Multibank RADC Loan and REO Structured Transaction 2010-2 

CUSTODIAL AND PAYING AGENCY AGREEMENT 

by and among 

WEST RADC VENTURE 2010-2, LLC, 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

in its corporate capacity, as Purchase Money Note Guarantor, 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


in its capacity as Receiver for various failed imancial institutions 


listed on Schedule I hereto, as Collateral Agent, 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


in its capacity as Receiver for various failed imancial institutions 


listed on Schedule I hereto, as Initial Member, 


CVB, BRANCH 49, LLC, as Private Owner, 


and 


CITIBANK, N.A., as Custodian and Paying Agent 


Dated as ofDecember 7, 2010 

West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
TABLE OF CONTENTS 


ARTICLE I DEFINITIONS AND CONSTRUCTION .................................................................5 


Section 1.1 Definitions....................................................................................................5 


ARTICLE II PAYING AGENT AND PURCHASE MONEY NOTE ..........................................9 


Section 2.1 Appointment of Paying Agent .....................................................................9 


Section 2.2 Delivery ofDocumentation ..........................................................................9 


Section 2.3 Duties .........................................................................................................10 


Section 2.4 Forms of Purchase Money Note ................................................................ 1 0 


Section 2.5 Authorized Amount; Denominations; Prepayment.. .................................. 11 


Section 2.6 Execution, Delivery and Dating .................................................................12 


Section 2.7 Registration, Registration ofTransfer and Exchange or Conversion ........13 


Section 2.8 Intentionally Omitted ................................................................................ .20 


Section 2.9 Mutilated, Defaced, Destroyed, Lost or Stolen Purchase Money 


Note............................................................................................................21 


Section 2.10 Payments with Respect to the Purchase Money Note ................................21 


Section 2.11 Mandatory Exchange .................................................................................22 


Section 2.12 Note Beneficially Owned by Persons Not Qualified Institutional 


Buyers or Qualified Purchasers .................................................................23 


Section 2.13 Withholding ...............................................................................................24 


Section 2.14 Persons Deemed Owners ...........................................................................24 


Section 2.15 Holder Voting ............................................................................................24 


Section 2.16 Cancellation ...............................................................................................25 


Section 2.17 Section 3(c)(7) Procedures .........................................................................25 


Section 2.18 Transfer ofthe Purchase Money Note by Receiver ...................................26 


ARTICLE III ACCOUNTS .... ; .................................................................................................... 27 


Section 3.1 Collection Account ....................................................................................27 


Section 3.2 Distribution Account ..................................................................................28 


Section 3.3 Defeasance Account. ..................................................................................29 


Section 3.4 Reserved.....................................................................................................31 


Section 3.5 Reserved.....................................................................................................31 


Section 3.6 Working Capital Reserve Account. ...........................................................31 


Section 3.7 Excess Working Capital Advances ............................................................32 


Section 3.8 Discretionary Funding Advances ...............................................................33 


Section 3.9 Private Owner Pledged Account. ...............................................................33 


ARTICLE IV ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS .....................34 


Section 4.1 Investment ofFunds in Accounts ............................................................. .34 


Section 4.2 Interest........................................................................................................35 


Section 4.3 Inadequately Identified Amounts ...............................................................35 


Section 4.4 Payment Procedures ...................................................................................36 


ARTICLE V DISTRIBUTIONS ..................................................................................................36 


Section 5.1 Priority of Payments ..................................................................................36 


Section 5.2 Notices ofPayment Failure ........................................................................37 


West RADC Venture 2010-2 


Custodial and Paying Agency Agreement 


EXECUTION VERSION 

ARTICLE VI CUSTODIAL DOCUMENTS ..............................................................................38 


Section 6.1 Delivery of Custodial Documents ..............................................................38 


Section 6.2 Examination ofCustodian Files; Copies ....................................................41 


Section 6.3 Shipment ofCustodial Documents ........................................................... .42 


ARTICLE VII CUSTODIAN ......................................................................................................42 


Section 7.1 Appointment ofthe Custodian .................................................................. .42 


Section 7.2 Obligations of the Custodian .................................................................... .42 


ARTICLE VIII FEES AND EXPENSES ................................................................................... .45 


Section 8.1 Fees and Expenses .....................................................................................45 


ARTICLE IX REMOVAL OR RESIGNATION ........................................................................ .45 


Section 9.1 Removal or Resignation ofCustodian and Paying Agent ........................ .45 


ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS ........................... .46 


Section 10.1 Representations, Warranties and Covenants ............................................. .46 


Section 10.2 Insurance ....................................................................................................47 


ARTICLE XI REPORTS .............................................................................................................47 


Section 11.1 Custodian and Paying Agent Report ......................................................... .47 


Section 11.2 Additional Reports .....................................................................................48 


Section 11.3 Company and Servicer Distribution Date Accounting ............................. .48 


Section 11.4 Distribution Date Instructions ................................................................... .49 


Section 11.5 Books and Records ........................................,...........................................50 


ARTICLE XII NO ADVERSE INTERESTS ..............................................................................50 


Section 12.1 No Adverse Interests ..................................................................................50 


ARTICLE XIII LIABILITY AND INDEMNIFICATION .........................................................50 


Section 13.1 Liability; Indemnification ..........................................................................50 


ARTICLE XIV CUSTODIAN AND PAYING AGENT ............................................................52 


Section 14.1 Reliance of Custodian and Paying Agent ..................................................52 


ARTICLE XV TAXES.................................................................................................................53 


Section 15.1 Tax Reports ................................................................................................53 


Section 15.2 Stamp and Other Similar Taxes .................................................................53 


Section 15.3 Tax Characterization ..................................................................................54 


Section 15.4 Back-Up Withholding ............................................................................... .54 


ARTICLE XVI TERM ...................................................................... , .......................................... 54 


Section 16.1 Term ...........................................................................................................54 


ARTICLE XVII AUTHORIZED REPRESENTATIVES ...........................................................54 


Section 17.1 Authorized Representatives .......................................................................54 


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West RADC Venture 2010-2 


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EXECUTION VERSION 

ARTICLE XVIII NOTICES ......................................................................................................... 55 


Section 18.1 Notices ....................................................................................................... 55 


ARTICLE XIX MISCELLANEOUS ........................................................................................... 56 


Section 19.1 Governing Law .......................................................................................... 56 


Section 19.2 Waiver ofJury Trial.. ................................................................................. 57 


Section 19.3 Jurisdiction; Venue and Service ................................................................. 57 


Section 19.4 Counterparts ............................................................................................... 59 


Section 19.5 Severability ................................................................................................ 59 


Section 19.6 Compliance With Law ............................................................................... 59 


Section 19.7 Entire Agreement ....................................................................................... 60 


Section 19.8 Assignment; Binding Effect.. ..................................................................... 60 


Section 19.9 Rights Cumulative ..................................................................................... 60 


Section 19.10 Amendments .............................................................................................. 60 


Section 19.11 Headings .................................................................................................... 60 


Schedule and Exhibits 

Schedule I List ofVarious Failed Financial Institutions 

Exhibit A Asset Schedult1 

Exhibit B-1 Form of Certificated Note 

Exhibit B-2 Form of Global Note 

Exhibit C-1 Form of Qualified Institutional Buyer and Qualified Purchaser Certification 

Exhibit C-2 Form of Certificate for the Acquisition of Regulation S Certificated Note 

Exhibit C-3 Form of Certificate for the Acquisition of Rule 144A Certificated Note 

Exhibit C-4 Form of Certificate for Transfer or Exchange of Certificated Note to Rule 144A 

Global Note 

Exhibit D Form ofDTC Notice to Investors 

Exhibit E Form of Collateral Certificate 

Exhibit F Review Procedures 

Exhibit G Form of Supplemental Delivery Certificate 

Exhibit H Request for Release and Receipt of Custodial Documents 

Exhibit I Request for Release and Receipt of Debt Documents 

Exhibit J Fees and Expenses of Custodian and Paying Agent 

Exhibit K Custodian and Paying Agent Report 

Exhibit L Form of Lost Instrument Affidavit 

Exhibit M Authorized Representatives 

Exhibit N Form of Account Control Agreement 

Exhibit 0 Form of Investor Certification for Website Access 

Exhibit P Form of Private Owner Account Agreement 

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CUSTODIAL AND PAYING AGENCY AGREEMENT 

THIS CUSTODIAL AND PAYING AGENCY AGREEMENT (as the same shall be 

amended, modified or supplemented in accordance with the terms hereof, this "Agreement") is 

made and entered into as of the Closing Date by and among the Company, the Purchase Money 

Note Guarantor, the Receiver as the Collateral Agent, the Initial Member, and the Bank. 

RECITALS 

WHEREAS the FDIC was appointed receiver for the Failed Banks; and 

WHEREAS the Failed Banks previously owned the Assets as described on the Asset 

Schedule; and 

WHEREAS the Receiver and the Company have entered into a Contribution Agreement, 

pursuant to which the Receiver, in its capacity as the Initial Member of the Company, transferred 

all of its right, title, and interest in and to the Assets to the Company partly as a capital 

contribution and partly as a sale and, in consideration for the transfer of the Assets to the 

Company to the extent such transfer constitutes a sale, the Company has issued to the FDIC, as 

Holder, a Purchase Money Note with a principal face amount of$32,207,386; and 

WHEREAS, to provide support for the payment and performance of the Company's 

obligations under the Purchase Money Note, the Purchase Money Note Guarantor entered into 

that certain Guaranty Agreement; and 

WHEREAS, pursuant to the Reimbursement, Security and Guaranty Agreement, (i) the 

Company has pledged the Assets to the Collateral Agent for the benefit of the Purchase Money 

Note Guarantor and (ii) the Company must retain a document custodian, meeting the 

requirements set forth in the Reimbursement, Security and Guaranty Agreement to take 

possession of the Custodial Documents in accordance with the terms and conditions hereof; and 

WHEREAS the Initial Member and the Private Owner have entered into the LLC 

Operating Agreement; and 

WHEREAS the Company wishes to open and maintain in its name at a branch of the 

Bank certain accounts into which amounts will be deposited and proceeds will be distributed as 

provided herein and to appoint the Bank as Custodian and Paying Agent to perform the services 

contemplated by this Agreement; and 

WHEREAS the Private Owner wishes to open and maintain in its name at a branch of the 

Bank an account into which the Qualifying Cash Collateral will be deposited, which account will 

be subject to a security interest and pledge for the benefit of the Initial Member pursuant to the 

LLC Operating Agreement, and to appoint the Bank as Paying Agent to perform the services 

contemplated by this Agreement; and 

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WHEREAS the Bank wishes to accept its appointment as Custodian and as Paying Agent 

to perform the services contemplated by this Agreement; and 

WHEREAS the Company, the Initial Member, the Private Owner, the Purchase Money 

Note Guarantor, the Collateral Agent, and the Bank wish to enter into this Agreement to, among 

other things, govern the allocation of the proceeds to be distributed from each account 

established pursuant to this Agreement and the performance of certain tasks by the Bank; and 

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

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

sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 

ARTICLE I 


DEFINITIONS AND CONSTRUCTION 


Section 1.1 Definitions. For purposes of this Agreement, certain terms used in this 

Agreement shall have the meanings and definitions set forth in that certain West RADC 2010-2 

Structured Transaction- Agreement of Common Definitions dated as ofthe Closing Date among 

the Initial Member, the Company, the Purchase Money Note Guarantor, the Collateral Agent and 

the Bank. In addition, for purposes of this Agreement, the following terms shall have the 

meanings and definitions hereinafter respectively set forth below. 

"Accounts" means the Company Accounts and the Private Owner Pledged Account. 

"Acquired Property Deed" means, with respect to any Acquired Property, the 

instrument or document required by the Law of the jurisdiction in which the Acquired Property 

is located to convey fee title. 

"Acquired Property Files" means, with respect to each Acquired Property, to the extent 

applicable, the following: (i)(A) if the related Acquired Property Deed has been delivered for 

recordation, a copy thereof (which may be electronic) file-stamped with evidence of recording 

thereon in the name of the Ownership Entity, together with a certificate of the related Servicer or 

the foreclosure attorney certifying that such Acquired Property Deed is a true, correct and 

complete copy of the original document, or (B) if the related Acquired Property Deed has been 

delivered for recordation but not yet returned, a copy thereof (which may be electronic) together 

with a certificate of the related Servicer or the foreclosure attorney certifying that such Acquired 

Property Deed is a true, correct and complete copy of the original document, and that the original 

Acquired Property Deed has been delivered to the proper recording office for recordation; (ii) as 

applicable, either (x) a copy of each Acquired Property Deed (which may be electronic) that is 

intervening between the lender that obtained title to such property assets as a result of 

foreclosure or deed in lieu of foreclosure of a mortgage or deed of trust and the Ownership 

Entity, with the same certification documentation required in clause (i)(A) above, or (y) the 

original or a copy of the assignment of foreclosure bid between the foreclosing lender and the 

Ownership Entity with respect to the related Acquired Property, and in the case of a copy, 

together with a certificate of the related Servicer or the foreclosure attorney certifying that such 

assignment of foreclosure bid is a true, correct and complete copy of the original document, with 

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Custodial and Paying Agency Agreement 

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the same certification documentation required in clause (i)(A) above; (iii) the original or copy 

policy of title insurance prior to foreclosure of the related mortgage loan accompanied by a title 

report procured upon foreclosure of the related mortgage loan, with respect to the Acquired 

Property; and (iv) for any Acquired Property that is subject to a lease, (A) a copy of the lease 

together with a certificate of the related Servicer certifying that such lease is a true, correct and 

complete copy of the original document, and (B) if required by the Purchase Money Note 

Guarantor, the original assignment of such lease from the lessor thereunder to the Ownership 

Entity or a copy thereof, together with a certificate of the related Servicer certifying that such 

assignment is a true, correct and complete copy of the original document. 

"Agent Members" means the members of, or participants in, DTC and the Clearing 

Agencies. 

"Agreement" has the meaning given in the preamble. 

"Asset Schedule and Exception List" means a list of the Assets, identifying, with 

respect to each Asset, each Exception, and that details, with respect to any Asset that has been 

delivered to the Custodian, (i) the Borrower name and any identification number assigned to the 

Asset, (ii) the location to which the Custodial Documents with respect to such Asset were 

delivered by the Custodian, and (iii) the date on which such Custodial Documents were released 

by the Custodian. 

"Authorized Denomination" has the meaning given in Section 2.5(b ). 

"Authorized Representative" means, with respect to any Person, each individual 

designated, in writing as required by Section 17.1, by such Person to the Custodian to act as an 

authorized representative of such Person for purposes of this Agreement. 

"Certificated Note"·has the meaning given in Section 2.4(b). 

"Clearing Agency" means an organization registered as a "clearing agency" pursuant to 

Section 17A of the Exchange Act. 

"Company Accounts" has the meaning given in Section 4.1 (b). 

"Collateral Certificate" has the meaning given in Section 6.1 (b). 

"Company Principal Prepayment Amount" means any voluntary amounts deposited 

into the Defeasance Account by the Company for the purposes of prepaying in whole or in part 

principal on the Purchase Money Note. 

"Custodial Delivery Failure" has the meaning given in Section 13.1(c). 

"Custodial Report" means a report prepared by the Custodian, which shall be in a form 

acceptable to the Company detailing, with respect to any Asset that. has been released by the 

Custodian, the following: (i) the Borrower name and any identification number assigned to the 

Asset, (ii) the location to which the Custodial Documents with respect ·to such Asset were 

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delivered by the Custodian, (iii) the date on which such Custodial Documents were released by 

the Custodian and (iv) the Person to which such Custodial Documents were released. 

"Debt Agreements" means the Purchase Money Note, the Guaranty Agreement, the 

Reimbursement, Security and Guaranty Agreement and the Account Control Agreement 

"Depository" or '.'DTC" means the Depository Trust Company, its nominees, and their 

respective successors. 

"Exchange Act" means the United States Securities Exchange Act of 1934, as amended. 

"Global Note" has the meaning given in Section 2.4(a). 

"Maturity Date Report" shall have the meaning given in Section 11.3. 

"MERS Report" means the schedule listing the MERS Designated Assets and other 

information. 

"Net Aggregate Purchase Money Note Reduction Amount" means, with respect to any 

Determination Date, the excess (if any) of (i) the aggregate principal payments that have already 

been made to reduce the balance of (or pay in full) the Purchase Money Note, over (ii) the sum 

of (A) any Payments made by the Purchase Money Note Guarantor pursuant to the Guaranty 

Agreement in respect of the Guaranteed Obligations for a Purchase Money Note guaranteed 

under the Guaranty Agreement (if any), (B) any Company Principal Prepayment Amounts, and 

(C) any Excess Working Capital Advances deposited into the Defeasance Account to cure a 

Purchase Money Note Trigger Event. 

"Net Loss on Investments" means as of the Maturity Date' (or any Distribution Date on 

which an acceleration payment or prepayment of principal is due and payable on the Purchase 

Money Note) the excess (if any) of (i) the aggregate of all amounts previously deposited into the 

Defeasance Account (A) pursuant to Section 5.l(b)(vi), (B) by the Purchase Money Note 

Guarantor to cover any Net Loss on Investments or as payments under the Guaranty Agreement, 

(C) by the Company as Company Principal Prepayment Amounts, and (D) by the Manager as 

Excess Working Capital Advances deposited into the Defeasance Account to cure a Purchase 

Money Note Trigger Event over (ii) the sum of (A) the balance then in the Defeasance Account, 

(B) amounts previously disbursed from the account to pay principal on the Purchase Money Note 

and (C) amounts deposited as Net Loss on Investments pursuant to Section 3.3(e); provided, 

however, that if on any Maturity Date or Distribution Date the balance in the Defeasance 

Account is equal to or greater than the then outstanding principal balances of the Purchase 

Money Note (the Maturity Date or Distribution Date to be referred to in this definition as the 

"Reference Date" and the amount in the Defeasance Account as of the Reference Date (less any 

amount deposited into the Distribution Account pursuant to Section 3.3(k)) to be referred to in 

this definition as the "Reference Amount") then as of any subsequent Maturity Date (or 

Distribution Date on which an acceleration payment or prepayment of principal is due and 

payable) the Net Loss on Investments shall mean the excess (if any) of (I) the Reference Amount 

plus any deposits into the Defeasance Account after the Reference Date (other than the deposit of 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
investment earnings) over (II) the sum of the balance then in the Defeasance Account plus 

amounts disbursed from the account after the Reference Date to pay principal on the Purchase 

Money Note. 

"Non-Permitted Holder" has the meaning given in Section 2.12(b). 

"Note Owner" means any beneficial owner of an interest in a Global Note. 

"Office" has the meaning given in Section 6.l(a). 

"Purchase Money Note Register" and "Purchase Money Note Registrar" have the 

meanings given in Section 2.7(a). 

"Purchase Money Note Trigger Event" has the meaning given in the Reimbursement, 

Security and Guaranty Agreement. 

"Recording Office" means the appropriate recording office of the jurisdiction in which 

the Mortgaged Property is located with respect to any given Asset (if such Asset is not Acquired 

Property) or in which the Acquired Property is located. 

"Regulation S" means "Regulation S" promulgated pursuant to the Securities Act . 

. "Review Procedures" has the meaning given in Section 6.1 (d). 

"Similar Law" has the meaning given in Section 2.7(o)(vi). 

"Supplemental Delivery Certificate" has the meaning given in Section 6.1(d). 

"Termination" has the meaning given in Section 8.1. 

"Transferee Certificate" has the meaning given in Section 2.7(j). 

Section 1.2 Rules ofConstruction. 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 may have been, but at such time have ceased to be, "Affiliates" of such 

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

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

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

replacement to such Law. 

(d) References to any document, instrument or agreement (a) shall be deemed 

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

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

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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. 

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

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

provision ofthis Agreement. 

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

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

they are in fact followed by such words. 

(g) The word "during" when used with respect to a period of time shall be 

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

such period. 

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

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

be deemed to include the personal pronoun ofthe appropriate gender. 

ARTICLE II 


PAYING AGENT AND PURCHASE MONEY NOTE 


Section 2.1 Appointment of Paying Agent. Subject to the terms and conditions ofthis 

Agreement, the Company, the Initial Member and the Private Owner hereby appoint the Bank to 

perform the duties of the Paying Agent specifically set forth hereunder, and the Bank hereby 

accepts such appointment. 

Section 2.2 Delivery of Documentation. 

(a) Executed original counterparts of the Debt Agreements have been 

delivered to the Paying Agent and the Paying Agent acknowledges receipt thereof. The 

Company agrees to deliver to the Paying Agent each of the Debt Agreements that is executed 

and delivered by it, or executed by the Purchase Money Note Guarantor or the Collateral Agent 

and delivered to it, subsequent to the date of this Agreement promptly upon execution and 

delivery and to deliver each instrument amending or modifying any agreement previously 

delivered to the Paying Agent. Copies of the Contribution Agreement, the Agreement of 

Common Definitions, and the LLC Operating Agreement (or portions thereof) as are necessary 

for the Paying Agent to be familiar with in order to perform its obligations hereunder have been 

delivered to the Paying Agent by the Company, and the Paying Agent acknowledges receipt 

thereof. An executed original counterpart of the Private Owner Account Control Agreement has 

been delivered to the Paying Agent, and the Paying Agent acknowledges receipt thereof. 

(b) The Paying Agent shall retain the Debt Agreements and the Private Owner 

Account Control Agreement in its possession and custody at all times during the term hereof 

unless any one ofthe following events has occurred: 

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(i) If the Paying Agent has resigned or has been removed in 

accordance with the provisions of Section 9.1, the Paying Agent shall deliver the Debt 

Agreements and the Private Owner Account Control Agreement to the successor Paying Agent 

in accordance with Section 9 .1. 

(ii) If the Paying Agent has received a Request for Release and 

Receipt of the Debt Agreements in the form attached to this Agreement as Exhibit I from an 

Authorized Representative of the FDIC, the Paying Agent shall deliver the Debt Agreements 

and/or the Private Owner Account Control Agreement to the FDIC in accordance with the 

instructions provided in such notice. 

Section 2.3 Duties. The Paying Agent shall have no duties other than those 

specifically set forth or provided for in this Agreement and each Debt Agreement to which it is a 

party, and no implied covenants or obligations of the Paying Agent shall be read into this 

Agreement or any Debt Agreement or any related agreement to which it is a party. The Paying 

Agent shall have no obligation to inquire whether any request, instruction, certificate, direction, 

receipt, demand, consent, resolution, statement, instrument, opinion, report, notice, document, 

communication, statement or calculation is in conformity with the terms of the agreement 

pursuant to which it is given, except those irregularities or errors manifestly apparent on the face 

of such document or actually known to the Paying Agent. If, however, any remittance or 

communication received by the Paying Agent appears manifestly erroneous or irregular, the 

Paying Agent shall endeavor to make prompt inquiry to the Person originating such remittance or 

communication in order to determine whether a clerical error or inadvertent mistake has 

occurred. 

Section 2.4 Forms ofPurchase Money Note. 

(a) Forms Generally. 

(i) In connection with the sale of the Assets to the Company, the 

Company as of the Closing Date has issued to the Receiver, as a Holder, the Purchase Money 

Note in the principal face amount of $32,207,386 (inclusive of the Purchase Money Note 

Issuance/Guaranty Fee)~ 

(ii) The form of the Purchase Money Note shall be as set forth in the 

applicable portion of Exhibit B hereto. The Purchase Money Note may have notations, legends 

or endorsements required by Law, stock exchange rule or usage. The Purchase Money Note 

issued shall be initially sold to the Receiver and may be initially issued in the form of (i) a 

certificated note in definitive, fully registered form without interest coupons substantially in the 

form of Exhibit B-1 attached hereto (each, a "Certificated Note"), which shall be registered in 

the name of the owner or nominee thereof, duly executed by the Company as herein provided, or 

(ii) a global note in definitive, fully registered form without interest coupons substantially in the 

form of Exhibit B-2 attached hereto (each, a "Global Note"), which shall be (x) registered in the 

name of the Depository or its nominee, duly executed by the Company as herein provided, and 

(y) held by the Paying Agent as custodian for the Depository unless the Depository instructs 

otherwise. 

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(b) Rule 144A Global Note and Rule 144A Certificated Note. The Purchase 

Money Note, if sold to a Person whom the seller reasonably believes (1) is a Qualified 

Institutional Buyer purchasing for its own account or for the account of a Qualified Institutional 

Buyer in compliance with Rule 144A under the Securities Act and (2) is a Qualified Purchaser 

purchasing for its own account or for the account of a Qualified Purchaser, will be issued in the 

form of (x) a beneficial interest in a Global Note, and such purchaser shall receive a beneficial 

interest in such Global Note (each, a "Rule 144A Global Note"), or (y) a Certificated Note 

(each, a "Rule 144A Certificated Note"). 

(c) Regulation S Certificated Note. The Purchase Money Note, if sold or 

transferred to a Person that (1) is not a U.S. Person and is acquiring the Purchase Money Note in 

an Offshore Transaction (as defined in Regulation S of the Securities Act) in compliance with 

Rule 903 or Rule 904 of Regulation S under the Securities Act and (2) is a Qualified Purchaser 

purchasing for its own account or for the account of a Qualified Purchaser, will only be issued in 

the form of a Certificated Note (each, a "RegulationS Certificated Note"). The Paying Agent 

shall require, prior the any sale or transfer of any Regulation S Certificated Note, that the 

prospective purchaser execute and deliver to the Paying Agent and the Company a certificate in 

the form of Exhibit C-2 attached hereto or such other form as may be acceptable to the Paying 

Agent and counsel to the Company. 

(d) OlD Legend. To the extent required by Sections 1272, 1273 and 1275 of 

the Code, and any regulations issued regarding such elections, the Purchase Money Note treated 

as issued at a discount to its stated redemption price at maturity for federal income Tax purposes 

shall bear a legend in substantially the following form: 

FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF 

THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, 

THIS PURCHASE MONEY NOTE IS BEING ISSUED WITH 

ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE 

FEDERAL DEPOSIT INSURANCE CORPORATION AT 

550 17TH STREET, N.W., ROOM F-7014, WASHINGTON, D.C. 

20429, ATTENTION: RALPH MALAM!, AND THE FDIC 

WILL PROVIDE YOU WITH THE ISSUE PRICE AND THE 

YIELD TO MATURITY OF THIS PURCHASE MONEY NOTE. 

Section 2.5 Authorized Amount; Denominations; Prepayment 

(a) The face amount ofthe Purchase Money Note that may be executed and 

delivered under this Agreement is limited to U.S.$32,207,386 except for a Purchase 

Money Note executed and delivered upon registration oftransfer of, or in exchange 

for, or in lieu of, the Purchase Money Note pursuant to Section 2. 7 or 2.9 ofthis 

Agreement. 

(b) The Purchase Money Note shall be issuable in minimum denominations of 

U.S.$250,000 and integral multiples ofU.S. $10,000 in excess thereof(except that one 

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Purchase Money Note in each Class may be issued in a different amount, so long as 

such amount exceeds the minimum denomination ofU.S.$250,000) (each such 

denomination, an "Authorized Denomination"). Any interest in the Purchase Money 

Note equal to or in excess of the applicable minimum denomination at the time ofthe 

issuance thereof that ceases or fails to be such minimum or multiple as a result of the 

repayment of principal may be transferred only in its entirety. 

(c) The Company shall not prepay all or any portion ofthe Purchase Money 

Note without the prior written consent ofthe Required Consenting Parties (but shall be 

subject to mandatory prepayment to the extent required as a result of the acceleration 

of all or a portion ofthe Purchase Money Note following the occurrence of an Event of 

Default). 

Section 2.6 Execution, Delivery and Dating. 

(a) The Purchase Money Note shall be executed on behalf of the Company by 

one of the Authorized Representatives of the Company. The signature of such Authorized 

Representative on the Purchase Money Note may be manual or facsimile. 

(b) The Purchase Money Note bearing the manual or facsimile signatures of 

individuals who were at any time the Authorized Representative of the Company shall bind the 

Company, notwithstanding the fact that such individuals or any of them have ceased to hold such 

offices prior to the execution and delivery of the Purchase Money Note or did not hold such 

offices at the date of issuance ofthe Purchase Money Note. 

(c) The Purchase Money Note executed and delivered by the Company or the 

Paying Agent on the Closing Date shall be dated as of the Closing Date. All other Purchase 

Money Note that are executed and delivered after the Closing Date for any other purpose 

pursuant to this Agreement shall be dated the date ofth.eir execution. 

(d) The Purchase Money Note issued upon transfer, exchange or replacement 

of the Purchase Money Note shall be issued in an Authorized Denomination reflecting (except, 

for the avoidance of doubt, as otherwise specified in Section 2.19(a) of this Agreement) the 

original principal or face amount of the Purchase Money Note so transferred, exchanged or· 

replaced, but shall represent only the current outstanding principal or face amount of the 

Purchase Money Note so transferred, exchanged or replaced. In the event that the Purchase 

Money Note is divided into more than one Purchase Money Notes in accordance with this 

Article II, the original principal or face amount of the Purchase Money Notes shall be 

proportionately divided among any Purchase Money Notes delivered in exchange therefor and 

shall be deemed to be the original aggregate principal or face amount of such subsequently 

issued Purchase Money Note. In the event that the Purchase Money Note is restructured 

pursuant to Section 13.5 of the LLC Operating Agreement, the Purchase Money Note shall be 

issued in an Authorized Denomination reflecting any adjustments to the original aggregate 

principal or face amount ofthe Purchase Money Note so restructured. 

12 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
Section 2.7 Registration, Registration ofTransfer and Exchange or Conversion. 

(a) The Company shall cause to be kept a register (the "Purchase Money 

Note Register") in which, subject to such reasonable regulations as it may prescribe, the 

Company shall provide for the registration, and the registration of transfers, of the Purchase 

Money Note. The Paying Agent is hereby initially appointed the "Purchase Money Note 

Registrar" for the purpose ofregistering the Purchase Money Note and transfers of the Purchase 

Money Note as herein provided. Upon any resignation or removal of the Purchase Money Note 

Registrar, the Company shall promptly appoint a successor. 

(b) If a Person other than the Paying Agent is appointed by the Company as 

Purchase Money Note Registrar, the Company will give the Paying Agent prompt notice of the 

appointment of a Purchase Money Note Registrar and of the location, and any change in the 

location, of the Purchase Money Note Registrar, and the Paying Agent shall have the right to 

inspect the Purchase Money Note Register at all reasonable times and to obtain copies thereof 

and the Paying Agent shall have the right to rely upon a certificate executed on behalf of the 

Purchase Money Note Registrar by an officer thereof as to the names and addresses of the 

Holders of the Purchase Money Note and the principal or face amounts and numbers of the 

Purchase Money Note. Upon written request at any time, the Purchase Money Note Registrar 

promptly shall provide to the Company or the Collateral Agent a current list of Holders as 

reflected in the Purchase Money Note Register. 

(c) Subject to this Section 2.7, upon surrender to the Purchase Money Note 

Registrar for registration of transfer of any Purchase Money Note, the Purchase Money Note 

Registrar shall prepare and the Company shall execute and deliver, in the name ofthe designated 

transferee or transferees, the new Purchase Money Note of any Authorized Denomination and of 

like terms and a like aggregate principal or face amount. The Company shall furnish a copy of 

the executed Purchase Money Note to the'Purchase Money Note Registrar. 

(d) At the option of the Holder, a Purchase Money Note may be exchanged 

for a Purchase Money Note oflike terms, in any Authorized Denomination and oflike aggregate 

principal or face amount upon surrender of the Purchase Money Note to be exchanged at such 

office or agency. Whenever any Purchase Money Note is surrendered to the Purchase Money 

Note Registrar for exchange, the Purchase Money Note Registrar shall prepare, and the 

Company shall execute and deliver, the Purchase Money Note that the Holder making the 

exchange is entitled to receive, and shall deliver a copy of such executed Purchase Money Note 

to the Purchase Money Note Registrar. 

(e) A Purchase Money Note issued upon any registration of transfer or 

exchange ofthe Purchase Money Note shall be the valid obligations of the Company, evidencing 

the same debt (to the extent they evidence debt), and entitled to the same benefits pursuant to this 

Agreement, as the Purchase Money Note surrendered upon such registration of transfer or 

exchange. 

(f) Every Purchase Money Note presented or surrendered for registration of 

transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
transfer in form satisfactory to the Company and the Purchase Money Note Registrar duly 

executed by the Holder thereof or his attorney duly authorized in writing. 

(g) No service charge shall be made to a Holder for any registration of 

transfer or exchange of a Purchase Money Note, but the Company or the Paying Agent may 

require payment of a sum sufficient to cover any Tax or other governmental charge payable in 

connection therewith. 

(h) No Purchase Money Note may be sold or transferred (including, without 

limitation, by pledge or hypothecation) unless such sale or transfer is exempt from the 

registration requirements of the Securities Act, would not require the registration of the 

Company under the Investment Company Act, would not cause the Company to become a 

"publicly traded partnership" (as such term is defined in Section 7704 of the Code) or a taxable 

mortgage pool (as such term is defined in Section 7701(1) of the Code) and is exempt under 

applicable state or foreign securities Laws. 

(i) The Purchase Money Note may only be sold or resold, as the case may be: 

(i) to a transferee that is a Person whom the seller reasonably believes is a Qualified Institutional 

Buyer purchasing for its own account or for the account of a Qualified Institutional Buyer in 

compliance with Rule 144A under the Securities Act or (ii) to a transferee that is not a U.S. 

Person. and is acquiring the Purchase Money Note in an Offshore Transaction (as defined in 

Regulation S of the Securities Act) in compliance with Rule 903 or Rule 904 of Regulation S 

under the Securities Act and, in the case of both clauses (i) and (ii) of this Section 2.7(i), to a 

transferee that is a Qualified Purchaser purchasing for its own account or for the account of a 

Qualified Purchaser. 

(j) The Paying _Agent shall require, prior to any sale or other transfer of the 

Purchase Money Note, that the prospective purchaser or transferee execute and deliver to the 

Paying Agent and the Company a certificate relating to such transfer in the form of the 

applicable portion of Exhibit C attached to this Agreement or such other form as may be 

acceptable to the Paying Agent and counsel to the Company (each, a "Transferee Certificate"). 

The Paying Agent shall be entitled to rely conclusively on any Transferee Certificate and shall be 

entitled to presume conclusively the continuing accuracy thereof from time to time, in each case 

without further inquiry or investigation. 

(k) At any time when the Company is not subject to Section 13.1 or 15(d) of 

the Exchange Act or is exempt from reporting requirements pursuant to Rule 12g3-2(b) 

thereunder, upon the request of any Note Owner, the Paying Agent, on behalf of the Company, 

shall promptly furnish to such Note Owner or to a prospective purchaser of any Purchase Money 

Note designated by such Note Owner the information required to be delivered to Note Owners 

pursuant to Rule 144A(d)(4) under the Securities Act ("Rule 144A Information") (as 

determined by the Company in its sole discretion) in order to permit compliance by such Note 

Owner with Rule 144A in connection with the resale of the Purchase Money Note by such Note 

Owner. Upon request by the Company, the Paying Agent shall cooperate with the Company in 

mailing or otherwise distributing (at the Company's expense) to such Note Owners or 

prospective purchasers, at and pursuant to the Company's written direction, the foregoing 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
materials prepared and provided by the Company; provided, however, that the Paying Agent 

shall be entitled to affix thereto or enclose therewith such disclaimers as the Paying Agent shall 

deem reasonably appropriate, at its discretion (such as, for example, a disclaimer that such Rule 

144A Information was assembled by the Company and not by the Paying Agent, that the Paying 

Agent has not reviewed or verified the accuracy thereof and that it makes no representation as to 

the sufficiency of such information under Rule 144A or for any other purpose). 

(1) Transfers and exchanges of a Global Note, in whole or in part, shall only 

be made in accordance with this Section 2.7(1). 

(i) Rule 144A Global Note to Certificated Note. If a Note Owner of a 

Rule 144A Global Note wishes at any time to transfer its interest in such Rule 144A Global Note 

to a Person who wishes to take delivery thereof in the form of a Certificated Note, or to exchange 

its interest in such Rule 144A Global Note for an interest in a Certificated Note, such Note 

Owner may, subject to the rules and procedures of the Depository, transfer or exchange, or cause 

the transfer or exchange of, such interest for an equivalent principal amount of such Certificated 

Note as described below. Upon receipt by the Purchase Money Note Registrar of (A) 

instructions given in accordance with the Depository's procedures from an Agent Member 

directing the Paying Agent to deliver such Certificated Note, designating the applicable 

registered name or names, address, payment instructions and principal amounts of the 

Certificated Note to be executed and delivered (the aggregate outstanding principal amounts of 

such Certificated Note being equal to the beneficial interest in the Rule 144A Global Note to be 

transferred), in Authorized Denomination, and (B) a certificate in the form of Exhibit C-2 

attached to this Agreement, in the case of a Regulation S Certificated Note, and Exhibit C-3 

attached to this Agreement, in the case of a Rule 144A Certificated Note, executed and delivered 

by the transferee of such beneficial interest, then the Purchase Money Note Registrar shall 

instruct the Depository to reduce, or cause to be reduced, the applicable Rule 144A Global Note 

by the aggregate principal amount of the beneficial interest in such Rule 144A Global Note to be 

transferred or exchanged and the Purchase Money Note Registrar shall record the transfer or 

exchange in the Purchase Money Note Register in accordance with Section 2.7(a) and 

authenticate and deliver the Certificated Note registered in the names and amounts specified in 

clause (A) above. 

(m) Transfers and exchanges of a Certificated Note, in whole or in part, shall 

only be made in accordance with this Section 2. 7(m). 

(i) Certificated Note to Rule 144A Global Note. If a Holder of a 

Certificated Note wishes to transfer such Certificated Note to a Person who wishes to take 

delivery thereof in the form of an interest in a Rule 144A Global Note or to exchange such 

Certificated Note for an interest in a Rule 144A Global Note, such Holder may transfer or 

exchange, or cause the transfer or exchange of, such Certificated Note for an equivalent 

beneficial interest in a Rule 144A Global Note, provided that such proposed transferee or the 

Person requesting such exchange, as applicable, is a Qualified Institutional Buyer and a 

Qualified Purchaser. Upon receipt by the Purchase Money Note Registrar of (A) such 

Certificated Note properly endorsed for such transfer and written instructions from such Holder 

directing the Purchase Money Note Registrar to cause to be credited a beneficial interest in the 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
Rule 144A Global Note in an amount equal to the principal amount of such Certificated Note, 

such instructions to contain information regarding the participant account with the Depository to 

be credited with such increase, (B) a certificate in the form of Exhibit C-4 to this Agreement 

executed and delivered by the Holder of such Certificated Note and stating that, in the case of an 

exchange, the Holder is a Qualified Institutional Buyer and also is a Qualified Purchaser or, in 

the case of a transfer, such Holder reasonably believes that the Person acquiring such interest in 

the applicable Rule 144A Global Note is a Qualified Institutional Buyer, is obtaining such 

beneficial interest in a transaction meeting the requirements of Rule 144A and in accordance 

with any applicable securities Laws of any state of the United States or any other jurisdiction and 

is also a Qualified Purchaser and (C) in the case of a transfer, a certificate in the form of Exhibit 

C-1 to this Agreement executed and delivered by the proposed transferee stating that it is both a 

Qualified Institutional Buyer and a Qualified Purchaser, then the Purchase Money Note Registrar 

shall cancel such Certificated Note in accordance with Section 2.16, record the transfer or 

exchange in the Purchase Money Note Registrar in accordance with Section 2.7(a) and instruct 

the Depository to credit or cause to be credited to the securities account of the Person specified 

in such instructions a beneficial interest in the Rule 144A Global Note equal to the amount 

specified in the instructions received pursuant to clause (A) above. 

(ii) Certificated Note to Certificated Note. If a Holder of a Certificated 

Note wishes at any time to transfer such Certificated Note to another Person, such Holder may 

transfer, or cause the transfer of, such Certificated Note as provided below. Upon receipt by the 

Purchase Money Note Registrar of (A) such Holder's Certificated Note properly endorsed for 

assignment to the transferee and (B) a certificate in the form of Exhibit C-2 to this Agreement, in 

the case of transfer of a Regulation S Certificated Note, and Exhibit C-3 to this Agreement, in 

the case of transfer of a Rule 144A Certificated Note, executed and delivered by the proposed 

transferee, then the Purchase Money Note Registrar shall cancel such Certificated Note in 

accordance with Section 2.16, record the transfer in the Purchase Money Note Register in 

accordance with Section 2.7(a) and, upon execution by the Company, deliver the Certificated 

Note endorsed for transfer, registered in the names specified in the assignment described in 

clause (A) above, in principal amounts designated by the transferee (the aggregate of such 

principal amounts being equal to the aggregate principal amount of the Certificated Note 

surrendered by the transferor), imd in an Authorized Denomination. 

If the Holder of the Rule 144A Certificated Note wishes at any time to exchange 

such Rule 144A Certificated Note for the a Rule 144A Certificated Note of a different 

outstanding principal amount, or if the Holder of the Regulation S Certificated Note wishes at 

any time to exchange such RegulationS Certificated Note for a RegulationS Certificated Note 

of a different outstanding principal amounts, such Holder may exchange or cause the exchange 

of such a Certificated Note for Certificated Note endorsed for exchange as provided below. 

Upon receipt by the Purchase Money Note Registrar of (A) such Holder's Certificated Note 

properly endorsed for such exchange and (B) written instructions from such Holder designating 

the number and principal amounts of the Certificated Note to be issued (the aggregate 

outstanding principal amounts being equal to the outstanding principal amount ofthe Certificated 

Note surrendered for exchange), then the Purchase Money Note Registrar shall cancel such 

Certificated Note in accordance with Section 2.16, record the exchange in the Purchase Money 

Note Register in accordance with Section 2.7(a) and, upon execution by the Company, deliver 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
the Certificated Note endorsed for exchange, registered in the same name as the Certificated 

Note surrendered by such Holder, in different outstanding principal amounts designated by such 

Holder and in an Authorized Denomination. 

If the Holder of the Rule 144A Certificated Note wishes at any time to exchange 

such Rule 144A Certificated Note for a Regulation S Certificated Note, or if the Holder of the 

Regulation S Certificated Note wishes at any time to exchange such Regulation S Certificated 

Note for a Rule 144A Certificated Note, such Holder may exchange or cause the exchange of 

such Certificated Note for a Certificated Note endorsed for exchange as provided below. Upon 

receipt by the Purchase Money Note Registrar of (A) such Holder's Certificated Note properly 

endorsed for such exchange, (B) written instructions from such Holder designating the number 

and principal amounts of the Certificated Note to be issued (the aggregate outstanding principal 

amounts being equal to the outstanding principal amount of the Certificated Note surrendered for 

exchange), and (C) a certificate in the form of Exhibit C-2 to this Agreement, in the case of 

Regulation S Certificated Note, and Exhibit C-3 to this Agreement, in the case of Rule 144A 

Certificated Note, executed and delivered by the proposed transferee, then the Purchase Money 

Note Registrar shall cancel such Certificated Note in accordance with Section 2.16, record the 

exchange in the Purchase Money Note Register in accordance with Section 2.7(a) and, upon 

execution by the Company, deliver the Certificated Note endorsed for exchange, registered in the 

same name as the Certificated Note surrendered by such Holder, in different outstanding 

principal amounts designated by such Holder and in an Authorized Denomination. 

(n) If the Purchase Money Note is issued upon the transfer, exchange or 

replacement of Purchase Money Note bearing the applicable legends set forth in the Exhibits 

attached to this Agreement and if a request is made to remove such applicable legend on the 

Purchase Money Note, the Purchase Money Note so issued shall bear such applicable legend, or 

such applicable legend shall not be, removed, as the case may be, unless there is delivered to the 

Paying Agent and the Company such satisfactory evidence, which may include an opinion of 

counsel acceptable to them, as may be reasonably required by the Company (and which shall by 

its terms permit reliance by the Paying Agent), to the effect that neither such applicable legend 

nor the restrictions on transfer set forth therein are required to ensure that transfers thereof 

comply with the provisions of the Securities Act, the Investment Company Act, ERISA or the 

Code or any other applicable Law. Upon provision of such satisfactory evidence, the Paying 

Agent, at the written direction of the Company and after due execution by the Company, shall 

deliver the Purchase Money Note that does not bear such applicable legend. 

(o) Each Note Owner of a Rule 144A Global Note will be deemed to have 

represented and agreed, and each Holder of a Certificated Note will be required to represent and 

agree, as follows: 

(i) If the Purchase Money Note is issued in reliance on Rule 144A: it 

is aware that the sale of the Purchase Money Note to it is being made in reliance on the 

exemption from registration provided by Rule 144A; and it is a Qualified Institutional Buyer and 

a Qualified Purchaser. 

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EXECUTION VERSION 
(ii) If the Purchase Money Note is issued in reliance on RegulationS: 

it is aware that the sale of the Purchase Money Note to it is being made in reliance on the 

exemption from registration provided by RegulationS; it is not, and will not be, a U.S. Person; it 

is a Qualified Purchaser; it is aware that in connection with a transfer of any Purchase Money 

Note acquired in accordance with Regulation S, the Purchase Money Note must be exchanged 

for a Rule 144A Certificated Note or beneficial interest in a Rule 144A Global Note; and its 

purchase of the Purchase Money Note will comply with all applicable Laws in any jurisdiction in 

which it resides or is located. 

(iii) It understands that the Purchase Money Note will bear a legend set 

forth in the applicable exhibit attached to this Agreement. 

(iv) It (A) was not formed for the purpose of investing in the Company 

(except when each beneficial owner of the purchaser is a Qualified Purchaser), (B) has received 

the necessary consent from its beneficial owners if the purchaser is a private investment 

company formed before April 30, 1996, (C) is not a broker-dealer that owns and invests on a 

discretionary basis less than U.S.$25,000,000 in securities of unaffiliated issuers, (D) is not a 

pension, profit sharing or other retirement trust fund or plan in which the partners, beneficiaries 

or participants, as applicable, may designate the particular investments to be made, and in a 

transaction that may be effected without loss of any applicable Investment Company Act 

exemption, (E) will provide notice to any subsequent transferee of the transfer restrictions 

provided in the legend, (F) will hold and transfer the Purchase Money Note in an amount of not 

less than U.S.$250,000 for it or for each account for which it is acting, (G) will provide the 

Company and Paying Agent from time to time such information as they may reasonably request 

in order to ascertain compliance with this paragraph and (H) understands that the Company may 

receive a list of participants holding positions in its securities from the book-entry depositories. 

(v) It understands that the Purchase Money Note is being offered only 

in a transaction not involving any public offering in the United States within the meaning of the 

Securities Act, the Purchase Money Note has not been and will not be registered under the 

Securities Act and, if in the future it decides to offer, resell, pledge or otherwise transfer the 

Purchase Money Note, the Purchase Money Note may be offered, resold, pledged or otherwise 

transferred only in accordance with the provisions of this Agreement and the legend on the 

Purchase Money Note. It acknowledges that no representation has been made as to the 

availability of any exemption under the Securities Act or any state securities Laws for resale of 

the Purchase Money Note. 

. (vi) On each day from the date on which it acquires the Purchase 

Money Note or interest therein through and including the date on which it disposes of its 

interests in the Purchase Money Note, either that (A) it is not, and is not acting on behalf of, or 

using the assets of, any employee benefit plan subject to Title I of ERISA or any plan, individual 

retirement account, Keogh plan orother arrangement subject to Section 4975 of the Code, or any 

entity whose underlying assets are considered to include "plan assets" of any such plan, account 

or arrangement or a governmental or other plan which is subject to any provisions under any 

non-U.S., federal, state or local Law that is similar to the provisions of Section 406 of ERISA or 

Section 4975 of the Code ("Similar Law") or (B) its acquisition and holding and disposition of 

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EXECUTION VERSION 
the Purchase Money Note (or any interest therein) will not constitute or result in a non-exempt 

prohibited transaction under Section 406 of ERISA or Section 497 5 of the Code (or, in the case 

of a governmental or other plan, a violation of Similar Law). 

(vii) It understands that this Agreement permits the Company to 

demand that (A) any Note Owner of a Rule 144A Global Note (or Holder of a Rule 144A 

Certificated Note) who is determined not to be both a Qualified Institutional Buyer and a 

Qualified Purchaser at the time of acquisition of the Purchase Money Note or (B) any Holder of 

a Regulation S Certificated Note who is determined not to be both a non-U.S. Person and a 

Qualified Purchaser at the time of acquisition of the Purchase Money Note, in either such case 

sell the Purchase Money Note (X) to a Person who is a Qualified Institutional Buyer in a 

transaction meeting the requirements of Rule 144A or another applicable exemption from the 

registration requirements of the Securities Act or (Y) to a Person who will take delivery in the 

form of a RegulationS Certificated Note and who is not a U.S. Person in a transaction meeting 

the requirements of Regulation S and, in the case of both clauses (X) and (Y), to a Person that is 

a Qualified Purchaser, and if it does not comply with any such demand under clause (A) or (B) 

within 30 days thereof, the Company may sell the Note Owner's or Holder's Purchase Money 

Note or interest therein in accordance with and pursuant to the terms ofthis Agreement. 

(viii) It acknowledges that it is its intent and that it understands it is the 

intent of the Company that, for purposes of U.S. Federal income, state and local income and any 

other income Taxes, the Company will be treated as a partnership and the Purchase Money Note 

will be treated as indebtedness of the Company; it agrees to such treatment and agrees to take no 

action inconsistent with such treatment. 

(ix) If it is not a "U.S. person" as defined in Section 7701(a)(30) ofthe 

Code, it is not acquiring any Purchase Money Note as part of a plan to reduce, avoid or evade 

U.S. Federal Income Taxes owed, owing or potentially owed or owing. 

(x) It is aware that, except with respect to a Certificated Note, the 

Purchase Money Note will be represented by a Rule 144A Global Note and that the beneficial 

interests therein may be held only through the Depository or one of its nominees, as applicable. 

(xi) It agrees that it will not offer or sell, transfer, assign or otherwise 

dispose of the Purchase Money Note or any interest therein except (A) pursuant to an exemption 

from, or in a transaction not subject to, the registration requirements of the Securities Act and 

any applicable state securities Laws or the applicable Laws of any other jurisdiction and (B) in 

accordance with the provisions of this Agreement, to which provisions it agrees it is subject. 

(xii) It understands that the Company, the Paying Agent and the 

Receiver, their respective Affiliates and their counsel will rely upon the accuracy and truth of the 

foregoing representations, and it consents to such reliance. 

(xiii) It will provide notice to each Person to whom it proposes to 

transfer any interest in the Purchase Money Note of the transfer restrictions and representations 

set forth in this Section 2.7, including the Exhibits referenced herein. 

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EXECUTION VERSION 
(p) Agent Members shall have no rights pursuant to this Agreement with 

respect to any Global Note held on their behalf by the Paying Agent, as custodian for the 

Depository, and the Depository may be treated by the Company, the Paying Agent and any agent 

of the Company or the Paying Agent as the absolute owner of such Global Note for all purposes 

whatsoever. Notwithstanding the foregoing, nothing in this Agreement shall prevent the 

Company, the Paying Agent or any agent of the Company or the Paying Agent from giving 

effect to any written certification, proxy or other authorization furnished by the Depository or 

impair, as between the Depository and its Agent Members, the operation of customary practices 

governing the exercise ofthe rights of a beneficial interest in any Global Note. 

(q) Notwithstanding any provision to the contrary in this Agreement, so long 

as a Purchase Money Note remains outstanding, transfers and exchanges of a Purchase Money 

Note, in whole or in part, shall only be made in accordance with this Section 2.7. 

(r) Any purported transfer or exchange of the Purchase Money Note not in 

accordance with this Section 2.7 shall be null and void ab initio and shall not be given effect for 

any purpose hereunder. 

(s) Nothing in this Section 2.7 shall be construed to limit any contractual 

restrictions on transfers of the Purchase Money Note or interests therein that may apply to any 

Person. 

(t) Notwithstanding anything contained in this Agreement to the contrary, 

neither the Paying Agent nor the Purchase Money Note Registrar shall be responsible for 

ascertaining whether any transfer complies with the registration provisions of or any exemptions 

from the Securities Act, applicable state securities Laws or the applicable Laws of any other 

jurisdiction, ERISA, the Code or the Investment Company Act of 1940, as amended; provided, 

however, that if a certificate is specifically required by the express terms ofthis Agreement to be 

delivered to the Paying Agent by a holder or transferee of a Purchase Money Note, the Paying 

Agent shall be under a duty to receive and examine the same to determine whether or not the 

certificate substantially conforms on its face to the requirements of this Agreement and shall 

promptly notify the party delivering the same if such certificate does not comply with such 

terms. 

(u) Notwithstanding the foregoing, with the advice of counsel to the 

Company, the Company may adopt another form of transfer certificate with respect to the 

transfer of the Purchase Money Note after the Closing Date. The Purchase Money Note 

Registrar shall be notified of such action and, upon receipt of such notice and copies of such 

other forms of transfer certificate from the Company shall be deemed to be directed by the 

Company to also adopt such alternate forms of transfer certificate. 

Section 2.8 Intentionally Omitted. 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
Section 2.9 Mutilated, Defaced, Destroyed, Lost or Stolen Purchase Money Note. 

(a) If (i) a mutilated or defaced Purchase Money Note is surrendered to the 

Paying Agent, or if there shall be delivered to the Company and the Paying Agent evidence to 

their reasonable satisfaction of the destruction, loss or theft of the Purchase Money Note, and (ii) 

there is delivered to the Company and the Paying Agent such security or indemnity as may be 

required by them to save each of them and any agent of any of them harmless, then, in the 

absence of notice to the Company or such Paying Agent that the Purchase Money Note has been 

acquired by a bona fide purchaser, the Company shall execute and deliver, in lieu of any such 

mutilated, defaced, destroyed, lost or stolen Purchase Money Note, a new Purchase Money Note, 

of like tenor (including the same date of issuance) and equal principal or face amount registered 

in the same manner, dated the date of its authentication, bearing interest from the date to which 

interest has been paid on the mutilated, defaced, destroyed, lost or stolen Purchase Money Note 

and bearing a number not contemporaneously outstanding. 

(b) If, after delivery of such new Purchase Money Note, a bona fide purchaser 

of the predecessor Purchase Money Note presents for payment, transfer or exchange such 

predecessor Purchase Money Note, the Company, the Purchase Money Note Registrar and the 

Paying Agent shall be entitled to recover such new Purchase Money Note from the Person to 

whom it was delivered or any Person taking therefrom and shall be entitled to recover upon the 

security or indemnity provided therefor to the extent of any loss, damage, cost or expense 

incurred by the Company and the Paying Agent in connection therewith. 

(c) In case any such mutilated, defaced, destroyed, lost or stolen Purchase 

Money Note has become due and payable, the Company may in its discretion, instead of issuing 

a new Purchase Money Note, pay the Purchase Money Note without requiring surrender thereof 

except that any mutilated Purchase Money Note shall be surrendered. 

(d) Upon the issuance of any new Purchase Money Note pursuant to this 

Section 2.9, the Company may require the payment by the Holder thereof of a sum sufficient to 

cover any Tax or other governmental charge that may be imposed in relation thereto and any 

other expenses (including the fees and expenses of the Paying Agent) connected therewith. 

(e) Every new Purchase Money Note issued pursuant to this Section 2.9 in 

lieu of any mutilated, defaced, destroyed, lost or stolen Purchase Money Note shall constitute an 

original additional contractual obligation of the Company, and such new Purchase Money Note 

shall be entitled, subject to Section 2.9(b ), to all the benefits of this Agreement equally and 

proportionately with any and all other Purchase Money Note duly issued pursuant to this 

Agreement. 

The provisions of this Section 2.9 are exclusive and shall preclude (to the extent lawful) all other 

rights and remedies with respect to the replacement or payment of mutilated, defaced, destroyed, 

lost or stolen Purchase Money Note. 

Section 2.10 Payments with Respect to the Purchase Money Note. 

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EXECUTION VERSION 
(a) All reductions in the principal amount of the Purchase Money Note (or the 

predecessor Purchase Money Note) effected by prepayments of principal shall be binding upon 

all future Note Owners of the Purchase Money Note and of any Purchase Money Note issued 

upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not 

such payment is noted on such Purchase Money Note. Subject to the foregoing, any Purchase 

Money Note delivered under this Agreement and upon registration of transfer of or in exchange 

for or in lieu of any other Purchase Money Note shall carry the rights of unpaid principal or 

distributions that were carried by such other Purchase Money Note. 

(b) Payments in respect of principal of the Purchase Money Note shall be 

made by or on behalf of the Company, in U.S. dollars to the applicable Clearing Agency or its 

nominee with respect to a Global Note and to the Holder or its designee with respect to a 

Certificated Note, by wire transfer, as directed by such Clearing Agency or Holder, as applicable, 

in immediately available funds to a U.S. dollar account maintained by such Clearing Agency or 

its nominee with respect to a Global Note, and to the Holder or its designee with respect to a 

Certificated Note; provided, however, that (i) in the case of a Certificated Note, the Holder 

thereof shall have provided written wiring instructions to the Paying Agent on or before the 

related Record Date; and (ii) if appropriate instructions for any such wire transfer are not 

received at least 15 Business Days prior to the relevant Distribution Date, then such payment 

shall be made by check drawn on a U.S. bank mailed to the address of the Holder specified in the 

Purchase Money Note Register. Upon final payment due on the maturity of a Purchase Money 

Note, the Holder thereof shall present and surrender the Purchase Money Note at the office ofthe 

Paying Agent on or prior to such maturity; provided, however, that if the Paying Agent and the 

Company shall have been furnished such security or indemnity as may be required by them to 

save each of them harmless and an undertaking thereafter to surrender the Purchase Money Note, 

then, in the absence of notice to the Company or the Paying Agent that the applicable Purchase 

Money Note has been acquired by a bona fide or protected purchaser, and upon written direction 

from the Company, such final payment shall be distributed by the Paying Agent without 

presentation or surrender; and provided further, however, that the foregoing provisos shall not 

apply to any class of a Purchase Money Note so long as such class of Purchase Money Note 

remains in book-eritry form, in which case all payments shall be made through the applicable 

Clearing Agency. All notices and communications to be given to the Note Owners and all 

payments to be made to Note Owners in respect of the Purchase Money Note shall be given or 

made only to or upon the order of the registered Holders. Neither the Company nor the Paying 

Agent shall have any responsibility or liability for any aspects of the records maintained by the. 

Depository or any of the Agent Members relating to or for payments made thereby on account of 

beneficial interests in a Global Note. 

Section 2.11 Mandatory Exchange. 

(a) A Global Note deposited with the Depository shall be exchanged for a 

Certificated Note issued to the beneficial owners thereof if (i) either the Depository notifies the 

Company that it is unwilling or unable to continue as depository for such Global Note or (ii) at 

any time the Depository ceases to be a Clearing Agency registered under the Exchange Act and, 

in each case, a successor depository is not appointed by the Company within 90 days after such 

notice; and provided that such exchange complies with Section 2.7. 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
(b) A Global Note that is exchanged for a Certificated Note pursuant to this 

Section 2.11 shall be surrendered by the Depository to the Paying Agent to be so transferred, in 

whole or from time to time in part, without charge, and the Company shall execute, and the 

Paying Agent shall deliver, upon such transfer of each portion of such Global Note, a 

Certificated Note in an equal principal amount and in an Authorized Denomination. Any 

Certificated Note delivered in exchange for an interest in a Global Note shall, except as 

otherwise provided by Section 2.7(n), bear the legends set forth in the applicable Exhibit to this 

Agreement and shall be subject to the transfer restrictions referred to in such legends. 

(c) Subject to the provisions of subsection (b) of this Section 2.11, the Holder 

of a Global Note may grant proxies and otherwise authorize any Person, including Agent 

Members and Persons that may hold interests through Agent Members, to take any action which 

a Holder is entitled to take pursuant to this Agreement or the Purchase Money Note. 

(d) In the event of the occurrence of the event specified in subsection (a) of 

this Section 2.11, the Company promptly shall make available to the Paying Agent a Certificated 

Note in definitive, fully registered form without interest coupons. The Certificated Note shall be 

in substantially the same form as the Exhibits to this Agreement with such changes therein as the 

Company and Paying Agent shall agree and the Company shall execute, and the Paying Agent 

shall deliver, in exchange for the Global Note or Global Note, as the case may be, the same 

original aggregate principal amount ofCertificated Note of an Authorized Denomination. 

Section 2.12 Note Beneficially Owned by Persons Not Qualified Institutional Buyers or 

Qualified Purchasers. 

(a) Notwithstanding anything to the contrary elsewhere in this Agreement, 

any transfer of (i) a Rule 144A Global Note or a Rule 144A Certificated Note to a Person that 1s 

not both a Qualified Institutional Buyer and a Qualified Purchaser or (ii) a Rule 144A Global 

Note to any Person that is not a U.S. Person shall be null and void (other than any such transfers 

to the Receiver), and any such purported transfer of which the Company or the Paying Agent 

shall have notice may be disregarded by the Company and the Paying Agent for all purposes. 

(b) If (i) any Person that is not a Qualified Institutional Buyer and a Qualified 

Purchaser or if a Person that is not a U.S. Person shall becomea Note Owner of any Rule 144A 

Global Note or a Holder of a Rule 144A Certificated Note or (ii)(A) any U.S. Person or (B) any 

non-U.S. Person that is not a Qualified Purchaser, shall become a Holder of a Regulation S 

Certificated Note (any such Person, a "Non-Permitted Holder"), the Company, or the Paying 

Agent acting on behalf of the Company and promptly after discovery that such Person is a NonPermitted Holder by the Company or the Paying Agent (and notice by the Paying Agent to the 

Company), shall send notice to such Non-Permitted Holder demanding that such Non-Permitted 

Holder transfer its interest to a Person that is not a Non-Permitted Holder within thirty (30) days 

of the date of such notice. If such Non-Permitted Holder fails to so transfer its interest, the 

Company shall have the right, without further notice to the Non-Permitted Holder, to sell such 

interest to a purchaser selected by the Company that is not a Non-Permitted Holder on such 

terms as the Company may choose. The Company, with the assistance of an independent 

investment bank of national reputation engaged at the expense of the Company, shall select the 

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West RAOC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
purchaser by soliciting one or more bids from one or more brokers or other market professionals 

that regularly deal in securities similar to the Purchase Money Note and selling such interest to 

the highest such bidder. The Company however, may select a purchaser by any other means 

determined by it in its sole discretion. The Holder of the Purchase Money Note, the NonPermitted Holder and each other Person in the chain of title from the Holder to the NonPermitted Holder, by their acceptance of an interest in the Purchase Money Note, agree to 

cooperate with the Company and the Paying Agent to effect such transfers. The proceeds of such 

sale, net of any commissions, expenses and Taxes due in connection with such sale, shall be 

remitted to the Non-Permitted Holder. The terms and conditions of any sale pursuant to this 

subsection shall be determined in the sole discretion of the Company, and the Company shall not 

be liable to any Person having an interest in the Purchase Money Note sold as a result of any 

such sale or the exercise of such discretion. 

Section 2.13 Withholding. If any withholding Tax is imposed on any payment made by 

the Company to any Note Owner, such Tax shall reduce the amount otherwise payable to such 

Note Owner. The Company is hereby authorized to withhold from amounts otherwise payable to 

any Note Owner sufficient funds for the payment of any Tax that is legally owed in connection 

therewith (but such authorization shall not prevent the Company from contesting any such Tax in 

appropriate proceedings and withholding payment of such Tax, if permitted by Law, pending the 

outcome of such proceedings). The amount of any withholding Tax imposed with respect to any 

Note Owner shall be treated as cash paid to such Note Owner at the time it is withheld. If there 

is a possibility that withholding Tax is payable with respect to a payment, the Company may, in 

its sole discretion, withhold such amounts in accordance with this Section 2.13. The Company 

shall not be obligated to pay any additional amounts to any Holder or Note Owner of a Purchase 

Money Note as a result of any withholding or deduction for, or on account of, any present or 

future Taxes, duties, assessments or governmental charges imposed on payments in respect of 

the Purchase Money Note. 

Section 2.14 Persons Deemed Owners. The Company, the Paying Agent and any agent 

of the Company or the Paying Agent shall treat the Person in whose name the Purchase Money 

Note is registered as the owner of the Purchase Money Note on the Purchase Money Note 

Register on the applicable Record Date for the purpose of receiving payments of principal of and 

interest on or other distributions with respect to the Purchase Money Note and on any other date 

for all other purposes whatsoever (whether or not such payments are overdue), and neither the 

Company, the Paying Agent nor any agent of the Company or the Paying Agent shall be affected 

by notice to the contrary. 

Section 2.15 Holder Voting. 

(a) In any case in which consent of the Holder is required pursuant to this 

Agreement or the Transaction Documents, such consent requirement shall be satisfied if the 

Holder of more than fifty percent (50%)of the interests in the Purchase Money Note consents. 

Notwithstanding the foregoing, with respect to each of the following, such consent requirement 

shall only be satisfied if each affected interest Holder in the Purchase Money Note consents: 

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West RAOC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
(b) any amendment, waiver or other modification that would (I) extend the 

due date for, or reduce the amount of any scheduled repayment of principal of, the Purchase 

Money Note; (II) affect adversely the interests, rights or obligations of any Holder individually 

in comparison to any other Holder; (III) change any place of payment where, or the coin or 

currency in which, the Purchase Money Note is payable; (IV) amend or otherwise modify the 

definition of "Event of Default" as defined in the Purchase Money Note; or (V) amend, waive or 

otherwise modify this Section 2.15; and 

(c) any amendment, waiver or other modification that would release the 

Purchase Money Note Guarantor from all or any part of its obligation to make each and every 

payment under the Guaranty Agreement. 

Section 2.16 Cancellation. A Purchase Money Note surrendered for payment, 

registration or transfer, exchange or redemption, or deemed lost or stolen, shall, if surrendered to 

any Person other than the Paying Agent, be delivered to the Paying Agent, shall be promptly 

cancelled by it and may not be reissued or resold. No Purchase Money Note shall be issued in 

lieu of or in exchange for a Purchase Money Note cancelled as provided in this Section 2.16, 

except as expressly permitted by this Agreement. A cancelled Purchase Money Note held by the 

Paying Agent shall be destroyed or held by the Paying Agent in accordance with its standard 

retention policy unless the Company shall. direct that it be returned to it. 

Section 2.17 Section 3(c)(7) Procedures. 

(a) Depository Actions. The Company shall direct the Depository to take the 

following steps in connection with a Rule 144A Global Note: 

(i) The Company shall direct the Depository to include the "3c7" 

marker in the Depository 20-character security descriptor and the 48-character additional 

descriptor for the Rule 144A Global Note in order to indicate that sales are limited to Persons 

that are both Qualified Institutional Buyers and Qualified Purchasers. 

(ii) The Company shall direct the Depository to cause each physical 

Depository to deliver order ticket delivered by the Depository to purchasers to contain the 

Depository 20-character security descriptor and shall direct the Depository to cause each 

Depository deliver order ticket delivered by the Depository to p.urchasers in electronic form to 

contain the "3c7" indicator and a related user manual for participants, which shall contain a 

description of the relevant restrictions. 

(iii) The Company shall instruct the Depository to send a notice 

substantially in the form attached as Exhibit D hereto to all Depository participants in connection 

with the offering ofthe Rule 144A Global Note. 

(iv) The Company shall advise the Depository that it is a Section 

3(c)(7) issuer and shall request the Depository to include the Rule 144A Global Note in the 

Depository's "Reference Directory" of Section 3( c )(7) offerings. 

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EXECUTION VERSION 
(v) The Company from time to time shall (upon the request of the 

Paying Agent or the Purchase Money Note Registrar) request the Depository to deliver to the 

Company a list of all Depository participants holding an interest in the Rule 144A Global Note. 

(b) Bloomberg Screens, Etc. The Company from time to time shall request all 

third-party vendors to include on screens maintained by such vendors appropriate legends 

regarding Rule 144A and Section 3(c)(7) restrictions on the Rule 144A Global Note. Without 

limiting the foregoing, the Company shall request Bloomberg, L.P. to include the following on 

each Bloomberg screen containing information about the Rule 144A Global Note: 

(i) "Security Description" page 1 describing the security states: 

"144N3c7 "ok"; Reg S/3c7 "ok"; 144NDTC Book Entry; RegS/Certificated; 

(ii) "Security Description" page 1 states: "See Page 3 for Comments"; 

(iii) "Security Description" page 3 states: "RESTRICTIONS: These 

securities are being offered under the Securities Act only (a) in book-entry and certificated form 

to "qualified institutional buyers" under Rule 144A and (b) in certificated form to non-U.S. 

Persons in offshore transactions under Regulation S, where (a) and (b) are also "qualified 

purchasers" within the meaning of Section 3(c)(7) ofthe U.S. Investment Company Act." 

Notwithstanding the foregoing, in the event that Bloomberg is not able to include the language 

contained in subsections (b)(i) and (b)(ii) above, the purchaser will ensure as of the Closing Date 

that "Security Description" page 3 states: "144N3c7 "ok"; Reg S/3c7 "ok"; 144AIDTC Book 

Entry; Reg S/Certificated" in addition to the language in subsection (b)(iii) above. 

(c) CUSIP. The Company shall cause each "CUSIP" number obtained for the 

Rule 144A Global Note to have an attached "fixed field" that contains "3c7" and "144A" 

indicators. 

Section 2.18 Transfer of the Purchase Money Note by Receiver. Subject to the 

requirements and restrictions for the transfer of the Purchase Money. Note pursuant to this 

Agreement, the Receiver shall be permitted, without restriction, to assign, sell, transfer, 

participate, pledge, or otherwise hypothecate the Purchase Money Note in whole or in part, to a 

subsequent purchasers. The Private Owner agrees to cooperate with and assist, and to cause the 

Company to so cooperate and assist, the Receiver in any such actual or proposed assignment, 

sale, transfer, participation, pledge, syndication, or hypothecation as requested by the Receiver, 

including by providing information required by securities disclosure Laws and as would 

otherwise be provided customarily in connection with the issuance and sale of similar debt, and 

entering into a fiscal and paying agent agreement and other agreements with respect to the 

Purchase Money Note or the assignment, sale, transfer, participation, pledge, syndication or 

hypothecation thereof. The Private Owner agrees to cooperate with, and to cause the Company 

to cooperate with, the Receiver as initial Holder of the Purchase Money Note, to make any 

amendments to the Purchase Money Note and other Transaction Documentation, and issue any 

applicable legal opinions of Company counsel; to effect any such assignment, sale, transfer, 

participation, pledge, syndication or hypothecation; provided that no such amendment will 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
adversely affect in any material respect (i) the amount or timing of distributions to the Private 

Owner or the Initial Member pursuant to the Priority of Payments or (ii) any other rights or 

obligations of the Paying Agent, Private Owner, or the Initial Member pursuant to the 

Transaction Documents, in each case unless such adversely affected Paying Agent, Private 

Owner or Initial Member, as applicable, shall have consented to the applicable provisions 

resulting in such adverse effect. The reasonable legal fees of outside counsel for the Company 

(excluding any legal fees of outside counsel performing services for the Private Owner or the 

Initial Member) in connection with the preparation and review of any such documents and 

issuance ofsuch legal opinions shall be deemed a Servicing Expense and paid by the Company. 

ARTICLE III 


ACCOUNTS 


Section 3.1 Collection Account. 

(a) On the Closing Date, the Company shall establish the Collection Account 

with the Paying Agent, which shall at all times be an Eligible Account. For all Asset Proceeds 

with respect to any Group of Assets received by the Receiver during the Interim Servicing Period 

for which the Servicing Transfer Date has not occurred, the Receiver shall transfer ·any such 

Asset Proceeds, net of any Interim Servicing Expenses and Pre-Approved Charges then due and 

payable, no later than two (2) Business Days prior to the applicable Distribution Date to the 

Paying Agent for deposit into the Collection Account. For all Asset Proceeds with respect to any 

Group of Assets received after the Interim Servicing Period and for which the Servicing Transfer 

Date has occurred, the Company shall transfer, or cause the Servicer or any Subservicer to 

transfer, all Asset Proceeds within two (2) Business Days of receipt of such funds to the Paying 

Agent for deposit into the Collection Account; provided, that all amounts received from 

Borrowers which are required to be deposited to Escrow Accounts under the Asset Documents 

will not be applied to the Collection Account as Asset Proceeds. No funds from any other source 

(other than Asset Proceeds, interest or earnings on the Asset Proceeds, funds transferred from the 

Working Capital Reserve Account pursuant to the LLC Operating Agreement and Section 3.6, 

funds advanced by the Manager as Excess Working Capital Advances pursuant to the LLC 

Operating Agreement and Section 3.7 and funds advanced by the Manager as Discretionary 

Funding Advances pursuant to the LLC Operating Agreement and Section 3.8) shall be 

commingled in the Collection Account. 

(b) [Reserved] 

(c) Amounts on deposit in (or that are required to· have been deposited into) 

the Collection Account (including interest and earnings thereon) shall be applied (i) first, to the 

repayment of any Discretionary Funding Advance that the Manager has made with respect to any 

Asset together with accrued and unpaid interest on such Discretionary Funding Advances, but 

only to the extent of Asset Proceeds from the Asset with respect to which the Discretionary 

Funding Advance was made (and subject to Section 5.2 of the Reimbursement, Security and 

Guaranty Agreement); (ii) second, to the payment of the then-outstanding amount of Servicing 

Expenses and Pre-Approved Charges either then due and payable or subject to reimbursement 

(including Servicing Expenses and Pre-Approved Charges incurred by the Private Owner and the 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
Manager); (iii) third, to fund any Funding Draws permitted pursuant to any Asset Documents; 

(iv) fourth, to pay any Permitted Vertical Completion Expenses pursuant to Section 12.6 of the 

LLC Operating Agreement; provided, however, that any Discretionary Funding Advances may 

be used to fund Substantially Complete Vertical Development only with respect to the Asset to 

which such Discretionary Funding Advances relate; and (v) the balance, if any, to be transferred 

to the Distribution Account in accordance with Section 3.2. 

(d) At any time during the Interim Servicing Period, the Initial Member is 

authorized to request the withdrawal of funds from the Collection Account to pay Interim 

Servicing Expenses and Pre-Approved Charges. The Manager is authorized to request the 

withdrawal of funds from the Collection Account at any time to pay Servicing Expenses and PreApproved Charges, to fund any Funding Draws and to pay any Permitted Vertical Completion 

Expenses, all in accordance with the terms ofthis Agreement and the Related Agreements, and if 

the Receiver, the Company, the Servicer or any Subservicer at any time erroneously deposits any 

amount into the Collection Account, the Manager is authorized to request the withdrawal of such 

amount and instruct the Paying Agent to pay such amount to the Receiver, the Company, the 

Servicer or any Subservicer, as applicable. The Manager shall provide such requests to the 

Paying Agent in accordance with Section 18.1. 

(e) The Paying Agent shall invest the amounts on deposit in the Collection 

Account in Permitted Investments in accordance with investment directions· from the Company, 

but with a maturity that allows for their allocation and transfer to the Distribution Account in 

accordance with Section 3.2. 

(f) Upon instruction, the Paying Agent shall be authorized and directed to 

withdraw funds from the Collection Account only to pay Discretionary Funding Advances, the 

Interim Servicing Expenses, Servicing Expenses and Pre-Approved Charges, to fund any 

Funding Draws, to pay any Permitted Vertical Completion Expenses and to transfer funds to the 

Distribution Account pursuant to Section 3.2 and as otherwise specifically set forth in this 

Agreement, including but not limited to Section 3.6, and not for any other purpose. The 

Collection Account (and all funds therein) shall be subject to the security interest granted to the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and the Account 

Control Agreement in substantially the form attached to this Agreement as Exhibit N. 

Section 3.2 Distribution Account. 

(a) On the Closing Date, the Company shall have established the Distribution 

Account with the Paying Agent, which shall at all times be an Eligible Account. The Paying 

Agent shall transfer from the Collection Account to the Distribution Account, for application 

pursuant to Section 5.1, not later than 12:00 p.m. New York time on the Business Day 

immediately preceding each Distribution Date, the amount specified in the Distribution Date 

instructions delivered pursuant to Section 11.4 for such Distribution Date as determined as ofthe 

close ofbusiness on the Determination Date with respect to the applicable Due Period. 

(b) No funds from any other source shall be commingled in the Distribution 

Account other than funding from the Collection Account as described in this Section. Amounts 

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EXECUTION VERSION 
on deposit in (or that are required to have been deposited into) the Distribution Account shall be 

allocated and may be withdrawn and disbursed only in accordance with the provisions of Section 

ll. All amounts on deposit in the Distribution Account shall not be invested. 

(c) The Paying Agent shall be authorized and directed to withdraw funds from 

the Distribution Account only to make disbursements in accordance with this Agreement and not 

for any other purpose. The Distribution Account (and all funds therein) shall be subject to the 

security interest granted to the Collateral Agent under the Reimbursement, Security and 

Guaranty Agreement and the Account Control Agreement. 

Section 3.3 Defeasance Account. 

(a) On the date hereof, the Company shall have established the Defeasance 

Account with the Paying Agent. The Paying Agent shall transfer funds to the Defeasance 

Account pursuant to the Priority ofPayments. 

(b) The Purchase Money Note Guarantor, in accordance with Section 17(a) of 

the Guaranty Agreement, shall deposit any amounts payable pursuant to the Guaranty Agreement 

in respect of the Guaranteed Obligations (as such term is defined in the Guaranty Agreement), if 

any, in the Defeasance Account by 12:00 p.m. New York time on the date that is one Business 

Day prior to any Distribution Date on which an acceleration payment with respect to any 

Purchase Money Note is due and payable or, in connection with the final payment of the 

Purchase Money Note on the Maturity Date, by 12:00 p.m. New York time on the date that is 

one Business Day prior to the Maturity Date, in each case, for further distribution by the Paying 

Agent to the Holder; provided that the Purchase Money Note Guarantor has received written 

demand therefor from the Holder or from the Paying Agent on such Holder's behalf pursuant to 

Section 17(a) of the Guaranty Agreement no later than 5:00p.m.. New York time on the date that 

is four (4) Business Days prior to such Distribution Date or, in connection with the final payment 

of the Purchase Money Note on the Maturity Date, the Maturity Date. In addition, the Company 

may deposit any Company Principal Prepayment Amount in the Defeasance Account, provided 

that such amount is deposited in the Defeasance Account at least one Business Day prior to the 

related Distribution Date, to be applied by the Paying Agent as a principal prepayment (or a 

portion thereof) on such Distribution Date in accordance with the related Distribut~on Date 

Report or the Maturity Date Report. To the extent the Paying Agent receives amounts from the 

Purchase Money Note Guarantor to be used to pay interest on overdue principal of the Purchase 

Money Note, the Paying Agent shall deposit such amounts into the Defeasance Account and 

shall distribute such amounts to the Holder on the date the principal is paid to the Holder. Any 

overdue principal on the Purchase Money Note and interest thereon may be paid to the Holder on 

any Business Day without regard to whether such day is a Distribution Date. If, on any 

Distribution Date on which an acceleration payment with respect to the Purchase Money Note is 

due and payable or on the Maturity Date, a payment is due from the Purchase Money Note 

Guarantor but not timely received, then at such time as the Paying Agent does receive such 

payment together with any interest thereon as provided in Section 17(b) of the Guaranty 

Agreement, the Paying Agent shall deposit such amounts into the Defeasance Account for 

further distribution by the Paying Agent to the Holder. To the extent the Paying Agent otherwise 

receives amounts from the Purchase Money Note Guarantor paid pursuant to Section 17(b) of the 

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West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
Guaranty Agreement, the Paying Agent shall deposit such amounts into the Defeasance Account 

for further distribution by the Paying Agent to the applicable Holder. Any amounts deposited 

into the Defeasance Account pursuant to Section 17(b) of the Guaranty Agreement shall not be 

included when calculating the balance in the account. 

(c) No funds from any other source (other than interest or earnings on 

amounts described in Section 3.3(d) and (i) amounts deposited pursuant to this Section 3.3, (ii) 

deposits made by the Purchase Money Note Guarantor as described in this Section 3.3, (iii) 

deposits made by the Manager pursuant to Section 5.5(b)(y) of the LLC Operating Agreement or 

(iv) amounts deposited as Purchase Money Note Asset Value pursuant to Section 6.3 of the 

Contribution Agreement) shall be commingled in the Defeasance Account. 

(d) The Paying Agent shall invest the amounts on deposit in the Defeasance 

Account in Permitted Investments in accordance with investment directions from the Initial 

Member; provided, however, upon the delivery of a copy of the Guaranty Notice to the Paying 

Agent, the Purchase Money Note Guarantor shall thereafter be the Person to provide the 

investment directions pursuant to this Section 3.3(d) and the Paying Agent shall be entitled to 

rely upon such Guaranty Notice for purposes of this Agreement. Income or gain from such 

investments will be available to be applied with other amounts in accordance with Sections 

U..(g} and ffi. 

(e) If, on the Maturity Date (or any Distribution Date on which an 

acceleration payment or prepayment of principal is due and payable on the Purchase Money 

Note), there exists a Net Loss on Investments with respect to the Defeasance Account and the 

amount in the Defeasance Account is less than the amount required to pay all amounts owing to 

the Holder on the Maturity Date or Distribution Date, then prior to any liquidation and payment 

described in the following provisions of this Section 3.3, the Purchase Money Note Guarantor 

shall deposit into the Defeasance Account the lesser of (i) the amount of such Net Loss on 

Investments or (ii) the portion of such Net Loss on Investments that is required to increase the 

amount in the Defeasance Account to the amount owing to the Holder on the Maturity Date or 

Distribution Date. 

(f) If the Manager in its discretion elects to provide Excess Working Capital 

Advances to cure a Purchase Money Note Trigger Event as described in Section 3.7, the 

Manager shall direct the Paying Agent to deposit such Excess Working Capital Advances into 

the Defeasance Account. In addition, upon the repurchase of an Asset pursuant to Section 6.3 of 

the Contribution Agreement, the portion of the Repurchase Price constituting the Purchase 

Money Note Asset Value shall be deposited into the Defeasance Account. 

(g) On the Maturity Date and on any Distribution Date on which an 

acceleration payment or prepayment of principal with respect to the Purchase Money Note is due 

and payable, the Paying Agent shall, after making all disbursements required pursuant to Section 

5.1, liquidate all or a portion of the Defeasance Account sufficient to pay all amounts owing to 

the Holder of the Purchase Money Note on the Maturity Date or such Distribution Date, as 

applicable, and pay all proceeds of such liquidation to the Holder of the Purchase Money Note. 

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West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
(h) Intentionally omitted. 

(i) Following the Maturity Date and the payment in full of the Holder of the 

Purchase Money Note, the Paying Agent shall liquidate the Defeasance Account and deposit any 

and all proceeds ofsuch liquidation in accordance with Section 3 .3(k ). 

G) The Paying Agent is authorized and directed to withdraw funds from the 

Defeasance Account only to make disbursements in accordance with this Agreement and not for 

any other purpose. The Defeasance Account (and all funds therein) shall be subject to the 

security interest granted to the Collateral Agent pursuant to the Reimbursement, Security and 

Guaranty Agreement and to the Account Control Agreement. 

(k) If on the Distribution Date on which the final deposit is required to be 

made into the Defeasance Account under Section 5.1(b)(iv), the actual deposit made into such 

account exceeds the amount that would have been required on such date had the earnings on the 

account since the related Determination Date been taken into account, then such excess deposit 

shall be removed from the Defeasance Account, deposited into the Distribution Account and on 

the next Distribution Date applied with other funds in accordance with the Priority of Payments. 

Section 3.4 Reserved. 

Section 3.5 Reserved. 

Section 3.6 Working Capital Reserve Account. 

(a) On the date hereof, the Company shall have established the Working 

Capital Reserve Account with the Paying Agent for the purpose of paying the Working Capital 

Expenses, Funding Draws.and making payments for Permitted Vertical Completion Expenses. 

To the extent there are insufficient funds in the Collection Account with which to pay the 

outstanding amount of the Working Capital Expenses then due and payable, then the Company 

may instruct the Paying Agent to release some or all of the funds from the Working Capital 

Reserve Account (in an amount that the Manager determines in the exercise of its reasonable 

discretion) and allocate and distribute such released funds to the Collection Account, from which 

the funds will be available to pay such Working Capital Expenses. In addition, if the Company 

elects to undertake any Substantially Complete Vertical Development, then the Company may 

instruct the Paying Agent to release some or all of the funds in the Working Capital Reserve 

Account in an amount that the Manager determines in the exercise of its reasonable discretion 

and allocate and distribute such released funds to the Collection Account, from which such. funds 

will be available to pay the related Permitted Vertical Completion Expenses. 

(b) The Working Capital Reserve Account shall be held in trust by the Paying 

Agent for the benefit of the Company and shall be established and maintained for the sole 

purpose of holding and distributing the funds in the Working Capital Reserve Account. The 

Working Capital Reserve Account shall be funded initially in accordance with Section 12.11 of 

the LLC Operating Agreement and thereafter replenished through deposits made into the 

Working Capital Reserve Account in accordance with Section 5.1(b)(v) ofthis Agreement. 

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(c) At all times prior to the Purchase Money Note Defeasance Date, the 

Manager, in the exercise of its reasonable discretion, shall determine the Working Capital 

Reserve target on deposit in the Working Capital Reserve Account as of a certain Determination 

Date, which shall be in such an amount that is equal to or greater than the Working Capital 

Reserve Floor but not more than the Working Capital Reserve Cap; provided, however, that the 

Manager, in the exercise of its reasonable discretion, may determine to release funds from the 

Working Capital Reserve Account and reduce the Working Capital Reserve to an amount below 

the Working Capital Reserve Floor if such funds are required to pay Working Capital Expenses 

then due and payable so long as the balance of the Working Capital Reserve Account is restored 

to the Working Capital Reserve Floor as soon thereafter as is practicable. 

(d) At the time of the Final Distribution, the Paying Agent shall allocate and 

distribute all remaining funds held in the Working Capital Reserve Account to the Collection 

Account, from which account the funds will be transferred to the Distribution Account and made 

available for distribution in accordance with the Priority of Payments pursuant to Section 5.1 of 

this Agreement and the LLC Operating Agreement. 

(e) In addition, if the Manager determines in the exercise of its reasonable 

discretion that the funds held in the Working Capital Reserve Account in excess of the Working 

Capital Reserve Floor no longer are necessary to satisfy the purposes for which the Working 

Capital Reserve has been established, the Manager may instruct the Paying Agent to release such 

excess funds from the Working Capital Reserve Account, and thereafter the Paying Agent shall 

allocate and distribute such excess funds to the Collection Account, from which account the 

funds will be transferred to the Distribution Account and made available for distribution in 

accordance with the Priority ofPayrnents pursuant to Section 5.1 of this Agreement and the LLC 

Operating Agreement. 

(f) The Paying Agent shall invest the amounts on deposit in the Working 

Capital Reserve Account in Permitted Investments in accordance with investment directions 

from the Company but with maturities that allow for their transfer in accordance with this 

Section 3.6. No funds from any other source (other than interest or earnings on the funds held in 

the Working Capital Reserve Account and funding from the Members as described in this 

Section) shall be commingled in the Working Capital Reserve Account. 

(g) The Paying Agent is authorized and directed to withdraw funds from the 

Working Capital Reserve Account only to make disbursements in accordance with this 

Agreement and not for any other purpose. The Working Capital Reserve Account (and all funds 

therein) shall be subject to the security interest granted to the Collateral Agent pursuant to the 

Reimbursement, Security and Guaranty Agreement and the Account Control Agreement. 

Section 3.7 Excess Working Capital Advances. The Manager shall, except as 

otherwise provided in Section 12.6 of the LLC Operating Agreement, be required to :make 

Excess Working Capital Advances to the Paying Agent from its own funds in accordance with 

the terms described in Section 5.5 of the LLC Operating Agreement and to the extent that there 

are insufficient funds in the Collection Account or the Working Capital Reserve Account 

(including, as applicable by a permitted release of such funds to the Collection Account or as 

32 

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EXECUTION VERSION 
otherwise permitted herein) with which to pay Working Capital Expenses. In addition, the 

Manager may, but shall not be required, to make Excess Working Capital Advances to the 

Paying Agent from its own funds (a) in accordance with the terms described in Section 5.5 ofthe 

LLC Operating Agreement to the extent there are insufficient funds in the Collection Account 

and also insufficient funds in the Working Capital Reserve Account (with such sufficiency ofthe 

Working Capital Reserve Account measured by funds in excess of the Working Capital Reserve 

Floor, and including, as applicable by a permitted release of such excess funds to the Collection 

Account or as otherwise permitted herein) to fund the Defeasance Account by such amount as 

may be required to cure a Purchase Money Note Trigger Event and (b) in accordance with the 

terms described in Section 5.5 of the LLC Operating Agreement to the extent there are 

insufficient funds in the Collection Account and also insufficient funds in the Working Capital 

Reserve Account (with such sufficiency of the Working Capital Reserve Account measured by 

funds in excess of the Working Capital Reserve Floor, and including, as applicable by a 

permitted release of such excess funds to the Collection Account or as otherwise permitted 

herein). The Manager shall direct the Paying Agent to deposit any Excess Working Capital 

Advances (i) to pay Working Capital Expenses into the Collection Account (from which the 

funds will be available to pay such Working Capital Expenses), and (ii) as may be required to 

cure a Purchase Money Note Trigger Event into the Defeasance Account. 

Section 3.8 Discretionary Funding Advances. Pursuant to Section 5.4 of the LLC 

Operating Agreement, the Manager may make, at its discretion, Discretionary Funding Advances 

from its own funds to fund Permitted Vertical Completion Expenses on an Asset-by-Asset basis 

to the extent that funds are not available in the Collection Account for such purpose, and the 

Working Capital Reserve has reached the Working Capital Reserve Floor. All Discretionary 

Funding Advances are to be designated as applicable only to the Asset to which such 

Discretionary Funding Advance. relates. Any Discretionary Funding Advances are to be · 

deposited into the Collection Account, from which the funds will be available to be disbursed to 

the Borrower (with respect to the Collateral) or used by the Company (with respect to the 

Acquired REO Property), as applicable, to pay the Permitted Vertical Completion Expenses 

relating to the specified Asset. Notwithstanding anything to the contrary herein or in any other 

Transaction Document, any amounts disbursed or advanced by the Company in respect of 

Discretionary Funding Advances made by the Manager to the Company shall be disbursed or 

advanced in accordance with Section 5.4 of the LLC Operating Agreement on behalf of the 

Company and not on behalf of the Manager in its individual capacity. The Manager agrees and 

acknowledges that the making of a Discretionary Funding Advance to the Company, and the 

advancing or disbursing of such amount by the Company in respect of an Asset, shall not create 

(i) a mortgage, Lien, security interest or other encumbrance in favor of, or for the bt::nefit of, the 

Manager in respect of such Asset, and (ii) a participation interest or other rights in favor of, or 

for the benefit of, the Manager in respect of any existing mortgage, Lien or security interest held 

by or on behalf ofthe Company relating to such Asset. 

Section 3.9 Private Owner Pledged Account. 

(a) On the date hereof, the Private Owner shall have established the Private 

Owner Pledged Account with the Paying Agent for the exclusive purpose of holding Qualifying 

Cash Collateral, whether such Qualifying Cash Collateral is delivered on the date hereof or 

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EXECUTION VERSION 
subsequent to the date hereof in full and complete substitution for a Qualifying Letter of Credit 

pursuant to the LLC Operating Agreement, or if the proceeds of such Qualifying Letter of Credit 

are to be deposited in such Private Owner Pledged Account upon the liquidation or drawing 

down thereof pursuant to the LLC Operating Agreement. The Private Owner Pledged Account 

(and all funds therein) shall be subject to the security interest granted for the benefit of the Initial 

Member pursuant to the LLC Operating Agreement, this Agreement and the Private Owner 

Account Control Agreement in substantially the form attached to this Agreement as Exhibit 0. 

In no event shall the Private Owner have any right or authority to withdraw any funds from the 

Private Owner Pledged Account except as expressly provided in Section 3.9(b) below. The 

Paying Agent shall invest the amounts on deposit in the Private Owner Pledged Account in 

Permitted Investments in accordance with investment directions from the Private Owner but with 

maturities that allow for their transfer in accordance with this Section 3.9. 

(b) From time to time, at the request of the Private Owner, the Paying Agent 

may release funds from the Private Owner Pledged Account to the Private Owner only to the 

extent that, after such release, the remaining balance of the Qualifying Cash Collateral on deposit 

in the Private Owner Pledged Account is not less than the Private Owner Pledged Amount. Any 

such release shall be pursuant to applicable instructions and documentation satisfactory to, and 

executed by (or with the written consent of), both of the Initial Member and the Private Owner 

(and prepared at the sole cost and expense of the Private Owner). 

ARTICLE IV 

ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS 

Section 4.1 Investment of Funds in Accounts. 

(a) The Purchase Money Note Guarantor, as long as the Purchase Money 

Note is outstanding and, thereafter, the Company, shall at all times direct the Paying Agent to, 

and, upon receipt of such investment direction, the Paying Agent shall, invest, pending deposit 

into the Collection Account, the Working Capital Reserve Account, the Defeasance Account and 

the Private Owner Pledged Account, as applicable, amounts received and retained in such 

accounts, as so directed in Permitted Investments. If the Purchase Money Note Guarantor or the 

Company, as applicable, shall not have given any such investment directions pursuant to 

Sections 3.1, 3 .3, 3 .6, 3.9 or 4.1, the balance standing to the credit of the Collection Account, the 

Working Capital Reserve Account, or the Defeasance Account and the Private Owner Pledg~ 

Account, as applicable, will remain uninvested with no liability for interest thereon. It is agreed 

and understood that the Paying Agent may earn fees associated with Permitted Investments. 

(b) Whenever the Paying Agent is directed or authorized in accordance with 

the terms hereof to make a transfer of funds among the Collection Account, the Working Capital 

Reserve Account, the Distribution Account, the Defeasance Account (collectively, the 

"Company Accounts") and the Private Owner Pledged Account, after application of all other 

available funds, the Paying Agent shall allocate to the Account to which such funds are to be 

transferred a portion of any Permitted Investment that would otherwise have to be liquidated to 

accomplish such transfer in an amount corresponding to the amount to be so transferred. 

Whenever the Paying Agent is directed or authorized in accordance with the terms hereof to 

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EXECUTION VERSION 
make a transfer of funds from the Company Accounts (unless such transfer is between the 

Accounts), if, after application of all other available funds, liquidation of a Permitted Investment 

is necessary to make any such transfer, the Paying Agent is authorized to liquidate such 

Permitted Investment. If any Permitted Investment so liquidated is then allocated to more than 

one Company Account, and it is not possible to liquidate only the portion of such Permitted 

Investment allocated to the Company Account from which such transfer is to be made, then the 

entire Permitted Investment shall be liquidated, and the proceeds of such liquidation shall be 

allocated to the Company Accounts involved in the same proportion as the allocation of such 

Permitted Investment, except that the net costs and expenses, if any, of such liquidation 

(including any loss of principal) shall be allocated entirely to the Account from which the 

transfer of funds was required to be made. The Paying Agent shall liquidate all those Permitted 

Investments that can be liquidated without interest cost or penalty before it shall liquidate any 

Permitted Investment, the liquidation of which would involve an interest cost or penalty. The 

Paying Agent shall have no liability with respect to any interest cost or penalty on the liquidation 

of any Permitted Investment pursuant to this Section 4.1. 

(c) The Paying Agent shall have no liability with respect to Permitted 

Investments (or any losses resulting therefrom) made at the direction of the Purchase Money 

Note Guarantor or the Company, as applicable, pursuant to this Agreement. 

(d) All references in this Agreement to the Accounts and to cash, moneys or 

funds therein or balances thereof shall include the investments in which such moneys are 

invested. 

(e) The Paying Agent may execute any investment directions ·provided to it in 

respect of the Permitted Investments through its Affiliates, and neither the Paying Agent nor its 

Affiliates shall have a duty to monitor the investment rating of any such Permitted Investments. 

The Paying Agent will have no obligation to invest or reinvest any funds if all or a portion of 

such funds_ are deposited with the Paying Agent after 11:00 a.m. New York time on the day of 

deposit. Directions to invest or reinvest that are received after 11 :00 a.m. New York time will be 

treated as if received on the following Business Day in New York. Subject to Section 4.1(b) 

above, the Paying Agent will have the power to sell or liquidate Permitted Investments whenever 

the Paying Agent will be required to make a transfer pursuant to the terms hereof. The Paying 

Agent will have no responsibility for any investment losses resulting from the investment, 

reinvestment or liquidation of any funds in accordance with the terms of this Agreement. 

Section 4.2 Interest. . Any interest or other earnings accrued on any balances in any 

Account or on any investment thereof, shall be credited to and accumulated in such Account and 

thereafter be applied without differentiation from other funds in such Account. 

Section 4.3 Inadequately Identified Amounts. If the Paying Agent receives any 

amount that is inadequately or incorrectly identified and the Paying Agent is unable to determine 

the Account into which such amount is to be credited, the Paying Agent shall notify the 

Company, the Purchase Money Note Guarantor and the Collateral Agent of such event and shall 

request instructions as to the Account into which such amount should be credited. The Paying 

Agent shall credit such amount to the Collection Account until such time as it receives 

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EXECUTION VERSION 
instructions from the Company (with the written consent of the Purchase Money Note Guarantor, 

and the Collateral Agent) stating that such amount should be credited to another Account in 

accordance with this Agreement, in which case it shall credit such amount, if still available, to 

the Account designated by the Company (with the written consent of the Purchase Money Note 

Guarantor and the Collateral Agent). 

Section 4.4 Payment Procedures. All amounts that from time to time are distributable 

by the Paying Agent from the Distribution Account or the Defeasance Account in accordance 

herewith shall be paid by the Paying Agent from amounts on deposit in such account on the 

related Distribution Date or on the Maturity Date, as applicable, in immediately available funds 

(but not before such amounts become immediately available to it). All payments made by the 

Paying Agent shall be made to such account(s) as shall be designated in writing by the Company 

in accordance with the Distribution Date Report or the Maturity Date Report, as applicable, and 

this Agreement. 

ARTICLEV 


DISTRIBUTIONS 


Section 5.1 Priority of Payments. 

(a) Before each Distribution Date, the Paying Agent shall disburse amounts 

transferred to the Distribution Account from the Collection Account pursuant to Section 3.2 for 

application by the Paying Agent in accordance with the priorities set forth in Section 5.1 (b) 

below (the "Priority of Payments") and pursuant to the Distribution Date instructions contained 

in the Distribution Date Reports delivered pursuant to Section 11.3. Notwithstanding any 

provisions in this Agreement to the contrary, however, the Paying Agent shall take disbursement 

instructions from the Initial Member with respect to the distributions payable to the Private 

Owner pursuant to Section 5.l(b)(xi) below upon the delivery of written notice from the Initial 

Member to the Paying Agent providing that such distributions instead should be paid to the 

Initial Member pursuant to the terms of the LLC Operating Agreement. Absent delivery of such 

written notice, the Paying Agent shall pay in accordance with Section 5.1(b)(vii) below. 

(b) On each Distribution Date, all funds in the Distribution Account will be 

distributed in the following order of priority except as otherwise provided in Section 5.2 of the 

Reimbursement, Security and Guaranty Agreement, a copy of which is set forth as Schedule 

5.1(b): 

(i) first, to pay the fees and expenses of the Custodian and Paying 

Agent, including any indemnification payments owing to the Custodian and Paying Agent 

pursuant to Section 13.1, in accordance with the terms of this Agreement; 

(ii) second, (A) for each Due Period during the Interim Servicing 

Period, with respect to each Group of Assets, to pay to (1) the Initial Member, for each Asset for 

which it provides servicing, the applicable Interim Servicing Fee, together with any unpaid 

portion of the Interim Servicing Fee for any prior Due Period, and (2) the Manager the Interim 

Management Fee, together with any unpaid portion ofthe Interim Management Fee for any prior 

Due Period, and (B) for each Due Period following the Interim Servicing Period, with respect to 

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West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
such Group of Assets for which it provides servicing, to pay to the Manager an amount equal to 

the Management Fee, together with any unpaid portion of the Management Fee for any prior Due 

Period; 

(iii) third, to repay any Excess Working Capital Advances made by the 

Manager pursuant to Section 5.5 ofthe LLC Operating Agreement and Section 3.7 above; 

(iv) fourth, prior to the Purchase Money Note Defeasance Date and 

subject to the provisions of Section 3.6 above, all of the remaining amount (as may be necessary) 

shall be utilized to replenish the Working Capital Reserve Account until the amount of funds 

held in the Working Capital Reserve Account is no less than the Working Capital Reserve Floor 

and to deposit such other sums into the Working Capital Reserve Account as the Manager shall 

determine in its discretion, subject to the Working Capital Reserve Cap; 

(v) fifth, to pay any reimbursement amounts, together with any 

accrued interest thereon, due and payable as of the Determination Date for the applicable Due 

Period to the Purchase Money Note Guarantor pursuant to the Reimbursement, Security and 

Guaranty Agreement for previous payments made by it pursuant to the Guaranty Agreement; 

(vi) sixth, as long as any Purchase Money Note remains outstanding, 

such sums remaining until the Defeasance Account equals the outstanding principal balance of 

the Purchase Money Note; and 

(vii) finally, all remaining amounts shall be distributed to the Initial 

Member and the Private Owner in accordance with Section 6.6 of the LLC Operating Agreement. 

(c) Any Repurchase Price proceeds shall be paid as follows: the amount of the 

Purchase Money Note Asset Value shall be deposited in the Defeasance Account as provided in 

Section 5.1 (b) above and the amount of the Equity Asset Value shall be paid to the Initial 

Member and the Private Owner in accordance with Section 6.6 of the LLC Operating Agreement 

as provided in Section 5.1 (b) above. 

Section 5.2 Notices of Payment Failure. 

(a) The Paying Agent shall deliver prompt written notice to the Company, the 

Purchase Money Note Guarantor and the Collateral Agent in the event that it fails to receive in 

full on the related Distribution Date or the Maturity Date, as applicable (based on the applicable 

Distribution Date Report or Maturity Date Report), the amount required to be paid by the 

Company on any Distribution Date or the Maturity Date, as applicable, which notice shall 

include a statement that the required payment was not made by the Company in full and shall set 

forth the amount of such required payment and in the case of receipt of a partial payment, the 

amount of such partial payment. 

(b) If the Paying Agent has actual knowledge of any actual payment failure in 

advance of the related Distribution Date or the Maturity Date, as applicable, it will deliver 

written notice thereof to the Company, the Purchase Money Note Guarantor and the Collateral 

Agent as soon as is practicable in accordance with the previous sentence. Upon the Paying 

Agent's receipt from the Collateral Agent or the Purchase Money Note Guarantor of written 

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West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
notice at its Office that an Event of Default pursuant to the Reimbursement, Security and 

Guaranty Agreement (and as such term is defined therein) has occurred, the Paying Agent shall 

deliver prompt written notice to the Holder of the occurrence of such Event of Default. 

(c) If the Paying Agent receives notice from the Holder that the Purchase 

Money Note has been declared immediately due and payable in accordance with its terms no 

later than noon (Eastern Time) on the fourth (4th) Business Day prior to a Distribution Date, the 

Paying Agent shall determine the amount payable by the Purchase Money Note Guarantor 

pursuant to the Guaranty Agreement (based on the related Distribution Date Report) and shall 

make a demand therefor no later than the fourth (4th) Business Day prior to such Distribution 

Date to the Purchase Money Note Guarantor in accordance with Section 17(a) of the Guaranty 

Agreement. 

(d) If the Paying A~ent receives any such notice from the Holder later than 

noon (Eastern Time) on the fourth (4t) Business Day prior to a Distribution Date, the Paying 

Agent shall determine the amount payable by the Purchase Money Note Guarantor pursuant to 

the Guaranty Agreement (based on the Distribution Date Report for the immediately succeeding 

Distribution Date) and shall make a demand therefor no later than four (4) Business Days prior to 

the immediately succeeding Distribution Date to the Purchase Money Note Guarantor in 

accordance with Section 17(a) ofthe Guaranty Agreement. 

ARTICLE VI 


CUSTODIAL DOCUMENTS 


Section 6.1 Delivery of Custodial Documents. . 

(a) Delivery. As soon as practical after the date hereof, the Company shall 

deliver or cause to be delivered the Custodial Documents to the Custodian at the office of the 

Custodian 5280 Corporate Drive, Frederick, MD 21703 (the "Office"). 

(b) Collateral Certificate; Exceptions. The Custodian shall make available 

during normal business hours, and at such other hours as may be reasonable in the 

circumstances, to the Company (and representatives of the Company and, if the Company so 

determines, the Receiver) an office space at the Office that is sufficient to accommodate up to six 

(6) people to review the Custodial Documents with representatives of the Custodian for a period 

of not more than ten ( 1 0) days prior to the delivery of possession of the same to the Custodian. 

Within forty-five (45) days after delivery of the Custodial Documents to the Custodian, the 

Custodian shall execute and deliver to the Company, the Purchase· Money Note Guarantor and 

the Collateral Agent a certificate, substantially in the form annexed to this Agreement as Exhibit 

E, to the effect that the Custodian has received and reviewed the Custodial Documents and 

including an Asset Schedule and Exception List ("Collateral Certificate"). In reviewing the 

documents provided with respect to an Asset, the Custodian shall examine the same in 

accordance with the procedures set forth on Exhibit F to this Agreement and determine, with 

respect to each such document, whether it (i) appears regular on its face (i.e., is not mutilated, 

damaged, tom, defaced or otherwise physically altered), (ii) relates to such Asset, (iii) bears a 

38 

West RADC Venture2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
signature that purports to be that of named parties thereon, (iv) where applicable, purports to be 

recorded, and (v) appears to be what it purports to be. 

(c) Custodial Documents. For each Asset, to the extent applicable and 

available, the "Custodial Documents" shall include the following: 

(i) the original Note bearing all intervening endorsements and 

endorsed "Pay to the order of West RADC Venture 2010-2, LLC, without recourse" and signed 

in the name of the Federal Deposit Insurance Corporation as Receiver, and an allonge providing 

for the endorsement of the Note and endorsed "Pay to the order of , without 

recourse" and signed by the Company as the last endorsee; and in the event that the original Note 

is not available, a fully executed Assignment and Lost Instrument Affidavit in the form of 

Exhibit L hereto; 

(ii) the original or a copy of the Mortgage with evidence of recording 

thereon, or a copy thereof from the applicable Recording Office, or a copy thereof together with 

an officer's certificate of the related Borrower, title company, escrow agent or closing attorney 

certifying that such represents a true and correct copy of the original and that such original has 

been submitted for recordation in the applicable Recording Office; 

(iii) the originals or copies of all assumption, Modification, 

consolidation or extension agreements (if any) with evidence of recording thereon, or copies 

thereof from .the applicable Recording Office, or certified copies thereof together with a 

certification by or other similar evidence from the applicable Recording Office or an officer's 

certificate of the related Borrower, title company, escrow agent or closing attorney certifying.that 

such represents a true and correct copy of the original and that such original has been submitted 

for recordation in the applicable Recording Office; 

(iv) Acquired Property Files (to the extent specifically identified on the 

Asset Schedule and Exception List or otherwise indicated in writing to the Custodian); 

(v) except in the case of any MERS Designated Loan, the original 

Mortgage Assignment in blank for each Loan, in form and substance acceptable for recording 

and signed in the name of the Federal Deposit Insurance Corporation as Receiver for various 

failed financial institutions to the Company; 

(vi) except in the case of any MERS Designated Loan, the original 

Mortgage Assignment in blank for each Loan, in form and substance acceptable for recording 

and signed in the name of the Company to the Collateral Agent; 

(vii) except in the case of any MERS Designated Loan, the originals or 

copies of all intervening Mortgage Assignments (if any) with evidence of recording thereon, or 

copies thereof showing evidence of recording from the applicable Recording Office, or copies 

thereof together with an officer's certificate of the related Borrower, title company, escrow agent 

or closing attorney certifying that such represents a true and correct copy of the original and that 

such original has been submitted for recordation in the applicable Recording Office; 

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West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
(viii) the original or a copy of the attorney's opinion of title and abstract 

of title or the original mortgage title insurance policy (or a copy thereof) or, if the original or a 

copy of the mortgage title insurance policy has not been issued, the irrevocable commitment to 

issue the same, or a true and correct copy ofthe title policy from the issuing title company; 

(ix) the originals of all Collateral Documents executed in connection 

with the Asset, if available; 

(x) Uniform Commercial Code financing statements with recording 

information thereon from the Recording Offices if necessary to perfect the security interest of the 

Asset under the Uniform Commercial Code; 

(xi) if the equity interests of any Ownership Entity are certificated, the 

certificate representing such equity interest and the stock power executed in blank; and if the 

equity interests of any Ownership Entity are not certificated, an Assignment of LLC Interest 

similar in form to Exhibit I of the Contribution Agreement; 

(xii) any bailee letters regarding any Notes or other Custodial 

Documents held by the bailee; 

Report; and 

(xiii) solely with respect to each MERS Designated Asset, a MERS 

(xiv) the REO Collateral Documents; and 

(xv) such other documents for each Asset as determined by the 

Company, the Purchase Money Note Guarantor or the Collateral Agent. 

(d) Supplemental Deliveries. The Company agrees that it shall deliver or 

cause to be. delivered to the Custodian (i) any and all additional Custodial Documents. with 

respect to an Asset that is not Acquired Property within ten (1 0) days following the execution 

and delivery of any such instrument and (ii) any and all Custodial Documents with respect to any 

Asset within ten (1 0) days following receipt of any such instrument. All such deliveries of 

Custodial Documents pursuant to this Section 6.1 (d) shall be accompanied by a certificate in the 

form of Exhibit G (a "SuppJemental DeJivery Certificate"), prepared by an Authorized 

Representative of the Company, itemizing the Custodial Documents being delivered to the 

Custodian in such delivery and identifying the Asset with respect to which each such Custodial 

Document relates. · After the receipt thereof, the Custodian shall (A) examine the additional 

Custodial Documents provided with respect to an Asset in accordance with the review 

procedures set forth on Exhibit F (the "Review Procedures") and, determine, with respect to 

each such document, whether it (i) appears regular on its face (i.e., is not mutilated, damaged, 

tom, defaced or otherwise physically altered), (ii) relates to such Asset, (iii) bears a signature that 

purports to be of the named parties thereon, (iv) where applicable, purports to be recorded, and 

(v) appears to be what it purports to be, and (B) ensure that all such Custodial Documents with 

respect to an Asset are placed in the file for the related Asset. In the event the Custodian 

determines that the Supplemental Delivery Certificate is inaccurate, the Custodian shall so notify 

40 

West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
the Company in writing no later than the first Business Day following its receipt of the 

Supplemental Delivery Certificate. Within twelve (12) Business Days after the receipt of the 

additional Custodial Documents by the Custodian, the Custodian shall provide the Company 

(with a copy to the Purchase Money Note Guarantor and the Collateral Agent) with a Collateral 

Certificate, to the effect that the Custodian has received and reviewed the additional Collateral 

Documents, and include a revised Asset Schedule and Exception List. 

(e) Asset Schedules; Exception Lists; Review Procedures. Each Asset 

Schedule and Exception List shall list all Exceptions using such codes as shall be in form and 

substance agreed to by the Custodian and the Company. Each Asset Schedule and Exception 

List delivered by the Custodian to the Company shall supersede and cancel the Asset Schedule 

and Exception List previously delivered by the Custodian to the Company hereunder, and shall 

replace the then existing Asset Schedule and Exception List to be attached to the Collateral 

Certificate. Notwithstanding anything to the contrary set forth herein, in the event that the Asset 

Schedule and Exception List attached to the Collateral Certificate is different from the most 

recently delivered Asset Schedule and Exception List, then the most recently delivered Asset 

Schedule and Exception List shall control and be binding upon the parties hereto. The delivery 

of each Asset Schedule and Exception List to the Company shall constitute the Custodian's 

representation that, other than the Exceptions listed as part of the last delivered Asset Schedule 

and Exception List: (i) all documents required to be delivered in respect of an Asset pursuant to 

Section 6.1 (c) of this Agreement have been delivered and are in the possession of the Custodian 

as part of the Custodial Documents, (ii) all such documents have been reviewed and examined by 

the Custodian in accordance with the review procedures specified on Exhibit F and in this 

Agreement and appear on their face to be regular and to relate to such Asset and to satisfy 

(except in the case of a MERS Designated Asset) the requirements set forth in Section 6.1(c) of 

this Agreement, (iii) subject to the provisions of Section 7 .2(b ), each Asset (except in the case of 

a MERS Designated Asset) identified on such Asset Schedule and Exception List is being held 

by the Custodian as the bailee for the Company and (iv) subject to the provisions of Section 

7.2(b), each MERS Designated Asset is being held by MERS® as the nominee for the Company. 

In connection with an Asset Schedule and Exception List delivered hereunder by the Custodian, 

the Custodian shall make no representations as to and shall not be responsible for verifying, 

except as set forth in Section 6.1 (b) of this Agreement, (A) the validity, legality, enforceability, 

due authorization, recordability, sufficiency or genuineness of any of the Custodial Documents 

or (B) the collectability, insurability, effectiveness or suitability of any such Asset. 

Section 6.2 Examination of Custodian Files; Copies. 

(a) Upon reasonable prior written notice to the Custodian, the Company, the 

Collateral Agent and the Purchase Money Note Guarantor and their respective agents, 

accountants, attorneys and auditors, and any other Persons designated by any of the foregoing, in 

writing as authorized to access and review the Custodial Documents, shall be permitted during 

normal business hours to examine the Custodial Documents. 

(b) Upon the request of the Company, the Collateral Agent, the Purchase 

Money Note Guarantor, and at the cost and expense of the requesting party, the Custodian shall 

provide copies of any requested Custodial Documents; provided, however, the requesting party 

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Custodial and Paying Agency Agreement 

EXECUTION VERSION 
shall reimburse the Custodian for the actual, reasonable and customary costs incurred m 

providing copies of such Custodial Documents. 

Section 6.3 Shipment of Custodial Documents. Prior to any shipment of any 

Custodial Documents pursuant to this Agreement, the Company shall deliver to the Custodian 

written instructions as to the method of shipment and the shipper that the Custodian is to utilize 

in connection with the transmission of such Custodial Documents. The Company shall arrange 

for the provision of such services at its sole cost and expense (or, at the Custodian's option, 

reimburse the Custodian for all costs and expenses incurred by the Custodian consistent with 

such instructions) and will maintain such insurance against loss or damage to the Custodial 

Documents as the Company may deem appropriate. It is expressly agreed that in no event shall 

the Custodian have any liability for any losses or damages to any Person, including the 

Company, arising out of actions of the Custodian pursuant to this Section 6.3 consistent with the 

instructions of the Company. In the event that the Custodian does not receive such written 

instructions, the Custodian shall be authorized and shall be indemnified as provided in this 

Agreement to utilize a nationally recognized courier service. 

ARTICLE VII 


CUSTODIAN 


Section 7.1 Appointment ofthe Custodian. Subject to the terms and conditions ofthis 

Agreement, the Company hereby appoints the Bank to perform the duties of the Custodian, and 

the Bank hereby accepts such appointment as Custodian, to act as the Company's agent, 

custodian and bailee to hold and maintain custody of the Custodial Documents. 

Section 7.2 Obligations ofthe Custodian. 

(a) Maintenance of Custody. Subject to the provisions of Section 7.2(b), the 

Custodian shall (i) hold and maintain continuous custody of all Custodial Documents received by 

it in trust for and for the benefit of the Company in secure and fire resistant facilities, (ii) act with 

the same degree of care and skill that the Custodian exercises with respect to any loan files 

relating to similar loans owned, serviced or held as custodian by the Custodian and, in any event, 

in accordance with customary standards for such custody, (iii) reflect in its records the interest of 

the Company therein, (iv) make disposition of the Custodial Documents only in accordance with · 

the provisions of this Agreement, and (v) subject to the provisions of Section 7.2(b), hold all 

Custodial Documents received by it for the exclusive use and benefit of the Company, and make 

disposition thereof only in accordance with written instructions furnished by the Company. 

(b) Pledge of Assets to the Collateral Agent. Pursuant to the terms and 

conditions of the Reimbursement, Security and Guaranty Agreement, the Company has pledged 

all of its rights, title and interest in and to the Assets and the Custodial Documents to the 

Collateral Agent for the benefit of the Purchase Money Note Guarantor and the other Secured 

Parties (as such term is defined in the Reimbursement, Security and Guaranty Agreement) as 

security for certain obligations of the Company pursuant to the Guaranty Agreement. 

Accordingly, notwithstanding anything to the contrary contained in this Agreement, the 

Custodian acknowledges and agrees that it holds possession of the Note and the other Custodial 

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Documents for the Collateral Agent's benefit pursuant to Section 9-313(c) of the Uniform 

Commercial Code and as bailee for the Collateral Agent, and the Custodian shall mark its 

records to reflect the pledge of the Assets and the Custodial Documents by the Company to the 

Collateral Agent. The Custodian's records shall reflect the pledge of the Assets and the 

Custodial Documents by the Company to the Collateral Agent until such time as the Custodian 

receives written instructions in the form of Exhibit H from the Company, including a 

certification that it is entitled pursuant to the Reimbursement, Security and Guaranty Agreement 

to request the release ofthe Custodial Documents being requested for release and that the Assets 

are no longer pledged by the Company to the Collateral Agent, at which time the Custodian shall 

change its records to reflect the release of the pledge of the Assets and the Custodial Documents 

and that the Custodian is holding the Assets and the Custodial Documents as custodian for, and 

for the benefit of, the Company; provided, however, that, subject to the provisions of Section 

7.2(d), such pledge shall not affect the right of the Custodian to rely on instructions from the 

Company hereunder. The Custodian shall (i) make a written request for the return of all 

Custodial Documents that are removed from the Custodian's possession within fifteen (15) days 

after their removal (if the same are not returned before such time) and thereafter, shall use 

commercially reasonable efforts to obtain the return of such removed Custodial Documents until 

such time as the Custodial Documents are returned, and (ii) provide on a monthly basis to the 

Collateral Agent and the Company a report identifying the released (and unreturned) Custodial 

Documents. 

(c) Qualification to Conduct Business. Nothing contained in this Agreement 

shall be construed to require the Custodian to qualify to do business in any jurisdiction other than 

(i) any jurisdiction in which any Custodial Document is or may be held by the Custodian from 

time to time under this Agreement or (ii) any jurisdiction in which the ownership of its property 

or the conduct of its business requires such qualification and in which the failure to qualify could 

have a material adverse effect on the Custodian or its property or business or on the ability ofthe 

Custodian to perform its duties and obligations under this Agreement. 

(d) Events of Default pursuant to the Reimbursement, Security and Guaranty 

Agreement. Upon the Custodian's receipt from the Collateral Agent or the Purchase Money 

Note Guarantor of written notice at its Office that an Event of Default pursuant to the 

Reimbursement, Security and Guaranty Agreement (and as defined therein) has occurred and is 

continuing, the Custodian promptly shall notify the Collateral Agent in writing and seek 

instructions from (and take instructions only from) the Collateral Agent as to any action to be 

taken by the Custodian pursuant to this Agreement. 

(e) Third Party Demands. In the event that (i) the Company or the Custodian 

shall be served by a third party with any type oflevy, attachment, writ or court order with respect 

to any Custodial Document or (ii) a third party shall institute any court proceeding by which any 

Custodial Document shall be required to be delivered otherwise than in accordance with the 

provisions of this Agreement, the party receiving such service shall promptly deliver or cause to 

be delivered to the other parties to this Agreement copies of all court papers, orders, documents 

and other materials concerning such proceedings. The Custodian shall, to the extent permitted 

by Law, continue to hold and maintain all of the Custodial Documents that are the subject of 

such proceedings pending a final, nonappealable order of a court of competent jurisdiction 

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permitting or directing disposition thereof. Upon final determination of such court, the 

Custodian shall release such Custodial Documents as directed by the Company, which shall give 

a direction consistent with such court determination; provided that to the extent the direction 

provided by the Company directly contradicts the final determination of such court, the 

Custodian shall act in accordance with the final determination of such court. 

(f) Release of Custodial Documents. Subject to the provisions of Section 

7 .2( e), the Custodian shall retain the Custodial Documents in its possession and custody at all 

times during the term hereof unless any one (1) of the following events has occurred: 

(i) If the Custodian has resigned or has been removed in accordance 

with the provisions of Section 9.1, the Custodian shall deliver the Custodial Documents to the 

successor Custodian in accordance with Section 9.1. 

(ii) If the Custodian has received a notice in the form of Exhibit H 

from an Authorized Representative of the Company stating that the Company has received all 

amounts due under an Asset, or a discounted payoff as payment in full of such Asset, the 

Custodian shall release the related Custodial Documents to the Company or to the Manager in 

accordance with the instructions provided in such notice. 

(iii) If the Custodian has received notice in the form of Exhibit H from 

an Authorized Representative of the Company that the Company or the Private Owner needs the 

Custodial Documents in order to foreclose on a Mortgaged Property, accept a deed in lieu thereof 

or modify or restructure the terms thereof, the Custodian shall release the related Custodial 

Documents to the Company or to the Manager in accordance with the instructions provided in 

such notice. 

(iv) If the Custodian has received notice in the form of Exhibit'H from 

an Authorized Representative of the Company that the Company has agreed to sell an Asset or 

the Collateral, the Custodian shall deliver the related Custodial Documents to the Company or to 

the Manager in accordance with the instructions provided in such notice. 

(g) No Other Duties. The Custodian shall have no duties or responsibilities as 

Custodian except those that are specifically set forth herein and shall not be liable except for the 

performance of such duties and obligations. No implied covenants or obligations shall be read 

into this Agreement. 

(h) No Investigation. The Custodian shall be under no obligation to make any 

investigation into the facts or matters stated in any resolution, certificate, statement, 

acknowledgement, consent, order or other document that is included in the Custodial 

Documents. 

(i) Cooperation. The Company shall cooperate and use commercially 

reasonable efforts to provide any additional documentation or information reasonably requested 

by the Custodian in performing its duties and obligations hereunder. 

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(j) Survival. The provisions of this Section 7.2 shall survive the resignation 

or removal of the Custodian and Paying Agent and the termination ofthis Agreement. 

ARTICLE VIII 


FEES AND EXPENSES 


Section 8.1 Fees and Expenses. The Bank shall charge such fees for its services and 

be reimbursed for such of its expenses pursuant to this Agreement as are set forth on Exhibit J, 

which fees and expenses must be reasonable and customary. The Company shall pay such fees 

and expenses, including, without limitation, the reasonable and customary attorney's fees of the 

Bank. The provisions of this Section 8.1 shall survive any resignation or removal of the Bank as 

Custodian or Paying Agent or the termination or assignment of this Agreement; provided, 

however, for the avoidance of doubt, the Bank shall not be entitled to its fees for services once it 

no longer is providing services under this Agreement, but shall be entitled to fees earned and 

accrued during the period it acted as Custodian or Paying Agent. 

ARTICLE IX 


REMOVAL OR RESIGNATION 


Section 9.1 Removal or Resignation of Custodian and Paying Agent. 

(a) Resignation. Subject to the provisions of Section 9.1 (c), the Bank may at 

any time resign and terminate its obligations as the Custodian and Paying Agent pursuant to this 

Agreement upon at least sixty (60) days' prior written notice to the Company, the Initial 

Member, the Private Owner, the Purchase Money Note Guarantor and the Collateral Agent. In 

the event the Bank resigns it must resign as both the Custodian and Paying Agent. Promptly 

after receipt of notice of the Bank's resignation as the Custodian and Paying Agent, subject to 

the provisions of the LLC Operating Agreement and the Reimbursement, Security and Guaranty 

Agreement as they relate to the Company, the Company shall appoint, by written instrument, a 

successor Custodian and Paying Agent. In the event that no successor shall have been appointed 

as the Custodian and Paying Agent within such sixty (60) day period, the Bank may petition any 

court of competent jurisdiction to appoint a successor Custodian and Paying Agent. 

(b) Removal. Subjectto the provisions of Section 9.l(c), the Company or the 

Collateral Agent may remove and discharge the Bank as the Custodian and Paying Agent (or any 

successor custodian and paying agent thereafter appointed) without cause from the performance 

ofits obligations pursuant to this Agreement upon at least thirty (30) days' prior written notice to 

the Bank. Promptly after the giving of notice of removal to the Bank as the Custodian and 

Paying Agent, subject· to the provisions of the LLC Operating Agreement and the 

Reimbursement, Security and Guaranty Agreement as they relate to the Company, the Company 

shall appoint, by written inst~ment, a successor Custodian and Paying Agent. 

(c) Effectiveness. Upon appointment of a successor Custodian and Paying 

Agent, the successor Custodian and Paying Agent shall execute, acknowledge and deliver an 

instrument accepting such appointment under, and agreeing to be bound by the terms of, this 

Agreement, at which time the resignation or removal of the predecessor Custodian and Paying 

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Agent shall become effective and the successor Custodian and Paying Agent, without any further 

act, deed or conveyance, shall become fully vested with all rights, powers, duties and obligations 

of the Custodian and the Paying Agent pursuant to this Agreement, as if originally named the 

Custodian and Paying Agent hereunder. One original counterpart of such instrument shall be 

delivered to each of the Company, the Initial Member, the Private Owner the predecessor 

Custodian and Paying Agent and the successor Custodian and Paying Agent. 

(d) Transfer of Documents. In the event of any removal or resignation as 

Custodian and Paying Agent, the Bank promptly shall transfer to the successor Custodian and 

Paying Agent, as directed, all Custodial Documents and funds deposited in the Accounts, and the 

Company and the Bank shall execute and deliver such instruments and do such other things as 

may reasonably be required for more fully and certainly vesting and confirming in the successor 

Custodian and Paying Agent all rights, powers, duties and obligations of the Bank as the 

Custodian and Paying Agent under this Agreement. 

(e) Costs. The Company shall be responsible for payment to the successor 

Custodian and Paying Agent of all fees and expenses of the successor Custodian and Paying 

Agent and any fees and expenses for transferring Custodial Documents and funds deposited in 

the Accounts to the successor Custodian and Paying Agent except with respect to the Private 

Owner Pledged Account, the fees and expenses with respect to which are to be paid by the 

Private Owner. 

ARTICLE X 

REPRESENTATIONS, WARRANTIES AND COVENANTS 

Section 10.1 Representations, Warranties and Covenants. 

(a) The Bank as the Custodian and Paying Agent, the Company, the Initial 

Member and the Private Owner, as applicable, represent and warrant to each other and to each of 

the parties to this Agreement as follows: 

(i) it has the requisite power and authority and the legal right to 

execute and deliver, and to perform its obligations under, this Agreement, and has taken all 

necessary corporate or other action to authorize its execution, delivery and performance of this 

Agreement; 

(ii) . no consent or authorization of, filing with, or other act by or in 

respect of, any United States or non-United States national, federal, state, local or provincial or 

international government or any political subdivision of any governmental, regulatory or . 

administrative authority, agency or commission, or judicial or arbitral body, and no consent of 

any other Person (including any stockholder or creditor) is required in connection with the 

execution, delivery, performance, validity or enforceability of this Agreement by it; 

(iii) this Agreement has been duly executed and delivered on behalf of 

it and constitutes a legal, valid and binding obligation of it enforceable in accordance with its 

terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, 

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EXECUTION VERSION 
moratorium or similar Laws affecting the enforcement of creditors' rights generally and by 

general principles of equity (whether enforcement is sought in a proceeding in equity or at Law); 

and 

(b) The Bank as Custodian and Paying Agent represents and warrants to the 

Company, the Initial Member, the Private Owner and each of the other parties to this Agreement 

that the Bank is a Qualified Custodian and Paying Agent. 

Section 10.2 Insurance. At its own expense, the Custodian and Paying Agent shall 

maintain at all times and keep in full force and effect (a) fire and other casualty insurance, (b) 

fidelity insurance, (c) theft of documents insurance, (d) forgery insurance, and (e) errors and 

omissions insurance. All such insurance shall be in amounts, with standard coverage and subject 

to deductibles, as are customary for insurance typically maintained by financial institutions 

which act as paying agent and as custodian of collateral substantially similar to the Custodial 

Documents. Upon written request, the Company shall be entitled to receive a certificate of the 

respective insurer that such insurance is in full force and effect. 

ARTICLE XI 


REPORTS 


Section 11.1 Custodian and Paying Agent Report. 

(a) The Paying Agent shall cause to be furnished to the Private Owner, the 

Initial Member, the Purchase Money Note Guarantor and the Collateral Agent no later than 

12:00 noon, New York City time, on each Distribution Date, a report for the applicable Due 

Period (the "Custodian and Paying Agent Report") with respect to the Assets and Collateral 

(including the Accounts setting forth in reasonable detail the balances of and any investments in 

the Accounts as of such date and all deposits to and disbursements, including all Asset Proceeds 

or the Management Fee from such Accounts, including the date on which made, since the date of 

the previous report) held by the Paying Agent pursuant to this Agreement and on such other 

information as may otherwise be agreed by the parties with respect to such Due Period, all as set 

forth on Exhibit K. The Paying Agent shall follow the procedures and perform the calculations 

and reconciliations required to prepare the Custodian and Paying Agent Report, in each case as 

set forth on Exhibit K. The Paying Agent shall also make such Custodian and Paying Agent 

Reports available to Note Owners each month in accordance with Section 2.7(k) via the Paying 

Agent's internet website. Access to all information on the Paying Agent's internet website will 

be restricted to Note Owners who provide the Paying Agent with a separate investor certification 

substantially in the form of Exhibit 0 attached to this Agreement. As a condition to accessing 

the Paying Agent's internet website, the Paying Agent may require registration and the 

acceptance of a disclaimer. The Paying Agent will not be liable for the dissemination of 

information in accordance with this Agreement. 

(b) The Custodian and Paying Agent Report shall be based on information, 

upon which the Custodian and Paying Agent may conclusively rely, except to the extent that 

such information contains any irregularities or errors manifestly apparent on its face or actually 

known to the Custodian and Paying Agent, included in (i) the Manager's Monthly Report for the 

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applicable Due Period and certified by an Authorized Representative of the Manager, (ii) the 

Distribution Date Report for the applicable Due Period, and (iii) such other information as may 

be agreed upon by the parties, all as set forth in Exhibit K. 

Section 11.2 Additional Reports. 

(a) Within two (2) Business Days after receipt of a written request of the 

Company, the Collateral Agent or the Purchase Money Note Guarantor for a Custodial Report or 

an updated Asset Schedule and Exception List, the Custodian and Paying Agent shall provide the 

requesting party with the Custodial Report or the updated Asset Schedule and Exception List, as 

applicable. 

(b) The Custodian and Paying Agent shall provide any additional information 

or reports relating to the Accounts and the transactions therein reasonably requested from time to 

time by the Company, the Collateral Agent or the Purchase Money Note Guarantor in the case of 

any Account. 

Section 11.3 Company and Servicer Distribution Date Accounting. For each Due 

Period, no later than five (5) Business Days prior to the Distribution Date, the Company shall 

prepare and deliver or cause the Manager to prepare and deliver to the Paying Agent, the Initial 

Member and the Purchase Money Note Guarantor a report which shall specifY the amounts and 

recipients of all funds to be distributed by the Paying Agent on the relevant Distribution Date as 

determined as of the close of business on the applicable Determination Date and certified by an 

Authorized Representative (who shall be the chief financial officer (or an equivalent officer)) of 

the Company (the "Distribution Date Report"); provided, however, that (unless the Company 

and the Initial Member agree otherwise) the Initial Member will prepare and deliver to the 

Paying Agent and the Purchase Money Note Guarantor the Distribution Date Report for all Due 

Periods ending on or before the last day of the month in which the final Servicing Transfer Date 

occurs, unless otherwise agreed between the parties. The Distribution Date Report shall be a 

portion of the Monthly Report to be provided to the Paying Agent, the Initial Member and the 

Purchase Money Note Guarantor in accordance with the LLC Operating Agreement. The 

Distribution Date Report shall contain the following information: 

(a) the aggregate amount of Asset Proceeds as of the close of business on 

such Determination Date, after giving effect to Asset Proceeds received with respect to the 

applicable Due Period; 

(b) the amount ofAsset Proceeds received during the applicable Due Period; 

(c) [Intentionally Omitted]; 

(d) for the Collection Account: 

(i) the amount to be transferred from the Collection Account to the 

Distribution Account which shall equal the sum of: (A) all Asset Proceeds received in the 

applicable Due Period plus (B) funds transferred from the Working Capital Reserve Account into 

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the Collection Account during the applicable Due Period plus (C) Excess Working Capital 

Advances made by the Manager into the Collection Account during the applicable Due Period 

plus (D) any Discretionary Funding Advances deposited in the Collection Account less (E) the 

total amount of funds withdrawn from the Collection Account as permitted pursuant to 

Section 3.1 during the applicable Due Period; and 

(ii) the amounts payable from the Collection Account (through a 

transfer to the Distribution Account) pursuant to the Priority of Payments, specifically including: 

(A) The amount of fees and expenses, including any 

indemnification payments, payable to the Custodian and Paying Agent, 

(B) For any Due Period during the Interim Servicing Period, 

the amount of the Interim Servicing Fee payable to the Initial Member and the Interim 

Management Fee payable to the Manager; and for any Due Period thereafter, the amount of the 

Management Fee payable to the Manager, 

reimburse to the Manager, 

(C) The amount of Excess Working Capital Advances to be 

(D) 

Reserve Account, 

The amount to be deposited into the Working Capital 

(E) The reimbursement amounts and any accrued interest 

thereon payable to the Purchase Money Note Guarantor for previous payments made by it under 

the Guaranty Agreement, 

(F) The amount to be deposited in the Defeasance Account, 

and 

(G) The amount payable as distributions to the Initial Member 

and to the Private Owner. 

(iii) With respect to the election by the Company to prepay the 

Purchase Money Note in full or in part in accordance with its terms, the related Company 

Principal Prepayment Amount. 

(e) Any other amounts or calculations required by Section 5 .1. 

With respect to the Distribution Date immediately preceding the Maturity Date for each Class of 

Purchase Money Note, the Company shall prepare and deliver or cause the Manager to prepare 

and deliver to the Paying Agent, the Initial Member and the Purchase Money Note Guarantor an 

additional report (the "Maturity Date Report"), which report shall include the amount on 

deposit in the Defeasance Account to pay the Purchase Money Note as of the Maturity Date. 

Section 11.4 Distribution Date Instructions. Each Distribution Date Report shall 

contain instructions to the Paying Agent to withdraw on the related Distribution Date from the 

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Distribution Account and the Defeasance Account, as applicable, and pay or transfer the amounts 

set forth in such report in the manner specified, and in accordance with the priorities established, 

in Sections 3.3 and 5.1 of this Agreement, including with respect to any distributions to be made 

to the Holder following an acceleration of the Purchase Money Note prior to the related 

Distribution Date or on the Maturity Date. 

Section 11.5 Books and Records. The Paying Agent shall maintain all such accounts, 

books and records as may be necessary to record properly all transactions carried out by it with 

respect to the Accounts, including the disbursement of all Asset Proceeds. The Paying Agent 

also shall maintain a complete and accurate set of files, books and records regarding the Assets 

and the Collateral. This obligation to maintain a complete and accurate set of records shall 

encompass all files in the Custodian and Paying Agent's custody, possession or control 

pertaining to the Assets and the Collateral, including all Custodial Documents. The Paying 

Agent shall permit the Company, the Purchase Money Note Guarantor and the Collateral Agent 

to examine such accounts, books and records that relate to any Account, and shall permit the 

Initial Member and the Private Owner to examine such accounts, books and records that relate to 

the Private Owner Pledged Account, provided that any such examination shall occur upon 

reasonable prior notice and during normal business hours. 

ARTICLE XII 


NO ADVERSE INTERESTS 


Section 12.1 No Adverse Interests. By execution of this Agreement, the Bank 

represents and warrants that it currently holds, and during the term of this Agreement shall hold, 

no adverse interest, by way of security or otherwise, in any Asset, and hereby waives and 

releases any such interest which it may have in any Asset as of the date hereof. The Assets shall 

not be subject to any security interest, Lien or right to set-pff by the Bank or any third party 

claiming through the Bank, and the Bank shall not pledge, encumber, hypothecate, transfer, 

dispose of, or otherwise grant any third party interest in, any of the Assets. 

ARTICLE XIII 


LIABILITY AND INDEMNIFICATION 


Section 13.1 Liability; Indemnification. 

(a) Except with respect to the Private Owner Pledged Account and the 

Qualifying Cash Collateral on deposit in such Account, the Company shall indemnifY and hold 

harmless the Custodian and Paying Agent and the directors, officers, agents and employees of 

the Custodian and Paying Agent against any and all liabilities, obligations, losses, damages, 

penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature 

whatsoever, including reasonable attorney's fees and litigation costs, that may be imposed on, 

incurred by, or .asserted against it or them in any way relating to or arising out of this Agreement 

or any action taken or not taken by it or them hereunder unless such liabilities, obligations, 

losses, damages,· penalties, actions, judgments, suits, costs, expenses or disbursements were 

imposed on, incurred by or asserted against the Custodian and Paying Agent because of the 

breach by the Custodian and Paying Agent of its obligations pursuant to this Agreement, which 

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breach was caused by negligence, lack of good faith or willful misconduct on the part of the 

Custodian and Paying Agent or any directors, officers, agents or employees of the Custodian and 

Paying Agent. The foregoing indemnification shall survive any resignation or removal of the 

Custodian and Paying Agent or the termination or assignment of this Agreement. 

(b) The Private Owner shall indemnify and hold harmless the Paying Agent 

and the directors, officers, agents and employees of the Paying Agent against any and all 

liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or 

disbursements of any kind or nature whatsoever, including reasonable attorney's fees and 

litigation costs, that may be imposed on, incurred by or asserted against it or them in any way 

relating to or arising out of this Agreement with respect to the Private Owner Pledged Account or 

the Qualifying Cash Collateral on deposit in such Account or any action taken or not taken by it 

hereunder with respect to the Private Owner Pledged Account or the Qualifying Cash Collateral 

on deposit in such Account unless such liabilities, obligations, losses, damages, penalties, 

actions, judgments, suits, costs, expenses or disbursements were imposed on, incurred by or 

asserted against the Paying Agent because of the breach by the Paying Agent of its obligations 

pursuant to this Agreement with respect to the Private Owner Pledged Account or the Qualifying 

Cash Collateral on deposit in such Account, which breach was caused by negligence, lack of 

good faith or willful misconduct on the part of the Paying Agent or any directors, officers, agents 

or employees of the Paying Agent. The foregoing indemnification shall survive any resignation 

or removal of the Paying Agent or the termination or assignment ofthis Agreement. 

(c) In the event that the Custodian fails to produce a Custodial Document that 

was not identified as an Exception in the then controlling Asset Schedule and Exception List 

within two (2) Business Days after required or requested by the Company, and such Custodial 

Document is not outstanding pursuant to a Request for Release and Receipt of the Custodial 

Documents in the form attached as Exhibit H (a "Custodial Delivery Failure"), then (i) with 

respect to any missing Note with respect to which a Custodial Delivery Failure has occurred and 

has continued in excess of three (3) Business Days, the Custodian promptly shall deliver to the 

Company upon request a Lost Instrument Affidavit in the form attached as Exhibit L (unless the 

original Note shall have been delivered prior to such time) and (ii) with respect to any missing 

documentrelated to such Asset, including a missing Note, (A) the Custodian shall indemnify the 

Company, the Purchase Money Note Guarantor and the Collateral Agent in accordance with 

Section 13.l(c) and (B) at the Company's option, at any time the long term obligations of the 

Custodian are rated below the second highest rating category of Moody's Investors Service, Inc. 

or Standard and Poor's Ratings Group, a division of McGraw-Hill Companies, Inc., the 

Custodian shall obtain and maintain an insurance bond naming the Company, the Purchase 

Money Note Guarantor, the Holder and the Collateral Agent, and their successors in interest and 

assigns as loss payees, insuring against any losses associated with the loss of such document, in 

an amount equal to the then outstanding principal balance of the related Asset or such lesser 

amount requested by the Company in the Company's sole discretion. 

(d) The Custodian and Paying Agent hereby indemnifies and holds harmless 

the Company, the Purchase Money Note Guarantor, the Holder and the Collateral Agent and 

their respective directors, officers, employees, agents and designees, against any and all 

liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or 

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disbursements of any kind or nature whatsoever, including reasonable attorneys' fees and 

litigation costs, that may be imposed on, incurred by, or asserted against it or them in any way 

relating to or arising out of a Custodial Delivery Failure or the Custodian and Paying Agent's 

negligence, lack of good faith or willful misconduct or any breach of any of the conditions, 

representations, warranties or obligations of the Custodian and Paying Agent contained in this 

Agreement; provided that in no event shall the Custodian and Paying Agent or any directors, 

officers, agents or employees of the Custodian and Paying Agent have any liability with respect 

to any special, indirect, punitive or consequential damages suffered by the Company. The 

foregoing indemnification shall survive any termination or assignment ofthis Agreement. 

ARTICLE XIV 


CUSTODIAN AND PAYING AGENT 


Section 14.1 Reliance of Custodian and Paying Agent. 

(a) Documents; Communications. The Custodian and Paying Agent may rely 

conclusively on any request, instruction, certificate, direction, receipt, demand, consent, 

resolution, statement, instrument, opinion, report, notice or other document or communication 

furnished to the Custodian and Paying Agent pursuant to this Agreement or any Asset Document 

that the Custodian and Paying Agent believes in good faith (i) to have been signed or presented 

by an Authorized Representative and (ii) conforms in form to the requirements of this 

Agreement; provided, however, that in the case of any request, instruction, certificate, direction, 

receipt, demand, consent, resolution, statement, instrument, opinion, report, notice or other 

document or communication which by any provision hereof is specifically required to be 

furnished to the Custodian and Paying Agent, the Custodian and Paying Agent shall be under a 

duty to examine the same in accordance with the requirements of this Agreement and any Asset 

Document. 

(b) Requested Instructions. Subject to the provisions of Section 7.2(d), in 

which case the Custodian and Paying Agent shall take instructions only from the Collateral 

Agent, if the Custodian and Paying Agent requests instructions from the Company, the Initial 

Member or the Private Owner, as applicable, with respect to any act, action or failure to act in 

connection with this Agreement, the Custodian and Paying Agent shall be entitled (without 

incurring any liability therefor to the Company, the Collateral Agent, the Purchase Money Note 

Guarantor or any other Person) to refrain from taking such action and continue to refrain from 

acting unless and until the Custodian and Paying Agent shall have received written instructions 

from the Company, the Initial Member or the Private Owner (or the Collateral Agent). 

(c) Certificates. whenever the Custodian and Paying Agent shall deem it 

necessary or desirable that a matter be proved or established in connection with taking or 

omitting any action by it hereunder, such matter (unless other evidence in respect thereof be 

herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on 

the part of the Custodian and Paying Agent, be deemed to be conclusively proved or established 

by a certificate of an Authorized Representative of the relevant Party delivered to the Custodian 

and Paying Agent. 

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(d) Reliance on Experts. The Custodian and Paying Agent may consult with 

and obtain advice from reputable and experienced outside counsel, certified public accountants 

that are nationally recognized, or other experts and the advice or any opinion of such counsel, 

accountants or other experts shall be full and complete authorization and protection in respect of 

any action taken or omitted by it pursuant to this Agreement in good faith and in accordance with 

such advice or opinion of counsel, accountants or other experts. 

(e) Limited Risk. None of the provisions of this Agreement shall require the 

Custodian and Paying Agent to expend or risk its own funds or otherwise to incur any liability, 

financial or otherwise, in the performance of any of its duties pursuant to this Agreement, or in 

the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that 

repayment ofsuch funds or indemnity satisfactory to it against such risk or liability is not assured 

to it. 

(f) Merger or Consolidation. Any corporation into which the Custodian and 

Paying Agent may be merged or converted or with which it may be consolidated, or any 

corporation resulting from any merger, conversion or consolidation to which the Custodian and 

the Paying Agent shall be a party, or any corporation succeeding to the business ofthe Custodian 

and Paying Agent, except for any such Person who is or, upon consummation of such 

transaction, will be an Affiliate of the Company or any Servicer, shall be the successor of the 

Custodian and Paying Agent pursuant to this Agreement without the execution or filing of any 

paper with any party to this Agreement or any further act on the part of any ofthe parties to this 

Agreement except where an instrument of transfer or assignment is required by Law to effect 

such succession, anything in this Agreement to the contrary notwithstanding, provided that any 

such successor shall satisfy the representations, warranties and covenants set forth in Section 

10.1 of this Agreement. The Custodian and Paying Agent or successor Custodian and Paying 

Agent shall provide the Company with written notice prior to or within ten (1 0) days after the 

consummation of any such transaction. At no time shall an Affiliate of the Company or any 

Servicer be the Custodian and Paying Agent pursuant to this Agreement. 

ARTICLE XV 


TAXES 


Section 15.1 Tax Reports. The Custodian and Paying Agent shall not be responsible 

for the preparation or filing of any reports or returns relating to federal, state or local income 

Taxes with respect to this Agreement, other than in respect ofthe Custodian and Paying Agent's 

compensation or for reimbursement of expenses. 

Section 15.2 Stamp and Other Similar Taxes. The Company agrees to indemnify and 

hold harmless the Custodian and Paying Agent from, and shall reimburse the Custodian and 

Paying Agent for, any present or future claim for liability for any stamp or other similar Tax and 

any penalties or interest with respect thereto, which may be assessed, levied or collected by any 

jurisdiction in connection with this Agreement. The obligations of the Company pursuant to this 

Section 15.2 shall survive the termination ofthe other provisions ofthis Agreement. 

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Section 15.3 Tax Characterization. The Holder and Note Owner of a Purchase Money 

Note, by acceptance of the Purchase Money Note or its interest in the Purchase Money Note, 

shall be deemed to have agreed to treat, and shall treat, the Purchase Money Note as debt of the 

Company for U.S. federal income Tax purposes except as otherwise required by Law. 

Section 15.4 Back-Up Withholding. Each Holder and Note Owner of a Purchase 

Money Note, by acceptance of the Purchase Money Note or its interest in the Purchase Money 

Note, shall be deemed to understand and acknowledge that failure to provide the Company, the 

Custodian or the Paying Agent with an originally executed version of the applicable U.S. federal 

income Tax certifications (generally, an Internal Revenue Service Form W-9 (or successor 

applicable form) in the case of a Person that is a U.S. Person or an appropriate Internal Revenue 

Service Form W-8 (or successor applicable form) in the case of a Person that is not a U.S. 

Person) may result in U.S. federal back-up withholding from payments in respect ofthe Purchase 

Money Note. 

ARTICLE XVI 


TERM 


Section 16.1 Term. This Agreement shall terminate upon (a) the first to occur of(i) the 

final payment or other liquidation of all of the Assets and (ii) disposition of all Collateral 

(including any Acquired Property), and (b) the release and delivery to the Company of all 

Custodial Documents held by or in the possession of the Custodian in accordance with the terms 

of this Agreement. Notwithstanding anything to the' contrary herein, this Agreement may be 

terminated without cause upon at least thirty (30) days' prior written notice to the Custodian and 

Paying Agent, by any of the Company, the Purchase Money Note Guarantor or the Collateral 

Agent. 

ARTICLE XVII 


AUTHORIZED REPRESENTATIVES 


Section 17.1 Authorized Representatives. Each individual designated as an Authorized 

Representative of any Person is authorized to give and receive notices, requests and instructions 

and to deliver certificates and documents in connection with this Agreement on behalf of such 

Person, and the specimen signature for each such Authorized Representative, initially authorized 

pursuant to this Agreement, is set forth on Exhibit M. From time to time, any Person may, by 

delivering to the other parties hereto a revised copy of Exhibit M or any resolution, incumbency 

certificate or similar document setting forth the officers of such Person, which officers shall be 

deemed to be Authorized Representatives of such Person for purposes of this Agreement, change 

such Person's Authorized Representatives (and amend this Agreement to so provide), but until a 

new Exhibit M or resolution, incumbency certificate or similar document with the information 

regarding the successor Authorized Representatives is delivered to a party in accordance with 

this Agreement, that party shall be entitled to rely conclusively on the Exhibit M or resolution, 

incumbency certificate or similar document, as applicable, last delivered hereunder. The parties 

acknowledge and agree that, unless and until the occurrence of an Event of Default pursuant to 

the LLC Operating Agreement and the removal of the Private Owner as the Manager pursuant to 

the LLC Operating Agreement, the Private Owner will have the right to designate Authorized 

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Representatives of the Company and that notwithstanding any provisions in this Agreement to 

the contrary, however, upon the delivery of written notice to the Custodian and Paying Agent by 

the Initial Member of the occurrence of an Event of Default by the Private Owner pursuant to the 

LLC Operating Agreement and the removal of the Private Owner as the Manager pursuant to the 

LLC Operating Agreement, the Initial Member or the replacement Manager appointed pursuant 

to Section 3.13(a) of the LLC Operating Agreement will have the right to designate replacement 

Authorized Representatives of the Company. 

ARTICLE XVIII 

NOTICES 

Section 18.1 Notices. All notices, requests, demands and other communications 

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

Agreement shall be in writing and shall be mailed or delivered to the applicable address or 

electronic mail address of the parties specified below for such Person or to such other address, 

electronic mail address or telephone number as shall be designated by such party in a notice to 

the other parties. All such notices and other communications shall be deemed to be given or 

made upon the earlier to occur of (i) actual receipt (or refusal thereof) by the relevant party 

hereto and (ii) (A) if delivered by hand or by nationally recognized courier service, when signed 

for (or refused) by or on behalf of the relevant party hereto; (B) if delivered by mail, four 

Business Days after deposit in the mails, postage prepaid; and (C) if delivered by electronic mail, 

when delivered. In no event shall a voice mail message be effective as a notice, communication 

or confirmation hereunder. 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 below. 

Ifto the Bank for all purposes: 

Citibank, N.A. 

388 Greenwich Street, 14th floor 

New York, New York 10013 

Attention: Cirino Emanuele 

John Hannon 

Reference: 

E-mail Addresses: 

West RADC Venture 2010-2, LLC 

Ifto the Custodian: 

Citibank, N .A. 

5280 Corporate Drive 

Frederick, MD 21703 

Attention: Loretta Badgett 

E-mail Address: 

Reference: West RADC Venture 2010-2, LLC 

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West RAOC Venture 2010-2 

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EXECUTION VERSION 
If to the Company: 

West RADC Venture 2010-2, LLC 

101 North Main Street 

Logan, Utah 84321 

Attention: J. Miller 

E-mail Address: 

with a copy to: 

N. George Daines 

108 North Main Street 

Logan, Utah 84321 

E-mail Addresses: 

If to the Purchase Money Note Guarantor, the Collateral Agent, or the Initial 

Member: 

Assistant Director, Structured Transactions- Resolutions and Receiverships 

Federal Deposit Insurance Corporation 

550 17th Street, N.W. 

Room F-7014 

Washington, D.C. 20429 

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, Virginia 22226 

Attention: David Gearin 

E-mail Address: DGearin@fdic.gov 

ARTICLE XIX 


MISCELLANEOUS 


Section 19.1 Governing Law. EACH PARTY TO THIS AGREEMENT AGREES 

AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL 

OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS TO BE 

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West RADC Venture 2010-2 

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GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE 

OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT 

MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT 

TO THE LAW OF ANOTHER JURISDICTION AND EACH PARTY TO THIS 

AGREEMENT UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO 

ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL 

ACTION OR INACTION BY ANY PARTY TO THIS AGREEMENT . 

Section 19.2 Waiver of Jury Trial. EACH OF THE COMPANY, THE INITIAL 

MEMBER, THE PRIVATE OWNER, THE PURCHASE MONEY NOTE GUARANTOR, THE 

COLLATERAL AGENT AND THE BANK 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 19.3 Jurisdiction; Venue and Service. 

(a) Each of the Company, the Initial Member, the Private Owner and the 

Bank, for itself and its Affiliates, hereby irrevocably and unconditionally: 

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

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

District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

commenced by the Purchase Money Note Guarantor or the Collateral Agent arising out of, 

relating to, or in connection with this Agreement or any Transaction Document, and waives any 

right to: 

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

court or dispute-resolution forum other than the court in which the Initial Member, the Purchase 

Money Note Guarantor, the Holder or the Collateral Agent, as applicable, files the suit, action or 

proceeding without the consent of the Initial Member, the Purchase Money Note Guarantor, the 

Holder or the Collateral Agent, as applicable; 

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

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

District ofColumbia; or 

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

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

inconvenient forum; 

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

New York for any suit, action or proceeding against it or any of its Affiliates commenced by the 

Initial Member, the Purchase Money Note Guarantor, the Holder, or the Collateral Agent arising 

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West RAOC Venture 2010-2 

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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 proceeding to any 

other court or dispute-resolution forum without the consent of the Initial Member, the Purchase 

Money Note Guarantor, the Holder, or the Collateral Agent, as applicable; 

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

State ofNew York; or 

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

an inconvenient forum. 

(iii) agrees to bring any suit, action or proceeding by the Company, the 

Bank, or its Affiliate against the Initial Member, the Purchase Money Note Guarantor, the 

Holder, or the Collateral Agent in only either the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia, and waives 

any right to remove or transfer such suit, action or proceeding to any other court or disputeresolution forum without the consent of the Initial Member, the Purchase Money Note 

Guarantor, the Holder, or the Collateral Agent, as applicable, and agrees to consent thereafter to 

transfer of the suit, action or proceeding to either the United States District Court for the 

Southern District ofNew York or the United States District Court for the District of Columbia at 

the option of the Initial Member, the Purchase Money Note Guarantor, the Holder, or the 

Collateral Agent, as applicable; and 

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

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

jurisdiction to hear a suit, action or proceeding falling within Section 19.3(a)(iii), to bring that 

suit, action or proceeding in only the Supreme Court of the State of New York, and waives any 

right to remove or transfer such suit, action or proceeding to any other court or dispute-resolution 

forum without the consent of the Initial Member, the Purchase Money Note Guarantor, the 

Holder, or the Collateral Agent, as applicable. 

(b) Each of the Company and the Bank, on behalf of itself and its Affiliates, 

hereby irrevocably and unconditionally agrees that any final judgment entered against it in any 

suit, action or proceeding falling within Section 19.3(a) may be enforced in any court of 

competent jurisdiction. 

(c) Subject to the provisions of Section 19.3( d), each of the Company and the 

Bank, on behalf ofitself and its Affiliates, and each of the Initial Member, the Private Owner, the 

Purchase Money Note Guarantor, the Holder and the Collateral Agent hereby irrevocably and 

unconditionally agrees that service of all writs, process and summonses in any suit, action or 

proceeding pursuant to Section 19.3(a) or Section 19.3(b) may be effected by the mailing of 

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

pursuant to Section 18.1 (with copies to such other Persons as specified therein); provided, 

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West RADC Venture 2010-2 

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however, that nothing contained in this Section 19.3(c) shall affect the right of any party to serve 

process in any other manner permitted by Law. 

(d) Nothing in this Section 19.3 shall constitute consent to jurisdiction in any 

court by the FDIC, other than as expressly provided in Section 19.3(a)(iii) and Section 

19.3(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 19.4 Counterparts. This Agreement may be executed in two (2) or more 

counterparts, each of which shall be deemed an original but all ofwhich together shall constitute 

but one and the same agreement. This Agreement and any amendments hereto, to the extent 

signed and delivered by 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 

ifit 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 19.5 Severability. Any provision of this Agreement which is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (i) if such provision is prohibited or unenforceable in such jurisdiction only as to a 

particular Person or Persons and/or under any particular circumstance or circumstances, such 

provision shall be ineffective, but only in such jurisdiction and only with respect to such 

particular Person or Persons and/or under such particular circumstance or circumstances, as the 

case may be; (ii) without limitation of clause (i), such provision shall in any event be ineffective 

only as to such jurisdiction and only to the extent of such prohibition or unenforceability, and 

such prohibition or unenforceability in such jurisdiction shall not invalidate or render 

unenforceable such provision in any other jurisdiction; and (iii) without limitation of clauses (i) 

or (ii), such ineffectiveness shall not invalidate any of the remaining provisions of this 

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

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

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

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

court shall have· the power to, and shall, (x) modify such provision (including, to the extent 

applicable, by limiting the duration or scope of such provision and/or the Persons against whom, 

and/or the circumstances under which, such provision shall be effective in such jurisdiction) for 

purposes of such proceeding to the minimum extent necessary so that such provision, as so 

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

modified pursuant to clause (x), in such proceeding. Nothing in this Section 19.5 is intended to, 

or shall, limit (1) the ability of any party to this Agreement to appeal any court ruling or the 

effect of any favorable ruling on appeal or (2) the intended effect of Section 19.1. 

Section 19.6 Compliance With Law. Except as otherwise specifically provided herein, 

each party to this Agreement shall, at its own cost and expense, obey and comply with all 

applicable Laws, as they may pertain to such party's performance of its obligations hereunder. 

59 

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Section 19.7 Entire Agreement. This Agreement contains the entire agreement between 

the Company, the Initial Member, the Private Owner, the Purchase Money Note Guarantor, the 

Holder, the Collateral Agent and the Bank with respect to the subject matter hereof and 

supersedes any and all other prior agreements, whether oral or written. 

Section 19.8 Assignment; Binding Effect. Except as is permitted pursuant to the 

provisions of this Agreement providing for successor Custodians and Paying Agents, the 

Custodian and Paying Agent shall not assign or delegate this Agreement or any of its rights or 

obligations hereunder without the prior written consent of the Company and any such purported 

assignment or delegation without such consent shall be void ab initio. This Agreement shall be 

binding on and inure to the benefit of the parties hereto and their respective successors and 

permitted assigns, and no other Person or Persons shall have any rights or remedies under or by 

reason ofthis Agreement. 

Section 19.9 Rights Cumulative. The rights, powers and remedies ofthe Custodian and 

Paying Agent, the Initial Member, the Private Owner, the Purchase Money Note Guarantor, the 

Holder, the Collateral Agent and the Company pursuant to this Agreement shall be in addition to 

all rights, powers and remedies given to the Custodian and Paying Agent, the Initial Member, the 

Private Owner, the Purchase Money Note Guarantor, the Holder the Collateral Agent and the 

Company by virtue of any statute or rule of Law, or any other agreement, all of which rights, 

powers and remedies shall be cumulative and may be exercised successively or concurrently. 

Section 19.10 Amendments. Subject to the requirements of the LLC Operating 

Agreement as they relate to the Company, this Agreement may be amended from time to time by 

written agreement signed by the Company, the Purchase Money Note Guarantor, the Collateral 

Agent and the Custodian and Paying Agent or, if such written agreement relates to the Private. 

Owner Pledged Account or the Qualifying Cash Collateral on deposit in such Account, the Initial 

Member, the Private Owner and the Paying Agent. 

· Section 19.11 Headings. Paragraph titles or captions contained in this Agreement are 

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

describe the scope of this Agreement or the intent of any provisions hereof. All section and 

paragraph references contained herein shall refer to sections and paragraphs in this Agreement 

unless otherwise specified. 

(remainder ofpage blank) 

60 


West RADC Venture 2010-2 

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EXECUTION VERSION 
IN WITNESS WHEREOF, the Bank, the Purchase Money Note Guarantor, the Collateral 

Agent, the Initial Member, the Private Owner and the Company have each caused this 

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

Title: Manager 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Name: J. M. Elliott 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each of the various failed financial institutions 

listed on Schedule I hereto, as Collateral Agent 

By: 

Title: Attorney-in-Fact 

[Signature Pages to Custodial and Paying Agency Agreement] 

West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each ofthe various failed financial institutions 

listed on Schedule I as Initial Member 

By: 

Title: Attorney-in-Fact 

CVB, : ~ .L ~ • - ' .. I ... I ....,m.. I wner 

By:_ 

Name: N. Geprge Dames 

Title: Manager 

CITIBANK, N.A., as the Bank 

By: _________________________ 

Name: Cirino Emanuele 

Title: Vice President 

[Signature Pages to Custodial and Paying Agency Agreement] 

West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each of the various failed financial institutions 

listed on Schedule I hereto, as Initial Member 

·By:-----------­

Name: J. M. Elliott 

Title: Attorney-in-Fact 

CVB, BRANCH 49, LLC, as the Private Owner 

By:~--------~-- Name: N. George Daines 

Title: Manager 

CITIBAN 

By: ___ 

Name: Emanuele 

Title: Vice President 

[Signature Pages to Custodial and Paying Agency Agreement] 

West RADC Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
SCHEDULE I 


West RADC Venture 2010-2, LLC 


List of Various Failed Financial Institutions 


Bank Name em: State Fund Closin!! Date 

Desert Hills Bank Phoenix AZ 10205 8/27/2010 

Independent Bankers' Bank Springfield IL 10166 12118/2009 

AmTrust Bank Cleveland OH 10155 12/4/2009 

Irwin Union Bank & Trust Company Columbus IN 10120 9/18/2009 

Irwin Union Bank F.S.B. Columbus IN 10121 9118/2009 

Warren Bank Warren MI 10125 10/02/2009 

Barnes Banking Company Kaysville UT 10171 1115/2010 

Centennial Bank Ogden UT 10193 3/05/2010 

The Bank of Bonifay Bonifay FL 10234 5/07/2010 

13253064.1