Act, including those granted pursuant to 12 U.S.C. § 1821 (d), 12 

U.S.C. § 1823(e) and 12 U.S.C. §·1825, all such rights and powers being expressly reserved by 

the Initial Member; nor shall the Company assert or attempt to assert any such right, power or 

privilege in any pending or future litigation involving any Asset transferred or purchased 

hereunder. 

Section 4.16 Prior Servicer Information. The Company acknowledges and agrees 

that the Initial Member might not have access to information from servicers of an Asset prior to 

the appointment of the FDIC as receiver ofthe applicable Failed Bank and that the Initial 

Member has not requested any information not in the possession of the Initial Member or its 

servicing contractor from any prior servicer of an Asset. 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. 

24 

West CRE Venture 2010-2 

Asset Contribution aJd Sale Agreetnent 

EXECUTION VERSION 
Section 4.17 Release of Initial Member, FDIC and Failed Banks. 

(a) Except as otherwise specifically provided in Article VI ofthis Agreement 

or in the LLC Operating Agreement or any other Transaction Document, the Company hereby 

releases and forever discharges the Initial Member, the FDIC, the Failed Banks and all oftheir 

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

all oftheir 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 ofwhatever 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 Assets, the servicing ofthe Assets (before or after the Cut-Off Date) by the 

Initial Member, the Failed Banks or their predecessors-in-interest, the FDIC or any Person acting 

on behalf ofthe Initial Member, the FDIC or the Failed Banks or their predecessors-in-interest, 

or the acquisition ofthe Assets (other than gross negligence or willful misconduct); provided, 

however, that nothing contained in this Section 4.17(a) shall constitute or be interpreted as a 

waiver of any express right that the Company has under this Agreement or any ofthe 

Transaction Documents. 

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

compromise, settle or release any Note or Asset or any right ofthe Company founded upon or 

growing out ofthis Agreement, except upon payment in full thereof, unless the Borrower and all 

Obligors on said Note or Asset first shall release and discharge the FDIC, the Initial Member and 

the applicable Failed Bank with respect to such Asset, and their respective agents and assigns, 

other than the Company (the "Released Parties"), from all claims, demands and causes of act1on 

that any such Borrower may have against any such Released Party arising out of or resulting 

from any act or omission occurring prior to the date of such release. 

Article V 


Assets Sold "As Is" and \\'ithout Recourse 


Section 5.1 Assets Conveyed "As Is". THE ASSETS (INCLUDING ANY 

INTERESTS IN OWNERSHIP ENTITIES AND RECENER ACQUIRED PROPERTY) ARE 

CONVEYED AND ASSIGNED TO THE COMPANY "AS IS" AND "WITH ALL FAULTS," 

WITHOUTANY REPRESENTATION, WARRANTY OR GUARANTY WHATSOEVER, 

INCLUDING AS TO COLLECT ABILITY, ENFORCEABILITY, VALUE OF COLLATERAL, 

ABILITY OF ANY OBLIGOR TO REPAY, CONDITION, FITNESS FOR ANY 

PARTICULAR PURPOSE, MERCHANTABILITY OR FITNESS FORA SPECIFIC 

PURPOSE, WHETHER EXPRESS OR IMPLIED OR BY OPERATION OF LAW, BY ANY 

PERSON, INCLUDING THE INITIAL MEMBER, THE FAILED BANKS OR THE FDIC, OR 

ANY PREDECESSORS-IN-INTEREST OR AFFILIATES OF THE INITIAL MEMBER, THE 

FAILED BANKS OR THE FDIC, OR ANY OF THEIR RESPECTIVE OFFICERS, 

DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS. THE INITIAL MEMBER 

SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, 

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

ASSETS, THE COLLATERAL OR THE COLLATERAL DOCUMENTS, OR WITH 

RESPECT TO THE LEGALITY, VALIDITY, EFFECTNENESS, ADEQUACY OR 

25 

West CRE Venture 2010-2 

Asset Contnbution llld Sale Agreement 

EXECUTION VERSION 
ENFORCEABILITY OF ANY SWAP AGREEMENT OR ANY DOCUMENTS RELATING 

THERETO OR TO THE CONDITION, FINANCIAL OR OTHERWISE, OF THE PARTIES 

TO ANY SWAP AGREEMENT OR ANY OTHER PERSON OR FOR THE PERFORMANCE 

AND OBSERVANCE BY THE PARTIES TO ANY SWAP AGREEMENT OR ANY OTHER 

PERSON OF ANY OF ITS OBLJGA TIONS UNDER ANY SWAP AGREEMENT OR ANY 

DOCUMENTS RELATING THERETO OR WITH RESPECT TO ANY OTHER MATTER 

WHATSOEVER RELATING TO ANY SWAP AGREEMENT. 

Section 5.2 No "'arranties 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 

theamount of any monies held in any Escrow Account or as to the propriety of any previous 

disbursements or payments from any Escrow Account. 

Section 5.3 No "'arranties or Representations as to Amounts of Unfunded 

Principal. Without limiting the generality of Section 5.1, the Initial Member makes no 

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

advances of principal the Company may be obligated to make pursuant to the Asset Documents. 

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 or nature. 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, a Failed Bank, the Initial Member or any Affiliate, agent or contractor of 

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

Section 5.5 No \Varranties or Representations \Vith Regard to Information. The 

Initial Member makes no warranties or representations of any kind or nature as to the 

completeness or accuracy of any information provided with respect to any Asset. The Company 

acknowledges that, for example, and not by way oflimitation, some Asset Files might be missing 

forms or notices, or might co.ntain incomplete or inaccurate forms or notices, that might be 

required by one or more federal or state consumer protection statutes. The Company's exclusive 

remedies with respect to any inaccurate or incomplete information provided by the Initial 

Member are an adjustment in accordance with Section 2.4 or an option to repurchase under 

Article VI, and such exclusive remedies are available only if all other conditions theretofore 

expressed in this Agreement have been met. 

Section 5.6 · Intervening or Missing Assignments. The Company acknowledges and 

agrees that the Initial Member shall have no obligation to secure or obtain any missing 

intervening Mortgage Assignment or other assignment to the Initial Member or a Failed Bank 

that is not contained in the Asset File or among the Collateral Documents. Neither the absence 

of any intervening Mortgage Assignment or any Mortgage Assignment to the Initial Member, the 

FDIC or a Failed Bank, nor the existence of any Lien on the Asset or its Collateral, nor any 

defect in the Lien or priority ofthe Initial Member's or the applicable Failed Bank's security. 

interest in the Collateral shall give rise to any claim for purchase under Article VI. The 

26 

West CRE Venture 2010-2 

Asset Contribution ax! Sale Agreement 

EXECUTION VERSION 
Company sha11 bear all responsibility and expense of securing from the appropriate source any 

intervening Mortgage Assignment or any other assignment to the Initial Member, the FDIC or a 

Failed Bank that might be missing from the Co11atera1 Documents, but the costs thereof incurred 

by the Company (or the Manager or the Servicer for the benefit ofthe Company) sha11 constitute 

Pre-Approved Charges for purposes of the Custodial and Paying Agent Agreement. 

Section 5.7 No \Varranties or Representations as to Documents. The Initial 

Member makes no warranties or representations of any kind or nature as to the effectiveness or 

enforceabi1ity 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, a11 of such forms being provided for reference only. 

Section 5.8 No \Varranties or Representations as to Real Estate Taxes or .Other 

Potential Liens Affecting Collateral. Without Jimiting the generality of Section 5.1, the Initial 

Member makes no warranties or representations of any kind or nature as to the existence or 

amount of;my unpaid back real estate Taxes, penalties, interest or other amounts due or overdue 

and payable or to become due and payable with respect to any Asset or Collateral or related 

Liens against any Asset or Collateral which amounts may be subject to payment by the Company 

in accordance with the terms of the Transaction Documents. The Initial Member retains no 

obligations with respect to payment or discharge of any real estate Taxes, penalties, interest or 

other amounts or any Liens or other encumbrances resulting from the nonpayment thereof 

without regard to when such Taxes, penalties, interest or other amounts became due and without 

regard to when such Liens or other encumbrances arose. 

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 

Member to repurchase an Asset, if, and only if, (x) prior to the Closing Date, one ofthe events 

described in Section 6.1 (a) through (h) has occurred or (y) after the Closing Date, there is issued 

by a court of competent jurisdiction with respect to such Asset a final, non-appealable order or 

judgment (unless the Initial Member has agreed in writing that no appeal need be taken) or there 

is entered into, with the consent of the Initial Member, a final settlement of any c1aim, action or 

litigation (the "Order") that .requires the· assignment and transfer ofsuch Asset back to the Initial 

Member. 

(a) Ifthe Asset is a Loan, the Borrower had been discharged in a no asset 

bankruptcy proceeding, there is no Co11atera1 securing such Loan and out ofwhich such Loan 

may be satisfied, and a11 guarantors or sureties ofthe Note, if any, or the obligations contained · 

therein, have similarly been discharged in no asset bankruptcies. 

(b) Jfthe Asset is a Loan, a court of competent jurisdiction had entered a final, 

non-appealable judgment or order (unless the Initial Member has agreed in writing that no appeal 

need be taken other than a bankruptcy decree or judicial foreclosure order) holding that neither 

the Borrower nor any Obligors owe an enforceable obligation to pay the holder ofthe Note or its 

assignees. 

27 

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Asset Contribution Wid Sale Agreement 

EXECUTION VERSION 
(c) If the Asset is a Loan, the Initial Member or the applicable Failed Bank 


had executed and delivered to the Borrower a release ofliability from all obligations under the 


Note. 


(d) A title defect exists in connection with the property that is the subject of a 

Contract for Deed, which title defect requires a prior order or judgment of a court to enable the 

Company to convey title to such property in accordance with the terms and conditions set forth 

in the Contract for Deed. 

. (e) The Initial Member is not the owner ofthe Asset (or, in the case of a Loan 

Participation, the Initial Member is not the owner ofthe pro rata interest in such Loan 

Participation set forth on the attached Asset Schedule) and such is not curable by the Initial 

Member so as to permit ownership ofthe Asset 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) shaH be conditioned upon: (i) the presence of 

Environmental Hazards not being discJosed in the Asset File or other material provided by the 

FDIC to the Private Owner prior to submission ofthe Bid; (ii) such Asset having an Adjusted 

Unpaid Principal Balance greater than $250,000.00; and (iii) the Company delivering, along with 

the notice required by Section 6.2, the following, each of which must be satisfactory in form and 

substance to the Initial Member in its discretion: 

(i) A Phase fenvironmental assessment, from a qualified and 

reputable firm, ofthe Acquired Property or the Mortgaged Property as the case might be, 

securing such Loan; and 

(ii) A Phase II environmental assessment or lead-based paint survey of 

such Acquired Property or Co1lateral from a qualified and reputable firm, which assessment shall 

confirm (A) the existence ofEnvimnmental Hazards on such Acquired Property or Mortgaged 

Property and (B) that the regulator is likely to require such remediation; and, 

(iii) written certification ofthe Company under penalty of peijury that 

no action has been taken by or on behalf ofthe Company with respect to a Loan (A) to initiate 

forecJosure proceedings or.(B) to accept a deed-in-lieu-of-foreclosure inconnection with such 

Loan. 

(g) The Initial Member or the applicable Failed Bank, or their respective 

officers, directors or employees, fraudulently caused the Borrower to receive less than all ofthe 

proceeds and benefits of a Note. The Company's recourse with respect to this Section 6.1 (g) 

shall be conditioned upon the Company delivering, along with the notice required by Section 6.2, 

written evidence ofSl}ch fraud, which evidence must be satisfactory in form and substance to the 

Initial Member in its discretion. 

(h) There is instituted after the Cut-Off Date any Action that (i) is asserted by 

more than one Borrower and any Affiliates (with multiple Borrowers with respect to Loans 

secured by the same Co11atera1 being considered a single Borrower for purposes ofthis Section) 

with respect to more than one Asset (with multiple Loans secured by thesame Co1Jatera1 being 

28 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
considered a single Asset for purposes of this Section), (ii) inc1udes a11egations of fraud on the 

part of the Initial Member or the app1icab1e Failed Bank in connection with the Initial Member's 

or the Failed Bank's origination of such Assets (or the related Underlying Loans) and (iii) names 

the Initial Member or any Failed Bank as a defendant and that asserts liability on the part of the 

Initial Member or any Failed Bank for which the Company is not liable as assignee, as a matter 

of Law, with respect to such Assets. 

IN NO EVENT SHALL THE OCCURRENCE OF ANY SUCH EVENT OR THE 

OBLIGATION TO REPURCHASE AN ASSET HEREUNDER BE EVIDENCE OF ANY BAD 

FAITH, MISCONDUCT OR FRAUD ON THE PART OF THE INITIAL MEMBER, THE 

FDIC OR THE FAILED BANKS OR ANY PREDECESSOR-IN-INTEREST OR ANY 

AFFILIATE THEREOF, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES,. 

OFFICERS, CONTRACTORS OR AGENTS, EVEN IF IT IS SHOWN THAT THE INITIAL 

MEMBER, THE FDIC OR THE FAILED BANKS OR ANY PREDECESSOR-IN-INTEREST 

OR ANY AFFILIATE THEREOF, OR ANY OF THEIR RESPECTIVE DIRECTORS, 

EMPLOYEES, OFFICERS, CONTRACTORS OR AGENTS, (A) KNEW OR SHOULD HAVE 

KNOWN OF THE EXISTENCE OF ANY FACTS RELATING TO THE OCCURRENCE OF 

SUCH EVENT, (B) CAUSED SUCH EVENT OR (C) FAILED TO MITIGATE SUCH EVENT 

OR ANY OF THE LOSSES RESULTING THEREFROM. 

Section 6.2 Notice to Initial Member. The Company sha11 notify the Initial Member 

of each Asset with respect to which the Company seeks to exercise its rights under Section 6.1. 

Such notice sha11 be on the Company's letterhead and include the fo11owing information: (a)the 

Company's Tax identification number, (b) the Company's wire transfer instructions, (c) the 

Asset number and other identifying information related to the Asset, (d) the subsection of 

Section 6.1 under which the Company is seeking to require the Initial Member to repurchase the 

Asset, (e) a summary of the reasons the Company believes that the Asset should be repurchased 

by the Initial Member and (f) a certification by the Company that the request for repurchase is 

being submitted in good faith and is complete and accurate in a11 respects to the best ofthe 

Company's knowledge. The notice sha11 be accompanied by evidence supporting the basis for 

the Initial Member's repurchase of such Asset. Promptly upon request by the Initial Memb~, 

the Company shall supply the. Initial Member with any additional evidence that the Initial 

Member may reasonably request. The Initial Member sha11 have no obligation to repurchase any 

Asset pursuant to this ArtiCle VI for which notice and a]] supporting evidence reasonably 

required by the Initial Member have not been received by the Initial Member at the addresses 

specified in Artide VII no later than the first Business Day after the expiration of (x) in the case 

of any purchase demand pursuant to Section 6.1 (a) through (h), 180 calendar days after the 

Closing Date, or in the case of a Contract ·for Deed, the first Business Day after the expiration o.f 

360 calendar days after the Closing Date, and (y) in the case of any purchase demand with 

respect to the issuance of an Order, thirty (30) days after the issuance ofthe Order. 

Section 6.3 Re-delivery of Notes, Files and Documents. For any Asset that qualifies 

for repurchase under this Artide, the Company sha11: (a) re-endorse and deliver th~ Note with 

. respect to any Loan or Underlying Loan to the Initial Member (or its designee); (b) assign a11 

Co11atera1 Documents associated with such Asset and reconvey any rea] property subject to a 

Contract for Deed or any related Receiver Acquired Property or Company Acquired Property, 

29 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
together with such other documents or instruments as sha]] be necessary or appropriate to convey 

the Asset (incJuding any related Receiver Acquired Property or Company Acquired Property and 

incJuding any related equity interest in any Ownership Entity) back to the Initial Member (or its 

designee); (c) deliver to the Initial Member (or its designee) the Asset File, along with any 

additional records compiled or accumulated by the Company pertaining to the Asset; (d) take 

such actions as are necessary to transfer from the Company to the Initial Member any litigation 

or bankruptcy action involving the subject Asset, incJuding substituting the duties ofthe 

Company for the Initial Member and the Initial Member for the Company, and with respect to 

the Affidavit and Assignment ofClaim, the form ofwhich is attached to this Agreement as 

Attachment C, substituting the duties ofthe Assignor (as defined therein) for the Assignee (as 

defined therein) and the Assignee for the Assignor; and (e) deliver to the Initial Member (or its 

designee) a certification, notarized and executed under penalty of peJjury by a duly authorized 

representative ofthe Company,· certifying that as of the date of repurchase bythe Initial Member 

none ofthe conditions relievingthe Initial Member ofits obligation to repurchase the Asset as 

specified in Section 6.4 has occurred. The documents evidencing the reconveyance ofthe Asset 

to the Initial Member shal1 be substantially the same as those executed pursuant to Artide III of 

this Agreement to convey the Asset to the Company. In all cases in which the Company 

recorded or filed among public recoras any document or instrument evidencing a transfer ofthe 

Asset to the Company, the Company shail cause to be recorded or filed among such records a · 

similar document or instrument evidencing the reconveyance of the Asset 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 proceeds shall constitute Asset 

Proceeds 'for purposes of the Custodial and Paying Agency Agreement. . 

Section 6.4 'Vaiver of Company's Repurchase Option. The Initial Member will be 

relieved ofits obligation to repurchase any Asset for any reason set forth in Section 6.1 if the 

Company: (a)except in the case ofthe permanent refinance of a Loan in connection with the 

final Authorized FundingDraw with respectto such Loan, modifies any of the terms of the Loan· 

(including the terms of any Collateral Document or Contract for Deed); (b) 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 Asset or any interest therein; (e) fails to comply with the LLC Operating Agreement in the 

maintenance, coJ]ection, servicing and preservation of the Asset, including delinquency 

prevention, coli ectiori procedures .and protection of colJateral as warranted; (f) initiates any 

litigation in connection with the Asset or the Mortgaged Property securing the Asset other than 

litigation to force payment or to realize on the CoJJateral securing the Asset; (g) completes any 

action with respect to.foreclosure on, or accepts a deed-in-lieu offoreclosure for any Collateral 

securing the Asset; (h) causes, by action or inaction, the priority of title to the Asset, Mortgaged 

Property and other security for the Asset to be Jess than that conveyed by the Initial Member; (i) 

causes, by action or inaction, the security for the Asset to be different than that conveyed by the 

Initial Member, except as might 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 to arise, 

by action or inaction, a Lien of any nature to encumber the Asset; (1) is the Borrower or any other 

Obligor or any Affiliate thereof with respect to such Asset; (m) makes any disbursement of 

30 

West CRE Venture 2010-2 

Asset Contnoution a1d Sale Agreement 

EXECUTION VERSION 
principal or otherwise incrementa11y funds any Loan; or (n) makes a Discretionary Funding 

Advance with respect to an Asset. 

Article VII 

Notices 

Section 7.1 Notices. A]] notices, requests, demands and other communications 

required or permitted to be given or delivered under or by reason of the provisions oftrus 

Agreement sha]] be in writing and sha11 be given by certified or registered mail, postage prepaid, 

delivered by hand or by national1y recognized air courier service, or sent via electronic mail 

fo11owed up by a hard copy ofsuch notice, in any case directed to the address of such Person as 

set forth in the applicable Section ofthis Article VII. Any such notice shall become effective 

when received (or when receipt is refused) by the addressee, provided that any notice or 

communication that is received (or refused) other than during regular business hours ofthe 

recipient shaH be deemed to have been given at the opening ofbusiness on the next Business 

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

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

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

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

shall be delivered to: 

Initial Member: Assistant Director, Structured TransactionsResolutions and Receiversrups 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami, Assistant Director for Secured 

Transactions 

E-mail Address: RMalami@fdic.gov 

with a copy to: Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receiversrup Section · 

SpecialissuesUnit · 

3501 Fairfax Drive (Room E-7056) 

· Arlington, VA 22226 

Attention: David Gearin 

E-mail Address: DGearin@fdic.gov 

Section 7.3 Transfer Documents. For purposes of designating the Custodian as the 

return addressee on Transfer Documents, the following address shall be used: 

Custodian: 	 WeBs Fargo Bank, National Association 

9062 Old Annapolis Road 

Columbia, Maryland 21045 

Attention: Client Services Manager 

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West CRE Venture 2010-2 

Asset Contribution ll1d Sale Agreetnent 

EXECUTION VERSION 
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: Assistant Director, Secured TransactionsResolutions and Receiverships 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

E-mail Address: RMalami@fdic.gov 

with a copy to: Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

E-mail Address: DGearin@fdic.gov 

Company after Closing: West CRE Venture 2010-2, LLC 

2450 Broadway, 6th Floor 

Santa Monica, California 90404 

Attention: Paul A. Fuhrman 

E-mail Address 

with a copy to: Colony Capital, LLC 

660 Madison A venue 

·New York, New York 10065 

Attn: Ronald M. Sanders 

E-mail Address: 

Initial Member: Assistant Director, Secured TransactionsResolutions and Receiverships 

c!o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-701 4) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami, 

E-mail Address: RMalami@fdic.gov 

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West CRE Venture 2010-2 

Asset Contribution and Sale Agreement 

EXECUTION VERSION 
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 

E-mail Address: DGearin@fdic.gov 

Article VIII 


Miscellaneous Provisions 


Section 8.1 Severability. Any provision ofthis Agreement that is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (a) if such provision is prohibited or unenforceable in such jurisdiction only as to a· 

particular Person or Persons and/or under any particular circumstance or circumstances, such 

provision shall be ineffective, but only in such jurisdiction and only with respect to such 

particular Person or Persons and/or under such particular circumstance or circumstances, as the 

case may be; (b) without limitation of clause (a), such provision shall in any event be ineffective 

only as to such jurisdiction and only to the extent of such prohibition or unenforceability, and 

such prohibition or unenforceability in such jurisdiction shall not invalidate or render 

unenforceable such provision in any other jurisdiction; and (c) without limitation of clauses (a) 

or (b), such ineffectiveness shall not invalidate any ofthe remaining provisions ofthis 

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

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

provision ofthis Agreement is prohibited or unenforceable in any jurisdiction (because ofthe 

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

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

to the extent applicable, by limiting the duration or scope ofsuch provision and/or the Persons· 

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

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

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

provision, as so modified pursuant to clause (p), in such proceeding. Nothing in this Section is 

intended to, or shall, limit (x) the ability of any party to this Agreement to appeal any court 

ruling or the effect of any favorable ruling on appeal or (y) the intended effect of Section 8.2. 

Section 8.2 GQverning Law. EACH PARTY TO THIS AGREEMENT AGREES 

AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL 

OBLIGA TJONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS TO BE 

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE 

STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE 

THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS 

AGREEMENT TO THE LAW OF ANOTHER JURISDICTION, AND EACH PARTY TO 

THIS AGREEMENT UNCONDITIONALLY AND IRREVOCABLY W AlVES ANY CLAIM 

TO ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

33 

West CRE Venture 2010-2 

Asset Contribution 31d Sale Agreement 

EXECUTION VERSION 
AGREEMENT. NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL 

ACTION OR INACTION BY ANY PARTY TO THIS AGREEMENT. 

Section 8.3 Cost, Fees and Expenses.. Except as otherwise provided herein, each 

party hereto agrees to pay aii costs, fees and expenses which it has incurred in connection with or 

incidental to the matters contained in this Agreement, including fees and disbursements to its 

accountants, brokers, financial advisors and counsel. 

Section 8.4 \Vaivers; Amendment and Assignment. 

(a) No provision oftills Agreement may be amended or waived except in 

writing executed by aii ofthe parties to tills Agreement. This Agreement and the terms, 

covenants, conditions, provisions, obligations, undertakings, rights and bendits hereof shaJJ be 

binding upon, and shali inure to the benefit ofthe undersigned parties and their respective heirs, 

executors, administrators, representativ~s, su·ccessors and permitted assigns, and no other Person 

or Persons (including Borrowers or any co7lender or other Person with any interest in or liability 

under any ofthe Assets) shaii have any rights or remedies under or by reason oftills Agreement. 

Notwithstanding the foregoing, thi's Agreemel}t'may not be transferred or assig11ed wjthout the 

express prior written consent ofthe Initial Member and any attempted assignment without such . 

consent shall be void ab initio. 

(b) Notwithstanding anything to contrary contained elsewhere in this 

Agreement (including the foregoing Section 8.4(a)) or in any other Transaction Document, in 

order to facilitate the possible restructuring and sale ofthe Purchase Money Notes, the FDIC, 

without the consent ofthe Private Owner or the.C::ompany or the holders of any other Purchase 

Money Note, may at any time that the FDICis.the holder of 100 percent of any P13rchase Money 

Note or beneficial interest therein cause the Company to replace or reissue such Purchase Money 

Note (or any promissory note reissued in respect thereof) and make related changes, 

modifications or amendments to tills Agreement and the Transaction Documents as permitted 

therein. Solely in 1he event ofthe foregoing circumstances: no Purchase Money Note Reissuance 

Fee (as defined in the Custodial and Payirig Agency Agreement) shall be payable by the 

Company.· In the event of any replacement or reissuance of a Purchase Money Note (I)(A) the 

maturity date ofsuch replacement or reissued Purchase Money Note shaiJ. not be later than the 

seventh anniversary ofthe Closing Date and (B) the outstanding principalamount ofsuch 

replacement or reissued Purchase Money Note at the time ofits replacement or reissuance shalJ . . 

equal (1) the outstanding principal amount ofsuch.Purchase Money Note minus (2) the amounts 

on deposit pursuant to Section 3.3 ofthe Custodial and Paying Agency Agreement to pay such 

maturing Purchase Money Note (including the amount, if any, of any payments made pursuant to 

the Guaranty Agreement) plus (3) in the event the Purchase Money Note is reissued on account 

ofinsufficient funds in the. Defeasance Account to discharge such Purchase Money Note in fuJI 

on the Purchase Money Note Maturity Date, an .amount equal to 0.50% ofthe amount calculated 

pursuant to subsections (1) and (2); provided~ however, for purposes ofthis clause (2), proceeds 

from reissued Purchase Money Notes deposited pursuant to Section 3.3 ofthe Custodial and 

Paying Agency Agreet:nent shgil not be inch,1ded as amounts on deposit to pay such maturing 

Purchase Money Note and (ii) no modification contained in such replacement or reissued 

Purchase Money Note shaii adversely affect in any material respect (A) the amount or timing of 

34 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
any payments or distributions to the Private Owner or the Initial Member or any permitted 

successor or assign pursuant to the Priority of Payments, (B) any other rights or obligations of, or 

the need for any advances, contributions or payments from, the Private Owner or the Initial 

Member or their Affiliates or any permitted successor or assign pursuant to this Agreement or 

any Transaction Document or otherwise or (C) the rights or interests of any Holder of any other 

Purchase Money Notes or any owner of an interest therein. Prior to effecting any such changes, 

amendments or modifications, the FDIC shall notify each ofthe Private Owner and the Company 

of any such contemplated changes, amendments or modifications, and the Private Owner and the 

Company agree that they will cooperate in good faith with the FDIC in effecting all such 

changes, amendments or modifications. 

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 Ag!eement. This Agreement and the Transaction Documents 

contain the entire agreement between the Initial Member and the Company and its Affiliates with 

respect to the subject matter hereof and supersede any and all other prior agreements, whether 

oral or written; provided, however that any Confidentiality Agreement between the FDIC and 

the Private Owner or any Affiliates ofthe Private Owner (inc1uding by way ofjoinder) with 

respect to the transaction that is the subject of this Agreement and the Transaction 

Documents sha11 remain in full force and effect to the extent provided· therein, except that the 

Company's rights under Article VI shaH not be deemed a repurchase option for purposes of 

Section 2 of any such Confidentiality Agreement. In the event of a conflict between the terms of· 

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

executed in connection herewith or in connection with the transactions contemplated hereby, 

including any translation into a forei"gillanguage ofthis Agreement for the purpose of any 

Transfer Document, or any other document or instrument executed in connection herewith which 

is prepared for notarization, filing or any other purpose, the terms ofthis Agreement shall 

control, and furthermore, the terms ofthis Agreement shall in no way be or be deemed to be 

amended, modified or otherwise affected in any manner by the terms of such Transfer Document 

or other document or instrument. 

Section 8.7 Jurisdiction; Venue and Service. 

(a) The Company, on behalf of itselfand its Affiliates, hereby irrevocably and · 

unconditionally: 

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

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

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

commenced by the Initial Member arising out of, relating to, or in connection with this 

Agreement or any Transaction Document, and waives any right to: 

35 

West CRE Venture 2010-2 

Asset Contribution 3ld Sale Agreement 

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

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

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

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

District Court for the Southern District ofNew York or the United States District Court for the 

District ofColumbia; or 

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

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

inconvenient forum; 

(ii) consents to thejurisdictionofthe Supreme Court ofthe State of 

New York, County ofNew York, for any suit, action or proceeding against it or any of its 

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

Agreement or any Transaction Document (other than the LLC Operating Agreement), and 

waives any right to: 

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


other court or dispute-resolution forum without the consent of the Initial Member); 


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


State 9fNewYork, County ofNe~ York; or 


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


County ofNew York, is an inconvenient forum; 


(iii) · agrees to bring any suit, action or proceeding by the Company, or 

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

Agreement or any Transaction Document, in only the United States District Court for the 

Southern District ofNew York or the United States District Court for the District of Columbia, 

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

dispute-resolution forum without the consent ofthe Initial Member, and agrees to consent 

thereafter to transfer ofthe suit, action or proceeding to either the United States District Court for 

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

Columbia at the option ofthe Initial Member; and 

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

ofNew York and the United States DistriCt Court for the District ofColumbia both lack 

jurisdiction to hear a suit, action or proceeding fa11ing within Section 8.7(a)(iii), to bring that 

suit, action or proceeding in only the Supreme Court ofthe State ofNew York, County of 

New York, and waives any right to remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum withoutthe consent of the Initial Member. 

. (b) Each ofthe Private Owner and the Company, on behalf of itself and its 

Affiliates, hereby irrevocably and unconditiona11y agrees that any final judgment entered against 

36 

West CRE Venture 2010-2 

Asset Contribution a1d Sale Agreement 

EXECUTION VERSION 
it in any suit, action or proceeding falling within Section 8.7(a) may be enforced in any court of 

competent jurisdiction; 

(c) Subject to the provisions of Section 8.7(d), each ofthe Private Owner and 

the Company, on behalf ofitself and its Affiliates, and the Initial Member hereby irrevocably 

and unconditionally agrees that service of all writs, process and summonses in any suit, action or 

proceeding pursuant to Section 8.7(a) or Section 8.7(b) may be effected by the mailing of copies 

thereofby registered or certified mail, postage prepaid, to it at its address for notices pursuant to 

Sections 7.1 and 7.4 (with copies to such other Persons as specified therein); provided, however, 

that nothing contained in this Section 8.7(c) shall affect the right of any party to serve process in 

any other manner permitted by Law; and 

(d) Nothing in this Section 8. 7 shall constitute consent to jurisdiction in any 

court by the FDIC, other than as expressly provided in Section 8.7(a)(iii) and Section 8.7(a)(iv), · 

or in any way limit the FDIC's right to remove, transfer, seek to dismiss, or otherwise respond to · 

any suit, action, or proceeding against it in any forum. 

Section 8.8 \Vaiver of Jury Trial. EACH OF THE COMPANY, FOR ITSELF AND 

ITS AFFILIATES, AND THE INITIAL MEMBER HEREBY IRREVOCABLY AND 

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

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

THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A 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. 

Section 8.10 Headings. Article, section or paragraph titles or captions contained in this 

Agreement are inserted only as a matter of convenience and for reference and in no way define, 

limit, extend or describe the scope of this Agreement or the intent of any provisions hereof. All 

article, section and paragraph references contained in this Agreement shall refer to articles, 

sections and paragraphs in this Agreement unless otherwise specified. 

Section 8.11 Compliance with Law. Except as otherwise specifically provided in this 

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

with all Laws, as they may pertain to such party's performance of its obligations hereunder. 

37 

West CRE Venture 2010-2 

Asset Contribution aKI Sale Agreement 

EXECUTION VERSION 
Section 8.12 Right to Specific Performance. THE COMPANY HEREBY 

ACKNOWLEDGES AND AGREES THAT THE DAMAGES TO BE INCURRED BY THE 

INITIAL MEMBER AS A RESULT OF THE COMPANY'S BREACH OF THIS 

AGREEMENT WILL BE DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN, THAT 

DAMAGES WILL NOT BE AN ADEQUATE REMEDY AND THAT ANY BREACH OR 

THREATENED BREACH OF ANY OF THE PROVISIONS OF THIS AGREEMENT BY THE 

COMPANY MAY CAUSE IMMEDIATE IRREPARABLE HARM FOR WHICH THERE 

MAYBENOADEQUATEREMEDY AT LAW. ACCORDINGLY, THE PARTIES AGREE 

THAT, IN THE EVENT OF ANY SUCH BREACH OR THREATENED BREACH, THE 

INITIAL MEMBER SHALL BE ENTITLED TO (1) IMMEDIATE AND PERMANENT 

EQUITABLE RELIEF (INCLUDING INJUNCTIVE RELIEF AND SPECIFIC 

PERFORMANCE OF THE PROVISIONS OF THIS AGREEMENT) FROM A COURT OF 

COMPETENT JURISDICTION (IN ADDITION TO ANY OTHER REMEDY TO WHICH IT 

MAY BE ENTITLED AT LAW OR IN EQUITY), AND (II) SOLELY IN THE CASE OF A 

BREACH OF SECTION 4.15 HEREOF, LIQUIDATED DAMAGES IN THE AMOUNT OF 

$25,000 FOR EACH BREACH OF SUCH SECTION. THE PARTIES AGREE AND 

STIPULATE THAT THE INITIAL MEMBER SHALL BE ENTITLED TO EQUITABLE 

(INCLUDING INJUNCTIVE) RELIEF WITHOUT POSTING A BOND OR OTHER 

SECURITY, AND THE COMPANY FURTHER WAIVES ANY DEFENSE IN ANY SUCH 

ACTION FOR SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF THAT A REMEDY 

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

SECURITY AS A PREREQUISITE TO OBTAINING EQUITABLE RELIEF. NOTHING 

CONTAINED IN THIS SECTION SHALL LIMIT EITHER PARTY'S RIGHT TO ANY 

REMEDIES AT LAW, INCLUDING THE RECOVERY OF DAMAGES FOR BREACH OF 

THIS AGREEMENT. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

38 

West CRE Venture 2010-2 

Asset Contribution ood Sale Agreement 

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

as of the day and year first above written. 

INITIAL MEMBER: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION IN ITS CAP A CITY AS 

RECEIVER FOR EACH OF THE 

VARIOUS FAILED FINANCIAL 

INSTITUTIONS LISTED ON SCHEDULE I 

HERETO 

By: 

Name: 

Title: 

COMPANY: 

WEST CRE VENTURE 2010-2, LLC 

By: 	 Federal Deposit Insurance Corporation in its 

Capacity as Receiver for each ofthe Various 

Failed Financial Institutions Listed on 

Schedule I Hereto, as Sole Member and 

Manager 

[Signature Page to Asset Contribution and Sale Agreement] 

West CRE Venture 2010-2 

Asset Contribution and Sale Agreement 

EXECUTION VERSION 
ATTACHMENT A 


to 


Asset Contribution and Sale Agreement 


ASSET SCHEDULE 


[Attached] 


West CRE Venture 2010-2 

Asset Contribution l:l1d Sale Agreement 

EXECUTION VERSION 
ATTACHMENTB 


to 


Asset Contribution and Sale Agreement 


ASSET VALUE SCHEDULE 

[Attached) 

West CRE Venture 2010-2 

Asset Contribution a1d Sale Agreement 

EXECUTION VERSION 
ATTACHJ\1ENT C 


to 


Asset Contribution and Sale Agreement 


(For use with Assets in Bankruptcy) 


(Note to Preparer: When preparing the actual Affidavit and Assignment, delete this instruction 

and the reference to Attachment C above.) 

State of -------- § 


§ 


County of_______ § 


AFFIDAVIT AND ASSIGNMENT OF CLAIM 

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

Federal Deposit Insurance Corporation as Receiver for _________ 

("Assignor"), acting by and through its duly authorized officers and agents, for good and 

valuable consideration, the receipt and sufficiency of which are hereby acknowledged 9oes 

hereby sell, transfer, assign and set over to West CRE Venture 201 0-2, LLC ("Assignee") 

of , and its successors and assigns, all ofthe 

Assignor's interest in any claim in the bankruptcy case commenced by or against {insert 

Obligor's name} ("Obligor") in the {insert appropriate V. S. Bankruptcy C~urt, 

including the district ofthe court, such as for the Western District ofTexas, being designated as 

Case Number {insert docket number assigned case) ("Bankruptcy Claim"), or such part of said 

Claim as is based on the promissory note of {insert the names ofthe makers ofthe note exactly 

as they appear on the note), dated {insert the date the note was made), and made payable to 

{insert the name ofthe payee on the note exactly as it appears on the note}, provided, however, 

that this assignment is made pursuant to the terms and conditions as set forth in that certain Asset 

Contribution and Sale Agreement between the Assignor and the Assignee dated as of the 14th 

day ofDecember, 2010 (the "Agreement"). 

For purposes ofRule 3001 ofthe Federal Rules ofBankruptcy Procedure ("Bankruptcy 

Rule 3001 "),this assignment and affidavit represent the unconditional transfer ofthe Bankruptcy 

Claim or such part ofthe Claim as is based on the promissory note or notes above and shall 

constitute the statement ofthe transferor acknowledging the transfer and stating the consideration 

therefore as required by Bankruptcy Rule 3001. 

This transfer was not for the purpose ofthe enhancement of any claim in a pending 

bankruptcy. The transfer ofthe debt was pursuant to the Agreement, through which numerous 

debts were sold; no specific amount ofthe total consideration was assigned to the debt that forms 

the basis of claim. 

This assignment also shall evidence the unconditional transfer ofthe Assignor's interest 

in any security held for the claim. 

West CRE Venture 2010-2 

Asset Contribution Ill() Sale Agreement 

EXECUTION VERSION 
IN WITNESS WHEREOF, the Assignor has caused tills Affidavit and Assignment of 

Claim to be executed tills_ day of , __. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECENER FOR 

By: ----------------------­ Name: 


Title: Attorney-in-Fact 


ACKNO\VLEDGMENT 

STATE OF~--~--------- § 


§ 


COUNTY OF _________ § 


Before me, the undersigned authority, a Notary Public in and for the coun~y and state 

aforesaid, on this day personal1y appeared , known to me 

to be the person whose name is subscribed to the foregoing instrument, as Attorney-in-Fact of 

the Federal Deposit Insurance. Corporation as Receiver for , acting 

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

the Federal Deposit Insurance Corporation as Receiver for , for 

the purposes and consideration therein expressed, and in the capacity therein stated. 

Given un<]er my hand and seal ofoffice on tills the __. day of_______, ___. 

Notary Public 

[SEAL] My Commission expires: ---------­

2 

West CRE Venture 2010-2 

Asset Contribution ll1d Sale Agreement 

EXECUTION VERSION 
------------

ATTACHMENTD 


to 


Asset Contribution and Sale Agreement 


(Note to Preparer: 1¥hen preparing an actual Allonge, delete this instruction and the reference 

· to Attachment D above.) 

ALLONGE 

THIS ALLONGE IS TO BE A ITACHED TO AND MADE AN INTEGRAL PART of 

the following instrument: 

Note [Insert proper name ofNote] 


Dated: [Insert Date of Execution ofNote] 


Payable by [Insert Name of Borrower], a ______ 


[Insert State ofFonnation] [Kind of Entity] [Ifknown] 


Payable to the Order of: [Insert name of Ori cinal Payee] 


Original Principal Amount: Do11ars [Insert Oricinal Principal· 


Amount in words]($ [Insert amount in numerals.] 


PAY TO THE ORDER OF WEST CRE VENTURE 2010-2, LLC, A DELAWARE 


LIMITED LIABILITY COMPANY, WITHOUT RECOURSE AND WITHOUT 


REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR BY OPERA TJON 


OF LAW, OF ANY KIND AND NATURE WHATSOEVER. 


FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR 

By: -----------------------------­ Name: 


Title: Attorney in Fact 


Dated as of , 2010 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
-------------------

ATTACH.MENT E 


to 


Asset Contribution and Sale Agreement 


(Note to Preparer: T¥hen preparing the actual Affidavit delete this instruction and the reference 

to Attachment E above.) 

STATE OF-----­ § 

§ 

COUNTY OF _____ § 

ASSIGNMENT Ai~D 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 msurance Corporation as 

Receiver for-~--,...---------~-----'--·' whose address 'is 550 17th Street 

NW, Washington, DC 20429 (the "Initial Member"). 

2. That at the time ofthe preparation oftransfer to West CRE Venture 2010-2, LLC 

(the "Company''), the Initial Member was the owner ofthat certain Joan, 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: 

Asset 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 ifthe Initial Member subsequently locates the Instrument, the Initial Member 

shall use reasonable efforts to provide written notice to the Company and deliver and endorse the 

Instrument to the Company in accordance with written instructions received from the Company 

(or such other party designated in writing by the Company). 

5. That the purpose ofthis affidavit is to establish such facts. This affidavit shall not 

confer any rights or benefits, causes or claims, representations or warranties (including, without 

West CRE Venture 2010-2 

Asset Contribution a1d Sale Agreement 

EXECUTION VERSION 
----------------------------------

limitation, regarding ownership or title to the Instrument or the obligations evidenced thereby) 

upon the Company, its successors or assigns. A11 such rights, benefits, causes or claims, 

representations and warranties (if any) shal1 be as set forth in the Asset Contribution and Sale 

Agreement between the Company and the Initial Member dated as ofthe 14th day ofDecember 

2010 (the "Contribution Agreement"). 

6. That pursuant to the terms and conditions of the Contribution Agreement, the 

Instrument (including, without limitation, any and a11 rights the Initial Member might have to 

enforce payment and performance ofthe Instrument, including any rights under Section 3-309 of 

the Uniform Commercia] Code) is hereby assigned effective as ofthe date hereof, without 

recourse, representation or warranty, to the Company. A copy of the Instrument is attached to 

this affidavit, if available. 

FEDERAL DEPOSIT INSURANCE 

CORPORA TJON AS RECEIVER FOR 

By: 


Name: 


Title: Attorney-in-Fact 


Signed and sworn to before me this--·day of_______, 2010. 

~ • • '> 

Notary Public 

[SEAL] My Commission expires:-----------..,...----~-

2 

West CRE Venture 2010-2 

Asset Contribution 3ld Sale Agreement 

EXECUTION VERSION 
ATTACHMENT F-1 


to 


Asset Contribution and Sale Agreement 


Upon recordation, return to: 

[Insert name and address of Person to whom recorded original Assignment is to be returned.· 

Note to preparer, delete this instruction upon completion ofdocumentation and prior to 

submission for execution.] 

Name: 

Address: 

Tax Map No. or Tax Parcel Identification No.: _________ 

[Insert if1oca1 recording office requires.) {Note to preparer, delete the instruction upon 

completion o(documentation and prior to submission fOr execution.l 

ASSIGN1\1ENT OF REAL ESTATE MORTGAGE 

(Book __, Page_) 

KNOW ALL MEN BY THESE PRESENTS: 

THAT, THE FEDERAL DEPOSIT INSURANCE CORPORATJON (acting in any 

capacity, the "FDIC") AS RECEIVER FOR , at 550 17th Street, NW, 

Washington, D.C. 20429-0002 (hereinafter referred to as "Assignor" or "Grantor"), for va]ue 

received, does by these presents, grant, bargain, sel1, assign, transfer and set over to WEST CRE 

VENTURE 2010-2, LLC, a Delaware limited liability company, its successors and assigns 

(hereinafter referred to as "Assignee" or "Grantee"), at ______________ 

_______, a11 right, title and interest in and to that certain: 

Note and Rea] Estate Mortgage, each dated [Insert Date), executed by [Insert Name of 

Borrower], a [Insert Kind ofEntity] (the "Grantor"), each being in the original principal 

sum of[Write out amount) and __1100 Do11ars ($[Insert Numerals]) and which Note 

was made payable to [Insert name of original lender] and which Mortgage was recorded 

on [Insert Date], in Book __, Page __ with the [Register ofDeeds, [Insert) 

County, State of [Insert]] ("Register's Office"). 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
[Insert the following paragraph only if original real estate mortgage was originated by 

and executed in favor of another lender and then transferred to the applicable Failed 

Bank. Note to preparer, delete this instruction upon completion ofdocumentation and 

prior to submission for execution: 

Such Note and Mortgage were assigned by [Name of oricinallender] to [Insert Name of 

Failed Bank] pursuant to that certain Assignment ofReal Estate Mortgage dated [Insert 

Date] and recorded on [Insert Date] in Book , Page __in the Register's Office 

("Assignment").] 

[Insert the following paragraph only ifthe Real Estate Mortgage was modified or 

amended and a document was recorded to reflect the modification and amendment. Note 

to preparer, delete this instruction upon completion ofdocumentation and prior to 

submission for execution: 

Such Note and Real Estate Mortgage were modified pursuant to that certain [Insert 

Correct Name of Document, e.g., Modification and Ratification ofNote and Rea) Estate 

Mortgage Agreement] dated [Insert Date] and rec:orded on [Insert Date] in Book __ 

Page· in the Register's Office ("Modification").] 

The Mortgage, as such may have been assigned and modified, covers the following described 

property: 

SEE ATTACHED EXHIBIT A 

TO HAVE AND TO HOLD the same unto said WEST CRE VENTURE 2010-2, 

LLC, ITS SUCCESSORS AND ASSIGNS. 

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR 

WARRANTY, EXPRESS OR IMPLIED, \VRITTEN OR ORAL, BY THE FDIC AS 

RECEIVER FOR [INSERT NAME OFFAILED BANK)OR IN ITS CORPORATE . 

CAPACITY. THE LOAN IS CONVEYED '"AS IS" AND "WITH ALL FAULTS," WITHOUT 

ANY REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING AS TO 

COLLECT ABILITY, ENFORCEABILITY, VALUE OF COLLATERAL, ABILITY OF ANY 

OBLIGOR TO REPAY,CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE,. 

MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, BY ANY 

PERSON, INCLUDING THE FDIC OR ITS OFFICERS EMPLOYEES, AGENTS OR 

CONTRACTORS. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

West CRE Venture 2010-2 

Asset Contribution aJd Sale Agreement 

EXECUTION VERSION 
---

------------------------ ----------------------------

------------------------

IN WITNESS WHEREOF, FEDERAL DEPOSIT INSURANCE CORPORA TJON AS 

RECEIVER FOR has caused trus instrument to be executed this 

day of , 2010, effective as of the day of , 201 0. 

Signed, sealed and delivered 

in the presence of: 

ATTEST: 

Print Name: 

Title: 

Witness #1 

Print Name: 

Witness #2 


Print Name: _______________________:_ 


ASSIGNOR: 

FEDERAL DEPOSIT INSURANCE 

CORPORA TlON AS RECEIVER FOR 

By: ________________ 

Name: ______________________________ 

Title: Attorney-in-Fact 

SEAL 

Note: State law has various execution requirements, including attestations or witnesses or both. 

Preparer delete foregoing note once local requirements are determined. 

3 

West CRE Venture 2010-2 

Asset Contribution md Sale Agreement 

EXECUTION VERSION 
ACKNOWLEDGMENT 

[UNIVERSAL FORM OF ACKNO\VLEDGMENT] [Note to Preparer. delete the 

designation. Universal Form o(Aclmowledgement prior to execution. Use onlv one o[the two 

ad11owledgements: this designation or the CalifOrnia fOrm.] 

STATE OF ________________ ) 

) SS: 

COUNTY OF _____________ ) 

On this day of , 2010, before me personal1y appeared 

_________, known to me or proved to me on the basis of satisfactory evidence to be 

the person(s} who executed the foregoing instrument, and he/she thereupon duly acknowledged 

to me that he/she executed the same to be his/her free act and deed. 

WITNESS my hand and official seal. 

Name ofNotary:.___________ 

My commission expires:. ________ 

4 

West CRE Venture 2010-2 

Asset Contribution ll1d Sale Agreement 

EXECUTION VERSION 
ICALIFORi'\TlA FORM OF ACKNO\VLEDGMENT) Note to Preparer, delete the 

designation, CalifOrnia Form o(Ad11owledgement prior to execution i(vou using this 

aclmov.:!edgement. Use onlv one o(the two aclmowledgements: this designation or the Universal 

fOrm.] 

STATE OF CALIFORNIA 

COUNTY OF _______ 

) 

) 

) 

SS: 

On before me, (here insert name and title of the officer), personally 

appeared who proved to me on the basis of satisfactory evidence to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 

he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 

signature(s) on. the instrument the person(s), or the entity upon behalf of which the person(s) 

acted, executed the instrument. 

I certify under PENALTY OF PERJURY under the laws of the State ofCalifornia that the 

foregoing paragraph is true and correct. 

WITNESS my hand and official seal. 

Signature------------(Seal) 

5 

West CRE Venture 2010-2 

Asset Contribution 111d Sale Agreement 

EXECUTION VERSION 
EXHIBIT A 


(Legal Description) 


6 


West CRE Venture 2010-2 


Asset Contribution llld Sale Agreement 


EXECUTION VERSION 

ATTACHMENT F-2 


to 


. Asset Contribution and Sale Agreement 


Upon recordation, return to: 

[Insert name and address of Person to whom ofrecorded original Assignment is to be returned. 

Note to preparer, delete this instruction upon completion ofdocumentation and prior to 

submission for execution.] 

Name:-----­ Address: 

Tax Map No. or Tax Parcel Identification No.:---~----

[Insert iflocal recording office requires.] [Note to preparer, delete the instruction upon 

completion o(documentation and prior to submission fOr execution.! 

ASSIGN1\1ENT OF REAL ESTATE DEED OF TRUST 

(Book __, Page_) 

KNOW ALL MEN BY THESE PRESENTS: 

THAT, THE FEDERAL DEPOSIT INSURANCE CORPORATION (acting in any 

capacity, "FDIC") AS RECEIVER FOR , at 550 17ih Street, NW, 

Washington, D.C. 20429-0002, (hereinafter referred to as "Assi!ITlor" or "Grantor"), for value 

received, does by these presents, grant, bargain, sell, assign, transfer and set over to WEST CRE 

VENTURE 2010-2, LLC, a Delaware limited liability company, its successors and assigns 

(hereinafter referred to as "Assignee" or "Grantee"), at , 

_______ ----------' all right, title and interest in and to that certain: 

Real Estate Deed of Trust executed by [Insert name ofBorrower], a [Insert Kind of 

Entity], organized and existing under the Laws of [Insert State], dated [Insert Date of 

Execution], in the original principal sum of [Insert Amount in words] and _/100 Dollars 

($[Insert Numbers]) ofDeed ofTrust in favor of [Name of Trustee], a resident of 

___________ [ifmore than one Trustee and [Name of Trustee], a 

resident of ,] Trustee [or Trustees] for, and on 

behalf of, [Insert Name of Failed Bank] (the "Mortgage"), which Mortgage was recorded 

on [Insert Date], in the Clerk's Office [ofthe Circuit Court ofthe City of 

------·'orofthe Court of ] [State] (''Clerk's Office") in Book __ 

Page __. 

West CRE Venture 2010·2 

Asset Contribution md Sale Agreement 

EXECUTION VERSION 
[Insert the following paragraph only if original real estate date of trust was originated by 

and executed in favor of another lender and then transferred to the applicable Failed 

Bank. Note to preparer, delete this instruction upon completion ofdocumentation and 

prior to submission for execution: 

Such Mortgage was assigned by [orimnallender] to [Insert Name of Failed Bank] 

pursuant .to that certain Assignment ofReal Estate Deed ofTrust dated [Insert Date] 

. ("Assignment"), which Assignment was recorded on [Insert Date] in the Clerk's Office in 

Book __, Page __.] 

[Insert the following paragraph only ifthe Real Estate Deed ofTrust was modified or 

amended and a document was recorded to reflect the modification and amendment. Note 

to preparer, delete this instruction upon completion ofdocumentation and prior to 

submission for execution: 

The Mortgage was modified by that certain [Insert Correct Name of Document, e.g., 

Modification and Ratification ofNote and Real Estate Deed ofTrust] dated 

· ("Modification"), which Modification was recorded on 

_______ in the Clerk's Office in Book __, Page __.] 

The Mortgage, as such may have been assigned and modified, covers the following described 

property: 

SEE ATTACHED EXHIBIT A 

TO HAVE AND TO HOLD the same unto said WEST CRE VENTURE 2010-2, LLC," 

ITS SUCCESSORS AND ASSIGNS. 

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR 

WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY THE FDIC AS 

RECEIVER FOR [INSERT NAME OF FAILED BANK] OR IN ITS CORPORATE 

CAPACITY. THE MORTGAGE LOAN, AS ASSIGNED AND MODIFIED, IS CONVEYED 

"AS IS" AND "WITH ALL FAULTS," WITHOUT ANY REPRESENTATION OR 

WARRANTY WHATSOEVER, INCLUDING AS TO COLLECT ABILITY, 

ENFORCEABILITY, VALUE OF COLLATERAL, ABILITY OF ANY OBLIGOR TO 

REPAY, CONDITiON, FITNESS FOR ANY·PARTICULAR PURPOSE, 

MERCHANT ABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, BY ANY. 

PERSON, INCLUDING THE FDIC OR ITS OFFICERS, EMPLOYEES, AGENTS OR 

CONTRACTORS. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

West CRE Venture 2010-2 

Asset Contribution 111d Sale Agreement 

EXECUTION VERSION 
------------------------ ----------------------------

------------------------

-------------------------------

IN WITNESS \VHEREOF, FEDERAL DEPOSIT INSURANCE CORPORA TJON AS 

RECENER FOR . has caused this instrument to be executed this 

___ day of , 2010, to be effective as ofthe __ day of , 2010. 

ASSIGNOR: 

Signed, sealed and delivered FEDERAL DEPOSIT INSURANCE 

in the presence of: CORPORA TlON AS RECEIVER FOR 

ATTEST: ___________________ By: __________________ 

Print Name: Name: 


Title: Title: Attorney-in-Fact 


Witness #1 

Print Name: 

SEAL 

Witness #2 

Print Name: --~----------------~-

Note: State law has various execution requirements, including attestations or witnesses or both. 

Prepare delete foregoing note once local requirements are determined. 

3 

West CRE Venture 2010,.2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
ACKNO\VLEDGMENT 

(UNIVERSAL FORM OF ACKNO\VLEDGMENT] [Note to Preparer, delete the 

designation, Universal Form o(Aclmowledgement prior to execution. Use only one o(the two 

ad"nowledgements: this designation or the CalifOrnia /Orm.] 

STATE OF _______________ ) 

) SS: 

COUNTY OF _____________ ) 

On this day of , 2010, before me persona11y appeared 

---------'knownto me or proved to me on the basis of satisfactory evidence to be 

the person(s) who executed the foregoing instrument, and he/she thereupon duly acknowledged 

to me that he/she executed the same to be his/her free act and deed. 

WITNESS my hand and official seal. 

Name ofNotary: __________ 

My commission expires: __~----

4 

West CRE Venture 2010.2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
ICALIFORJ'\'IA FORJ'1 OF ACKNO\VLEDGMENT] [Note to Preparer, delete the 

designation, Universal Form o(Ackn01dedgement prior to execution. Use onlv one o(the two 

acJ..:-now/edgements: this designation or the Universal fOrm.] 

STATE OF CALIFORNIA ) 

) SS: 

COUNTY OF _______ ) 

On before me, (here insert name and title ofthe officer), personal1y 

appeared who proved to me on the basis ofsatisfactory evidence to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 

he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 

signature(s) on the instrument the person(s), or the entity upon behalf ofwhich the person(s) 

acted, executed the instrument. 

!certify under PENALTY OF PERJURY under the Jaws ofthe State ofCalifornia that the 

foregoing paragraph is true and correct. · 

WITNESS my hand and official seaL 

Signature------------(Seal) 

5 

West CRE Venture 2010-2 

Asset Contribution 111d Sale Agreement 

EXECUTION VERSION 
EXHIBIT A 


(Legal Description) 


6 


West CRE Venture 2010-2 


Asset Contribution llld Sale Agreetnent 


EXECUTION VERSION 

--------

ATTACHMENT G 


to 


Asset Contribution and Sale Agreement 


Upon recordation, return to: 


[Insert name and address of Person to whom recorded original Assignment is to be returned. 


Note to preparer, delete this instruction upon completion ofdocumentation and prior 10 

submission for execution.] 

Name: 


Address:----­

Tax Map No. or Tax Parce1 Identification No.: 


[Insert if1ocal recording office requires.] [Note to preparer, delete the instruction upon 


completion ofdocumentation and prior to submission for execution} 


ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS 

[Note to Pre parer, insert correct name ofinstrument here and in body ofAssignment below. 

Delete this instruction prior to execution.] 

(Book , Page_) 

KNOW ALL MEN BY THESE PRESENTS: 

THAT, THE FEDERAL DEPOSIT INSURANCE CORPORATION (acting in any 

capacity, the "FDIC") AS RECEIVER FOR , at 550 17th Street, NW, 

Washington, D.C. 20429-0002, (hereinafter referred to as "Assignor" or "Grantor"), for value 

received, does by these presents, grant, bargain, se11, assign, transfer and set over to \VEST CRE 

VENTURE 2010-2, LLC, a Delaware limited liability company, its successors and assigns, 

(hereinafter referred to as "Assignee" or "Grantee"), at 

------------------' a11 right, title and interest in and to that certain: 

1. Assignment of Leases and Rents, dated [Insert Date] ("Assignment ofLeases"), 

made by [Insert Name of Borrower], a [Insert Kind ofEntity] (the "Borrower"), in favor 

of[lnsert name oforiginal lender] and which Assignment ofLeases was recorded on 

[Insert Date], in Book , Page with [the Register ofDeeds, {Insert] County, 

State of [Insert] ("Regjster's Office") as Document No. ;] and 

2. Any notes and or other agreements evidencing the indebtedness and/or the 

obligations secured by the Assignment ofLeases; and 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
3. Any and a]] other documents and instruments evidencing, securing and or relating 

to the indebtedness and or obligations secured by the Assignment ofLeases. 

[Insert the fol1owing paragraph only if original assignment ofleases and rents was 

originated by and executed in favor of another lender and then transferred to the 

applicable Failed Bank. Note to preparer, delete this instruction upon completion of 

documentation and prior to submission for execution: 

The Assignment of Leases was assigned by [Name of ori!lina] lender] to [Insert Name of 

Failed Bank) pursuant to that certain Assignment of Assignment of Leases and Rents 

dated [Insert Date) and recorded on [Insert Date] in Book , Page __in the 

Register's Office as Document No. .) 

[Insert the following paragraph only if the original Assignment of Leases and Rents 

Mortgage was modified or amended and a document was recorded to reflect the 

modification and amendment. Note to preparer, delete this instruction upon completion 

ofdocumentation and prior to submission for execution: 

Such Assignment of Leases and Rents was modified pursuant to that certaiQ 

[Modification ofAssignment ofLeases] [Insert Correct Name ofDocument] dated [Insert 

Date] and recorded on [Insert Date] in Book __, Page __ in the Register's Office 

as Document No. ("Modification").) 

SEE ATTACHED EXHIBIT A 

TO HAVE AND TO HOLD the same unto said WEST CRE VENTURE 2010-2, LLC, 

ITS SUCCESSORS AND ASSIGNS. 

THIS ASSIGNMENT IS MADE WITHOUT RECOURSE, REPRESENTATION OR 

WARRANTY, EXPRESS OR IMPLIED,_WRITTEN OR ORAL, BY THE FDIC AS., 

RECEIVER FOR [INSERT NAME OFFAILED BANK] OR IN ITS CORPORATE 

CAP A CITY. THE LOAN IS CONVEYED "AS IS" AND "WITH ALL FAULTS," WITH OUT 

ANY REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING AS TO. 

COLLECTABILITY~. ENFORCEABILITY, VALUE OF COLLATERAL, ABILITY OF ANY 

OBLIGOR TO REPAY, CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE,· 

MERCHANT ABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, BY ANY 

PERSON, INCLUDING THE FDIC OR ITS OFFICERS EMPLOYEES, AGENTS OR 

CONTRACTORS . 

. [REMAL'\fDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
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IN WITNESS WHEREOF, FEDERAL DEPOSIT INSURANCE CORPORATION AS 

RECENER FOR . has caused this instrument to be executed this day 

of , 2010, effective as of the day of , 2010. 

ASSIGNOR: 

Signed, sealed and delivered FEDERAL DEPOSIT INSURANCE 

in the presence of: CORPORATION AS RECENER FOR 

By: ______________________________ ATTEST:---------­


Print Name: Name: 


Title: Title: Attorney-in-Fact 


SEAL 

Witness #1 

Print Name: 

Witness #2 


Print Name: ________________________ 


Note: State law hasvarious execution requirements, including attestations or witnesses or both. 

Preparer delete foregoing note once local requirements are determined. 

3 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
ACKNOWLEDGMENT 

[UNIVERSAL FORM OF ACKNO\VLEDGl\fENT] [Note ro Preparer. delete the 

designation, Universal Form o(Ad71owledgement prior to execution. Use onlv one o(the two 

aclmowledgements: this designation or the California form. ] 

STATE OF -----------------­ ) 

) SS: 

COUNTY OF _ _._______ ) 

On tills day of , 2010, before me personally appeared 

_________, known to me or proved to me on the basis of satisfactory evidence to be 

the person(s) who executed the foregoing instrument, and he/she thereupon duly acknowledged 

to me that he/she executed the same to be his/her free act and deed. 

WITNESS my hand and official seal. 

N arne ofNotary:___________________ 

My commission expires: ________ 

4 W~ CRE Venture 2010-2 

Asset Contribution li1CI Sale Agreetnent 

EXECUTION VERSION 
ICALIFORNIA FORM OF ACKNO\VLEDGMENT] Note to Preparer. delete the 

designation. Cali{ornia Form o(Aclmovvledgement prior to execution i(vou using this 

aclmoVtoledgement. Use onlv one o(the two acknowledgements: this designation or the Universal 

form.] 

STATE OF CALIFORNIA 

COUNTY OF _______ 

) 

) 

) 

SS: 

On before me, (here insert name and title ofthe officer), personally 

appeared who proved to me on the basis of satisfactory evidence to be the 

person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 

he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their 

signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 

acted, executed the instrument. 

J certify under PENALTY OF PERJURY under the laws ofthe State of California that the 

foregoing paragraph is true and correct. 

WITNESS my hand and official seal. 

Signature------------(Seal) 

5 

West CRE Venture 2010-2 

Asset Contribution aul Sale Agreement 

EXECUTION VERSION 
EXHIBIT A 


(Legal Description) 


6 


West CRE Venture 2010-2 


Asset Contribution a1d Sale Agreement 


EXECUTION VERSION 

ATTACHMENTH 


to 


Asset Contribution and Sale Agreement 


(Note to FDIC Preparer: When preparing the actual Limited Power ofAttorney, delete this 

instruction and the reference to Attachment E above) 

LIJ\fJTED PO\VER OF ATTORNEY 


\VEST CRE VENTURE 2010-2 STRUCTURED SALE TRANSACTION 


KNOW ALL PERSONS BY THESE PRESENTS that the FEDERAL DEPOSIT 

INSURANCE CORPORATION, a corporation organized and existing under an Act of Congress, 

hereafter called the "FDIC," pursuant to the applicable resolutions ofthe Board ofDirectors of 

the FDIC, and redelegations thereof, hereby designates the individual(s) set forth on Exhibit A, 

attached hereto and made a part hereof (the "Attorney(s)-in-Fact"), to act on behalf ofthe FDIC 

in any ofits Receivership or Corporate capacities related to the various failed financial 

institutions listed on Exhibit B, attached hereto and made a part hereof, for the sole purpose of 

executing the documents outlined below; and 

WHEREAS the undersigned has full authority to execute this Limited Power of Attorney 

on behalf ofthe FDIC; 

NOW THEREFORE, the FDIC grants to the Attorney(s)-in-Fact the authority, subject to 

the limitations herein, as follows: 

1. To execute, acknowledge, seal and deliver on behalf of the FDIC, individually 

and not jointly by and through the FDIC, acting in any capacity, any and all instruments of 

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

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

evidence the sale and transfer of any asset contained in the Structured Transaction enumerated 

above. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

West CRE Venture 2010-2 

Asset Contribution a1d Sale Agreement 

EXECUTION VERSION 
The form which the Attorney(s)-in-Fact shall use for endorsing promissory notes or preparing 


a11onges to promissory notes is as follows: 


Pay to the order of 

West CRE Venture 2010-2, LLC 

Without Recourse and Without Representation or 

Warranty, Express, Implied or By Operation of 

Law, of any Kind or Nature whatsoever 

FEDERAL DEPOSIT INSURANCE 

CORPORATION IN ITS CAPACITY AS 

RECEIVER FOR l ) [insert name o( 

applicable fCliled financial institution! 

By:----------------------------------------------------------------------~--- Name: _________________________________ 

Title: Attorney-in-Fact 

,, 

Al1 documents of assignment, conveyance or transfer shaH contain this sentence: "This 

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

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

Corporation in any capacity. 

2. To grant to each Attorney-in-Fact full power and authority to do and perform a11 

acts necessary to carry into effect the powers granted by this Limited Power ofAttorney as fully 

as the ~DIC in any capacity might or could do with the same valid~ty as if ap and every such act 

had been herein particularly stated, expressed and especially provided for. 

This Limited Power ofAttorney shal1 be effective from [usuallv Closing Date] and 

shal1 continue in fu]] force and effect through [one vear 's duration], unless otherwise 

terminated by an official ofthe FDIC or its successors and assigns authorized to do so 

("Revocation"). At such time this Limited Power ofAttorney wm be automatica11y 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 · 

ofthe jurisdiction where this Limited Power ofAttorney has been recorded, or unless a third 

party has received actual notice of a Revocation. 

IN WITNESS WHEREOF, the FDIC by its duly authorized officer empowered to act on 

its behalfby appropriate resolution ofits Board of Directors, or redelegations thereof, has 

caused these presents to be executed and subscribed in its name this day of __, 2010. 

[REl\fAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

2 

West CRE Venture 2010-2 

Asset Contribution ood Sale Agreement 

EXECUTION VERSION 
FEDERAL DEPOSIT INSURANCE 

CORPORATION 

By:________________ 

Name:_________________________________ 

Title: 

Signed, sealed and delivered · 

in the presence of 

By:___~~-~------- Name:__________________________ 

Witness 

By=---------~---

Name:---------------------------­ Witness 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

3 

West CRE Venture 2010-2 

Asset Contribution llld Sale Agreement 

EXECUTION VERSION 
ACKNO\VLEDGMENT 

UNITED STATES OF AI\IERICA) 

) 

DISTRICT OF COLUMBIA ) 

----------'affiant, for himself says that [s/he] is a [title] , Division of 

Resolutions and Receiverships, of the Federal Deposit Insurance Corporation, the Corporation in 

whose name the foregoing Limited Power ofAttorney has been subscribed, that the said Limited 

Power ofAttorney was subscribed on behalf of the said Corporation by due authority of the 

Corporation's Board of Directors, and that the said acknowledges the said 

Limited Power of Attorney to be the free act and deed ofthe said Corporation. 

Notary Public, District of Columbia 


United States of America 


My Commission Expires: 

4 

West CRE Venture 2010-2 

Asset Contribution 111d Sale Agreement 

EXECUTION VERSION 
EXHIBIT A 

Attornevs-in-Fact 

(list names and organhations ofAttorney(s)-in-Fact] 

TO LIMITED PO\VER OF ATTORJ'\TEY HAS BEEN PREPARED BY THE FDJC AND 

MAY NOT BE AMENDED, REVISED, ALTERED OR SUBSTITUTED IN ANY WAY 

"'ITHOUT THE EXPRESS \VRJTTEN CONSENT OF THE FDIC. . 

West CRE Venture 2010-2 

Exhibits to Asset Contribution and Sale Agreement 

EXECUTION VERSION 
EXHIBIT B 


List of Failed Financial Institutions 

Bank Name Citv State Fund Closino Date 

Irwin Union Bank & Trust Company Columbus IN 10120 9118/2009 

Irwin Uruon Bank F.S.B. Columbus IN 10121 9118/2009 

Barnes Banking Company Kaysville UT 10171 1115/2010 

Bank ofLeeton Leeton MO 10174 1/22/2010 

Florida Commuruty Bank Immokalee FL 10181 1/29/2010 

Centennial Bank 02:den UT 10193 3/05/2010 

West CRE Venture 2010-2 

Exlubits to Asset Contnbution and Sale Agreement 

EXECUTION VERSION 
ATTACHMENT I 


to 


Asset Contribution and Sale Agreement 


ASSIGNMENT AND ACCEPTAi~CE OF LIMITED LIABILITY COMPANY INTEREST 

FOR VALUE RECEIVED, pursuant to the tenns and conditions set forth in that certain 

Asset Contribution and Sale Agreement, dated as of December 14, 201 0, between THE 

FEDERAL DEPOSIT INSURANCE. CORPORATION IN ITS CAPACITY AS 

RECEIVER FOR [name of failed financial institution), at 550 17th Street, NW, Washington, 

D.C. 20429-0002 ("Assignor"), \VEST CRE VENTURE 2010-2, LLC, a Delaware limited 

liability company,. its. successors . and. assigns, at 

("Assignee"), and others, 

Assignor, being the sole member of [Insert Name of Subsidiary Entity], a [Insert State of 

Formation) limited 1iability company (the "Limited Liability Company"), by these presents 

grants, bargains, sells, assigns, transfers and sets over to Assignee a11 right, title and interest in 

and to Assignor's entire interest in the Limited Liability Company (the "Limited Liability 

Company Interest"), which Limited Liability Company Interest includes, without limitation, 

Assignor's capita] and profits interest, capital account balance, distributions and liquidation 

rights and voting and any management rights and powers in the Limited Liability Company. 

Assignee accepts the Limited Liability Company Interest, assumes all covenants, 

conditions, obligations, liabilities and responsibilities required to be kept, performed and fulfilled 

by Assignor with respect to the Limited Liability Company Interest and agrees to be bound by all 

the tenns and conditions of the Amended and Restated Limited Liability Company Operating 

Agreement (the "Operating Agreement"), a copy of which Operating Agreement is attached to 

this Assignment and Acceptance of Limited Liability Company Interest as Exhibit A and made a 

part ofthis Assignment and Acceptance of Limited Liability Company Interest by reference. 

This Assignment and Acceptance of· Limited Liability Company Interest is made, 

delivered and effective as ofthe date first noted above. 

[REMAINDER OF PAGE INTENTIONALLY LEFf BLANK] 

West CRE Venture 2010-2 

Exlnbits to Asset Contribution and Sale Agreement 

EXECUTION VERSION 
-------------------

IN \VITNESS " 1HEREOF, Assignor and Assignee have caused this Assignment and 

Acceptance of Limited Liability Company Interest to be executed and delivered as ofthe __ 

day of , 201 

ASSIGNOR: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION IN ITS CAPACITY AS 

RECEIVER FOR (name of failed fmancial 

institution] 

By:________________________________ 


Name: 


Title; 


ASSIGNEE: 

\VEST CRE VENTURE 2010-2, LLC 

By: , its Manager 

By: ______~------------

Name: 

Title: ------------------­

West CRE Venture 2010·2 

Exhibits to Asset Contribution and Sale Agreement 

EXECUTION VERSION 

S-1 

[Insert the following consent for , and to address Operating 

Agreement prohibitions against transfer.] {Note to preparer, delete this instruction upon 

completion ofdocumentation and prior to submission for execution.} 

Acknowledged, consented to, approved and agreed to by the Company as of the __ 

day of , 201_, which confirms that Assignee, pursuant to the attached Assignment 

and Acceptance of Limited Liability Col)lpany Interest, has become and at all times hereafter 

will be the substitute member of the Company, with all right, title and interest in the Company 

provided in the Operating Agreement and any and all rights and limitations ofAssignor pursuant 

to the Operating Agreement. 

\VEST CRE VENTURE 2010-2, LLC 

By: 	 FEDERAL DEPOSIT INSURANCE 

CORPORATION in its capacity as Receiver 

for [name offailed financial institution], as 

Sole Member 

By: _______________ 


Name: 


Title: 


West CRE Venture 2010-2 

Exhibits to Asset Contribution and Sale Agreement 

EXECUTION VERSJQN 

S-1 
SCHEDULE I 


LIST OF VARIOUS FAILED FINANCIAL INSTITUTIONS 


Bank Name C!!Y State Fund Closino Date 

Irwin Urtion Bank & Trust Company Columbus IN 10120 9/18/2009 

Irwin Urtion Bank F.S.B. Columbus IN 10121 9/18/2009 

Barnes Banking Com_l)_any Kaysville UT 10171 1/15/2010 

Bank of Leeton Leeton MO 10174 1/22/2010 

Florida Commurtity Bank Immokalee FL 10181 1/29/2010 

Centenrtial Bank Oeden UT 10193 3/05/2010 

West CRE Venture 2010-2 

Exhibits to Asset Contnbution and Sale Agreement 

EXECUTION VERSION 

S-1 

SCHEDULE 2 

LIST OF PURCHASE :l\10NEY NOTES 

1. 	 Purchase Money Note (Class A-1 144A) dated December 14, 201 0 in the original 

principal amount of$21,299,541.00 with a maturity date ofDecember 14, 2013. 

2. 	 Purchase Money Note (Class A-2 1 44A) dated December 14, 2010 in the original 

principal amount of$21,299,542.00 with a maturity date ofDecember 14,2014. 

3. 	 Purchase Money" Note (Class A-1 REGS) dated December 14, 2010 in the original 

principal amount of$0 with a maturity date ofDecember 14, 2013. 

4. 	 Purchase Money Note (Class A-2 REG S) dated December 14, 2010 in the original 

principal amount of$0 with a maturity date ofDecember 14, 2014. 

West CRE Venture 2010-2 

Exhibits to Asset Contribution and Sale Agreement 

EXECUTION VERSION