Multibank Structured Transaction 2009-1 CML-ADC 

Execution Version 

CUSTODIAL AND PAYING AGENCY AGREEMENT
 

by and among 

MULTIBANK 2009-1 CML-ADC VENTURE, LLC,
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

in its corporate capacity, as Purchase Money Notes Guarantor, 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

in its capacity as Receiver for various failed financial institutions 

listed on Schedule 1 hereto, as Collateral Agent, 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

in its capacity as Receiver for various failed financial institutions
 

listed on Schedule 1 hereto, as Initial Member, 

RL CML 2009-1 INVESTMENTS, LLC, as Private Owner, 

and 

WELLS FARGO BANK, N.A.
 

Dated as of February 9, 2010 

Multibank Structured Transaction 2009-1 CML-ADC 

Custodial and Paying Agency Agreement 

468-003/AGR/2374287.8 

 


 
 


 

TABLE OF CONTENTS
 

ARTICLE I DEFINITIONS AND CONSTRUCTION .................................................................2 

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

Section 1.2 Rules of Construction ................................................................................16 

ARTICLE II PAYING AGENT AND PURCHASE MONEY NOTES .....................................17 

Section 2.1 Appointment of Paying Agent ...................................................................17 

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

Section 2.12 Notes Beneficially Owned by Persons Not Qualified Institutional 

Section 2.2 Delivery of Documentation........................................................................17 

Section 2.3 Duties .........................................................................................................17 

Section 2.4 Forms of Purchase Money Notes ...............................................................18 

Section 2.5 Authorized Amount; Stated Maturity; Denominations; Prepayment.........20 

Section 2.6 Execution, Delivery and Dating.................................................................20 

Section 2.7 Registration, Registration of Transfer and Exchange ................................21 

Section 2.8 Reissuance of Purchase Money Notes .......................................................34 

Notes ..........................................................................................................35 

Section 2.10 Payments with Respect to the Purchase Money Notes ..............................36 

Section 2.11 Mandatory Exchange .................................................................................37 

Buyers or Qualified Purchasers .................................................................38 

Section 2.13 Withholding ...............................................................................................38 

Section 2.14 Persons Deemed Owners ...........................................................................39 

Section 2.15 Holder Voting ............................................................................................39 

Section 2.16 Cancellation ...............................................................................................39 

Section 2.17 Section 3(c)(7) Procedures.........................................................................40 

ARTICLE III ACCOUNTS .........................................................................................................41 

Section 3.1 Collection Account ....................................................................................41 

Section 3.2 Distribution Account..................................................................................42 

Section 3.3 Defeasance Account...................................................................................42 

Section 3.4 [Intentionally Omitted] ..............................................................................43 

Section 3.5 [Intentionally Omitted] ..............................................................................44 

Section 3.6 Working Capital Reserve Account. ...........................................................44 

Section 3.7 Excess Working Capital Advances. ...........................................................45 

Section 3.8 Discretionary Funding Advances...............................................................45 

Section 3.9 Private Owner Pledged Account................................................................45 

ARTICLE IV ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS .....................46 

Section 4.1 Investment of Funds in Accounts ..............................................................46 

Section 4.2 Interest........................................................................................................47 

Section 4.3 Inadequately Identified Amounts...............................................................47 

Section 4.4 Payment Procedures...................................................................................48 

ARTICLE V DISTRIBUTIONS ..................................................................................................48 

Section 5.1 Priority of Payments ..................................................................................48 

Section 5.2 Notices of Payment Failure........................................................................49 

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ARTICLE VI CUSTODIAL DOCUMENTS ..............................................................................49 

Section 6.1 Delivery of Custodial Documents..............................................................49 

Section 6.2 Examination of Custodian Files; Copies....................................................52 

Section 6.3 Shipment of Custodial Documents ............................................................53 

ARTICLE VII CUSTODIAN ......................................................................................................53 

Section 7.1 Appointment of the Custodian ...................................................................53 

Section 7.2 Obligations of the Custodian .....................................................................53 

ARTICLE VIII FEES AND EXPENSES ....................................................................................56 

Section 8.1 Fees and Expenses .....................................................................................56 

ARTICLE IX REMOVAL OR RESIGNATION.........................................................................56 

Section 9.1 Removal or Resignation of Custodian and Paying Agent .........................56 

ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS ............................57 

Section 10.1 Representations, Warranties and Covenants..............................................57 

Section 10.2 Insurance ....................................................................................................58 

ARTICLE XI REPORTS .............................................................................................................58 

Section 11.1 Custodian and Paying Agent Report..........................................................58 

Section 11.2 Additional Reports.....................................................................................59 

Section 11.3 Company and Servicer Distribution Date Accounting ..............................59 

Section 11.4 Distribution Date Instructions....................................................................60 

Section 11.5 Books and Records ....................................................................................60 

ARTICLE XII NO ADVERSE INTERESTS..............................................................................61 

Section 12.1 No Adverse Interests..................................................................................61 

ARTICLE XIII LIABILITY AND INDEMNIFICATION .........................................................61 

Section 13.1 Liability; Indemnification ..........................................................................61 

ARTICLE XIV CUSTODIAN AND PAYING AGENT.............................................................63 

Section 14.1 Reliance of Custodian and Paying Agent ..................................................63 

ARTICLE XV TAXES.................................................................................................................64 

Section 15.1 Tax Reports................................................................................................64 

Section 15.2 Stamp and Other Similar Taxes .................................................................64 

ARTICLE XVI TERM.................................................................................................................64 

Section 16.1 Term...........................................................................................................64 

ARTICLE XVII AUTHORIZED REPRESENTATIVES...........................................................65 

Section 17.1 Authorized Representatives .......................................................................65 

ARTICLE XVIII NOTICES........................................................................................................65 

Section 18.1 Notices.......................................................................................................65 

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ARTICLE XIX MISCELLANEOUS ...........................................................................................67 

Section 19.1 Governing Law ..........................................................................................67 

Section 19.2 Waiver of Jury Trial...................................................................................67 

Section 19.3 Jurisdiction; Venue and Service.................................................................67 

Section 19.4 Counterparts...............................................................................................69 

Section 19.5 Severability ................................................................................................69 

Section 19.6 Compliance With Law ...............................................................................70 

Section 19.7 Entire Agreement .......................................................................................70 

Section 19.8 Assignment; Binding Effect.......................................................................70 

Section 19.9 Rights Cumulative .....................................................................................70 

Section 19.10 Amendments ..............................................................................................71 

Section 19.11 Headings ....................................................................................................71 

Schedule and Exhibits 

Schedule 1 List of Various Failed Financial Institutions 

Exhibit A Loan Schedule 

Exhibit B-1 Form of Certificated Note 

Exhibit B-2 Form of Global Note 

Exhibit C-1 Form of Certificate for Transfer or Exchange of Rule 144A Global Note to 

Temporary Regulation S Global Note or Regulation S Global Note 

Exhibit C-2 Form of Non-U.S. Person Certification 

Exhibit C-3 Form of Certificate for Transfer or Exchange of Temporary Regulation S Global 

Note or Regulation S Global Note to Rule 144A Global Note 

Exhibit C-4 Form of Qualified Institutional Buyer/Qualified Purchaser 

Exhibit C-5 Form of Certificate for Transfer or Exchange of Global Note to Certificated Note 

Exhibit C-6 Form of Certificate for Transfer or Exchange of Certificated Note to Temporary 

Regulation S Global Note or Regulation S Global Note 

Exhibit C-7 Form of Certificate for Transfer or Exchange of Certificated Note to Rule 144A 

 Global Note 

Exhibit C-8 Form of Certificate for Transfer of Certificated Note to Certificated Note 

Exhibit D Form of DTC Notice to Investors 

Exhibit E Form of Collateral Certificate 

Exhibit F Review Procedures 

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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 O Notice from Depository to Depository Participants in connection with the offering 

of the Rule 144A Global Notes or the Unrestricted Notes represented by Global 

Notes 

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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 February 9, 2010 (the “Closing Date”), by and among Multibank 

2009-1 CML-ADC Venture, LLC, a Delaware limited liability company (the “Company”), the 

Federal Deposit Insurance Corporation (acting in any capacity, the “FDIC”), in its corporate 

capacity, as the guarantor of the Purchase Money Notes (as such term is defined below) (together 

with its successors and assigns, the “Purchase Money Notes Guarantor”), the FDIC, in its 

capacity as the Receiver (as such term is defined below), as the Collateral Agent under the 

Reimbursement, Security and Guaranty Agreement (as such term is defined below) (in such 

capacity, or any successor collateral agent, the “Collateral Agent”), the FDIC, as Receiver, as 

the Initial Member with respect to the Company (in such capacity, or any successor or assign, the 

“Initial Member”), RL CML 2009-1 Investments, LLC, as the Private Owner with respect to the 

Company (in such capacity, or any permitted successor or assign, the “Private Owner”), and 

Wells Fargo Bank, N.A., a national banking association (the “Bank”). 

RECITALS 

WHEREAS the FDIC was appointed receiver for the various failed financial institutions 

listed on Schedule 1 hereto (collectively, the “Failed Banks” and each individually, a “Failed 

Bank”); and 

WHEREAS the Failed Banks previously owned the Loans as described on the Loan 

Schedule attached hereto as Exhibit A (the “Loan Schedule”); and 

WHEREAS the FDIC, as receiver for the Failed Banks (the FDIC, in its separate 

capacities as receiver with respect to each such receivership, the “Receiver”), and the Company 

have entered into a Loan Contribution and Sale Agreement (the “Contribution Agreement”) 

dated as of the date hereof, 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 Loans to the Company 

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

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

the FDIC, as a Holder (as such term is defined below) one or more Purchase Money Notes, dated 

of the date hereof, in the aggregate principal face amount of $185,207,975.00 (collectively, the 

“Purchase Money Notes” and each individually, a “Purchase Money Note”); and 

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

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

that certain Guaranty Agreement, dated as of the date hereof (the “Purchase Money Notes 

Guaranty”); and 

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

“Reimbursement, Security and Guaranty Agreement”) dated as of the date hereof, by and 

among the Company, the Collateral Agent and the Purchase Money Notes Guarantor, the 

Company has pledged the Loans and other underlying collateral to the Collateral Agent for the 

benefit of the Purchase Money Notes Guarantor, and the Reimbursement, Security and Guaranty 

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Agreement requires that the Company retain a document custodian, meeting the requirements set 

forth in the Reimbursement, Security and Guaranty Agreement, to take possession of the 

Custodial Documents (as such term is defined below), in accordance with the terms and 

conditions hereof; and 

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

and Restated Limited Liability Company Operating Agreement dated as of the date hereof 

(“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 (as such terms are 

defined below) 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 (as such term is defined below) 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 

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 and the Bank wish to 

enter into this Agreement to, among others, 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; 

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, the following terms shall 

have the meanings set forth below. 

“Acceptable Investment Rating” means any of the top three rating categories that may 

be assigned to any security, obligation or entity by the Rating Agencies. 

“Account Control Agreement” means one or more Account Control Agreements dated 

as of the date hereof (other than the Private Owner Account Control Agreement), among the 

Company, the Bank and the Collateral Agent, as the same shall be amended, supplemented or 

otherwise modified from time to time. 

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“Accounts” means the Company Accounts and the Private Owner Pledged Account. 

“Acquired Property” means, collectively, Company Acquired Property or Receiver 

Acquired Property. 

“Acquired Property Deed” means, with respect to any Receiver Acquired Property or 

Company Acquired Property, the instrument or document required by the law of the jurisdiction 

in which the Receiver Acquired Property or Company Acquired Property is located to convey fee 

title. 

“Acquired Property Files” means, with respect to each Acquired Property, to the extent 

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

recordation, a copy thereof (which might 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 (y) if the related Acquired Property Deed has been 

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

together with a certificate of the 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; (B) as 

applicable, either (x) a copy of each Acquired Property Deed (which might 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 (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 Servicer or the foreclosure attorney certifying that such assignment of 

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

certification documentation required in clause (A) above; (C) 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 (D) for any Acquired Property that is subject to a lease, (x) a copy of the lease together with 

a certificate of the servicer certifying that such lease is a true, correct and complete copy of the 

original document, and (y) if required by the Purchase Money Notes 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 Servicer certifying that such assignment is a true, correct and 

complete copy of the original document. 

“Additional Security” has the meaning given in the LLC Operating Agreement. 

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

indirectly Controlling or Controlled by or under common Control with such specified Person, (ii) 

any Person owning or Controlling ten percent (10%) or more of the outstanding voting securities, 

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

general partner, managing member, trustee, employee or promoter of the Person specified or any 

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Immediate Family Member of such officer, director, general partner, managing member, trustee, 

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

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

an officer, director, general partner, managing member, trustee or holder of ten percent (10%) or 

more of the outstanding voting securities, voting equity interests or beneficial interests of any 

Person described in clauses (i) through (iv); provided, however, that (I) with respect to the 

Private Owner (in any capacity), in addition to the foregoing, each Affiliate of Rialto Capital 

Management, LLC, a Delaware limited liability company, shall be deemed to be an “Affiliate” of 

the Private Owner, and (II) none of the Initial Member, the Purchase Money Notes Guarantor, 

the Collateral Agent or any Affiliate (for this purpose determined disregarding clauses (ii), (iii) 

and (iv) of this definition (including in the context of clause (v) of this definition) and 

disregarding the Company and any Person Controlled by the Company) of any of the foregoing 

shall be deemed to be an “Affiliate” of the Company or of any Person Controlled by the 

Company. 

“Agent Member” means the members of, or participants in, DTC and the Clearing 

Agencies. 

“Agreement” has the meaning given in the preamble. 

“Ancillary Documents” means the LLC Operating Agreement, the Servicing Agreement 

(including the Electronic Tracking Agreement), one or more Account Control Agreements, the 

Contribution Agreement, the Transferred LLC Interest Sale Agreement, the Purchase Money 

Notes (and any promissory note reissued in respect thereof pursuant to Section 2.8 of this 

Agreement), the Purchase Money Notes Guaranty and the Reimbursement, Security and 

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

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

transactions contemplated thereby. 

“Authorized Denominations” 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. 

“Bank” has the meaning given in the preamble. 

“Benefit Plan” has the meaning given in Section 2.7(o)(iv). 

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

“Business Day” means any day except (i) a Saturday, Sunday or other day on which 

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

or authorized by Law to close, or (ii) with respect to any day on which the Company owes an 

obligation to the Custodian or the Paying Agent or on which the Custodian or the Paying Agent 

owes an obligation to the Company, any day on which the Bank’s offices are closed. 

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“Certificated Note” has the meaning given in Section 2.4(a). 

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

Section 17A of the Exchange Act. 

“Closing” means the consummation of the transactions contemplated in the Transferred 

LLC Interest Sale Agreement. 

“Closing Date” has the meaning given that term in the preamble. 

“Code” means the United States Internal Revenue Code of 1986, as amended. 

“Collateral Agent” has the meaning given in the preamble. 

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

“Collection Account” means a segregated trust or custodial account established and 

maintained at the Bank for the purpose of holding and distributing Loan Proceeds, advances 

from the Working Capital Reserve, Excess Working Capital Advances, Discretionary Funding 

Advances and funding the Distribution Account for payments that are permitted under the 

Priority of Payments. 

“Company” has the meaning given in the preamble. 

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

“Company Acquired Property” means (i) Underlying Collateral to which title is 

acquired by or on behalf of the Company or any Ownership Entity by foreclosure, by deed in lieu 

of foreclosure, by power of sale or by sale pursuant to the Uniform Commercial Code, in any 

such case in accordance with the Loan Documents and in connection with performance by the 

Company of its obligations and duties pursuant to the LLC Operating Agreement, (ii) the equity 

interests in any Ownership Entity holding any such Underlying Collateral and (iii) the assets held 

directly or indirectly by any such Ownership Entity. 

“Contract for Deed” has the meaning given in the LLC Operating Agreement. 

“Contribution Agreement” has the meaning given in the recitals. 

“Control” (including the phrases “Controlled by” and “under common Control with”) 

when used with respect to any specified Person, means the possession, direct or indirect, of the 

power to direct or cause the direction of the management and policies of such Person, whether 

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

“Custodial Delivery Failure” has the meaning given in Section 13.1(b). 

“Custodial Documents” means the documents listed in Section 6.1(c). 

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

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

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

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

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

by the Custodian. 

“Custodian” means the Bank, and any successor custodian that satisfies the requirements 

set forth in Section 10.1(d) of this Agreement and is acceptable and approved by the Initial 

Member, such approval not to be unreasonably withheld, delayed or conditioned. 

“Custodian and Paying Agent Report” has the meaning given in Section 11.1(a). 

“Cut-Off Date” means as of the close of business on December 18, 2009. 

“Debt Agreements” has the meaning given in Section 2.2. 

“Defeasance Account” means a segregated trust or custodial account established and 

maintained at a branch of the Bank for the sole purpose of holding and distributing funds 

deposited into such account (i) pursuant to the Priority of Payments and Section 3.3 and (ii) as 

Excess Working Capital Advances advanced to cure any Purchase Money Notes Trigger Event. 

“Deficiency Balance” has the meaning given in Contribution Agreement. 

“Depository” or “DTC” means the Depository Trust Company, its nominees, and their 

respective successors. 

“Determination Date” means the last day of each Due Period. 

“Discretionary Funding Advances” has the meaning given in the LLC Operating 

Agreement. 

“Distribution Account” means a segregated trust or custodial account established and 

maintained at the Bank for the sole purpose of holding and distributing funds deposited into such 

account pursuant to the Priority of Payment and Section 3.2. 

“Distribution Date” means the twenty-fifth (25th) day of each month or, if such day is 

not a Business Day, the next succeeding day that is a Business Day, commencing March 2010. 

“Distribution Date Report” has the meaning given in Section 11.3. 

“Due Period” means (i) with respect to the first Distribution Date, the period from the 

Cut-Off Date to and including February 28, 2010 and (ii) with respect to any Distribution Date 

thereafter, the calendar month prior to the month in which the Distribution Date occurs. 

“Electronic Tracking Agreement” has the meaning given in the Servicing Agreement. 

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“ERISA” means the United States Employee Retirement Income Security Act of 1974. 

“Exception” means, with respect to any Loan, any variance from the requirements of 

Section 6.1(c), including any missing Custodial Document and any document that does not meet 

the applicable requirements set forth in Section 6.1(c). 

“Excess Working Capital Advances” has the meaning given in the LLC Operating 

Agreement. 

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

“Exchange Date” has the meaning given in Section 2.4(b). 

“Excluded Expenses” has the meaning given in the LLC Operating Agreement. 

“Existing Servicer” has the meaning given in the Contribution Agreement. 

“Failed Bank” and “Failed Banks” have the meanings given in the recitals. 

“FDIC” has the meaning given in the preamble. 

“FRB” means the Board of Governors of the Federal Reserve System. 

“Federal Reserve District” means one of the twelve districts represented by a regional 

Federal Reserve Bank. 

“Final Disposition” means with respect to any asset, any sale, assignment (excluding 

pledges or other assignments for collateral purposes), conveyance, transfer or other disposition 

thereof. The terms “Finally Dispose” and “Finally Disposed of” have correlative meanings. 

“Final Distribution” means the distribution of all remaining Loan Proceeds in 

accordance with the terms of this Agreement after liquidation of all of the Loans and related 

Underlying Collateral. 

“Funding Draw” has the meaning given in the LLC Operating Agreement. 

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

“Governmental Authority” has the meaning given in the LLC Operating Agreement. 

“Group of Loans” has the meaning given in the Contribution Agreement. 

“Holder” means, with respect to any Purchase Money Note, the Person whose name 

appears on the Purchase Money Notes Register as the registered holder of such Purchase Money 

Notes. 

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“Holder Percentage” means, with respect to each Holder and each Purchase Money 

Note at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place), (i) 

the numerator of which is the outstanding principal amount of such Purchase Money Note for 

which such Holder is registered as the owner on the Purchase Money Notes Register at such time 

and (ii) the denominator of which is the aggregate outstanding principal amount of such Purchase 

Money Note at such time. 

“Immediate Family Member” means, with respect to any individual, his or her spouse, 

parents, parents-in-law, grandparents, descendants, nephews, nieces, brothers, sisters, brothersin-law, sisters-in-law, children (whether natural or adopted), children-in-law, stepchildren, 

grandchildren and grandchildren-in-law. 

“Initial Member” has the meaning given in the recitals. 

“Interim Management Fee” has the meaning given in Section 5.1(b)(ii). 

“Interim Servicing Fee” has the meaning given in the Contribution Agreement. 

“Interim Servicing Period” has the meaning given in the Contribution Agreement. 

“Investment Company Act” means the Investment Company Act of 1940, as amended. 

“Law” means any applicable statute, law, ordinance, regulation, rule, code, injunction, 

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

“Lien” means any mortgage, deed of trust, pledge, security interest, charge, restriction on 

or condition to transfer, voting or exercise or enjoyment of any right or beneficial interest, 

option, right of first refusal, easement, covenant, restriction and any other lien, claim or 

encumbrance of any nature whatsoever. 

“Liquidation Proceeds” means cash proceeds of any foreclosure in respect of a 

defaulted Loan, revenues received with respect to the conservation and disposition of a 

foreclosed property or Acquired Property, and any other amounts received in connection with the 

liquidation of defaulted Loans, whether through trustee’s sale, foreclosure sale or otherwise. 

“LLC Operating Agreement” has the meaning given in the recitals. 

“Loan” means any loan, Loan Participation, Ownership Entity (including any cash and 

cash equivalents held directly or indirectly by such Ownership Entities) or Acquired Property 

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

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

Participation, Ownership Entity, Acquired Property or other related asset: (i) any obligation 

evidenced by a Note; (ii) all rights, powers or Liens of the Company or any Ownership Entity in 

or under the Underlying Collateral and Underlying Collateral Documents and in and to Acquired 

Property (including all Ownership Entities and Acquired Property held by an Ownership Entity); 

(iii) all of the rights of the Company or any Ownership Entity under any lease and the related 

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leased property; (iv) all rights of the Company or any Ownership Entity pursuant to any Contract 

for Deed and in or to the real property that is subject to such Contract for Deed; (v) all rights to 

causes of action, lawsuits, judgments, claims and demands of any nature available to or being 

pursued by or for the benefit of the Company or any Ownership Entity with respect to the Loans, 

the Underlying Collateral or the ownership, use, function, value of or other rights pertaining 

thereto, whether arising by way of counterclaim or otherwise other than claims retained by the 

Initial Member pursuant to Section 2.7 of the Contribution Agreement; (vi) all guaranties, 

warranties, indemnities and similar rights in favor of the Company or any Ownership Entity with 

respect to any of the Loans; (vii) all rights of the Company or any Ownership entity under the 

Related Agreements; and (viii) all rights of the Company or the Ownership Entity to any 

Deficiency Balance. 

“Loan Documents” means all documents, agreements, certificates, instruments and other 

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

delivered or caused to be delivered by any Borrower, any Obligor or any other obligor 

evidencing, creating, guaranteeing or securing, or otherwise executed or delivered in respect of, 

all or any part of a Loan or any Acquired Property or evidencing any transaction contemplated 

thereby (including, for this purpose, title insurance policies and endorsements thereto), and all 

Modifications thereto. 

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

“Loan Participation Agreement” means an agreement under which a Failed Bank or the 

Receiver was and, after the Closing Date, the Company is, the lead or agent financial depository 

institution or otherwise managed or held a shared credit or sold participations, or under which a 

Failed Bank or the Receiver was and, after the Closing Date, the Company is, a participating 

financial depository institution or purchased participations in a credit managed by another 

Person. 

“Loan Proceeds” has the meaning given in the LLC Operating Agreement. 

“Loan Schedule” has the meaning given in the recitals. 

“Loan Schedule and Exception List” means a list of the Loans and Acquired Property, 

identifying, with respect to each Loan, each Exception, and that details, with respect to any Loan 

that has been released by the Custodian, (i) the Borrower name and any identification number 

assigned to the Loan, (ii) the location to which the Custodial Documents with respect to such 

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

were released by the Custodian. 

“Management Fee” has the meaning given in the LLC Operating Agreement. 

“Manager” has the meaning given in the LLC Operating Agreement. 

“Maturing Purchase Money Note” has the meaning given in Section 2.8. 

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“MERS®” means Mortgage Electronic Registration Systems, Incorporated, or any 

successor thereto. 

“MERS Designated Loan” has the meaning given in the Electronic Tracking 

Agreement. 

“MERS Report” means the schedule listing the MERS Designated Loans and other 

information. 

“Modification” means any extension, renewal, substitution, replacement, supplement, 

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

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

“Monthly Report” has the meaning given in the LLC Operating Agreement. 

“Mortgage” means the mortgage, deed of trust or other instrument, including any 

amendments or modifications thereto, creating a first or junior lien on or ownership interest in a 

Mortgaged Property. 

“Mortgage Assignment” means, with respect to any Mortgage, an assignment of the 

Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the 

applicable Law of the jurisdiction wherein the related Mortgaged Property is located to reflect 

the assignment and pledge of the Mortgage. 

“Mortgaged Property” means any underlying real property constituting part of the 

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

lease or otherwise, and whether or not improved by buildings or facilities, and any personal 

property, fixtures, leases and other property or rights pertaining thereto. 

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

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

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

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

instrument evidencing a Loan, and all Modifications to the foregoing. 

“Obligor” means (i) any guarantor of all or any portion of any Loan or all or any of any 

Borrower’s obligations set forth and described in the Loan Documents or (ii) any other Person 

(other than the Borrower, the Lender and any administrative or other agent) that is obligated 

pursuant to the Loan Documents with respect to a Loan, and shall include the guarantor under 

any completion guaranty or similar document. 

“Office” has the meaning given in Section 6.1(a). 

“Ownership Entity” has the meaning given in the LLC Operating Agreement. 

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“Paying Agent” means the Bank or any successor paying agent that satisfies the 

requirements set forth in Section 10.1(d) of this Agreement. 

“Permitted Investments” means any one or more of the following obligations or 

securities having at the time of purchase, or at such other time as might be specified, the required 

ratings, if any, provided for in this definition: 

(i) direct obligations of, or guaranteed as to timely payment of principal and 

interest by, the United States of America or any agency or instrumentality of the United States of 

America, the obligations of which are backed by the full faith and credit of the United States of 

America; for the avoidance of doubt, this clause (i) shall include any debt guaranteed by the 

FDIC in its corporate capacity; 

(ii) demand and time deposits in or certificates of deposit of, or bankers’ 

acceptances issued by, any bank or trust company, savings and loan association or savings bank, 

provided that, in the case of obligations that are not fully FDIC-insured deposits, the commercial 

paper and/or long-term unsecured debt obligations of such depository institution or trust 

company (or in the case of the principal depository institution in a holding company system, the 

commercial paper or long-term unsecured debt obligations of such holding company) have an 

Acceptable Investment Rating; 

(iii) general obligations of or obligations guaranteed by any state of the United 

States or the District of Columbia receiving ratings of not less than the highest rating of each 

Rating Agency rating such obligations; 

(iv) mutual funds in which investments are limited to the obligations referred 

to in clauses (i), (ii) or (iii) of this definition; and 

(v) with the prior written consent of the Company or the Purchase Money 

Notes Guarantor, any other demand, money market or time deposit or other obligation, security 

or investment. 

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

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

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

entity. 

“Pre-Approved Charges” has the meaning given in the Contribution Agreement. 

“Priority of Payments” has the meaning given in Section 5.1. 

“Private Owner” means RL CML 2009-1 Investments, LLC. 

“Private Owner Account Control Agreement” means the account control agreement 

dated the date hereof, among the Private Owner, the Initial Member and the Bank, as the same 

shall be amended, supplemented or otherwise modified from time to time. 

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“Private Owner Obligations” has the meaning given in the LLC Operating Agreement. 

“Private Owner Pledged Account” means a segregated trust or custodial account of the 

Private Owner established and maintained at a branch of the Bank for the sole purpose of holding 

the Qualifying Cash Collateral, which is and will remain pledged to (and under the control of) 

the Initial Member (for its benefit and the benefit of the Company) as collateral for the Secured 

Obligations. 

“Purchase Money Notes” means, collectively, the Term A-1 Purchase Money Note, the 

Term A-2 Purchase Money Note and the Term A-3 Purchase Money Note. 

“Purchase Money Notes Defeasance Date” has the meaning given in the LLC 

Operating Agreement. 

“Purchase Money Notes Guarantor” has the meaning given in the preamble. 

“Purchase Money Notes Guaranty” means the Guaranty Agreement by and between 

the Purchase Money Notes Guarantor and the Receiver dated as of the date hereof. 

“Purchase Money Notes Register” and “Purchase Money Notes Registrar” have the 

meanings given in Section 2.7(a). 

“Purchase Money Notes Trigger Event” has the meaning given in the Reimbursement, 

Security and Guaranty Agreement. 

“Qualified Institutional Buyer” means a “qualified institutional buyer” as defined in 

Rule 144A under the Securities Act. 

“Qualified Purchaser” means a “qualified purchaser” within the meaning of Section 

3(c)(7) of the Investment Company Act of 1940. 

“Qualifying Cash Collateral” has the meaning given in the LLC Operating Agreement. 

“Qualifying Letter of Credit” has the meaning given in the LLC Operating Agreement. 

“Rating Agencies” means each of Standard and Poor’s Ratings Service, a division of The 

McGraw-Hill Companies, Inc., Fitch, Inc., or Moody’s Investors Service and such other rating 

agencies as are nationally recognized. 

“Receiver” has the meaning given in the recitals. 

“Receiver Acquired Property” means (i) Underlying Collateral title to which has been 

acquired by or on behalf of the Initial Member or any Failed Bank by foreclosure, by deed in lieu 

of foreclosure, by power of sale or by sale pursuant to the Uniform Commercial Code, in any 

such case in accordance with the Loan Documents, if the foreclosure or other acquisition event 

occurs after the Cut-off Date, or occurred on or before the Cut-Off Date but the Redemption 

Period (as such term is defined in the Contribution Agreement) had not expired on or before the 

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Cut-Off Date, (ii) the equity interests in any Ownership Entity or any such Underlying Collateral 

and (iii) the assets held directly or indirectly by any such Ownership Entity. 

“Record Date” means, with respect to the Purchase Money Notes, the date on which the 

Holders of the Purchase Money Notes entitled to receive a payment in respect of principal or 

other amounts on the succeeding Distribution Dates are determined. 

“Recording Office” means the appropriate recording office of the jurisdiction in which 

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

Property) or in which the Acquired Property is located. 

“Regulation S Global Note” has the meaning given in Section 2.4(b). 

“Reimbursement, Security and Guaranty Agreement” has the meaning given in the 

recitals. 

“Reissued Purchase Money Note” has the meaning given in Section 2.8. 

“Related Agreement” means (i) any agreement, document or instrument (other than the 

Note and Underlying Collateral Documents) relating to or evidencing any obligation to pay or 

securing any Loan (including any equipment lease, letter of credit, bankers’ acceptance, draft, 

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

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

property or rights in or to any real property (including leases, property or asset management 

agreements, brokerage agreements, tenancies, concessions, licenses or other rights of occupancy 

or use and security deposits related thereto) related specifically only to the Loans (or any of 

them), (iii) any collection or contingency fee, and tax and other service agreements that are 

specific only to the Loans (or any of them) and that are assignable, (iv) any letter of assurance, 

letter of credit or similar instrument evidencing an obligation of any Ownership Entity, the Initial 

Member, the Failed Bank or the Company that was issued for the benefit of any Person and 

relates in any way to a Loan or the acquisition, development or construction of any project with 

respect to which the proceeds of such Loan were used or were intended to be used; and (v) any 

interest rate swap arrangement between the Borrower and any of a Failed Bank, the Initial 

Member or the Company (in each case as the applicable lender, agent or other creditor under the 

Loan) that relates to any Loan. 

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

“Rule 144A Global Note” has the meaning given in Section 2.4(c). 

“Rule 144A Information” has the meaning given in Section 2.7(j). 

“Securities Act” means the Securities Act of 1933, as amended. 

“Servicer” means (i) any Person retained by the Private Owner to service, manage or 

administer any of the Loans or the Underlying Collateral, and (ii) any Person retained by any 

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Person referred to in clause (i) to service, manage or administer any of the Loans or the 

Underlying Collateral. 

“Servicing Agreement” has the meaning given in the LLC Operating Agreement. 

“Servicing Expenses” has the meaning given in the LLC Operating Agreement. 

“Servicing Standard” has the meaning given in the Servicing Agreement. 

“Servicing Transfer Date” has the meaning given in the Contribution Agreement. 

“Single Purpose Entity” has the meaning given in the LLC Operating Agreement. 

“Subservicer” has the meaning given in the Servicing Agreement. 

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

“Temporary Global Notes Notations has the meaning given in Section 2.4(b). 

“Temporary Regulation S Global Note” has the meaning given in Section 2.4(b). 

“Term A-1 Purchase Money Note” means that certain Purchase Money Note, dated as 

of February 9, 2010 with a maturity date of February 25, 2012 issued by the Company to the 

Receiver or any other note executed and delivered upon registration of transfer of, or in exchange 

for, or in lieu of, the Term A-1 Purchase Money Note, including, for the avoidance of doubt, any 

Reissued Purchase Money Note issued in replacement of the Term A-1 Purchase Money Note 

pursuant to Section 2.8. 

“Term A-2 Purchase Money Note” means that certain Purchase Money Note, dated as 

of February 9, 2010 with a maturity date of February 25, 2013 issued by the Company to the 

Receiver or any other note executed and delivered upon registration of transfer of, or in exchange 

for, or in lieu of, the Term A-2 Purchase Money Note, including, for the avoidance of doubt, any 

Reissued Purchase Money Note issued in replacement of the Term A-2 Purchase Money Note 

pursuant to Section 2.8. 

“Term A-3 Purchase Money Note” means that certain Purchase Money Note, dated as 

of February 9, 2010 with a maturity date of February 25, 2014 issued by the Company to the 

Receiver or any other note executed and delivered upon registration of transfer of, or in exchange 

for, or in lieu of, the Term A-3 Purchase Money Note, including, for the avoidance of doubt, any 

Reissued Purchase Money Note issued in replacement of the Term A-3 Purchase Money Note 

pursuant to Section 2.8. 

“Term Note A-1 Maturity Date” means “Maturity Date” as defined in the Term A-1 

Purchase Money Note. 

“Term Note A-2 Maturity Date” means “Maturity Date” as defined in the Term A-2 

Purchase Money Note. 

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“Term Note A-3 Maturity Date” means “Maturity Date” as defined in the Term A-3 

Purchase Money Note. 

“Termination” has the meaning given in Section 8.1. 

“Transferee Certificate” has the meaning given in Section 2.7(h). 

“Transferred LLC Interest Sale Agreement” means the Transferred LLC Interest Sale 

and Assignment Agreement between the Initial Member and the Private Owner dated as of the 

date hereof. 

“Underlying Collateral” has the meaning given in the Contribution Agreement. 

“Underlying Collateral Document” means any pledge agreement, security agreement, 

personal, corporate or other guaranty, deed of trust, deed, trust deed, deed to secure debt, 

mortgage, contract for the sale of real property, assignment, collateral agreement, stock power or 

other agreement or document of any kind, whether an original or a copy, whether similar to or 

different from those enumerated, (i) securing in any manner the performance or payment by any 

Borrower or any Obligor of its obligations or the obligations of any other Borrower or Obligor 

under any of the Loans or the Notes evidencing the Loans or (ii) evidencing ownership of any 

Acquired Property. 

“Uniform Commercial Code” means the Uniform Commercial Code as in effect in any 

applicable jurisdiction, as amended from time to time. 

“Unpaid Principal Balance” has the meaning given in the LLC Operating Agreement. 

“Unrestricted Notes” has the meaning given in Section 2.4(d). 

“Working Capital Expenses” has the meaning given in the LLC Operating Agreement. 

“Working Capital Reserve” has the meaning given in Section 3.6. 

“Working Capital Reserve Account” means a segregated trust or custodial account 

established and maintained at a branch of the Bank for the sole purpose of holding and 

distributing funds in the Working Capital Reserve. 

“Working Capital Reserve Floor” means the minimum amount to be maintained in the 

Working Capital Reserve Account at any point in time while any Purchase Money Note or 

Reissued Purchased Money Note is outstanding, which amount initially will be $7,500,000 

subject to the provisions of Section 3.6; provided, however, such minimum amount can be 

reduced to an amount below $7,500,000 when advances or payments from the Working Capital 

Reserve are required to pay the 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; and provided, further, however, that, after the Purchase 

Money Notes Defeasance Date, the Working Capital Reserve Floor shall be the amount as 

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determined by the Private Owner in the exercise of its reasonable discretion, which amount may 

be greater than, less than or equal to $7,500,000. 

“Working Capital Reserve Replenishment Cap” means the maximum amount to be 

maintained in the Working Capital Reserve at any point in time, which amount initially will be 

$30,000,000 and thereafter, once the initial balance of the Working Capital Reserve Account 

(before any replenishment) falls to an amount less than $15,000,000, will be $15,000,000. 

Section 1.2 Rules of Construction. This Agreement shall be construed and interpreted 

in accordance with the following: 

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

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

other Persons that 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 

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 of this 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 of the appropriate gender. 

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ARTICLE II 

PAYING AGENT AND PURCHASE MONEY NOTES 

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

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

perform the duties of 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 Purchase Money Notes, the Purchase 

Money Notes Guaranty, the Reimbursement, Security and Guaranty Agreement and the Account 

Control Agreement (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 Notes 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 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 in its possession and 

custody at all times during the term hereof unless any one of the following events has occurred: 

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

accordance with the provisions of Section 9.1, the Custodian shall deliver the Debt Agreements 

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 hereto as Exhibit I from an Authorized 

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

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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 of Purchase Money Notes. 

(a) Forms Generally. The form of the Purchase Money Notes shall be as set 

forth in the applicable portion of Exhibit B hereto. The Purchase Money Notes may have 

notations, legends or endorsements required by law, stock exchange rule or usage. Any Purchase 

Money Note issued shall be initially sold to the Receiver and may be initially issued in the form 

of one or more (i) certificated notes 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 temporary or permanent (as applicable) 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 (I) shall be registered in the name of the Depository for such 

Global Note or Global Notes or the nominee of such Depository and (II) shall be held by the 

Paying Agent as custodian for the Depository unless the Depository instructs otherwise. 

(b) Regulation S Global Notes. Subject to Section 2.4(d) below, if a Purchase 

Money Note is deemed to be initially sold outside the United States to non-U.S. Persons in 

accordance with Regulation S, and the purchasers of such Purchase Money Note wish to take 

delivery of such Purchase Money Note in the form of beneficial interests in a Global Note, those 

purchasers shall receive beneficial interests in one or more temporary Global Notes in definitive, 

fully registered form without interest coupons, substantially in the form of Exhibit B-2 attached 

hereto (each, a “Temporary Regulation S Global Note”), which shall bear the following 

legend and other notations necessary for such temporary global notes (collectively, the 

“Temporary Global Notes Notations”): 

THIS PURCHASE MONEY NOTE IS A TEMPORARY GLOBAL 

NOTE FOR PURPOSES OF REGULATION S UNDER THE UNITED 

STATES SECURITIES ACT OF 1933, AS AMENDED, THAT IS 

EXCHANGEABLE FOR A PERMANENT GLOBAL NOTE SUBJECT 

TO THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN 

THE CUSTODIAL AND PAYING AGENCY AGREEMENT 

REFERRED TO HEREIN. 

On or after the 40th day after [ ]

1

, interests in this Temporary 

Regulation S Global Note may be exchanged (free of charge) for 

beneficial interests in a permanent Regulation S Global Note. The 

permanent Regulation S Global Note shall be so issued and delivered in 

exchange for only that portion of this Temporary Regulation S Global 

Note in respect of which there shall have been presented to the Depository 

by Euroclear or Clearstream a certification to the effect that it has received 

1

 Insert the date of initial sale of the Purchase Money Notes under Regulation S. 

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from or in respect of a person entitled to a beneficial interest (as shown by 

its records) a certification that the beneficial interests in such Temporary 

Regulation S Global Note are owned by persons who are not U.S. Persons. 

On an exchange of the whole of this Temporary Regulation S Global 

Note, this Temporary Regulation S Global Note shall be surrendered to the 

Depository at its office. On an exchange of only part of this Temporary 

Regulation S Global Note, details of such exchange shall be entered by or 

on behalf of the Issuer in Schedule A hereto. If, following the issue of a 

permanent Regulation S Global Note in exchange for some of the 

Purchase Money Notes represented by this Temporary Regulation S 

Global Note, further Purchase Money Notes are to be exchanged pursuant 

to this paragraph, such exchange may be effected, without the issue of a 

new permanent Regulation S Global Note, by the Issuer or the Depository 

endorsing Schedule A of the permanent Regulation S Global Note 

previously issued to reflect an increase in the aggregate principal amount 

of such permanent Regulation S Global Note by an amount equal to the 

aggregate principal amount of additional Purchase Money Notes to be 

exchanged. 

On or after the first Business Day following the 40th day after such initial sale of 

such Purchase Money Note (the “Exchange Date”), upon certification that the beneficial 

interests in such Temporary Regulation S Global Note are owned by Persons who are not U.S. 

Persons, such Temporary Regulation S Global Note shall be exchanged for one or more 

permanent Global Notes of like aggregate principal amount in definitive, fully registered form 

without interest coupons, substantially in the form of Exhibit B-2 attached hereto (each, a 

“Regulation S Global Note”), which shall not bear the Temporary Global Notes Notations. 

(c) Rule 144A Global Notes. Subject to Section 2.4(d) below, if a Purchase 

Money Note is deemed to be initially sold to any U.S. Person that is a Qualified Institutional 

Buyer and a Qualified Purchaser and the purchasers of such Purchase Money Note wish to take 

delivery of such Purchase Money Note in the form of beneficial interests in a Global Note, those 

purchasers shall receive beneficial interests in one or more temporary Global Notes in definitive, 

fully registered form without interest coupons, substantially in the form of Exhibit B-2 attached 

hereto, which shall be registered in the name of the owner or nominee thereof, duly executed by 

the Company as set forth herein (each, a “Rule 144A Global Note”). 

(d) If at any time the Purchase Money Notes Guarantor determines that the 

Purchase Money Notes are exempt from the registration requirements of the Securities Act (the 

“Unrestricted Notes”), then (i) if such determination occurred prior to the issuance of such 

Purchase Money Note, such Purchase Money Note shall be issued in the form of an Unrestricted 

Note which shall be substantially in the form of the relevant portion of Exhibit B attached hereto 

and (ii) if such determination occurred after the issuance of such Purchase Money Note and such 

Purchase Money Note is represented by a Restricted Note, than such Restricted Note shall 

become exchangeable for one or more Unrestricted Notes. 

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

the Code, and any regulations issued regarding such elections, each 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 F7014, WASHINGTON, D.C. 20429, ATTENTION: RALPH 

MALAMI, 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; Stated Maturity; Denominations; Prepayment. 

(a) The aggregate face amount of Purchase Money Notes that may be 

executed and delivered under this Agreement is limited to U.S.$185,207,975.00 except for 

Purchase Money Notes executed and delivered upon registration of transfer of, or in exchange 

for, or in lieu of, other Purchase Money Notes pursuant to Section 2.7, 2.8 or 2.9 of this 

Agreement. 

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

of U.S.$500,000 and integral multiples of U.S.$1,000 in excess thereof (each such denomination, 

an “Authorized Denomination”). Any interest in a Purchase Money Note equal to or in excess 

of the applicable minimum denomination at the time of the issuance thereof that ceases or fails to 

be such minimum or multiple as a result of the repayment of principal may be transferred in its 

entirety. 

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

Note without the prior written consent of the Purchase Money Notes Guarantor. 

Section 2.6 Execution, Delivery and Dating 

(a) The Purchase Money Notes 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 Notes may be manual or facsimile. 

(b) Purchase Money Notes 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 such Purchase Money Notes or did not hold such 

offices at the date of issuance of such Purchase Money Notes. 

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(c) Each 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 Notes that are executed and delivered after the Closing Date for any other purpose under 

this Agreement shall be dated the date of their execution. 

(d) Purchase Money Notes issued upon transfer, exchange or replacement of 

other Purchase Money Notes shall be issued in Authorized Denominations reflecting the original 

aggregate principal or face amount of the Purchase Money Notes so transferred, exchanged or 

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

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

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

II, the original principal or face amount of such Purchase Money Note shall be proportionately 

divided among the 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 

Notes. 

Section 2.7 Registration, Registration of Transfer and Exchange. 

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

Notes 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 Purchase Money 

Notes. The Paying Agent is hereby initially appointed “Purchase Money Notes Registrar” for 

the purpose of registering Purchase Money Notes and transfers of such Purchase Money Notes as 

herein provided. Upon any resignation or removal of the Purchase Money Notes 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 Notes Registrar, the Company will give the Paying Agent prompt notice of the 

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

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

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

Holders of the Purchase Money Notes and the principal or face amounts and numbers of such 

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

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

reflected in the Purchase Money Notes Register. 

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

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

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

transferee or transferees, one or more new Purchase Money Notes 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 Notes to the Purchase Money Notes 

Registrar. 

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

Purchase Money Notes of like terms, in any Authorized Denominations and of like 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 

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

Company shall execute and deliver, the Purchase Money Notes 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 Notes Registrar. 

(e) All Purchase Money Notes issued upon any registration of transfer or 

exchange of such Purchase Money Notes shall be the valid obligations of the Company, 

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

under this Agreement, as the Purchase Money Notes 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 

transfer in form satisfactory to the Company and the Purchase Money Notes 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 Purchase Money Notes, 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) and is exempt 

under applicable state or foreign securities laws. 

The Restricted Notes may only be sold or resold, as the case may be, (i) 

outside the United States to non-U.S. Persons in accordance with Regulation S under the 

Securities Act, (ii) within the United States and to U.S. Persons that are both (A) Qualified 

Institutional Buyers and (B) Qualified Purchasers or (iii) pursuant to another applicable 

exemption from the registration requirements of the Securities Act. Unrestricted Notes may only 

be sold or resold, as the case may be, to persons who are Qualified Purchasers. 

The Paying Agent shall require, prior to any sale or other transfer of a 

Restricted Note, that the Holder’s prospective transferee 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 hereto or such other form as may be acceptable to the Paying Agent and counsel to the 

Company (each, a “Transferee Certificate”). 

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(i) 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. 

(j) At any time when the Company is not subject to Section 13 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 Holder, the Paying Agent, on behalf of the Company, shall promptly 

furnish to such Holder or to a prospective purchaser of any Purchase Money Note designated by 

such Holder the information required to be delivered to Holders 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 Holder with Rule 144A in connection with the 

resale of such Purchase Money Note by such Holder. 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 Holders or prospective purchasers, at and pursuant to the Company’s written 

direction, the foregoing materials prepared and provided by the Company; provided 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). 

(k) So long as any Certificated Note that also is a Restricted Note remains 

outstanding, transfers and exchanges of such Certificated Note, in whole or in part, shall only be 

made in accordance with this Section 2.7(k) and Section 2.7(l). So long as any Global Note 

which is also a Restricted Note remains outstanding and is held by or on behalf of the 

Depository, transfers and exchanges of such Global Note, in whole or in part, shall only be made 

in accordance with this Section 2.7(k) and Section 2.7(l). For the avoidance of doubt, this 

Section 2.7(k) and Section 2.7(l) shall not apply to Certificated Notes and Global Notes that also 

are Unrestricted Notes, the transfer of which shall be governed by Section 2.7(m). 

(i) Rule 144A Global Notes to Temporary Regulation S Global Notes 

or Regulation S Global Notes. If a Holder of a beneficial interest in a Rule 144A Global Note 

deposited with the Depository wishes at any time to exchange such Rule 144A Global Note for 

an interest in the corresponding Temporary Regulation S Global Note or Regulation S Global 

Note, or to transfer such interest in such Rule 144A Global Note to a Person who wishes to take 

delivery thereof in the form of an interest in the corresponding Temporary Regulation S Global 

Note or Regulation S Global Note, such Holder, provided that such Holder or, in the case of a 

transfer, the transferee is not a U.S. Person, subject to the rules and procedures of the Depository, 

may exchange or transfer, or cause the exchange or transfer of, such interest for an equivalent 

beneficial interest in the corresponding Temporary Regulation S Global Note or Regulation S 

Global Note. Upon receipt by the Purchase Money Notes Registrar of (A) instructions given in 

accordance with the Depository’s procedures from an Agent Member directing the Purchase 

Money Notes Registrar to credit or cause to be credited a beneficial interest in the corresponding 

Temporary Regulation S Global Note or Regulation S Global Note, but not less than the 

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Authorized Denomination applicable to such Holder’s Purchase Money Notes, in an amount 

equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (B) 

a written order, in accordance with the Depository’s procedures, containing information 

regarding the participant account of the Depository and the Euroclear or Clearstream account to 

be credited with such increase, (C) a certificate in the form of Exhibit C-1 attached hereto given 

by the Holder of such beneficial interest stating that the exchange or transfer of such note has 

been made in compliance with the transfer restrictions applicable to the Global Notes, including 

that the Holder or the transferee, as applicable, is not a U.S. Person, and that such transfer has 

been made pursuant to and in accordance with Regulation S and (D) in the case of a transfer, a 

certificate in the form of Exhibit C-2 attached hereto given by the proposed transferee stating 

that it is not a U.S. Person, then the Purchase Money Notes Registrar shall approve the 

instruction at the Depository to reduce the principal amount of the Rule 144A Global Note and to 

increase the principal amount of the Temporary Regulation S Global Note or Regulation S 

Global Note, as the case may be, by the outstanding principal amount of the beneficial interest 

in the Rule 144A Global Note to be transferred or exchanged and to credit or cause to be credited 

to the securities account of the Person specified in such instructions a beneficial interest in the 

corresponding Temporary Regulation S Global Note or Regulation S Global Note equal to the 

reduction in the principal amount of the Rule 144A Global Note. 

(ii) Temporary Regulation S Global Note or Regulation S Global Note 

to Rule 144A Global Note. If a Holder of a beneficial interest in a Temporary Regulation S 

Global Note or Regulation S Global Note deposited with the Depository wishes at any time to 

exchange its interest in such Temporary Regulation S Global Note or Regulation S Global Note 

for an interest in the corresponding Rule 144A Global Note or to transfer its interest in such 

Temporary Regulation S Global Note or Regulation S Global Note to a Person who wishes to 

take delivery thereof in the form of an interest in the corresponding Rule 144A Global Note, 

such Holder, subject to the rules and procedures of Euroclear, Clearstream and/or the Depository, 

as the case may be, may exchange or transfer, or cause the exchange or transfer of such interest 

for an equivalent beneficial interest in the corresponding Rule 144A Global Note. Upon receipt 

by the Purchase Money Notes Registrar of (A) instructions from Euroclear, Clearstream and/or 

the Depository, as the case may be, directing the Purchase Money Notes Registrar to cause to be 

credited a beneficial interest in the corresponding Rule 144A Global Note in an amount equal to 

the beneficial interest in such Temporary Regulation S Global Note or Regulation S Global Note, 

but not less than the Authorized Denomination applicable to such Holder’s Purchase Money 

Notes, to be exchanged or transferred, 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-3 attached hereto given by the Holder of such beneficial interest and stating, 

among other things, that, in the case of an exchange, the Holder is a Qualified Institutional Buyer 

and is also a Qualified Purchaser or, in the case of a transfer, the Person transferring such interest 

in such Temporary Regulation S Global Note or Regulation S Global Note reasonably believes 

that the Person acquiring such interest in a 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-4 attached hereto given by the proposed transferee stating 

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that it is a Qualified Institutional Buyer and a Qualified Purchaser, then the Purchase Money 

Notes Registrar shall instruct the Depository to reduce, or cause to be reduced, the principal 

amount of the Temporary Regulation S Global Note or Regulation S Global Note by the 

aggregate principal amount of the beneficial interest in the Temporary Regulation S Global Note 

or Regulation S Global Note to be transferred or exchanged and the Purchase Money Notes 

Registrar shall approve the instruction at the Depository, concurrently with such reduction, to 

credit or cause to be credited to the securities account of the Person specified in such instructions 

a beneficial interest in the corresponding Rule 144A Global Note equal to the reduction in the 

outstanding principal amount of the Temporary Regulation S Global Note or Regulation S 

Global Note. 

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

beneficial interest in 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, such Holder may, subject to the rules and procedures of the Depository, 

transfer or cause the transfer of such interest for an equivalent principal amount of one or more 

such Certificated Notes as described below. Upon receipt by the Purchase Money Notes 

Registrar of (A) instructions given in accordance with the Depository’s procedures from an 

Agent Member directing the Paying Agent to deliver one or more such Certificated Notes, 

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

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

amounts of such Certificated Notes being equal to the outstanding principal amount of the Rule 

144A Global Note to be transferred), in Authorized Denominations and (B) a certificate in the 

form of Exhibit C-5 hereto given by the transferee of such beneficial interest, then the Purchase 

Money Notes 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 and the Purchase Money Notes Registrar shall 

record the transfer in the Purchase Money Notes Register in accordance with Section 2.7(a) and 

authenticate and deliver one or more Certificated Notes registered in the names specified in the 

certificate described in clause (B) above in principal amounts designated by the transferee (the 

aggregate of such amounts being equal to the beneficial interest in the Rule 144A Global Notes 

to be transferred) and in Authorized Denominations. 

If a Holder of a beneficial interest in a Rule 144A Global Note wishes at 

any time to exchange such interest in a Rule 144A Global Note for one or more Certificated 

Notes, such Holder may exchange or cause the exchange of such interest for an equivalent 

principal amount of one or more such Certificated Notes as provided below. Upon receipt by the 

Purchase Money Notes Registrar of (A) instructions given in accordance with the Depository’s 

procedures from an Agent Member directing the Paying Agent to deliver one or more 

Certificated Notes, (B) a certificate in the form of Exhibit C-5 hereto given by the Holder of such 

beneficial interest and (C) written instructions from such Holder designating the registered name 

or names, address and payment instructions of such Holder and principal amounts of the 

applicable Certificated Notes to be executed and delivered to such Holder (the aggregate 

outstanding principal amounts of such Certificated Notes being the same as the beneficial 

interest in the Rule 144A Global Note to be exchanged), then the Purchase Money Notes 

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Registrar shall instruct the Depository to reduce the Rule 144A Global Note by the outstanding 

principal amount of the beneficial interest in the Rule 144A Global Note to be exchanged, shall 

record the exchange in the Purchase Money Notes Register in accordance with Section 2.7(a) 

and authenticate and deliver one or more Certificated Notes registered as specified in the 

instructions described in clause (A) above, in Authorized Denominations. 

(iv) Temporary Regulation S Global Note or Regulation S Global Note 

to Certificated Note. If a Holder of a beneficial interest in a Temporary Regulation S Global 

Note or Regulation S Global Note wishes at any time to transfer its interest in such Temporary 

Regulation S Global Note or Regulation S Global Note to a Person who wishes to take delivery 

thereof in the form of a Certificated Note, such Holder may, subject to the rules and procedures 

of Euroclear and/or Clearstream, as the case may be, transfer or cause the transfer of such 

interest for an equivalent principal amount of one or more such Certificated Notes as described 

below. Upon receipt by the Purchase Money Notes Registrar of (A) instructions from Euroclear 

and/or Clearstream, as the case may be, directing the Paying Agent to deliver one or more such 

Certificated Notes, designating the registered name or names, address, payment instructions, the 

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

outstanding principal amounts of such Certificated Notes being equal to the outstanding principal 

amount of the Temporary Regulation S Global Note or Regulation S Global Note to be 

transferred), in Authorized Denominations and, (B) a certificate in the form of Exhibit C-5 hereto 

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

instruct the Depository to reduce, or cause to be reduced, the corresponding Temporary 

Regulation S Global Note or Regulation S Global Note by the aggregate principal amount of the 

beneficial interest in such Temporary Regulation S Global Note or Regulation S Global Note to 

be transferred and the Purchase Money Notes Registrar shall record the transfer in the Purchase 

Money Notes Register in accordance with Section 2.7(a) and authenticate and deliver one or 

more Certificated Notes registered in the names specified in the certificate described in clause 

(B) above in principal amounts designated by the transferee (the aggregate of such amounts 

being equal to the beneficial interest in the Temporary Regulation S Global Note or Regulation S 

Global Notes to be transferred) and in Authorized Denominations. 

If a Holder of a beneficial interest in a Temporary Regulation S Global 

Note or Regulation S Global Note wishes at any time to exchange such interest in a Temporary 

Regulation S Global Note or Regulation S Global Note for one or more Certificated Notes, such 

Holder may exchange or cause the exchange of such interest for an equivalent beneficial interest 

in one or more such Certificated Notes as provided below. Upon receipt by the Purchase Money 

Notes Registrar of (A) instructions from Euroclear and/or Clearstream, as the case may be, 

directing the Paying Agent to deliver one or more Certificated Notes, (B) a certificate in the form 

of Exhibit C-5 hereto given by the Holder of such beneficial interest and (C) written instructions 

from such Holder designating the registered name or names, address and payment instructions of 

such Holder and the principal amounts of the applicable Certificated Notes to be executed and 

delivered to such Holder (the aggregate outstanding principal amounts of such Certificated Notes 

being the same as the beneficial interest in the Temporary Regulation S Global Note or 

Regulation S Global Note to be exchanged), then the Purchase Money Notes Registrar shall 

instruct the Depository to reduce the Temporary Regulation S Global Note or Regulation S 

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Global Note by the aggregate principal amount of the beneficial interest in the Temporary 

Regulation S Global Note or Regulation S Global Note to be exchanged, shall record the 

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

authenticate and deliver one or more Certificated Notes registered as specified in the instructions 

described in clause (A) above, in Authorized Denominations. 

(l) So long as a Certificated Note which is also a Restricted Note remains 

outstanding, transfers of such Certificated Note, in whole or in part, shall only be made in 

accordance with this Section 2.7(l). For the avoidance of doubt, this Section 2.7(l) shall not 

apply to any Certificated Note which is also an Unrestricted Note, the transfer of which shall be 

governed by Section 2.7(m). 

(i) Certificated Note to Temporary Regulation S Global Note or 

Regulation S Global Note. If a Holder of a Purchase Money Note represented by a Certificated 

Note wishes to exchange such Certificated Note for an interest in the corresponding Temporary 

Regulation S Global Note or Regulation S Global Note, or to transfer such Certificated Note to a 

Person who wishes to take delivery thereof in the form of an interest in the corresponding 

Temporary Regulation S Global Note or Regulation S Global Note, such Holder may exchange 

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

beneficial interest in the corresponding Temporary Regulation S Global Note or Regulation S 

Global Note, provided that such proposed transferee or the Person requesting such exchange, as 

applicable, is not a U.S. person. Upon receipt by the Purchase Money Notes Registrar of (A) 

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

Holder directing the Purchase Money Notes Registrar to cause to be credited a beneficial interest 

in the Temporary Regulation S Global Note or Regulation S Global Note in an amount equal to 

the principal amount of such Certificated Note, (B) a written order containing information 

regarding the Euroclear or Clearstream account to be credited with such increase, (C) a 

certificate in the form of Exhibit C-6 hereto, given by the Holder of such Certificated Note 

stating that the exchange or transfer of such interest has been made in compliance with the 

transfer restrictions applicable to the Temporary Regulation S Global Note or Regulation S 

Global Note, including that the proposed transferee or the Person requesting such exchange, as 

the case may be, is not a U.S. Person and that the proposed transfer is being made pursuant to 

and in accordance with Regulation S and (D) in the case of a transfer, a certificate in the form of 

Exhibit C-2 hereto given by the proposed transferee stating that it is not a U.S. person, the 

Purchase Money Notes Registrar shall cancel such Certificated Note in accordance with Section 

2.16, record the transfer in the Purchase Money Notes Register in accordance with Section 2.7(a) 

and instruct the Depository to increase the principal amount of the Temporary Regulation S 

Global Note or Regulation S Global Note by the aggregate principal amount of the Certificated 

Note to be exchanged or transferred, and to credit or cause to be credited to the account of the 

Person specified in such instructions a beneficial interest in the Temporary Regulation S Global 

Note or Regulation S Global Note equal to the amount specified in the instructions received 

pursuant to clause (A) above. Notwithstanding anything else in this Section 2.7(l)(i), prior to the 

Exchange Date a Certificated Note may only be exchanged or transferred for an equivalent 

beneficial interest in the corresponding Temporary Regulation S Global Note. 

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

Certificated Note wishes to exchange its interest in such Certificated Note for an interest in the 

corresponding Rule 144A Global Note, or to transfer its interest in such Certificated Note to a 

Person who wishes to take delivery thereof in the form of an interest in the corresponding Rule 

144A Global Note, such Holder may exchange or transfer, or cause the exchange or transfer of, 

such Certificated Note for an equivalent beneficial interest in the corresponding Rule 144A 

Global Note, provided 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 Notes Registrar of (A) such Certificated Note properly endorsed for such 

transfer and written instructions from such Holder directing the Purchase Money Notes Registrar 

to cause to be credited a beneficial interest in the 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-7 hereto given by the Holder of such Certificated Note and 

stating that, in the case of an exchange, the Holder is a Qualified Institutional Buyer and is also 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-4 hereto given by the proposed transferee stating that it is 

both a Qualified Institutional Buyer and a Qualified Purchaser, then the Purchase Money Notes 

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

in the Purchase Money Notes 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. 

(iii) 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 Notes 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-8 attached hereto given 

by the proposed transferee, then the Purchase Money Notes Registrar shall cancel such 

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

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

one or more Certificated Notes 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 Notes surrendered by the transferor), and in Authorized Denominations. 

If a Holder of one or more Certificated Notes wishes at any time to 

exchange such Certificated Notes for one or more Certificated Notes of different outstanding 

principal amounts, such Holder may exchange or cause the exchange of such Certificated Notes 

for Certificated Notes endorsed for exchange as provided below. Upon receipt by the Purchase 

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Money Notes Registrar of (A) such Holder’s Certificated Notes properly endorsed for such 

exchange and (B) written instructions from such Holder designating the number and principal 

amounts of the Certificated Notes to be issued (the aggregate outstanding principal amounts 

being equal to the outstanding principal amount of the Certificated Notes surrendered for 

exchange), then the Purchase Money Notes Registrar shall cancel such Certificated Notes in 

accordance with Section 2.16, record the exchange in the Purchase Money Notes Register in 

accordance with Section 2.7(a) and, upon execution by the Company, deliver one or more 

Certificated Notes endorsed for exchange, registered in the same name as the Certificated Notes 

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

Holder and in Authorized Denominations. 

(m) A Holder of a Certificated Note that also is an Unrestricted Note may at 

any time exchange such Certificated Note for a beneficial interest in a Global Note which is also 

an Unrestricted Note or transfer such Certificate Note to a Person who wishes to take delivery 

thereof in the form of an interest in the corresponding Global Note. A Holder of a beneficial 

interest in a Global Note which is also an Unrestricted Note may at any time exchange such 

beneficial interest for a Certificated Note which is also an Unrestricted Note or transfer such 

beneficial interest to a Person who wishes to take delivery thereof in the form of a corresponding 

Certificate Note. 

(n) If Purchase Money Notes are issued upon the transfer, exchange or 

replacement of Purchase Money Notes 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 such 

Purchase Money Notes, the Purchase Money Notes 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, shall, after due execution by the Company 

deliver Purchase Money Notes that do not bear such applicable legend. 

(o) Each Person who becomes a beneficial owner of Purchase Money Notes 

represented by an interest in a Rule 144A Global Note will be deemed to have represented and 

agreed as follows: 

(i) Such beneficial owner (A) is a Qualified Institutional Buyer and is 

acquiring such Purchase Money Notes in reliance on the exemption from Securities Act 

registration provided by Rule 144A thereunder, (B) is a Qualified Purchaser and (C) understands 

such Purchase Money Notes will bear a legend set forth in the applicable exhibit attached hereto 

and be represented by either one or more Rule 144A Global Notes. In addition, it represents and 

warrants that it (S) was not formed for the purpose of investing in the Company (except when 

each beneficial owner of the purchaser is a Qualified Purchaser), (T) has received the necessary 

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

before April 30, 1996, (U) 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, (V) 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, (W) will provide 

notice to any subsequent transferee of the transfer restrictions provided in the legend, (X) will 

hold and transfer Purchase Money Notes in an amount of not less than U.S.$500,000 for it or for 

each account for which it is acting, (Y) will provide the Company and Paying Agent from time to 

time such information as it may reasonably request in order to ascertain compliance with this 

Clause (i) and (Z) understands that the Company may receive a list of participants holding 

positions in its securities from one or more book entry depositories. 

(ii) Such beneficial owner understands that such Purchase Money 

Notes are being offered only in a transaction not involving any public offering in the United 

States within the meaning of the Securities Act, such Purchase Money Notes have not been and 

will not be registered under the Securities Act and, if in the future such beneficial owner decides 

to offer, resell, pledge or otherwise transfer such Purchase Money Notes, such Purchase Money 

Notes may be offered, resold, pledged or otherwise transferred only in accordance with the 

provisions of this Agreement and the legend on such Purchase Money Notes. Such beneficial 

owner 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 

Notes. 

(iii) In connection with the purchase of such Purchase Money Notes, 

(A) the Company is not acting as a fiduciary or financial or investment advisor for such 

beneficial owner; (B) such beneficial owner is not relying (for purposes of making any 

investment decision or otherwise) upon any advice, counsel or representations (whether written 

or oral) of the Company or the Receiver or any of their agents (in their capacities as such), other 

than any statements in a current offering circular for such Purchase Money Notes and any 

representations expressly set forth in a written agreement with such party; (C) such beneficial 

owner has consulted with its own legal, regulatory, tax, business, investment, financial and 

accounting advisers to the extent it has deemed necessary and has made its own investment 

decisions based upon its own judgment and upon any advice from such advisers as it has deemed 

necessary and not upon any view expressed by the Company or the Receiver; (D) such beneficial 

owner’s purchase of the Purchase Money Notes will comply with all applicable laws in any 

jurisdiction in which it resides or is located; (E) such beneficial owner is acquiring the Purchase 

Money Notes as principal solely for its own account for investment and not with a view to the 

resale, distribution or other disposition thereof in violation of the Securities Act; (F) such 

beneficial owner has made investments prior to the date hereof and was not formed solely for the 

purpose of investing in the Purchase Money Notes; (G) such beneficial owner is not a (1) 

partnership, (2) common trust fund or (3) special trust, pension, profit sharing or other retirement 

trust fund or plan in which the partners, beneficiaries or participants may designate the particular 

investments to be made; (H) such beneficial owner may not hold any Purchase Money Note for 

the benefit of any other Person, it will at all times be the sole beneficial owner thereof for 

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purposes of the Investment Company Act and all other purposes and it will not sell participation 

interests in the Purchase Money Notes or enter into any other arrangement pursuant to which any 

other Person will be entitled to a beneficial interest in the distributions on the Purchase Money 

Notes; (I) all securities of the Company purchased and held directly or indirectly by such 

beneficial owner have a value in the aggregate of no more than 40% of its total assets or capital 

(exclusive of government securities and cash items) on an unconsolidated basis; and (J) it is a 

sophisticated investor and is purchasing the Purchase Money Notes with a full understanding of 

all of the terms, conditions and risks thereof, and it is capable of assuming and willing to assume 

those risks. 

(iv) On each day from the date on which such beneficial owner 

acquires the Purchase Money Notes (or any interest therein) through and including the date on 

which such beneficial owner disposes of its interests in such Purchase Money Note, either that 

(A) such beneficial owner 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 or other 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 nonU.S., federal, state or local law that is similar to the provisions of Section 406 of ERISA or 

Section 4975 of the Code (any plan, account or arrangement described in this clause (A), a 

“Benefit Plan”) or (B) such beneficial owner’s acquisition, holding (including, without 

limitation, the exercise of rights thereunder) and disposition of such 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 4975 of the Code (or, in the case of a governmental or other 

plan, a violation of any substantially similar foreign, federal, state or local law). 

(v) Such beneficial owner understands that this Agreement permits the 

Company to demand that any Holder of Rule 144A Global Notes who is determined not to be 

both a Qualified Institutional Buyer and a Qualified Purchaser at the time of acquisition of such 

Purchase Money Notes, to sell the Purchase Money Notes (a) to a Person who is both (1) a 

Qualified Institutional Buyer and (2) a Qualified Purchaser in a transaction meeting the 

requirements of Rule 144A or another applicable exemption from the registration requirements 

of the Securities Act or (b) to a Person who will take delivery in the form of an interest in a 

Temporary Regulation S Global Note or Regulation S Global Note and who is not a U.S. Person 

in a transaction meeting the requirements of Regulation S and, if the Holder does not comply 

with such demand within 30 days thereof, the Company may sell such Holder’s interest in the 

Purchase Money Note in accordance with and pursuant to the terms of this Agreement. 

(vi) Such beneficial owner 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, the 

Purchase Money Notes will be treated as indebtedness of the Company; it agrees to such 

treatment and agrees to take no action inconsistent with such treatment. 

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(vii) Such beneficial owner, if it is not a "U.S. person", as such term is 

defined in Section 7701(a)(30) of the Code, is not acquiring any Purchase Money Notes as part 

of a plan to reduce, avoid or evade U.S. Federal Income taxes owed, owing or potentially owed 

or owing. 

(viii) Such beneficial owner is aware that, except as provided in this 

Agreement, the Purchase Money Notes sold to it will be represented by one or more Rule 144A 

Global Notes and that the beneficial interests therein may be held only through the Depository or 

one of its nominees, as applicable. 

(ix) Such beneficial owner agrees that it will not offer or sell, transfer, 

assign, or otherwise dispose of any Purchase Money Notes 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. 

(x) Such beneficial owner 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 hereby consents to such reliance. 

(xi) Such beneficial owner will provide notice to each Person to whom 

it proposes to transfer any interest in the Purchase Money Notes of the transfer restrictions and 

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

(xii) If such beneficial owner is acquiring the Purchase Money Notes 

from an existing Holder, such beneficial owner has satisfied and will satisfy all applicable 

registration and other requirements of the FRB in connection with its acquisition of the Purchase 

Money Notes. 

(p) Each Person who becomes a beneficial owner of Purchase Money Notes 

represented by an interest in a Temporary Regulation S Global Note or Regulation S Global Note 

will be deemed to have made the representations set forth in clauses (ii), (iii), (iv), (vi), (vii), (ix), 

(x) and (xi) above and will be deemed to have further represented and agreed as follows: 

(i) Such beneficial owner is aware that the sale of Purchase Money 

Notes to it is being made in reliance on the exemption from registration provided by Regulation 

S and understands that the Purchase Money Notes offered in reliance on Regulation S will bear a 

legend set forth in the applicable Exhibit attached hereto and be represented by one or more 

Temporary Regulation S Global Notes or Regulation S Global Notes. The Purchase Money 

Notes so represented may not at any time be held by or on behalf of U.S. Persons as defined in 

Regulation S under the Securities Act. It and each beneficial owner of the Purchase Money Notes 

that it holds is not, and will not be, a U.S. Person as defined in Regulation S under the Securities 

Act or a U.S. resident within the meaning of the Investment Company Act, and its purchase of 

the Purchase Money Notes will comply with all applicable laws in any jurisdiction in which it 

resides or is located. 

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(ii) Such beneficial owner understands that this Agreement permits the 

Company to demand that any Holder of Regulation S Global Notes who is determined to be a 

U.S. Person to sell the Purchase Money Notes (A) to a Person who is not a U.S. Person in a 

transaction meeting the requirements of Regulation S or (B) to a Person who will take delivery of 

the Holder’s Temporary Regulation S Global Notes or Regulation S Global Notes, as applicable, 

in the form of an interest in a Rule 144A Global Note or a Certificated Note and who is both a 

Qualified Institutional Buyer and a Qualified Purchaser, in a transaction meeting the 

requirements of Rule 144A or another applicable exemption from the registration requirements 

of the Securities Act and, if the Holder does not comply with such demand within 30 days 

thereof, the Company may sell such Holder’s interest in the Purchase Money Note in accordance 

with and pursuant to the terms of this Agreement. 

(iii) A Holder of a beneficial interest in a Temporary Regulation S 

Global Note must provide Euroclear or Clearstream or the participant organization through 

which it holds such interest, as the case may be, with a certificate certifying that the beneficial 

owner of the interest in the Temporary Regulation S Global Note is a non-U.S. Person, and 

Euroclear or Clearstream, as the case may be, must provide to the Paying Agent a certificate to 

such effect, prior to (A) the payment of principal with respect to such Holder’s beneficial interest 

in the Temporary Regulation S Global Note and (B) any exchange of such beneficial interest for 

a beneficial interest in a Regulation S Global Note. 

(iv) Such beneficial owner is aware that, except as otherwise provided 

in this Agreement, the Purchase Money Notes being sold to it, if any, in reliance on Regulation S 

will be represented by one or more Temporary Regulation S Global Notes or Regulation S 

Global Notes and that in each case beneficial interests therein may be held only through 

Euroclear or Clearstream. 

(v) Such beneficial owner does not have its principal place of business 

in any Federal Reserve District of the FRB, or it has satisfied and will satisfy all applicable 

registration and other requirements of the FRB in connection with its acquisition of the Purchase 

Money Notes 

(vi) On each day from the date on which such beneficial owner 

acquires any Temporary Regulation S Global Note or Regulation S Global Note (or any interest 

therein) through and including the date on which such beneficial owner disposes of its interests 

in such Temporary Regulation S Global Note or Regulation S Global Note, either that (A) such 

beneficial owner is not, and is not acting on behalf of, or using the assets of any Benefit Plan, or 

(B) such beneficial owner’s acquisition, holding (including, without limitation, the exercise of 

rights thereunder) and disposition of such 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 4975 of the Code (or, in the case of a governmental or other plan, a violation of any 

substantially similar foreign, federal, state or local law). 

(q) The provisions of the “Operating Procedures of the Euroclear System” of 

Euroclear and the “Terms and Conditions Governing Use of Participants” of Clearstream, 

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respectively, shall be applicable to the Temporary Regulation S Global Notes and Regulation S 

Global Notes insofar as interests in such Global Notes are held by the Agent Members of 

Euroclear or Clearstream, as the case may be. 

(r) Agent Members shall have no rights under 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 herein 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 of the rights of a beneficial interest in any Global Note. 

(s) Notwithstanding any provision to the contrary herein, 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. 

(t) Any purported transfer or exchange of a 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. 

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

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

Person. 

(v) Notwithstanding anything contained herein to the contrary, neither the 

Paying Agent nor the Purchase Money Notes 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 that if a 

certificate is specifically required by the express terms of this 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. 

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

Company, the Company may adopt one or more other forms of transfer certificate with respect to 

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

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 Reissuance of Purchase Money Notes. Upon the maturity of any Purchase 

Money Note (a “Maturing Purchase Money Note”), the Company, at the direction of the 

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Purchase Money Notes Guarantor, shall reissue such Purchase Money Note (such reissued 

Purchase Money Note, a “Reissued Purchase Money Note”) to the Receiver with terms and 

conditions as are directed by the Receiver and substantially similar to the terms and conditions of 

the related Maturing Purchase Money Note (including not accruing interest) and a new maturity 

date satisfactory to the Purchase Money Notes Guarantor; provided, however, that (x) (i) the 

maturity date of such Reissued Purchase Money Note shall not be later than the seventh 

anniversary of the Closing Date and (ii) the outstanding principal amount of such Reissued 

Purchase Money Note at the time of its issuance shall equal (A) the outstanding principal amount 

of the related Maturing Purchase Money Note minus (B) the aggregate amount paid to the 

Holders of such related Maturing Purchase Money Note pursuant to Section 3.3 and (y) no 

modification contained in such Reissued Purchase Money Note shall adversely affect (i) the 

amount or timing of distributions to the Private Owner pursuant to the Priority of Payments, (ii) 

any other rights or obligations of the Private Owner pursuant to this Agreement or any Ancillary 

Document (other than the Purchase Money Notes) or (iii) the rights or interests of any Holder of 

any other Purchase Money Notes or any owner of an interest therein. Simultaneously with the 

issuance of any Reissued Purchase Money Note, the Company shall use the proceeds of such 

Reissued Purchase Money Note to repay the Holders of the related Maturing Purchase Money 

Note at maturity in accordance with their Holder Percentages. Each reissued Purchase Money 

Note shall be subject to all of the terms and conditions of this Agreement. 

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

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

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 any 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 such 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 Notes 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 

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a new Purchase Money Note pay such 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 under 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 Notes duly issued hereunder. 

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 Notes. 

Section 2.10 Payments with Respect to the Purchase Money Notes. 

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

or more predecessor Purchase Money Notes) effected by prepayments of principal shall be 

binding upon all future Holders of such 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, each 

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 any Purchase Money Note shall be 

made by or on behalf of the Company, in U.S. dollars, to the Depository 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 the Holder, in immediately available funds to a U.S. dollar account 

maintained by the Depository or its nominee with respect to a Global Note, and to the Holder or 

its designee with respect to a Certificated Note; provided 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 Notes Register. Upon final payment due on the maturity of a 

Purchase Money Note, the Holder thereof shall present and surrender such Purchase Money Note 

at the office of the Paying Agent on or prior to such maturity; provided 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 such 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, such 

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final payment shall be made without presentation or surrender. All notices and communications 

to be given to the Holders and all payments to be made to Holders in respect of the Purchase 

Money Notes 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 Euroclear, Clearstream or any of the Agent Members relating to or for 

payments made thereby on account of beneficial interests in a Global Note. 

(c) No payment shall be made to the Holder of any beneficial interest in a 

Temporary Regulation S Global Note unless such Holder has provided Euroclear or Clearstream 

or the participant organization through which it holds such interest with a certificate certifying 

that such Holder is not a U.S. Person. 

Section 2.11 Mandatory Exchange. 

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

or more Certificated Notes 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, Clearstream or Euroclear, as applicable, 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 hereof. 

(b) Any 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, an equal 

aggregate principal amount of Certificated Notes in Authorized Denominations. Any Certificated 

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

by Section 2.7(n) hereof, bear the legends set forth in the applicable Exhibit hereto 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 under this Agreement or the Purchase Money Notes. 

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

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

supply of Certificated Notes in definitive, fully registered form without interest coupons. The 

Certificated Notes 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 Notes, as 

the case may be, the same original aggregate principal amount of Certificated Notes of 

Authorized Denominations. 

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Section 2.12 Notes 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 Certificated Note which is also a Restricted 

Note to a U.S. Person that is not both a Qualified Institutional Buyer and a Qualified Purchaser, 

(ii) a Regulation S Global Note or a Temporary Regulation S Global Note to any U.S. Person or 

(iii) an Unrestricted Note to a Person who is not a Qualified Purchaser shall be null and void, 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 U.S. Person that is not a Qualified Institutional Buyer and a 

Qualified Purchaser shall become the owner of a beneficial interest in any Rule 144A Global 

Note or the owner of a Certificated Note which is also a Restricted Note, (ii) any U.S. Person 

shall become the owner of a beneficial interest in any Temporary Regulation S Global Note or 

Regulation S Global Note or (iii) any Person shall be become the owner of (or, in case of Global 

Notes, the owner of the beneficial interest in) any Unrestricted Note (any such Person, a “NonPermitted Holder”), the Company, or the Paying Agent acting on behalf of the Company shall, 

promptly after discovery that such Person is a Non-Permitted Holder by the Company or the 

Paying Agent (and notice by the Paying Agent to the Company), send notice to such NonPermitted Holder demanding that such Non-Permitted Holder transfer its interest to a Person that 

is not a Non-Permitted Holder within 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, or the 

Paying Agent acting on behalf of the Company, with the assistance of an independent investment 

bank of national reputation engaged at the expense of the Company, shall select the 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 Notes and selling such interest to the highest 

such bidder. However, the Company or the Paying Agent may select a purchaser by any other 

means determined by it in its sole discretion. The Holder of each Purchase Money Note, the 

Non-Permitted 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 Notes, 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 under 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 Notes 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 Holder, such tax shall reduce the amount otherwise payable to such Holder. 

The Company is hereby authorized to withhold from amounts otherwise payable to any Holder 

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 

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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 Holder shall 

be treated as cash paid to such Holder 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 beneficial owner of Purchase Money 

Notes 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 Notes. 

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 any Purchase Money 

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

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

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

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

the Company, nor 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. With respect to each Purchase Money Note and the 

Purchase Money Notes Guaranty, in any case in which consent of the “Holder,” in the case of 

any Purchase Money Note, or the “Noteholder”, in the case of the Purchase Money Notes 

Guaranty, is required, such consent requirement shall be satisfied if (i) with respect to any 

Purchase Money Note, the Holders of more than fifty percent (50%) of the outstanding principal 

amount of such Purchase Money Note consent and (ii) with respect to the Purchase Money Notes 

Guaranty, the Holders of more than fifty percent (50%) of the outstanding principal amount of all 

Purchase Money Notes consent. Notwithstanding the foregoing, with respect to each of the 

following, such consent requirement shall only be satisfied if each affected Holder consents: 

(a) 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, any 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, any Purchase Money Note is payable; (IV) amend or otherwise modify the 

definition of “Event of Default” as defined in any Purchase Money Note; or (V) amend, waive or 

otherwise modify this Section 2.15; and 

(b) any amendment, waiver or other modification that would release the 

Purchase Money Notes Guarantor from all or any part of its obligation to make each and every 

payment under the Purchase Money Notes Guaranty. 

Section 2.16 Cancellation. All Purchase Money Notes 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 

canceled by it and may not be reissued or resold. No Purchase Money Notes shall be issued in 

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lieu of or in exchange for any Purchase Money Notes canceled as provided in this Section 2.16, 

except as expressly permitted by this Agreement. All cancelled Purchase Money Notes 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 they 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 the Rule 144A Global Notes and Unrestricted Notes 

represented by Global Notes: 

(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 (A) the Rule 144A Global Notes in order to indicate that sales are limited to 

Persons that are both Qualified Institutional Buyers and Qualified Purchasers and (B) the 

Unrestricted Notes represented by Global Notes in order to indicate that sales are limited to 

Persons that are 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 purchasers 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 O hereto to all Depository participants in connection 

with the offering of the Rule 144A Global Notes or the Unrestricted Notes represented by Global 

Notes. 

(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 Notes and the 

Unrestricted Notes represented by Global Notes in the Depository’s “Reference Directory” of 

Section 3(c)(7) offerings. 

(v) The Company from time to time shall (upon the request of the 

Paying Agent or the Purchase Money Notes Registrar) request the Depository to deliver to the 

Company a list of all Depository participants holding an interest in the Rule 144A Global Notes 

or the Unrestricted Notes represented by Global Notes . 

(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 Notes and Section 

3(c)(7) restrictions on the Unrestricted Notes represented by Global Notes. Without limiting the 

foregoing, the Company shall request Bloomberg, L.P. to include the following on each 

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Bloomberg screen containing information about the Rule 144A Global Notes or the Unrestricted 

Notes represented by Global Notes: 

(i) The “Note Box” on the bottom of the “Security Display” page 

describing (A) each Rule 144A Global Note should state: “Iss’d Under 144A/3c7” and (B) each 

Unrestricted Note represented by a Global Note should state: “Iss’d Under 3c7”. 

(ii) The “Security Display” page should have a flashing red indicator 

stating “See Other Available Information”. 

(iii) Such indicator should link to an “Additional Security Information” 

page, which should state that (A) the Rule 144A Global Notes “are being offered in reliance on 

the exemption from registration under Rule 144A to Persons that are both (1) qualified 

institutional buyers (as defined in Rule 144A) and (2) qualified purchasers (as defined under 

Section 3(c)(7))” and (B) the Unrestricted Notes represented by Global Notes “are being offered 

to Persons that are qualified purchasers (as defined under Section 3(c)(7))”. 

(c) CUSIP. The Company shall cause each “CUSIP” number obtained for (A) 

the Rule 144A Global Notes to have an attached “fixed field” that contains “3c7” and “144A” 

indicators and (B) the Unrestricted Notes represented by Global Notes to have an attached “fixed 

field” that contains a “3c7” indicator. 

ARTICLE III 

ACCOUNTS
 

Section 3.1 Collection Account. On the date hereof, the Company shall establish the 

Collection Account with the Paying Agent. For all Loan Proceeds with respect to any Group of 

Loans received by the Receiver during the Interim Servicing Period for which the Servicing 

Transfer Date has not occurred, the Receiver shall transfer any such Loan Proceeds, net of any 

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 Loan Proceeds with respect to any Group of Loans received after the 

Interim Servicing Period and for which the Servicing Transfer Date has occurred, the Company 

shall transfer, or cause the Servicer or Subservicer to transfer, all Loan Proceeds within two (2) 

Business Days of receipt of such funds to the Paying Agent for deposit into the Collection 

Account. No funds from any other source (other than Loan Proceeds, interest or earnings on the 

Loan Proceeds, funds transferred from the Working Capital Reserve Account pursuant to 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. 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 Loan, but only to the extent of Loan Proceeds from the Loan with respect to which 

the Discretionary Funding Advance was made; (ii) second, to the payment of the thenoutstanding amount of Servicing Expenses and Pre-Approved Charges either then due and 

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payable or subject to reimbursement; (iii) third, to fund any Funding Draws permitted pursuant 

to any Loan Documents; and (iv) the balance, if any, to be transferred to the Distribution 

Account in accordance with Section 3.2; provided, however, that any Discretionary Funding 

Advances may be used to fund Funding Draws with respect to the Loan to which such 

Discretionary Funding Advances relate. 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 Servicing Expenses and Pre-Approved Charges. The Manager will have authority to request 

the withdrawal of funds from the Collection Account at any time to pay Servicing Expenses and 

Pre-Approved Charges and to fund any Funding Draws, all in accordance with the terms of this 

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 will have authority 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. 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. Upon instruction, the Paying Agent shall be authorized and directed to 

withdraw funds from the Collection Account only to pay the Servicing Expenses and PreApproved Charges, to fund any Funding Draws, to transfer funds to the Distribution Account 

pursuant to Section 3.2 and as otherwise set forth in this Agreement 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 

to the Account Control Agreement in substantially the form attached hereto as Exhibit N. 

Section 3.2 Distribution Account. On the date hereof, the Company shall establish the 

Distribution Account with the Paying Agent. 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. No funds from any other source shall be commingled in the 

Distribution Account. Amounts on deposit in (or that are required to have been deposited into) 

the Distribution Account (including interest and earnings thereon) shall be allocated and may be 

withdrawn and disbursed only in accordance with the provisions of Section 5.1. 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 to the 

Account Control Agreement. 

Section 3.3 Defeasance Account. On the date hereof, the Company shall establish the 

Defeasance Account with the Paying Agent. The Paying Agent shall transfer funds to the 

Defeasance Account pursuant to the Priority of Payments. No funds from any other source 

(other than interest or earnings on amounts described in the immediately preceding sentence and 

amounts deposited (i) pursuant to this Section 3.3, (ii) deposits made by the Purchase Money 

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Notes Guarantor as described in this Section 3.3 or (iii) deposits made by the Manager pursuant 

to Section 5.4(y) of the LLC Operating Agreement) shall be commingled in the Defeasance 

Account. The Paying Agent shall invest the amounts on deposit in the Defeasance Account in 

Permitted Investments in accordance with investment directions from the Purchase Money Notes 

Guarantor. If, on the maturity date of any Purchase Money Note, there exists a net loss on 

investments on amounts deposited into the Defeasance Account, prior to any liquidation and 

payment described in the following five sentences, the Purchase Money Notes Guarantor shall 

deposit the amount of such net loss into the Defeasance Account; for the avoidance of doubt, no 

such deposit by the Purchase Money Notes Guarantor shall constitute a payment pursuant to the 

Purchase Money Notes Guaranty. On the Term Note A-1 Maturity Date, the Paying Agent after 

making all disbursements required pursuant to Section 5.1, shall liquidate a portion (or, if there 

are insufficient funds in the Defeasance Account with which to repay the Holders of the Term A1 Purchase Money Note pursuant to this sentence, the entire Defeasance Account) of the 

Defeasance Account sufficient to pay all amounts owing to the Holders of the Term A-1 

Purchase Money Note on the Term Note A-1 Maturity Date and pay all proceeds of such 

liquidation to the Holders of the Term A-1 Purchase Money Note in accordance with their 

Holder Percentages. On the Term Note A-2 Maturity Date, the Paying Agent, after making all 

disbursements required pursuant to Section 5.1, shall liquidate a portion (or, if there are 

insufficient funds in the Defeasance Account with which to repay the Holders of the Term A-2 

Purchase Money Note pursuant to this sentence, the entire Defeasance Account) of the 

Defeasance Account sufficient to pay all amounts owing to the Holders of the Term A-2 

Purchase Money Note on the Term Note A-2 Maturity Date and pay all proceeds of such 

liquidation to the Holders of the Term A-2 Purchase Money Note in accordance with their 

Holder Percentages. On the Term Note A-3 Maturity Date, the Paying Agent, after making all 

disbursements required pursuant to Section 5.1, shall liquidate a portion (or, if there are 

insufficient funds in the Defeasance Account with which to repay the Holders of the Term A-3 

Purchase Money Note pursuant to this sentence, the entire Defeasance Account) of the 

Defeasance Account sufficient to pay all amounts owing to the Holders of the Term A-3 

Purchase Money Note on the Term Note A-3 Maturity Date and pay all proceeds of such 

liquidation to the Holders of the Term A-3 Purchase Money Note in accordance with their 

Holder Percentages. If, pursuant to Section 2.8, a Reissued Purchase Money Note is issued upon 

the maturity of the related Maturing Purchase Money Note, this Section 3.3 shall apply to such 

Reissued Purchase Money Note following the full or partial liquidation of the Defeasance 

Account and payment of the Holders of the related Maturing Purchase Money Note and the 

issuance of such Reissued Purchase Money Note. Following the maturity date of the last 

maturing Purchase Money Note (including any Reissued Purchase Money Note) and the payment 

in full of the Holders of such Purchase Money Note, the Paying Agent shall liquidate the 

Defeasance Account and pay any and all proceeds of such liquidation to the Purchase Money 

Notes Guarantor. The Paying Agent shall be 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 under the Reimbursement, Security and 

Guaranty Agreement and to the Account Control Agreement. 

Section 3.4 [Intentionally Omitted] 

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Section 3.5 [Intentionally Omitted] 

Section 3.6 Working Capital Reserve Account. On the date hereof, the Company shall 

establish the Working Capital Reserve (the “Working Capital Reserve”) with the Paying Agent 

for the purpose of (a) paying the Working Capital 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, in which case the Company, shall 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, and (b) funding all Funding Draws as permitted pursuant 

to the applicable Loan Documents, in which case the Company, in the exercise of its reasonable 

discretion, may instruct the Paying Agent to release some or all of the funds from the Working 

Capital Reserve Account and allocate and distribute such released funds to the Company for the 

funding of such Funding Draws. 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 Working Capital Reserve funds. 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)(iv) of this Agreement. At all times prior to 

the Purchase Money Notes Defeasance Date, the Manager, in the exercise of its reasonable 

discretion, shall determine the amount of funds to be on deposit in the Working Capital Reserve 

Account, which amount shall be equal to or greater than the Working Capital Reserve Floor but 

less than the Working Capital Reserve Replenishment 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. 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. 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 of Payments pursuant to Section 5.1 of this Agreement and the LLC Operating 

Agreement. 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 a maturity that allows 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 

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Capital Reserve Account and funding from the Initial Member as described in this Section) shall 

be commingled in the Working Capital Reserve Account. The Paying Agent shall be 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 under the Reimbursement, Security and Guaranty Agreement and to the 

Account Control Agreement. 

Section 3.7 Excess Working Capital Advances. 

The Manager shall make Excess Working Capital Advances to the Paying Agent from its 

own funds in accordance with the terms described in Section 5.4 of the LLC Operating 

Agreement and to the extent that there are insufficient funds (a) in the Collection Account or the 

Working Capital Reserve with which to pay Working Capital Expenses in full or (b) in the 

Distribution Account to fund the Defeasance Account by such amount as might be required to 

cure a Purchase Money Notes Trigger Event. The Manager shall direct the Paying Agent to 

deposit any Excess Working Capital Advances to pay Working Capital Expenses into the 

Collection Account (from which the funds will be available to pay such Working Capital 

Expenses) and shall direct the Paying Agent to deposit any Excess Working Capital Advances as 

might be required to cure a Purchase Money Notes Trigger Event into the Defeasance Account. 

Section 3.8 Discretionary Funding Advances. Pursuant to Section 5.3 of the LLC 

Operating Agreement, the Manager may make, at its discretion, Discretionary Funding Advances 

from its own funds to the extent there are insufficient funds in the Collection Account and the 

Working Capital Reserve with which to fund any Funding Draw permitted pursuant to any Loan 

Documents, which Discretionary Funding Advances are to be designated as applicable only to 

the Loan for which any Funding Draw is funded. Any Discretionary Funding Advances are to be 

deposited into the Collection Account from which the funds will be available to fund such 

Funding Draw. 

Section 3.9 Private Owner Pledged Account. 

(a) On the date hereof, the Private Owner shall establish 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 subsequent 

to the date hereof in full and complete substitution for a Qualifying Letter of Credit pursuant to 

the LLC Operating Agreement or upon the liquidation or drawing down of a Qualifying Letter of 

Credit 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 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. 

(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 

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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 Five Million Dollars ($5,000,000.00). 

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) (i) The Company or the Purchase Money Notes Guarantor, as 

applicable, 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 or the Defeasance Account, as applicable, amounts received 

and retained in such Accounts, as so directed in Permitted Investments. If the Company or the 

Purchase Money Notes Guarantor, as applicable, shall not have given any such investment 

directions, the Paying Agent shall seek investment directions from such Person within three (3) 

Business Days after transfer of such funds to the Collection Account, the Working Capital 

Reserve Account, or the Defeasance Account, as applicable. If the Company or the Purchase 

Money Notes Guarantor, as applicable, does not provide the Paying Agent with investment 

directions pursuant to Sections 3.1, 3.3, 3.6 or 4.1, the balance standing to the credit of the 

Collection Account, the Working Capital Reserve Account or the Defeasance Account, as 

applicable, will remain uninvested with no liability for interest thereon. 

(ii) The Private Owner may direct the Paying Agent to, and, upon 

receipt of such investment direction, the Paying Agent shall, invest amounts received and 

retained in the Private Owner Pledged Account, as so directed in Permitted Investments. If the 

Private Owner shall not have given any such investment directions, the Paying Agent shall seek 

investment directions from the Private Owner within three (3) Business Days after transfer of 

such funds to the Private Owner Pledged Account. If the Private Owner does not provide the 

Paying Agent with investment directions pursuant to Section 3.9, the balance standing to the 

credit of the Private Owner Pledged Account will remain uninvested with no liability for interest 

thereon. All such Permitted Investments must remain in the Private Owner Pledged Account as 

Qualifying Cash Collateral. 

(iii) 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 and the Defeasance Account (collectively, the 

“Company Accounts”), 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 

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authorized in accordance with the terms hereof to make a transfer of funds from the Company 

Accounts (unless such transfer is between the Company 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 Company 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 Company or the 

Purchase Money Notes Guarantor, or the Private Owner, 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 4:00 p.m. New York time on the day of 

deposit. Directions to invest or reinvest that are received after 4:00 p.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 (other than the Defeasance 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 Company Account into which such amount is to be credited, the Paying Agent shall notify 

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the Company, the Purchase Money Notes Guarantor and the Collateral Agent of such event and 

shall request instructions as to the Company 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 instructions from the Company (with the written consent of the Purchase Money Notes 

Guarantor and the Collateral Agent) stating that such amount should be credited to another 

Company Account in accordance with this Agreement, in which case it shall credit such amount, 

if still available, to the Company Account designated by the Company (with the written consent 

of the Purchase Money Notes 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 on the Distribution Date 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 and this Agreement. 

ARTICLE V 

DISTRIBUTIONS 

Section 5.1 Priority of Payments. 

(a) Notwithstanding any other provision in this Agreement, 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 11.4. 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 

5.1(b)(vii) 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: 

(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 Loans, to pay to (1) the Initial Member the Interim 

Servicing Fee, together with any unpaid portion of the Interim Servicing Fee for any prior Due 

Period and (2) the Manager, an amount equal to the Interim Servicing Fee (the “Interim 

Management Fee”), together with any unpaid portion of the Interim Management Fee for any 

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prior Due Period, and (B) for each Due Period following the Interim Servicing Period, with 

respect to each Group of Loans, 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 in the Excess Working Capital Advances made by 

the Manager pursuant to Section 5.4 of the LLC Operating Agreement and Section 3.7 above; 

(iv) fourth, subject to the provisions of Section 3.6 above, all of the 

remaining amount shall be utilized to replenish the Working Capital Reserve until the amount of 

funds held in the Working Capital Reserve Account is equal to or greater than the Working 

Capital Reserve Floor but less than the Working Capital Reserve Replenishment Cap; 

(v) fifth, all of the remaining amount shall be deposited into the 

Defeasance Account until the amount of funds held in the Defeasance Account is equal to the 

sum of the outstanding principal balances of the Purchase Money Notes; 

(vi) sixth, 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 Notes Guarantor pursuant to the Reimbursement, Security and 

Guaranty Agreement for previous payments made by it under the Purchase Money Notes 

Guaranty; and 

(vii) finally, all remaining amounts shall be paid to the Initial Member 

and the Private Owner in accordance with Section 6.6 of the LLC Operating Agreement. 

Section 5.2 Notices of Payment Failure. The Paying Agent shall deliver prompt 

written notice to the Company, the Purchase Money Notes Guarantor and the Collateral Agent in 

the event that it fails to receive in full the amount required to be paid by the Company, 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. 

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 at Wells Fargo Document and Custody, 1055 10th Avenue, SE, Minneapolis, 

Minnesota 55414, Attention: (the “Office”). 

(b) Collateral Certificate; Exceptions. The Custodian shall make available 

during normal business hours, and at such other hours as might 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 

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(6) people to review the Custodial Documents with representatives of the Custodian for a period 

of not more than ten (10) 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 Notes Guarantor and 

the Collateral Agent a certificate, substantially in the form annexed hereto as Exhibit E, to the 

effect that the Custodian has received and reviewed the Custodial Documents and including a 

Loan Schedule and Exception List (“Collateral Certificate”). In reviewing the documents 

provided with respect to a Loan, the Custodian shall examine the same in accordance with the 

procedures set forth on Exhibit F hereto and determine, with respect to each such document, 

whether it (i) appears regular on its face (i.e., is not mutilated, damaged, torn, defaced or 

otherwise physically altered), (ii) relates to such Loan, (iii) has been executed by the 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 Loan and Acquired Property, 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 Multibank 2009-1 CML-ADC Venture, 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 to the Contribution Agreement; 

(ii) the original Mortgage with evidence of recording thereon, or a 

certified 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 of all assumption, modification, consolidation or 

extension agreements (if any) with evidence of recording thereon, or certified copies thereof 

from the applicable Recording Office, or 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; 

(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; 

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(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 of 

all intervening Mortgage Assignments (if any) with evidence of recording thereon, or certified 

copies thereof 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; 

(viii) the original attorney’s opinion of title and abstract of title or the 

original mortgage title insurance policy or, if the original mortgage title insurance policy has not 

been issued, the irrevocable commitment to issue the same; 

(ix) the originals of all Underlying Collateral Documents executed in 

connection with the Loan, 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 

Loan under the Uniform Commercial Code; 

(xi) if the equity interests of any Ownership Entity are certificated, the 

certificate representing such equity interest; 

(xii) any bailee letters regarding any Notes or other Custodial 

Documents held by the bailee; and 

(xiii) solely with respect to each MERS Designated Loan, a MERS 

Report. 

(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 a Loan that is not Acquired Property within ten (10) days following the execution and 

delivery of any such instrument and (ii) any and all Custodial Documents with respect to any 

Acquired Property within ten (10) 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 “Supplemental Delivery Certificate”), prepared by an 

Authorized Representative of the Company, itemizing the Custodial Documents being delivered 

to the Custodian in such delivery and identifying the Loan or Acquired Property 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 a Loan or Acquired 

Property 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, torn, defaced or otherwise physically altered), (ii) 

relates to such Loan or Acquired Property, (iii) has been executed by the named parties thereon, 

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(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 a Loan or Acquired Property are 

placed in the file for the related Loan. In the event the Custodian determines that the 

Supplemental Delivery Certificate is inaccurate, the Custodian shall so notify the Company in 

writing no later than the first Business Day following its receipt of the Supplemental Delivery 

Certificate. Within seven (7) 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 Notes Guarantor and the Collateral Agent) with a Collateral Certificate, to the 

effect that the Custodian has received and reviewed the additional Underlying Collateral 

Documents, and include a revised Loan Schedule and Exception List. 

(e) Loan Schedules; Exception Lists; Review Procedures. Each Loan 

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 Loan Schedule and Exception List 

delivered by the Custodian to the Company shall supersede and cancel the Loan Schedule and 

Exception List previously delivered by the Custodian to the Company hereunder, and shall 

replace the then existing Loan Schedule and Exception List to be attached to the Collateral 

Certificate. Notwithstanding anything to the contrary set forth herein, in the event that the Loan 

Schedule and Exception List attached to the Collateral Certificate is different from the most 

recently delivered Loan Schedule and Exception List, then the most recently delivered Loan 

Schedule and Exception List shall control and be binding upon the parties hereto. The delivery 

of each Loan 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 Loan Schedule 

and Exception List: (i) all documents required to be delivered in respect of a Loan or Acquired 

Property 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 Loan or Acquired Property and to satisfy (except in the case of a MERS Designated 

Loan) the requirements set forth in Section 6.1(c) of this Agreement, (iii) subject to the 

provisions of Section 7.2(b), each Loan (except in the case of a MERS Designated Loan) or 

Acquired Property identified on such Loan 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 Loan is being held by MERS® as the nominee for the Company. In 

connection with a Loan 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 Loan or Acquired Property. 

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 Notes Guarantor and their respective agents, 

accountants, attorneys and auditors, and any other Persons designated by the Company, the 

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Collateral Agent or the Purchase Money Notes Guarantor, as applicable, 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 or the Purchase 

Money Notes 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 

shall reimburse the Custodian for the actual, reasonable and customary costs incurred in 

providing copies of such Custodial Documents. 

Section 6.3 Shipment of Custodial Documents. Prior to any shipment of any 

Custodial Documents hereunder, 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 herein to utilize a nationally recognized courier 

service. 

ARTICLE VII 

CUSTODIAN 

Section 7.1 Appointment of the Custodian. Subject to the terms and conditions of this 

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 of the 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. 

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(b) Pledge of Loans 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 Loans, the Acquired Property and the Custodial 

Documents to the Collateral Agent for the benefit of the Purchase Money Notes Guarantor and 

the other Secured Parties (as defined in the Reimbursement, Security and Guaranty Agreement) 

as security for certain obligations of the Company under the Purchase Money Notes Guaranty. 

Accordingly, notwithstanding anything to the contrary contained in this Agreement, the 

Custodian acknowledges and agrees that it holds possession of the Notes and the other Custodial 

Documents for the Collateral Agent’s benefit pursuant to Section 9-313(c) of the Uniform 

Commercial Code, and the Custodian shall mark its records to reflect the pledge of the Loans, 

the Acquired Property and the Custodial Documents by the Company to the Collateral Agent. 

The Custodian’s records shall reflect the pledge of the Loans, the Acquired Property 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 of the Custodial Documents being requested for release and that the Loans 

and the Acquired Property 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 

Loans, the Acquired Property and the Custodial Documents and that the Custodian is holding the 

Loans, the Acquired Property 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 ensure that all Underlying Collateral Documents that are 

removed from the Custodian’s possession are returned to the Custodian’s possession within the 

time provided by the applicable Uniform Commercial Code to maintain the Collateral Agent’s 

perfection. 

(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 of the 

Custodian to perform its duties and obligations under this Agreement. 

(d) Events of Default Under the Reimbursement, Security and Guaranty 

Agreement. Upon the Custodian’s receipt from the Collateral Agent or the Purchase Money 

Notes Guarantor of written notice at its Office that an Event of Default under 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 hereunder. 

(e) Third Party Demands. In the event that (i) the Company or the Custodian 

shall be served by a third party with any type of levy, attachment, writ or court order with respect 

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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 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. 

(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 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 a Loan, or a discounted payoff as payment in full of such Loan, 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 a Loan or the 

Underlying 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. 

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(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. 

(j) Survival. The provisions of this Section 7.2 shall survive the resignation 

or removal of the Custodian and Paying Agent and the termination of this 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 under 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, as well as any reasonable and customary attorneys’ fees. The Private Owner shall pay 

any fees and expenses in connection with the Private Owner Pledged Account. Upon the 

resignation or removal of the Bank as Custodian or Paying Agent or the termination or 

assignment (“Termination”) of this Agreement, all fees and expenses as described in this 

Section shall also terminate as of the date of Termination; provided, however the Bank will be 

entitled to receive fees and expenses accruing prior to the date of Termination. 

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 Custodian and Paying Agent under this 

Agreement upon at least sixty (60) days’ prior written notice to the Company, the Initial 

Member, the Private Owner, the Purchase Money Notes Guarantor and the Collateral Agent. In 

the event the Bank resigns it must resign as both Custodian and Paying Agent. Promptly after 

receipt of notice of the Bank’s resignation as 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 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. Subject to the provisions of Section 9.1(c), the Company, the 

Collateral Agent or the Purchase Money Notes Guarantor may remove and discharge the Bank as 

Custodian and Paying Agent (or any successor custodian and paying agent thereafter appointed) 

without cause from the performance of its obligations under 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 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. 

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(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 

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 under this Agreement, as if originally named 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 shall promptly 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 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 Custodian and Paying Agent, the Company, the Initial 

Member and the Private Owner, as applicable, represent and warrant to each other 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; 

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(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, 

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 and the Private Owner, that the Bank (i) is a bank, trust company 

or title insurance company subject to supervision and examination by any federal or state 

regulatory authority, (ii) is experienced in providing services of the type required to be 

performed by the Bank as the Custodian and Paying Agent under this Agreement, (iii) is 

qualified and licensed to do business in each jurisdiction in which the Custodial Documents will 

be held to the extent required unless and to the extent the failure to be so qualified or licensed 

will not have a material adverse effect on the Custodian or its ability to perform its obligations 

hereunder, (iv) is not prohibited from exercising custodial powers in any jurisdiction in which 

the Custodial Documents are or will be held, (v) has combined capital and surplus of at least 

$50,000,000 as reported in its most recent report of condition, (vi) has the facilities to safeguard 

the funds deposited in the Accounts, the Loan Documents and other Custodial Documents and 

(vii) is not an Affiliate of the Company, the Initial Member, the Private Owner or any Servicer. 

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 Custodian and Paying Agent shall cause to be furnished to the Private 

Owner, the Receiver, the Purchase Money Notes 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 Loans and Underlying 

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 of 

all Loan Proceeds or the Management Fee from the Accounts, including the date on which made, 

since the date of the previous report) held by the Custodian and 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 Custodian and Paying Agent shall follow 

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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. 

(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 Custodial and Paying Agent, included in (i) the Manager’s Monthly Report for the 

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 Notes Guarantor for a Custodial Report 

or an updated Loan Schedule and Exception List, the Custodian and Paying Agent shall provide 

the requesting party with the Custodial Report or the updated Loan 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 Notes Guarantor in the case 

of any Account. 

Section 11.3 Company and Servicer Distribution Date Accounting. For each Due 

Period no later than three 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 Notes 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 Notes Guarantor the Distribution Date Report for all Due 

Periods ending on or before March 31, 2010. 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 Notes Guarantor in accordance with the LLC Operating Agreement. The Distribution 

Date Report shall contain the following information: 

(a) the aggregate amount of Loan Proceeds as of the close of business on such 

Determination Date, after giving effect to Loan Proceeds received with respect to the applicable 

Due Period; 

(b) the amount of Loan Proceeds received during the applicable Due Period; 

(c) 

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(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 Loan Proceeds received in the 

applicable Due Period plus (B) funds transferred from the Working Capital Reserve Account 

plus (C) any amount of Excess Working Capital Advances reimbursed to the Manager plus (D) 

the Interim Servicing Fee, the Interim Management Fee and the Management Fee received for 

the applicable Due Period plus (E) any Discretionary Funding Advances deposited in the 

Collection Account less (F) the total amount of funds withdrawn from the Collection Account as 

permitted pursuant to Section 3.1 for 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 Service 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, 

to the Manager, 

(C) The amount of Excess Working Capital Advances payable 

Reserve Account, 

(D) The amount to be deposited into the Working Capital 

(E) The amount to be deposited in the Defeasance Account, 

(F) The reimbursement amounts and any accrued interest 

thereon payable to the Purchase Money Notes Guarantor for previous payments made by it under 

the Purchase Money Notes Guaranty, and 

(G) The amount payable as distributions to the Initial Member 

and to the Private Owner. 

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 

Distribution Account and pay or transfer the amounts set forth in such report in the manner 

specified, and in accordance with the priorities established, in Section 5.1 of this Agreement. 

Section 11.5 Books and Records. The Paying Agent shall maintain all such accounts, 

books and records as may be necessary to properly record all transactions carried out by it with 

respect to the Accounts, including the disbursement of all Loan Proceeds. The Paying Agent 

also shall maintain a complete and accurate set of files, books and records regarding the Loans 

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and the Underlying 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 Loans and the Underlying Collateral, including all Custodial 

Documents. The Paying Agent shall permit the Company, the Purchase Money Notes Guarantor 

and the Collateral Agent to examine such accounts, books and records that relate to any 

Company 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 Loan, and hereby waives and releases 

any such interest which it may have in any Loan as of the date hereof. The Loans shall not be 

subject to any security interest, lien or right to set-off 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 Loans. 

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 hereunder, which 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 

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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 

hereunder 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 of this 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 Loan 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 

document related to such Loan, including a missing Note, (A) the Custodian shall indemnify the 

Company, the Purchase Money Notes Guarantor and the Collateral Agent in accordance with 

Section 13.1(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, Inc., the Custodian shall 

obtain and maintain an insurance bond naming the Company, the Purchase Money Notes 

Guarantor 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 Loan 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 Notes Guarantor 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 

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 herein; 

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 of this Agreement. 

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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 hereunder or under any Loan 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 Loan 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 Notes 

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, as the case 

may be). 

(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. 

(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 hereunder 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 hereunder, or in the exercise of any 

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of its rights or powers, if it shall have reasonable grounds for believing that repayment of such 

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 of the 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 hereunder without the execution or filing of any paper with any 

party hereto or any further act on the part of any of the parties hereto except where an instrument 

of transfer or assignment is required by law to effect such succession, anything herein 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 (10) 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 under 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 of the 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 under this 

Section 15.2 shall survive the termination of the other provisions of this Agreement. 

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 Loans and (ii) disposition of all Underlying 

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 Notes Guarantor and the 

Collateral Agent. 

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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 

hereunder, 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, change such Person’s Authorized 

Representative (and amend this Agreement to so provide), but until a new Exhibit M with the 

information regarding the successor Authorized Representative is delivered to a party in 

accordance with this Agreement, that party shall be entitled to rely conclusively on the Exhibit M 

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 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(v) 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 (4) 

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. 

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If to the Bank for all purposes other than cancellation, presentment, transfer and/or 

exchange of Purchase Money Notes: 

Wells Fargo Bank, NA 

9062 Old Annapolis Road 

Columbia, Maryland 21045 

Attention: Client Services Manager 

Reference: Multibank 2009-1 CML-ADC Venture, LLC 

For purposes of cancellation and presentment of Purchase Money Notes: 

Wells Fargo Bank, NA 

6th Street & Marquette Avenue 

 Minneapolis, Minnesota 55479 

 Attention: Corporate Trust Services Bondholder Communications 

Reference: Multibank 2009-1 CML-ADC Venture, LLC 

For purposes of transfer and/or exchange of Purchase Money Notes: 

Wells Fargo Bank, NA 

6th Street & Marquette Avenue 

 Minneapolis, Minnesota 55479 

Attention: Corporate Trust Services Transfer Agent Department 

Reference: Multibank 2009-1 CML-ADC Venture, LLC 

If to the Company: 

Multibank 2009-1 CML-ADC Venture, LLC 

700 NW 107 Avenue, Suite 400 

Miami, Florida 33172 

Attention: Thekla Blaser Salzman 

E-Mail Address: Thekla.Salzman@rialtocapital.com 

with a copy to: 

Bilzin Sumberg Baena Price & Axelrod LLP 

200 South Biscayne Boulevard, Suite 2500 

Miami, Florida 33131-5340 

Attention: Alan Axelrod 

E-Mail Address: AAxelrod@bilzin.com
 

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If to the Purchase Money Notes Guarantor, the Collateral Agent or the Initial 

Member: 

Manager, Capital Markets & Resolutions 

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. This Agreement shall be governed by and construed in 

accordance with federal law, but if federal law does not provide a rule of decision, it shall be 

governed by and construed in accordance with the law of the State of New York, excluding any 

conflict of laws rule or principle that might refer the governance or the construction of this 

Agreement to the law of another jurisdiction. Nothing in this Agreement shall require any 

unlawful action or inaction by any party to this Agreement. 

Section 19.2 Waiver of Jury Trial. EACH OF THE COMPANY, THE INITIAL 

MEMBER, THE PRIVATE OWNER, THE PURCHASE MONEY NOTES GUARANTOR, 

THE COLLATERAL AGENT AND THE BANK HEREBY IRREVOCABLY AND 

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

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

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

A JURY. 

Section 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: 

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(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 Notes Guarantor or the Collateral Agent arising out of, 

relating to, or in connection with this Agreement or any Ancillary 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 Purchase Money Notes 

Guarantor or the Collateral Agent, as applicable, files the suit, action or proceeding without the 

consent of the Purchase Money Notes Guarantor 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 of Columbia; 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 Notes Guarantor or the Collateral Agent arising out of, 

relating to, or in connection with this Agreement or any Ancillary 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 Notes Guarantor or the Collateral Agent, as applicable; 

(B) assert that venue is improper in the Supreme Court of the 

State of New 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 Notes Guarantor 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 dispute-resolution forum 

without the consent of the Initial Member, the Purchase Money Notes Guarantor 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 of New York or the United 

States District Court for the District of Columbia at the option of the Initial Member, the 

Purchase Money Notes Guarantor or the Collateral Agent, as applicable; and 

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(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 Notes Guarantor 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 of itself and its Affiliates, and each of the Initial Member, the Private Owner, the 

Purchase Money Notes Guarantor 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, 

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 of which together shall constitute 

but one and the same agreement. This Agreement and any amendments hereto, to the extent 

signed and delivered by facsimile or other electronic means, shall be treated in all manner and 

respects as an original agreement and shall be considered to have the same binding legal effect as 

if it were the original signed version thereof delivered in person. No signatory to this Agreement 

shall raise the use of a facsimile machine or other electronic means to deliver a signature or the 

fact that any signature or agreement was transmitted or communicated through the use of a 

facsimile machine or other electronic means as a defense to the formation or enforceability of a 

contract and each such Person forever waives any such defense. 

Section 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 

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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. 

Section 19.7 Entire Agreement. This Agreement contains the entire agreement between 

the Company, the Initial Member, the Private Owner, the Purchase Money Notes Guarantor, 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. Notwithstanding the foregoing, however, the 

parties acknowledge that the Initial Member and the Private Owner are parties to this Agreement 

solely with respect to the Private Owner Pledged Account and the Qualifying Cash Collateral on 

deposit in such Account and that the Initial Member and the Private Owner have no rights, 

benefits, obligations or liabilities pursuant to this Agreement except with respect to the Private 

Owner Pledged Account, the Qualifying Cash Collateral on deposit in such account and the 

Bank’s performance of its duties as Paying Agent with respect to the Private Owner Pledged 

Account. 

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 of this Agreement. 

Section 19.9 Rights Cumulative. The rights, powers and remedies of the Custodian and 

Paying Agent, the Initial Member, the Private Owner, the Purchase Money Notes Guarantor, the 

70 

Multibank Structured Transaction 2009-1 CML-ADC 

Custodial and Paying Agency Agreement 

468-003/AGR/2374287.8 

 

Collateral Agent and the Company under 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 Notes Guarantor, 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 Notes 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 of page blank) 

71 

Multibank Structured Transaction 2009-1 CML-ADC 

Custodial and Paying Agency Agreement 

468-003/AGR/2374287.8 
· asn 

iv_e_........---........ 

IN WITNESS WHI?,REOF, the Bank, the Purchase Money Notes Guarantor, the 

Collateral Agent and the Company have each caused this Agreement to be exectned as of the 

date first written above. 

Multibank 2009-1 CML-ADC Venture, LLC, 

as the Company 

By: 	 RL CML 2009·1 Investments, LLC, 

its Manager 

By: ~~---,. .... Name: Jeffrey P. 

Title: Chief Execut.... 

Federal Deposit Insurance Corporation, in its 


corporate capacity, as Pllrchase Money Notes 


Guarantor 


By:____________________ 


Name: Ronald Sommers · 


Title: Attorney-in-Fact 


Federal Deposit Lnsurance Corporation, in its 


capucity as Receiver for Various Failed Financial 


Institutions Listed on Schedule 1 Hereto, as 


Collateral Agent 


By:_.;._______________ 

Name: Ronald Sommers 

Title: Attorney-in-Fact 

)Signature Page ~o Custodial and Paying Agency Agreement] 

Mult.ibnnk Stnt~lltrcd Trnn~ncllQn 2009·1 CML·ADC 

Custodial and Payin~ Agency At,>rccmenl 

4fiH~03/AGIU23742R7 
IN WITNESS WHEREOF, the Bank, the Purchase Money Notes Guarantor, the 

Collateral Agent and the Company have each caused this Agreement to be executed as of the 

date first wTitten above. 

Multibank 2009-1 CML-ADC Venture, LLC, 

as the Company 

By: 	 RL CML 2009-1 Investments, LLC, 

its Manager 

By: __________________________ 

Name: Jeffrey P. Krasnoff 

Title: Chief Executive Officer 

Federal Deposit Insurance Corporation, in its 

corporate capacity, as Purchase Money Notes 

Guarantor 

By:~~...................,._..........-===<"~~==~~,.. 

Name?lfonaldSommers 

Title: Attorney-in-Fact 

Federal Deposit Insurance Corporation, in its 

capacity as Receiver for Various Failed Financial 

Institutions Listed on Schedule 1 Hereto, as 

Collateral Agent 

Name: 

B~-~------------------ Ronald Sommers ~ Title: Attorney-in-Fact 

[Signature Page to Custodial and Paying Agency Agreement] 

Muitibank Structured Transaction 2009-1 CML-ADC 

Custodtal and Paymg Agency Agreement 

468-003/AGR/23 74287 
Federal Deposit Insurance Corporation, in its 

capacity as Receiver for Various Failed Financial 

Institutions Listed on Schedule 1 Hereto, as Initial 

Member 

~~~~~~ ~ Name: Ronald Sommers 

Title: Attorney-in-Fact 

RL CML 2009-1 Investments, LLC, as Private Owner 

By:---------------­

Name: Jeffrey P. Krasnoff 

Title : Chief Executive Officer 

Wells Fargo Bank, N.A. 

By: ____ 

Name: Amy Doyle 

Title : Vice President 

!Signature Page !0 Cu>toJial and !'a) ing r\gency Agrcerncnr I 

\ -!ult1hank Strw.:ru;t:d · ~ ran~a(t:nn : 1{)9 4 1 ( ·;\11. ··\DC 

·::..;.i;.ld:ai :lnd f>aymg :\t!o.:m.:~; .- \~:~L' rlh..Tti 

lt>~-OO_l, _\(;R.D 74287 
Federal Deposit ]nsurance Corporation, in its 

capacity as Receiver for Various Failed Financial 

Institutions Listed on Schedule I Hereto, as Initial 

Member 

By: ____________________________ _ 

Name: Ronald Sommers 

Title: Attorney.-in-Fact 

RL CML 2009-1 Investments, LLC, as Private Owner 

Wells Fargo Bank, N.A. 

By: ___________________________ 

Name: Amy Doyle 

Title: Vice President 

ISignature Page to Custodial and Paying Agency t\gn:cnwnfj 

\•lulllhanl. Stllll'tur~-J I r"n.;u.:unn ltlO'l~l ( 'MI ·..\DC 

<. .ll'll><hnl >lll<ll'll) Ill~ :\H"Ilfl ,\gl ~l'llll'IH 

·li•IH)Il.l/A< ilti2 3f.l2R7 
Federal Deposit Insurance Corporation, in its 

c<.tpacity as Receiver tbr Various Failed Financial 

Institutions Listed on Schedule l lJereto, as Initial 

Member 

By:---------------­

Name: Ronald Sorrtmers 

Title: Attorney-in-Fact 

RL CML 2009-1 Investments. LLC as Private Owner 

By: __________________________ 

Name: Jeffrey P. Krasnorr 

Title: ChiefExccutive OfTicer 

Wells Fargo Bank, N.A. 

By:- ===;;~~~=-="-------­ Na!lle:A~ 

Title: Vic~ ~ent 

ISigrwtun: Pagcw CustudialnnJ Paying Agency Agn:cmcnt! 

\lulllh:ln~ ~II1Kilm·d i rar,s;JUI<llt }1)09-i C\11 ·,·\1>1: 

c._··u.;todtikt unJ 1~a;·11l~ _.,t~~~tKj Agh.~\'llltHt 

-!IIX-iliiVAtHVlJi-IJX:• 
 

Multibank Structured Transaction 2009-1 CML-ADC 

Execution Version 

Schedule and Exhibits 

Schedule 1 List of Various Failed Financial Institutions 

Exhibit A Loan Schedule 

Exhibit B-1 Form of Certificated Note 

Exhibit B-2 Form of Global Note 

Exhibit C-1 Form of Certificate for Transfer or Exchange of Rule 144A Global Note to 

Temporary Regulation S Global Note or Regulation S Global Note 

Exhibit C-2 Form of Non-U.S. Person Certification 

Exhibit C-3 Form of Certificate for Transfer or Exchange of Temporary Regulation S Global 

Note or Regulation S Global Note to Rule 144A Global Note 

Exhibit C-4 Form of Qualified Institutional Buyer/Qualified Purchaser 

Exhibit C-5 Form of Certificate for Transfer or Exchange of Global Note to Certificated Note 

Exhibit C-6 Form of Certificate for Transfer or Exchange of Certificated Note to Temporary 

Regulation S Global Note or Regulation S Global Note 

Exhibit C-7 Form of Certificate for Transfer or Exchange of Certificated Note to Rule 144A 

 Global Note 

Exhibit C-8 Form of Certificate for Transfer of Certificated Note to Certificated Note 

Exhibit D Form of DTC 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 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
	 

	 

Exhibit N	 Form of Account Control Agreement 

Exhibit O	 Notice from Depository to Depository Participants in connection with the offering 

of the Rule 144A Global Notes or the Unrestricted Notes represented by Global 

Notes 

ii 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
SCHEDULE 1 

LIST OF VARIOUS FAILED FINANCIAL INSTITUTIONS 

Bank Name City State Fund Closing Date 

Columbian Bank and Trust Topeka KS 10011 August 22, 2008 

Integrity Bank Alpharetta GA 10012 August 29, 2008 

Silver State Bank Henderson NV 10013 September 5, 2008 

Freedom Bank Bradenton FL 10019 October 31, 2008 

Security Pacific Bank Los Angeles CA 10020 November 7. 2008 

Franklin Bank, SSB Houston TX 10021 November 7, 2008 

The Community Bank Loganville GA 10022 November 21, 2008 

First Georgia Community Bank Jackson GA 10025 December 5, 2008 

Haven Trust Bank Duluth GA 10027 December 12, 2008 

Bank of Clark County Vancouver WA 10029 January 16, 2009 

1st Centennial Bank Redlands CA 10030 January 23, 2009 

MagnetBank Salt Lake City UT 10031 January 30, 2009 

FirstBank Financial Services McDonough GA 10036 February 6, 2009 

Silver Falls Bank Silverton OR 10041 February 20, 2009 

FirstCity Bank Stockbridge GA 10047 March 20, 2009 

Omni National Bank Atlanta GA 10048 March 27, 2009 

Sch 1-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 

 


 

EXHIBIT A 

LOAN SCHEDULE
 

[To Be Attached] 

A-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
EXHIBIT B-1 

[FORM OF CERTIFICATED NOTE] 

THIS PURCHASE MONEY NOTE HAS NOT BEEN AND WILL NOT BE 

REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE 

“SECURITIES ACT”), ANY STATE SECURITIES LAWS IN THE UNITED STATES OR 

THE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND THE ISSUER HAS NOT 

BEEN REGISTERED UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS 

AMENDED (THE “INVESTMENT COMPANY ACT”). THE HOLDER HEREOF, BY ITS 

ACCEPTANCE OF THIS PURCHASE MONEY NOTE, REPRESENTS THAT IT HAS 

OBTAINED THIS PURCHASE MONEY NOTE IN A TRANSACTION IN COMPLIANCE 

WITH THE SECURITIES ACT, THE INVESTMENT COMPANY ACT, ALL OTHER 

APPLICABLE LAWS OF THE UNITED STATES OR ANY OTHER JURISDICTION, AND 

THE RESTRICTIONS ON SALE AND TRANSFER SET FORTH IN THE CUSTODIAL AND 

PAYING AGENCY AGREEMENT REFERRED TO IN THIS PURCHASE MONEY NOTE 

(THE “CUSTODIAL AND PAYING AGENCY AGREEMENT”). THE HOLDER 

HEREOF, BY ITS ACCEPTANCE OF THIS PURCHASE MONEY NOTE, FURTHER 

REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT WILL NOT REOFFER, 

RESELL, PLEDGE OR OTHERWISE TRANSFER THIS PURCHASE MONEY NOTE (OR 

ANY INTEREST HEREIN) EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, 

THE INVESTMENT COMPANY ACT AND ALL OTHER APPLICABLE LAWS OF ANY 

JURISDICTION AND IN ACCORDANCE WITH THE CERTIFICATIONS AND OTHER 

REQUIREMENTS SPECIFIED IN THE CUSTODIAL AND PAYING AGENCY 

AGREEMENT REFERRED TO HEREIN (A) TO A TRANSFEREE (1) THAT IS A 

“QUALIFIED PURCHASER” WITHIN THE MEANING OF SECTION 3(c)(7) OF THE 

INVESTMENT COMPANY ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE 

ACCOUNT OF A QUALIFIED PURCHASER, (2) THAT (I) WAS NOT FORMED FOR THE 

PURPOSE OF INVESTING IN THE ISSUER (EXCEPT WHEN EACH BENEFICIAL 

OWNER OF THE PURCHASER IS A QUALIFIED PURCHASER), (II) HAS RECEIVED 

THE NECESSARY CONSENT FROM ITS BENEFICIAL OWNERS IF THE PURCHASER IS 

A PRIVATE INVESTMENT COMPANY FORMED BEFORE APRIL 30, 1996, (III) 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, (IV) 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 AND (V) AGREES TO PROVIDE NOTICE 

TO ANY SUBSEQUENT TRANSFEREE OF THE TRANSFER RESTRICTIONS PROVIDED 

IN THIS LEGEND AND (3) THAT IS A PERSON WHOM THE SELLER REASONABLY 

BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A 

UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE 

ACCOUNT OF A “QUALIFIED INSTITUTIONAL BUYER” IN COMPLIANCE WITH 

B-1-1 

Multibank Structured Transaction 2009-1 CML-ADC 

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468-003/MISC/2390428.5 
RULE 144A UNDER THE SECURITIES ACT OR (B) TO A TRANSFEREE (1) THAT IS 

NOT A U.S. PERSON (AS DEFINED IN REGULATION S OF THE SECURITIES ACT) AND 

IS ACQUIRING THIS 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) THAT IS NOT A “U.S. RESIDENT” WITHIN THE MEANING OF THE INVESTMENT 

COMPANY ACT AND, IN THE CASE OF BOTH CLAUSES (A) AND (B), IN A 

PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$500,000 FOR THE PURCHASER AND 

FOR EACH ACCOUNT FOR WHICH IT IS ACTING. EACH PURCHASER OR 

TRANSFEREE OF THIS PURCHASE MONEY NOTE WILL BE DEEMED TO HAVE 

MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE 

CUSTODIAL AND PAYING AGENCY AGREEMENT. 

THIS PURCHASE MONEY NOTE IS NOT TRANSFERABLE EXCEPT IN 

ACCORDANCE WITH THE RESTRICTIONS DESCRIBED HEREIN AND IN THE 

CUSTODIAL AND PAYING AGENCY AGREEMENT. ANY SALE OR TRANSFER IN 

VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE 

VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE 

TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO 

THE ISSUER, THE PAYING AGENT OR ANY INTERMEDIARY. EACH TRANSFEROR 

OF THIS PURCHASE MONEY NOTE AGREES TO PROVIDE NOTICE OF THE 

TRANSFER RESTRICTIONS SET FORTH HEREIN AND IN THE CUSTODIAL AND 

PAYING AGENCY AGREEMENT TO THE TRANSFEREE. IN ADDITION TO THE 

FOREGOING, THE ISSUER HAS THE RIGHT, UNDER THE CUSTODIAL AND PAYING 

AGENCY AGREEMENT, TO COMPEL ANY OWNER OF A BENEFICIAL INTEREST IN 

THIS PURCHASE MONEY NOTE THAT IS A NON-PERMITTED HOLDER (AS DEFINED 

IN THE CUSTODIAL AND PAYING AGENCY AGREEMENT) TO SELL ITS INTEREST 

IN THE PURCHASE MONEY NOTES, OR MAY SELL SUCH INTEREST ON BEHALF OF 

SUCH OWNER. 

THE ISSUER HAS THE RIGHT, UNDER THE CUSTODIAL AND PAYING 

AGENCY AGREEMENT, TO COMPEL ANY OWNER OF THIS PURCHASE MONEY 

NOTE THAT IS A NON-PERMITTED HOLDER (AS DEFINED IN THE CUSTODIAL AND 

PAYING AGENCY AGREEMENT) TO SELL ITS INTEREST IN THE PURCHASE MONEY 

NOTES OR MAY SELL SUCH INTEREST ON BEHALF OF SUCH OWNER. 

PRINCIPAL OF THIS PURCHASE MONEY NOTE IS PAYABLE AS SET FORTH 

HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS PURCHASE 

MONEY NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE 

FACE HEREOF. ANY PERSON ACQUIRING THIS PURCHASE MONEY NOTE MAY 

ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE PAYING 

AGENT. 

EACH PURCHASER OR TRANSFEREE OF THIS PURCHASE MONEY NOTE (OR 

ANY INTEREST HEREIN) WILL BE DEEMED TO HAVE REPRESENTED AND 

B-1-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
WARRANTED THAT AT THE TIME OF ITS ACQUISITION AND THROUGHOUT THE 

PERIOD OF ITS HOLDING AND DISPOSITION OF THIS PURCHASE MONEY NOTE (OR 

ANY INTEREST HEREIN) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF 

OR USING THE ASSETS OF, A PLAN SUBJECT TO TITLE I OF THE EMPLOYEE 

RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR 

SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE 

“CODE”), OR A FOREIGN, GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT 

TO ANY FOREIGN, FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY 

SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 OF 

ERISA OR SECTION 4975 OF THE CODE OR (B) ITS ACQUISITION, HOLDING 

(INCLUDING, WITHOUT LIMITATION, THE EXERCISE OF RIGHTS HEREUNDER) 

AND DISPOSITION OF THIS PURCHASE MONEY NOTE (OR ANY INTEREST HEREIN) 

WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED 

TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, 

IN THE CASE OF A FOREIGN, GOVERNMENTAL OR CHURCH PLAN, A VIOLATION 

OF ANY SUBSTANTIALLY SIMILAR FOREIGN, FEDERAL, STATE OR LOCAL LAW). 

ANY TRANSFER, PLEDGE OR OTHER USE OF THIS PURCHASE MONEY NOTE 

FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE 

REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN, UNLESS 

THIS PURCHASE MONEY NOTE IS PRESENTED BY AN AUTHORIZED 

REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), NEW YORK, 

NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, 

EXCHANGE OR PAYMENT AND ANY PURCHASE MONEY NOTE ISSUED IS 

REGISTERED IN THE NAME OF CEDE & CO. OR OF SUCH OTHER ENTITY AS IS 

REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 

HEREON IS MADE TO CEDE & CO.). 

[Insert OID legend if required pursuant to Section 2.4(e) of the Custodial and Paying Agency 

Agreement] 

THE FAILURE TO PROVIDE THE ISSUER, THE CUSTODIAN OR THE PAYING 

AGENT WITH 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 “UNITED STATES 

PERSON” WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE CODE OR AN 

APPROPRIATE INTERNAL REVENUE SERVICE FORM W-8 (OR SUCCESSOR 

APPLICABLE FORM) IN THE CASE OF A PERSON THAT IS NOT A “UNITED STATES 

PERSON” WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE CODE) MAY 

RESULT IN THE IMPOSITION OF U.S. FEDERAL BACK-UP WITHHOLDING UPON 

PAYMENTS TO THE HOLDER IN RESPECT OF THIS PURCHASE MONEY NOTE. 

INTERESTS IN THIS CERTIFICATED NOTE MUST BE HELD IN MINIMUM 

DENOMINATIONS OF U.S.$500,000 AND INTEGRAL MULTIPLES OF U.S.$1,000 IN 

EXCESS THEREOF. 

B-1-3 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

PURCHASE MONEY NOTE
 

Certificate No.: [________] 

ISIN No.: [_________] 

CUSIP No.: [___________] 

$[____________] February 9, 2010 

FOR VALUE RECEIVED, Multibank 2009-1 CML-ADC Venture, LLC, a Delaware 

limited liability company (herein referred to as the “Issuer”), hereby unconditionally promises to 

pay to the order of [_______], or its successors and registered assigns, the principal sum of 

$[__________] ([_______] and [___]/100 United States Dollars) (or such other amount as shall 

be the outstanding principal amount of this Purchase Money Note shown on Schedule A hereto). 

No interest shall accrue on the outstanding principal amount of this Purchase Money Note. The 

entire outstanding principal amount of this Purchase Money Note shall be due and payable on 

[__________] (the “Maturity Date”) or such earlier date as such amount shall become due and 

payable pursuant to the terms of this Purchase Money Note. 

The principal of this Purchase Money Note is payable in such coin or currency of the 

United States of America as at the time of payment is legal tender for payment of public and 

private debts. All payments made by the Issuer with respect to this Purchase Money Note shall 

be subject to the priority of payments set forth in Section 5.1 of the Custodial and Paying Agency 

Agreement dated as of February 9, 2010 by and among the Issuer, the Federal Deposit Insurance 

Corporation (in any capacity, the “FDIC”), in its corporate capacity, as the guarantor of the 

Purchase Money Notes, the FDIC, as the receiver for various failed financial institutions listed 

on Schedule B hereto (in its separate capacities as receiver with respect to each such 

receivership, the “Receiver”), as Collateral Agent pursuant to the Reimbursement, Security and 

Guaranty Agreement, and Wells Fargo Bank, N.A. (as amended, supplemented or restated from 

time to time, and including any substantially similar agreement entered into by Issuer and any 

new or successor custodian and paying agent, the “Custodial and Paying Agency Agreement”). 

This Purchase Money Note is subject to all terms of the Custodial and Paying Agency 

Agreement. Unless otherwise defined herein, capitalized terms used in this Purchase Money 

Note have the meanings provided in, or by reference in, the Custodial and Paying Agency 

Agreement. 

This Purchase Money Note may not be prepaid, in whole or in part, without the prior 

written consent of the Purchase Money Notes Guarantor. Any amount repaid or prepaid 

pursuant to this Purchase Money Note may not be reborrowed. 

The Holder, by acceptance of this Purchase Money Note, covenants and agrees that no 

recourse may be taken, directly or indirectly, with respect to the rights of the Issuer pursuant to 

the Custodial and Paying Agency Agreement or any Ancillary Documents or under any 

certificate or other writing delivered in connection therewith, against the Paying Agent or the 

Servicer or any of their Affiliates. 

B-1-4 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
Payments on this Purchase Money Note will be made by the Paying Agent by wire 

transfer of immediately available funds to such account as may be specified from time to time by 

the Holder to the Paying Agent in writing or, at the option of the Holder hereof, by check to such 

address as the Holder shall have designated to the Paying Agent in writing, in each case without 

the presentation or surrender of this Purchase Money Note or the making of any notation hereon. 

Notwithstanding the foregoing, the final payment on this Purchase Money Note will be made 

only upon presentation and surrender of this Purchase Money Note at the office or agency 

maintained for that purpose by the Paying Agent in Minneapolis, Minnesota. If any payment of 

principal of, or any other amount owed by the Issuer pursuant to, this Purchase Money Note 

becomes due and payable on a day other than a Business Day, the maturity thereof shall be 

extended to the next succeeding Business Day. 

This Purchase Money Note is limited in right of payment to certain collections and 

recoveries respecting the Loans, all as more specifically set forth in the Custodial and Paying 

Agency Agreement. As provided in the Custodial and Paying Agency Agreement, deposits and 

withdrawals from the Accounts may be made by the Paying Agent from time to time for 

purposes other than distributions to the Holder. 

This Purchase Money Note is a registered note and may be transferred only upon 

surrender to the Paying Agent (with concurrent written notice to the Issuer of the requested 

transfer) of this Purchase Money Note for registration and transfer, duly endorsed by, or 

accompanied by a written instrument of transfer duly executed by, the registered holder hereof or 

its attorney duly authorized in writing. Upon surrender of this Purchase Money Note as above 

provided, together with the name, address and other information for notices of the transferee, the 

Paying Agent shall promptly register the transfer, record the transfer on this Purchase Money 

Note and deliver the same to the transferee. A transfer of this Purchase Money Note shall be 

effective upon registration of the transfer by the Paying Agent. Prior to registration of such a 

transfer, the Person in whose name this Purchase Money Note is registered shall be deemed the 

owner and Holder thereof for all purposes hereof, and the Issuer shall not be affected by any 

notice or knowledge to the contrary. 

Upon request by a transferee of this Purchase Money Note that a new Purchase Money 

Note be issued or upon receipt by the Issuer of evidence reasonably satisfactory to it of the 

ownership of and the loss, theft, destruction or mutilation of this Purchase Money Note and (a) in 

the case of loss, theft or destruction, of indemnity reasonably satisfactory to it, or (b) in the case 

of a request by a transferee that a new Purchase Money Note be issued or in the case of 

mutilation, upon surrender and cancellation of the Purchase Money Note, within two Business 

Days thereafter, the Issuer shall execute and deliver, in lieu thereof, a new Purchase Money 

Note. 

The Paying Agent, the Servicer and any agent of any of the foregoing, may treat the 

Person in whose name this Purchase Money Note is registered as the owner and Holder hereof 

for all purposes, and none of the foregoing shall be affected by notice to the contrary. 

B-1-5 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

The occurrence or continuance of any one or more of the following events, whether such 

occurrence is voluntary or involuntary or comes about or is effected by operation of Law or 

otherwise, shall constitute an “Event of Default” pursuant to this Purchase Money Note: 

(a) the occurrence of any “Event of Default,” as defined in the 

Reimbursement, Security and Guaranty Agreement; or 

(b) the Issuer (i) makes an assignment for the benefit of creditors; (ii) files a 

voluntary petition for relief in any Insolvency Proceeding (as defined in the Reimbursement and 

Security Agreement); (iii) is adjudged bankrupt or insolvent or there is entered against the Issuer 

an order for relief in any Insolvency Proceeding; (iv) files a petition or answer seeking for the 

Issuer any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or 

similar relief under any Law; (v) seeks, consents to, or acquiesces in the appointment of a 

trustee, receiver or liquidator of the Issuer or of all or any substantial part of the Issuer’s 

properties; (vi) files an answer or other pleading admitting or failing to contest the material 

allegations of a petition filed against the Issuer in any proceeding described in clauses (i) through 

(v); (vii) becomes unable to pay its obligations (other than the Purchase Money Notes, unless a 

Purchase Money Notes Trigger Event has occurred and is continuing and is not cured within ten 

(10) Business Days) as they become due; or (viii) at least sixty (60) days have passed following 

the commencement of any proceeding against the Issuer seeking reorganization, arrangement, 

composition, readjustment, liquidation, dissolution or similar relief under any Law, and such 

proceeding has not been dismissed, or at least sixty (60) days have passed following the 

appointment of a trustee, receiver or liquidator for the Issuer or all or any substantial part of the 

Issuer’s properties without the Issuer’s agreement or acquiescence, and such appointment has not 

been vacated or stayed, or if such appointment has been stayed, at least sixty (60) days have 

passed following the expiration of the stay if such appointment has not been vacated. 

Upon the occurrence of an Event of Default specified in paragraph (a) above, the Holder 

may, with the consent of the Purchase Money Notes Guarantor, and the Holder shall, at the 

direction of the Purchase Money Notes Guarantor, in addition to any other available remedy, by 

notice in writing to the Issuer, declare this Purchase Money Note to be immediately due and 

payable, together with any other amounts owed by the Issuer pursuant to this Purchase Money 

Note, and on delivery of such a notice, the unpaid principal amount of this Purchase Money Note 

and any other amounts owed by the Issuer pursuant to this Purchase Money Note, shall forthwith 

become immediately due and payable without the necessity of any presentment, demand, protest 

or any other notice of any kind, all of which are hereby expressly waived by the Issuer. If an 

Event of Default specified in paragraph (b) above occurs, this Purchase Money Note shall 

forthwith automatically become immediately due and payable, both as to principal and as to any 

other amounts owed by the Issuer pursuant to this Purchase Money Note, without any action on 

the part of the Holder and without the consent of the Purchase Money Notes Guarantor. 

If and to the extent the Purchase Money Notes Guarantor makes any payment to the 

Holder pursuant to or in connection with the Purchase Money Notes Guaranty, the Purchase 

Money Notes Guarantor shall be subrogated to all of the rights of the Holder with respect to any 

claim to which such payment relates to the extent of such payment, and the Holder, upon 

B-1-6 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

acceptance of any such payment, will be deemed to have assigned to the Purchase Money Notes 

Guarantor any and all claims it may have against the Issuer or others and for which the Holder 

receives payment from the Purchase Money Notes Guarantor pursuant to the Purchase Money 

Notes Guaranty. Upon the request of the Purchase Money Notes Guarantor, the Holder shall 

execute written assignments of such claims. 

The Issuer shall pay to the Holder hereof such additional amounts as shall be sufficient to 

pay the Holder’s actual and reasonable costs and expenses of collection, including without 

limitation reasonable attorneys’ fees. 

No delay, omission or waiver on the part of the Holder in exercising any right pursuant to 

this Purchase Money Note shall operate as a waiver of such right or any other right of the 

Holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or 

waiver of the same or any other right on any future occasion. Except as otherwise set forth 

herein, the rights and remedies of the Holder are cumulative and not exclusive of any rights or 

remedies the Holder would otherwise have. 

The Issuer’s obligations pursuant to this Purchase Money Note are absolute and 

unconditional and shall not be affected by any circumstance whatsoever, and the Issuer hereby 

agrees to make, or cause the Paying Agent to make, all payments pursuant to this Purchase 

Money Note in full and when due, whether in respect to principal or any other amount owed by 

the Issuer pursuant to this Purchase Money Note, without notice, demand, counterclaim, setoff, 

deduction, defense, abatement, suspension, limitation, deferment, diminution, recoupment or 

other right that the Issuer may have against the Holder hereof or any other Person, but subject in 

all respects to the priority of payment set forth in Section 5.1 of the Custodial and Paying 

Agency Agreement, and the Issuer hereby waives and agrees not to assert any defense (other 

than payment in accordance with the terms hereof), right of counterclaim, setoff or recoupment, 

or other right which it may have against the Holder hereof or any other Person. 

All notices, requests, demands, and other communications required or permitted to be 

given or delivered under or by reason of the provisions of this Purchase Money Note 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 or electronic mail address 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 (a) actual 

receipt (or refusal thereof) by the relevant party hereto and (b) (i) if delivered by hand or by 

nationally recognized courier service, when signed for (or refused) by or on behalf of the 

relevant party hereto; (ii) if delivered by mail, four (4) Business Days after deposit in the mails, 

postage prepaid; and (iii) if delivered by electronic mail (which form of delivery is subject to the 

provisions of this paragraph), when delivered. In no event shall a voice mail message be 

effective as a notice, communication or confirmation pursuant to this Purchase Money Note. 

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If to the Issuer, to: 

Multibank 2009-1 CML-ADC Venture, LLC 

700 NW 107 Avenue, Suite 400 

Miami, Florida 33172 

Attention: Thekla Blaser Salzman 

E-Mail Address: Thekla.Salzman@rialtocapital.com 

with a copy to: 

Bilzin Sumberg Baena Price & Axelrod LLP 

200 South Biscayne Boulevard, Suite 2500 

Miami, Florida 33131-5340 

Attention: Alan Axelrod 

E-Mail Address: AAxelrod@bilzin.com
 

and if to the Holder hereof, to: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, N.W.
 

Room F-7014 

Washington, D.C. 20429-0002 

Attention: Ralph Malami
 

E-Mail Address: RMalami@fdic.gov
 

with copies 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 

In case any one or more of the provisions hereof should be invalid, illegal or 

unenforceable in any respect, the validity, legality and enforceability of the remaining provisions 

contained herein shall not in any way be affected or impaired thereby. 

This Purchase Money Note shall bind the Issuer and the successors of the Issuer, and the 

term “Issuer” herein shall include the successors of the Issuer. 

B-1-8 

Multibank Structured Transaction 2009-1 CML-ADC 

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The terms of this Purchase Money Note may be amended from time to time only by the 

written agreement of the Issuer and the Holder, subject in all instances to the terms of the 

Purchase Money Notes Guaranty. 

In any case in which consent of the Holder is required pursuant to the terms of this 

Purchase Money Note, such consent shall be governed by the provisions of the Custodial and 

Paying Agency Agreement. 

This Purchase Money Note and the rights and the duties of the Issuer and the Holder 

pursuant to this Purchase Money Note shall be governed by and construed in accordance with 

federal law, but if federal law does not provide a rule of decision, it shall be governed by and 

construed in accordance with the law of the State of New York, excluding any conflict of laws 

rule or principle that might refer the governance or the construction of this Purchase Money Note 

to the law of another jurisdiction. 

(a) Each of the Issuer and each Holder (if such Holder is not the FDIC; any 

Holder that is not the FDIC, a “Non-FDIC Holder”), on behalf of itself and its Affiliates, 

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 any Holder (if such Holder is the FDIC; the Holder that is the FDIC, the “FDIC 

Holder”) arising out of, relating to, or in connection with this Purchase Money Note or any 

Ancillary 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 FDIC Holder files the suit, 

action or proceeding without the consent of the FDIC Holder; 

(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 o Columbia; 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 

FDIC Holder arising out of, relating to, or in connection with this Purchase Money Note or any 

Ancillary 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 FDIC Holder; 

B-1-9 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
(B) assert that venue is improper in the Supreme Court of the 

State of New 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 Issuer, each 

Non-FDIC Holder, or its Affiliates against the FDIC Holder arising out of, relating to, or in 

connection with this Purchase Money Note or any Ancillary Document 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 dispute-resolution forum without the consent of the FDIC 

Holder, and agrees to consent thereafter to transfer of the suit, action or proceeding to either the 

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

Court for the District of Columbia at the option of the FDIC Holder; 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 paragraph (a)(iii) above, 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 disputeresolution forum without the consent of the FDIC Holder. 

(b) Each of the Issuer and each Non-FDIC Holder, 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 paragraph (a) above may be enforced in any 

court of competent jurisdiction. 

(c) Subject to the provisions of paragraph (d), each of the Issuer and each 

Holder, on behalf of itself and its Affiliates, hereby irrevocably and unconditionally agrees that 

service of all writs, process and summonses in any suit, action or proceeding pursuant to 

paragraph (a) or paragraph (b) above may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to it at its address for notices set forth in this 

Purchase Money Note (with copies to such other Persons as specified herein); provided, 

however, that nothing contained in this paragraph (c) shall affect the right of any party to serve 

process in any other manner permitted by Law. 

(d) Nothing in paragraph (a), paragraph (b) or paragraph (c) above shall 

constitute consent to jurisdiction in any court by the FDIC, other than as expressly provided in 

paragraph (a)(iii) and paragraph (a)(iv) above, 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. 

EACH OF THE ISSUER AND THE HOLDER HEREBY IRREVOCABLY AND 

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

ANY DISPUTE ARISING OUT OF OR RELATING TO THIS PURCHASE MONEY NOTE 

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Multibank Structured Transaction 2009-1 CML-ADC 

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468-003/MISC/2390428.5 
AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE 

SITTING WITHOUT A JURY. 

Interests in this Certificated Note may be exchanged for a beneficial interest in the 

corresponding Temporary Regulation S Global Note or Regulation S Global Note or for the 

corresponding Certificated Note, subject to the restrictions as set forth in the Custodial and 

Paying Agency Agreement. 

This Certificated Note is subject to mandatory exchange under the limited circumstances 

set forth in the Custodial and Paying Agency Agreement. 

Upon redemption, repayment, exchange of or increase in any interest represented by this 

Certificated Note, this Certificated Note shall be endorsed on Schedule A hereto to reflect the 

reduction of or increase in the principal amount evidenced hereby. 

Title to Purchase Money Notes shall pass by registration in the Purchase Money Notes 

Register kept by the Purchase Money Notes Registrar, which initially shall be the Paying Agent. 

No service charge shall be made for registration of transfer or exchange of this Purchase 

Money Note, but the Paying Agent may require payment of a sum sufficient to cover any tax or 

other governmental charge payable in connection therewith. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

B-1-11 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually 

or in facsimile, by its Initial Member as of the date first shown above. 

MULTIBANK 2009-1 CML-ADC VENTURE, LLC 

By: Federal Deposit Insurance Corporation, 

as Receiver for various failed financial 

institutions listed on Schedule B hereto, 

as the Initial Member 

By:_________________________________ 

Name: 

Title: 

B-1-12 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
SCHEDULE A 

SCHEDULE OF EXCHANGES OR REDEMPTIONS 

The following exchanges, redemptions, repayments of or increase in the whole or a part of the 

Purchase Money Notes represented by this Certificated Note have been made: 

Date exchange/ 

redemption/repayment/ 

increase made 

Original principal 

amount of this 

Certificated Note 

Part of principal amount of 

this Certificated Note 

exchanged/redeemed/ 

repaid/increased 

Remaining Principal 

amount of this 

Certificated Note 

following such 

exchange/redemption/ 

repayment/increase 

Notation made by 

or on behalf of the 

Issuer 

B-1-13 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 

 


 

SCHEDULE B
 

LIST OF VARIOUS FAILED FINANCIAL INSTITUTIONS
 

Bank Name City State Fund Closing Date 

Columbian Bank and Trust Topeka KS 10011 August 22, 2008 

Integrity Bank Alpharetta GA 10012 August 29, 2008 

Silver State Bank Henderson NV 10013 September 5, 2008 

Freedom Bank Bradenton FL 10019 October 31, 2008 

Security Pacific Bank Los Angeles CA 10020 November 7. 2008 

Franklin Bank, SSB Houston TX 10021 November 7, 2008 

The Community Bank Loganville GA 10022 November 21, 2008 

First Georgia Community Bank Jackson GA 10025 December 5, 2008 

Haven Trust Bank Duluth GA 10027 December 12, 2008 

Bank of Clark County Vancouver WA 10029 January 16, 2009 

1st Centennial Bank Redlands CA 10030 January 23, 2009 

MagnetBank Salt Lake City UT 10031 January 30, 2009 

FirstBank Financial Services McDonough GA 10036 February 6, 2009 

Silver Falls Bank Silverton OR 10041 February 20, 2009 

FirstCity Bank Stockbridge GA 10047 March 20, 2009 

Omni National Bank Atlanta GA 10048 March 27, 2009 

B-1-14 

Multibank Structured Transaction 2009-1 CML-ADC 

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EXHIBIT B-2 

Temporary S Global Note: Language for Temporary S Global Note is highlighted in yellow. 

Restricted Note: Language for Restricted Note is highlighted in green. 

Un-restricted Note: Language for Un-restricted Note is highlighted in blue. 

[FORM OF GLOBAL NOTE] 

[THIS PURCHASE MONEY NOTE IS A TEMPORARY GLOBAL NOTE FOR 

PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 

1933, AS AMENDED, THAT IS EXCHANGEABLE FOR A PERMANENT GLOBAL NOTE 

SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN AND IN THE 

CUSTODIAL AND PAYING AGENCY AGREEMENT REFERRED TO HEREIN.]1 

[THIS PURCHASE MONEY NOTE HAS NOT BEEN AND WILL NOT BE 

REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE 

“SECURITIES ACT”), ANY STATE SECURITIES LAWS IN THE UNITED STATES OR 

THE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND THE ISSUER HAS NOT 

BEEN REGISTERED UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS 

AMENDED (THE “INVESTMENT COMPANY ACT”). THE HOLDER HEREOF, BY ITS 

ACCEPTANCE OF THIS PURCHASE MONEY NOTE, REPRESENTS THAT IT HAS 

OBTAINED THIS PURCHASE MONEY NOTE IN A TRANSACTION IN COMPLIANCE 

WITH THE SECURITIES ACT, THE INVESTMENT COMPANY ACT, ALL OTHER 

APPLICABLE LAWS OF THE UNITED STATES OR ANY OTHER JURISDICTION AND 

THE RESTRICTIONS ON SALE AND TRANSFER SET FORTH IN THE CUSTODIAL AND 

PAYING AGENCY AGREEMENT REFERRED TO IN THIS PURCHASE MONEY NOTE 

(THE “CUSTODIAL AND PAYING AGENCY AGREEMENT”). THE HOLDER 

HEREOF, BY ITS ACCEPTANCE OF THIS PURCHASE MONEY NOTE, FURTHER 

REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT WILL NOT REOFFER, 

RESELL, PLEDGE OR OTHERWISE TRANSFER THIS PURCHASE MONEY NOTE (OR 

ANY INTEREST HEREIN) EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, 

THE INVESTMENT COMPANY ACT AND ALL OTHER APPLICABLE LAWS OF ANY 

JURISDICTION AND IN ACCORDANCE WITH THE CERTIFICATIONS AND OTHER 

REQUIREMENTS SPECIFIED IN THE CUSTODIAL AND PAYING AGENCY 

AGREEMENT REFERRED TO HEREIN (A) TO A TRANSFEREE (1) THAT IS A 

“QUALIFIED PURCHASER” WITHIN THE MEANING OF SECTION 3(c)(7) OF THE 

INVESTMENT COMPANY ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE 

ACCOUNT OF A QUALIFIED PURCHASER, (2) THAT (I) WAS NOT FORMED FOR THE 

1

 Insert if a Temporary Regulation S Global Note 

B-2-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

PURPOSE OF INVESTING IN THE ISSUER (EXCEPT WHEN EACH BENEFICIAL 

OWNER OF THE PURCHASER IS A QUALIFIED PURCHASER), (II) HAS RECEIVED 

THE NECESSARY CONSENT FROM ITS BENEFICIAL OWNERS IF THE PURCHASER IS 

A PRIVATE INVESTMENT COMPANY FORMED BEFORE APRIL 30, 1996, (III) 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, (IV) 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 AND (V) AGREES TO PROVIDE NOTICE 

TO ANY SUBSEQUENT TRANSFEREE OF THE TRANSFER RESTRICTIONS PROVIDED 

IN THIS LEGEND AND (3) THAT IS A PERSON WHOM THE SELLER REASONABLY 

BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A 

UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE 

ACCOUNT OF A “QUALIFIED INSTITUTIONAL BUYER” IN COMPLIANCE WITH 

RULE 144A UNDER THE SECURITIES ACT OR (B) TO A TRANSFEREE (1) THAT IS 

NOT A U.S. PERSON (AS DEFINED IN REGULATION S OF THE SECURITIES ACT) AND 

IS ACQUIRING THIS 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) THAT IS NOT A “U.S. RESIDENT” WITHIN THE MEANING OF THE INVESTMENT 

COMPANY ACT AND, IN THE CASE OF BOTH CLAUSES (A) AND (B), IN A 

PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$500,000 FOR THE PURCHASER AND 

FOR EACH ACCOUNT FOR WHICH IT IS ACTING. EACH PURCHASER OR 

TRANSFEREE OF THIS PURCHASE MONEY NOTE WILL BE DEEMED TO HAVE 

MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE 

CUSTODIAL AND PAYING AGENCY AGREEMENT.]2 

[THE ISSUER HAS NOT BEEN REGISTERED UNDER THE U.S. INVESTMENT 

COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). 

THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS PURCHASE MONEY NOTE, 

REPRESENTS THAT IT HAS OBTAINED THIS PURCHASE MONEY NOTE IN A 

TRANSACTION IN COMPLIANCE WITH THE INVESTMENT COMPANY ACT. THE 

HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS PURCHASE MONEY NOTE, 

FURTHER REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT WILL NOT 

REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS PURCHASE MONEY 

NOTE EXCEPT IN COMPLIANCE WITH THE INVESTMENT COMPANY ACT TO A 

TRANSFEREE (1) THAT IS A “QUALIFIED PURCHASER” WITHIN THE MEANING OF 

SECTION 3(c)(7) OF THE INVESTMENT COMPANY ACT PURCHASING FOR ITS OWN 

ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED PURCHASER, (2) THAT (I) WAS 

NOT FORMED FOR THE PURPOSE OF INVESTING IN THE ISSUER (EXCEPT WHEN 

2

 Insert if a Restricted Note. 

B-2-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

EACH BENEFICIAL OWNER OF THE PURCHASER IS A QUALIFIED PURCHASER), 

(II) HAS RECEIVED THE NECESSARY CONSENT FROM ITS BENEFICIAL OWNERS IF 

THE PURCHASER IS A PRIVATE INVESTMENT COMPANY FORMED BEFORE 

APRIL 30, 1996, (III) 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, (IV) 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 

AND (v) AGREES TO PROVIDE NOTICE TO ANY SUBSEQUENT TRANSFEREE OF THE 

TRANSFER RESTRICTIONS PROVIDED IN THIS LEGEND.]3 

[THIS PURCHASE MONEY NOTE IS NOT TRANSFERABLE EXCEPT IN 

ACCORDANCE WITH THE RESTRICTIONS DESCRIBED HEREIN AND IN THE 

CUSTODIAL AND PAYING AGENCY AGREEMENT. ANY SALE OR TRANSFER IN 

VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE 

VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE 

TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO 

THE ISSUER, THE PAYING AGENT OR ANY INTERMEDIARY. EACH TRANSFEROR 

OF THIS PURCHASE MONEY NOTE AGREES TO PROVIDE NOTICE OF THE 

TRANSFER RESTRICTIONS SET FORTH HEREIN AND IN THE CUSTODIAL AND 

PAYING AGENCY AGREEMENT TO THE TRANSFEREE. IN ADDITION TO THE 

FOREGOING, THE ISSUER HAS THE RIGHT, UNDER THE CUSTODIAL AND PAYING 

AGENCY AGREEMENT, TO COMPEL ANY OWNER OF A BENEFICIAL INTEREST IN 

THIS PURCHASE MONEY NOTE THAT IS A NON-PERMITTED HOLDER (AS DEFINED 

IN THE CUSTODIAL AND PAYING AGENCY AGREEMENT) TO SELL ITS INTEREST 

IN THE PURCHASE MONEY NOTES, OR MAY SELL SUCH INTEREST ON BEHALF OF 

SUCH OWNER.]4 

[THE ISSUER HAS THE RIGHT, UNDER THE CUSTODIAL AND PAYING 

AGENCY AGREEMENT, TO COMPEL ANY OWNER OF THIS PURCHASE MONEY 

NOTE THAT IS A NON-PERMITTED HOLDER (AS DEFINED IN THE CUSTODIAL AND 

PAYING AGENCY AGREEMENT) TO SELL ITS INTEREST IN THE PURCHASE MONEY 

NOTES OR MAY SELL SUCH INTEREST ON BEHALF OF SUCH OWNER.]5 

PRINCIPAL OF THIS PURCHASE MONEY NOTE IS PAYABLE AS SET FORTH 

HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS PURCHASE 

MONEY NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE 

FACE HEREOF. ANY PERSON ACQUIRING THIS PURCHASE MONEY NOTE MAY 

3

 Insert if an Unrestricted Note. 

4

 Insert if a Restricted Note. 

5

 Insert if a Unrestricted Note. 

B-2-3 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE PAYING 

AGENT. 

EACH PURCHASER OR TRANSFEREE OF THIS PURCHASE MONEY NOTE (OR 

ANY INTEREST HEREIN) WILL BE DEEMED TO HAVE REPRESENTED AND 

WARRANTED THAT AT THE TIME OF ITS ACQUISITION AND THROUGHOUT THE 

PERIOD OF ITS HOLDING AND DISPOSITION OF THIS PURCHASE MONEY NOTE (OR 

ANY INTEREST HEREIN) EITHER (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF 

OR USING THE ASSETS OF, A PLAN SUBJECT TO TITLE I OF THE EMPLOYEE 

RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR 

SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE 

“CODE”), OR A FOREIGN, GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT 

TO ANY FOREIGN, FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY 

SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 406 OF 

ERISA OR SECTION 4975 OF THE CODE OR (B) ITS ACQUISITION, HOLDING 

(INCLUDING, WITHOUT LIMITATION, THE EXERCISE OF RIGHTS HEREUNDER) 

AND DISPOSITION OF THIS PURCHASE MONEY NOTE (OR ANY INTEREST HEREIN) 

WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED 

TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, 

IN THE CASE OF A FOREIGN, GOVERNMENTAL OR CHURCH PLAN, A VIOLATION 

OF ANY SUBSTANTIALLY SIMILAR FOREIGN, FEDERAL, STATE OR LOCAL LAW). 

ANY TRANSFER, PLEDGE OR OTHER USE OF THIS PURCHASE MONEY NOTE 

FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE 

REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN, UNLESS 

THIS PURCHASE MONEY NOTE IS PRESENTED BY AN AUTHORIZED 

REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY(“DTC”), NEW YORK, 

NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, 

EXCHANGE OR PAYMENT AND ANY PURCHASE MONEY NOTE ISSUED IS 

REGISTERED IN THE NAME OF CEDE & CO. OR OF SUCH OTHER ENTITY AS IS 

REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 

HEREON IS MADE TO CEDE & CO.). 

[Insert OID legend if required pursuant to Section 2.4(e) of the Custodial and Paying Agency 

Agreement] 

THE FAILURE TO PROVIDE THE ISSUER, THE CUSTODIAN OR THE PAYING 

AGENT WITH 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 “UNITED STATES 

PERSON” WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE CODE OR AN 

APPROPRIATE INTERNAL REVENUE SERVICE FORM W-8 (OR SUCCESSOR 

APPLICABLE FORM) IN THE CASE OF A PERSON THAT IS NOT A “UNITED STATES 

PERSON” WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE CODE) MAY 

B-2-4 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
RESULT IN THE IMPOSITION OF U.S. FEDERAL BACK-UP WITHHOLDING UPON 

PAYMENTS TO THE HOLDER IN RESPECT OF THIS PURCHASE MONEY NOTE. 

INTERESTS IN THIS GLOBAL NOTE MUST BE HELD IN MINIMUM 

DENOMINATIONS OF U.S.$500,000 AND INTEGRAL MULTIPLES OF U.S.$1,000 IN 

EXCESS THEREOF. 

B-2-5 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
PURCHASE MONEY NOTE
 

Certificate No.: [__] 

ISIN No.: [_____] 

CUSIP No.: [_____] 

$[__________] February 9, 2010 

FOR VALUE RECEIVED, Multibank 2009-1 CML-ADC Venture, LLC, a Delaware 

limited liability company (herein referred to as the “Issuer”), hereby unconditionally promises to 

pay to the order of [_____], or its successors and registered assigns, the principal sum of 

$[__________] ([__________] and [__]/100 United States Dollars) (or such other amount as 

shall be the outstanding principal amount of this Purchase Money Note shown on Schedule A 

hereto). No interest shall accrue on the outstanding principal amount of this Purchase Money 

Note. The entire outstanding principal amount of this Purchase Money Note shall be due and 

payable on [________] (the “Maturity Date”) or such earlier date as such amount shall become 

due and payable pursuant to the terms of this Purchase Money Note. 

The principal of this Purchase Money Note is payable in such coin or currency of the 

United States of America as at the time of payment is legal tender for payment of public and 

private debts. All payments made by the Issuer with respect to this Purchase Money Note shall 

be subject to the priority of payments set forth in Section 5.1 of the Custodial and Paying Agency 

Agreement dated as of February 9, 2010 by and among the Issuer, the Federal Deposit Insurance 

Corporation (in any capacity, the “FDIC”), in its corporate capacity, as the guarantor of the 

Purchase Money Notes, the FDIC, as receiver for various failed financial institutions listed on 

Schedule B hereto (in its separate capacities as the receiver with respect to each such 

receivership, the “Receiver”), as Collateral Agent pursuant to the Reimbursement, Security and 

Guaranty Agreement, and Wells Fargo Bank, N.A. (as amended, supplemented or restated from 

time to time, and including any substantially similar agreement entered into by Issuer and any 

new or successor custodian and paying agent, the “Custodial and Paying Agency Agreement”). 

This Purchase Money Note is subject to all terms of the Custodial and Paying Agency 

Agreement. Unless otherwise defined herein, capitalized terms used in this Purchase Money 

Note have the meanings provided in, or by reference in, the Custodial and Paying Agency 

Agreement. 

This Purchase Money Note may not be prepaid, in whole or in part, without the prior 

written consent of the Purchase Money Notes Guarantor. Any amount repaid or prepaid 

pursuant to this Purchase Money Note may not be reborrowed. 

The Holder, by acceptance of this Purchase Money Note, covenants and agrees that no 

recourse may be taken, directly or indirectly, with respect to the rights of the Issuer pursuant to 

the Custodial and Paying Agency Agreement or any Ancillary Documents or under any 

B-2-6 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
certificate or other writing delivered in connection therewith, against the Paying Agent or the 

Servicer or any of their Affiliates. 

Payments on this Purchase Money Note will be made by the Paying Agent by wire 

transfer of immediately available funds to such account as may be specified from time to time by 

the Holder to the Paying Agent in writing or, at the option of the Holder hereof, by check to such 

address as the Holder shall have designated to the Paying Agent in writing, in each case without 

the presentation or surrender of this Purchase Money Note or the making of any notation hereon. 

Notwithstanding the foregoing, the final payment on this Purchase Money Note will be made 

only upon presentation and surrender of this Purchase Money Note at the office or agency 

maintained for that purpose by the Paying Agent in Minneapolis, Minnesota. If any payment of 

principal of, or any other amount owed by the Issuer pursuant to, this Purchase Money Note 

becomes due and payable on a day other than a Business Day, the maturity thereof shall be 

extended to the next succeeding Business Day. 

This Purchase Money Note is limited in right of payment to certain collections and 

recoveries respecting the Loans, all as more specifically set forth in the Custodial and Paying 

Agency Agreement. As provided in the Custodial and Paying Agency Agreement, deposits and 

withdrawals from the Accounts may be made by the Paying Agent from time to time for 

purposes other than distributions to the Holder. 

This Purchase Money Note is a registered note and may be transferred only upon 

surrender to the Paying Agent (with concurrent written notice to the Issuer of the requested 

transfer) of this Purchase Money Note for registration and transfer, duly endorsed by, or 

accompanied by a written instrument of transfer duly executed by, the registered holder hereof or 

its attorney duly authorized in writing. Upon surrender of this Purchase Money Note as above 

provided, together with the name, address and other information for notices of the transferee, the 

Paying Agent shall promptly register the transfer, record the transfer on this Purchase Money 

Note and deliver the same to the transferee. A transfer of this Purchase Money Note shall be 

effective upon registration of the transfer by the Paying Agent. Prior to registration of such a 

transfer, the Person in whose name this Purchase Money Note is registered shall be deemed the 

owner and Holder thereof for all purposes hereof, and the Issuer shall not be affected by any 

notice or knowledge to the contrary. 

Upon request by a transferee of this Purchase Money Note that a new Purchase Money 

Note be issued or upon receipt by the Issuer of evidence reasonably satisfactory to it of the 

ownership of and the loss, theft, destruction or mutilation of this Purchase Money Note and (a) in 

the case of loss, theft or destruction, of indemnity reasonably satisfactory to it, or (b) in the case 

of a request by a transferee that a new Purchase Money Note be issued or in the case of 

mutilation, upon surrender and cancellation of the Purchase Money Note, within two Business 

Days thereafter, the Issuer shall execute and deliver, in lieu thereof, a new Purchase Money 

Note. 

B-2-7 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

The Paying Agent, the Servicer and any agent of any of the foregoing, may treat the 

Person in whose name this Purchase Money Note is registered as the owner and Holder hereof 

for all purposes, and none of the foregoing shall be affected by notice to the contrary. 

The occurrence or continuance of any one or more of the following events, whether such 

occurrence is voluntary or involuntary or comes about or is effected by operation of Law or 

otherwise, shall constitute an “Event of Default” pursuant to this Purchase Money Note: 

(a) the occurrence of any “Event of Default,” as defined in the 

Reimbursement, Security and Guaranty Agreement; or 

(b) the Issuer (i) makes an assignment for the benefit of creditors; (ii) files a 

voluntary petition for relief in any Insolvency Proceeding (as defined in the Reimbursement and 

Security Agreement); (iii) is adjudged bankrupt or insolvent or there is entered against the Issuer 

an order for relief in any Insolvency Proceeding; (iv) files a petition or answer seeking for the 

Issuer any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or 

similar relief under any Law; (v) seeks, consents to, or acquiesces in the appointment of a 

trustee, receiver or liquidator of the Issuer or of all or any substantial part of the Issuer’s 

properties; (vi) files an answer or other pleading admitting or failing to contest the material 

allegations of a petition filed against the Issuer in any proceeding described in clauses (i) through 

(v); (vii) becomes unable to pay its obligations (other than the Purchase Money Notes, unless a 

Purchase Money Notes Trigger Event has occurred and is continuing and is not cured within ten 

(10) Business Days) as they become due; or (viii) at least sixty (60) days have passed following 

the commencement of any proceeding against the Issuer seeking reorganization, arrangement, 

composition, readjustment, liquidation, dissolution or similar relief under any Law, and such 

proceeding has not been dismissed, or at least sixty (60) days have passed following the 

appointment of a trustee, receiver or liquidator for the Issuer or all or any substantial part of the 

Issuer’s properties without the Issuer’s agreement or acquiescence, and such appointment has not 

been vacated or stayed, or if such appointment has been stayed, at least sixty (60) days have 

passed following the expiration of the stay if such appointment has not been vacated. 

Upon the occurrence of an Event of Default specified in paragraph (a) above, the Holder 

may, with the consent of the Purchase Money Notes Guarantor, and the Holder shall, at the 

direction of the Purchase Money Notes Guarantor, in addition to any other available remedy, by 

notice in writing to the Issuer, declare this Purchase Money Note to be immediately due and 

payable, together with any other amounts owed by the Issuer pursuant to this Purchase Money 

Note, and on delivery of such a notice, the unpaid principal amount of this Purchase Money Note 

and any other amounts owed by the Issuer pursuant to this Purchase Money Note, shall forthwith 

become immediately due and payable without the necessity of any presentment, demand, protest 

or any other notice of any kind, all of which are hereby expressly waived by the Issuer. If an 

Event of Default specified in paragraph (b) above occurs, this Purchase Money Note shall 

forthwith automatically become immediately due and payable, both as to principal and as to any 

other amounts owed by the Issuer pursuant to this Purchase Money Note, without any action on 

the part of the Holder and without the consent of the Purchase Money Notes Guarantor. 

B-2-8 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

If and to the extent the Purchase Money Notes Guarantor makes any payment to the 

Holder pursuant to or in connection with the Purchase Money Notes Guaranty, the Purchase 

Money Notes Guarantor shall be subrogated to all of the rights of the Holder with respect to any 

claim to which such payment relates to the extent of such payment, and the Holder, upon 

acceptance of any such payment, will be deemed to have assigned to the Purchase Money Notes 

Guarantor any and all claims it may have against the Issuer or others and for which the Holder 

receives payment from the Purchase Money Notes Guarantor pursuant to the Purchase Money 

Notes Guaranty. Upon the request of the Purchase Money Notes Guarantor, the Holder shall 

execute written assignments of such claims. 

The Issuer shall pay to the Holder hereof such additional amounts as shall be sufficient to 

pay the Holder’s actual and reasonable costs and expenses of collection, including without 

limitation reasonable attorneys’ fees. 

No delay, omission or waiver on the part of the Holder in exercising any right pursuant to 

this Purchase Money Note shall operate as a waiver of such right or any other right of the 

Holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or 

waiver of the same or any other right on any future occasion. Except as otherwise set forth 

herein, the rights and remedies of the Holder are cumulative and not exclusive of any rights or 

remedies the Holder would otherwise have. 

The Issuer’s obligations pursuant to this Purchase Money Note are absolute and 

unconditional and shall not be affected by any circumstance whatsoever, and the Issuer hereby 

agrees to make, or cause the Paying Agent to make, all payments pursuant to this Purchase 

Money Note in full and when due, whether in respect to principal or any other amount owed by 

the Issuer pursuant to this Purchase Money Note, without notice, demand, counterclaim, setoff, 

deduction, defense, abatement, suspension, limitation, deferment, diminution, recoupment or 

other right that the Issuer may have against the Holder hereof or any other Person, but subject in 

all respects to the priority of payment set forth in Section 5.1 of the Custodial and Paying 

Agency Agreement, and the Issuer hereby waives and agrees not to assert any defense (other 

than payment in accordance with the terms hereof), right of counterclaim, setoff or recoupment, 

or other right which it may have against the Holder hereof or any other Person. 

All notices, requests, demands, and other communications required or permitted to be 

given or delivered under or by reason of the provisions of this Purchase Money Note 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 or electronic mail address 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 (a) actual 

receipt (or refusal thereof) by the relevant party hereto and (b) (i) if delivered by hand or by 

nationally recognized courier service, when signed for (or refused) by or on behalf of the 

relevant party hereto; ii) if delivered by mail, four (4) Business Days after deposit in the mails, 

postage prepaid; and (iii) if delivered by electronic mail (which form of delivery is subject to the 

B-2-9 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
provisions of this paragraph), when delivered. In no event shall a voice mail message be 

effective as a notice, communication or confirmation pursuant to this Purchase Money Note. 

B-2-10 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 

 


 


 


 

If to the Issuer, to: 

Multibank 2009-1 CML-ADC Venture, LLC 

700 NW 107 Avenue, Suite 400 

Miami, Florida 33172 

Attention: Thekla Blaser Salzman 

E-Mail Address: Thekla.Salzman@rialtocapital.com 

with a copy to: 

Bilzin Sumberg Baena Price & Axelrod LLP 

200 South Biscayne Boulevard, Suite 2500 

Miami, Florida 33131-5340 

Attention: Alan Axelrod 

E-Mail Address: AAxelrod@bilzin.com
 

and if to the Holder hereof, to: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, N.W.
 

Room F-7014 

Washington, D.C. 20429-0002 

Attention: Ralph Malami
 

E-Mail Address: RMalami@fdic.gov
 

with copies 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 

In case any one or more of the provisions hereof should be invalid, illegal or 

unenforceable in any respect, the validity, legality and enforceability of the remaining provisions 

contained herein shall not in any way be affected or impaired thereby. 

This Purchase Money Note shall bind the Issuer and the successors of the Issuer, and the 

term “Issuer” herein shall include the successors of the Issuer. 

B-2-11 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
The terms of this Purchase Money Note may be amended from time to time only by the 

written agreement of the Issuer and the Holder, subject in all instances to the terms of the 

Purchase Money Notes Guaranty. 

In any case in which consent of the Holder is required pursuant to the terms of this 

Purchase Money Note, such consent shall be governed by the provisions of the Custodial and 

Paying Agency Agreement. 

This Purchase Money Note and the rights and the duties of the Issuer and the Holder 

pursuant to this Purchase Money Note shall be governed by and construed in accordance with 

federal law, but if federal law does not provide a rule of decision, it shall be governed by and 

construed in accordance with the law of the State of New York, excluding any conflict of laws 

rule or principle that might refer the governance or the construction of this Purchase Money Note 

to the law of another jurisdiction. 

(a) Each of the Issuer and each Holder (if such Holder is not the FDIC; any 

Holder that is not the FDIC, a “Non-FDIC Holder”), on behalf of itself and its Affiliates, 

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 any Holder (if such Holder is the FDIC; the Holder that is the FDIC, the “FDIC 

Holder”) arising out of, relating to, or in connection with this Purchase Money Note or any 

Ancillary 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 FDIC Holder files the suit, 

action or proceeding without the consent of the FDIC Holder; 

(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 o Columbia; 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 

FDIC Holder arising out of, relating to, or in connection with this Purchase Money Note or any 

Ancillary 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 FDIC Holder; 

B-2-12 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
(B) assert that venue is improper in the Supreme Court of the 

State of New 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 Issuer, each 

Non-FDIC Holder, or its Affiliates against the FDIC Holder arising out of, relating to, or in 

connection with this Purchase Money Note or any Ancillary Document 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 dispute-resolution forum without the consent of the FDIC 

Holder, and agrees to consent thereafter to transfer of the suit, action or proceeding to either the 

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

Court for the District of Columbia at the option of the FDIC Holder; 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 paragraph (a)(iii) above, 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 disputeresolution forum without the consent of the FDIC Holder. 

(b) Each of the Issuer and each Non-FDIC Holder, 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 paragraph (a) above may be enforced in any 

court of competent jurisdiction. 

(c) Subject to the provisions of paragraph (d), each of the Issuer and each 

Holder, on behalf of itself and its Affiliates, hereby irrevocably and unconditionally agrees that 

service of all writs, process and summonses in any suit, action or proceeding pursuant to 

paragraph (a) or paragraph (b) above may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to it at its address for notices set forth in this 

Purchase Money Note (with copies to such other Persons as specified herein); provided, 

however, that nothing contained in this paragraph (c) shall affect the right of any party to serve 

process in any other manner permitted by Law. 

(d) Nothing in paragraph (a), paragraph (b) or paragraph (c) above shall 

constitute consent to jurisdiction in any court by the FDIC, other than as expressly provided in 

paragraph (a)(iii) and paragraph (a)(iv) above, 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. 

EACH OF THE ISSUER AND THE HOLDER HEREBY IRREVOCABLY AND 

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

B-2-13 

Multibank Structured Transaction 2009-1 CML-ADC 

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ANY DISPUTE ARISING OUT OF OR RELATING TO THIS PURCHASE MONEY NOTE 

AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE 

SITTING WITHOUT A JURY. 

[On or after the 40th day after [ ]6, interests in this Temporary Regulation S 

Global Note may be exchanged (free of charge) for interests in a permanent Regulation S Global 

Note. The permanent Regulation S Global Note shall be so issued and delivered in exchange for 

only that portion of this Temporary Regulation S Global Note in respect of which there shall 

have been presented to the Depository by Euroclear or Clearstream a certification to the effect 

that it has received from or in respect of a person entitled to a beneficial interest (as shown by its 

[On an exchange of the whole of this Temporary Regulation S Global Note, this 

Temporary Regulation S Global Note shall be surrendered to the Depository at its office. On an 

exchange of only part of this Temporary Regulation S Global Note, details of such exchange 

shall be entered by or on behalf of the Issuer in Schedule A hereto. If, following the issue of a 

permanent Regulation S Global Note in exchange for some of the Purchase Money Notes 

represented by this Temporary Regulation S Global Note, further Purchase Money Notes are to 

be exchanged pursuant to this paragraph, such exchange may be effected, without the issue of a 

new permanent Regulation S Global Note, by the Issuer or the Depository endorsing Schedule A 

of the permanent Regulation S Global Note previously issued to reflect an increase in the 

Interests in this Global Note may be exchanged for a beneficial interest in the 

corresponding [Temporary Regulation S Global Note or Regulation S Global Note] [Rule 144A 

Global Note] or for the corresponding Certificated Note, in each case subject to the restrictions 

as set forth in the Custodial and Paying Agency Agreement. 

This Global Note is subject to mandatory exchange for the corresponding Certificated 

Notes under the limited circumstances set forth in the Custodial and Paying Agency Agreement. 

Upon redemption, repayment, exchange of or increase in any interest represented by this 

Global Note, this Global Note shall be endorsed on Schedule A hereto to reflect the reduction of 

or increase in the principal amount evidenced hereby. 

Title to Purchase Money Notes shall pass by registration in the Purchase Money Notes 

Register kept by the Purchase Money Notes Registrar, which initially shall be the Paying Agent. 

6 Insert the date of initial sale of the Purchase Money Notes under Regulation S. 

7 Insert if a Temporary Regulation S Global Note. 

8 Insert if a Temporary Regulation S Global Note. 

records) a certification that the beneficial interests in such Temporary Regulation S Global Note 

are owned by persons who are not U.S. Persons.]7 

aggregate principal amount of such permanent Regulation S Global Note by an amount equal to 

the aggregate principal amount of additional Purchase Money Notes to be exchanged.]8 

B-2-14 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
No service charge shall be made for registration of transfer or exchange of this Purchase 

Money Note, but the Paying Agent may require payment of a sum sufficient to cover any tax or 

other governmental charge payable in connection therewith. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

B-2-15 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually 

or in facsimile, by its Initial Member as of the date first shown above. 

MULTIBANK 2009-1 CML-ADC VENTURE, LLC 

By: Federal Deposit Insurance Corporation, 

as Receiver for various failed financial 

institutions listed on Schedule B hereto, 

as Initial Member 

By:_________________________________ 

Name: 

Title: 

B-2-16 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
SCHEDULE A 

SCHEDULE OF EXCHANGES OR REDEMPTIONS 

The following exchanges, redemptions, repayments of or increase in the whole or a part of the 

Purchase Money Notes represented by this Global Note have been made: 

Date exchange/ 

redemption/repayment/ 

increase made 

Original principal 

amount of this 

Global Note 

Part of principal amount of 

this Global Note 

exchanged/redeemed/ 

repaid/increased 

Remaining Principal 

amount of this Global 

Note following such 

exchange/redemption/ 

repayment/increase 

Notation made by 

or on behalf of the 

Issuer 

B-2-17 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 

 


 

SCHEDULE B
 

LIST OF VARIOUS FAILED FINANCIAL INSTITUTIONS
 

Bank Name City State Fund Closing Date 

Columbian Bank and Trust Topeka KS 10011 August 22, 2008 

Integrity Bank Alpharetta GA 10012 August 29, 2008 

Silver State Bank Henderson NV 10013 September 5, 2008 

Freedom Bank Bradenton FL 10019 October 31, 2008 

Security Pacific Bank Los Angeles CA 10020 November 7. 2008 

Franklin Bank, SSB Houston TX 10021 November 7, 2008 

The Community Bank Loganville GA 10022 November 21, 2008 

First Georgia Community Bank Jackson GA 10025 December 5, 2008 

Haven Trust Bank Duluth GA 10027 December 12, 2008 

Bank of Clark County Vancouver WA 10029 January 16, 2009 

1st Centennial Bank Redlands CA 10030 January 23, 2009 

MagnetBank Salt Lake City UT 10031 January 30, 2009 

FirstBank Financial Services McDonough GA 10036 February 6, 2009 

Silver Falls Bank Silverton OR 10041 February 20, 2009 

FirstCity Bank Stockbridge GA 10047 March 20, 2009 

Omni National Bank Atlanta GA 10048 March 27, 2009 

B-2-18 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

 

 

 

 

EXHIBIT C-1 

FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE OF 

RULE 144A GLOBAL NOTE TO TEMPORARY REGULATION S GLOBAL NOTE OR 

REGULATION S GLOBAL NOTE 

Multibank 2009-1 CML-ADC Venture, LLC 

c/o Wells Fargo Bank, N.A., as Paying Agent 

6th Street & Marquette Avenue 

Minneapolis, MN 55479 

Attn: Corporate Trust Services Transfer Agent Department 

Re: Purchase Money Notes due [February 25, 2012][February 25, 2013][February 25, 2014]9 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of February 

9, 2010 (as modified and supplemented and in effect from time to time, the “Custodial and 

Paying Agency Agreement”) among Multibank 2009-1 CML-ADC Venture, LLC, the Federal 

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase Money 

Notes, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells Fargo 

Bank, N.A.. All capitalized terms used but not defined herein are used as defined in the 

Custodial and Paying Agency Agreement. 

This letter relates to U.S.$______________ principal amount of Purchase Money Notes 

due [February 25, 2012][February 25, 2013][February 25, 2014]10 (the “Notes”) that are held in 

the form of a beneficial interest in a Rule 144A Global Note in the name of _________ (the 

“Holder”) through the Depository. [The Holder has requested a transfer of such beneficial 

interest in a Rule 144A Global Note for a beneficial interest in a [Temporary] Regulation S 

Global Note to be held in the name of _________ (the “Transferee”) through [Euroclear] 

[Clearstream],11 which in turn will hold through the Depository.]12 [The Holder has requested an 

exchange of such beneficial interest in a Rule 144A Global Note for a beneficial interest in a 

[Temporary] Regulation S Global Note to be held in the name of the Holder through [Euroclear] 

[Clearstream],13 which in turn will hold through the Depository.]14 

9 

10 

11 

12 

Insert as appropriate 

Insert as appropriate 

Insert as appropriate 

Insert for transfers 

13 

14 

Insert as appropriate 

Insert for exchanges 

C-1-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

 

In connection with such request, the Holder does hereby certify that (1) the [transfer] 

[exchange]15 of the beneficial interest in the Notes has been made in compliance with the transfer 

restrictions applicable to the Global Notes; [and] (2) the [Holder] [Transferee]16 is not a U.S. 

person as defined in Regulation S under the Securities Act[; and (3) such transfer has been made 

pursuant to and in accordance with Regulation S].17 

This certificate and the statements contained herein are made for your benefit. 

[INSERT NAME OF HOLDER] 

By: 

Name: 

Title: 

Dated: __________, ____ 

15 Insert as appropriate

16 Insert as appropriate

17 Insert for transfer 

C-1-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

 

EXHIBIT C-2
 
 

FORM OF NON-U.S. PERSON CERTIFICATION 

Multibank 2009-1 CML-ADC Venture, LLC 

c/o Wells Fargo Bank, N.A., as Paying Agent 

6th Street & Marquette Avenue 

Minneapolis, MN 55479 

Attn: Corporate Trust Services Transfer Agent Department 

Re: Purchase Money Notes due [February 25, 2012][February 25, 2013][February 25, 2014]18 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of February 

9, 2010 (as modified and supplemented and in effect from time to time, the “Custodial and 

Paying Agency Agreement”) among Multibank 2009-1 CML-ADC Venture, LLC, the Federal 

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase Money 

Notes, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells Fargo 

Bank, N.A.. All capitalized terms used but not defined herein are used as defined in the 

Custodial and Paying Agency Agreement. 

In connection with the undersigned’s purchase of the Purchase Money Notes due 

[February 25, 2012], [February 25, 2013] or [February 25, 2014] (the “Notes”), as set forth 

below, the undersigned hereby represents, acknowledges and agrees as follows: 

It is a person that is not a “U.S. person” as defined in Regulation S under the Securities 

Act and understands that the sale of the Notes to it is being made in reliance on the exemption 

from the registration requirements of the Securities Act provided by Regulation S thereunder. 

Name of Purchaser: ____________________ Dated: __________ 

By: 

Name: 

Title: 

Aggregate principal amount of: 

Purchase Money Notes due [February 25, 2012]: $__________ 

Purchase Money Notes due [February 25, 2013]: $__________ 

18 Insert as appropriate 

C-2-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
Purchase Money Notes due [February 25, 2014]: $__________ 

C-2-2 

468-003/MISC/2390428.5 
 

 

 

 

 

 

EXHIBIT C-3 

FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE OF 

TEMPORARY REGULATION S GLOBAL NOTE OR 

REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE 

Multibank 2009-1 CML-ADC Venture, LLC 

c/o Wells Fargo Bank, N.A., as Paying Agent 

6th Street & Marquette Avenue 

Minneapolis, MN 55479 

Attn: Corporate Trust Services Transfer Agent Department 

Re: Purchase Money Notes due [February 25, 2012][February 25, 2013][February 25, 2014]19 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of February 

9, 2010 (as modified and supplemented and in effect from time to time, the “Custodial and 

Paying Agency Agreement”) among Multibank 2009-1 CML-ADC Venture, LLC, the Federal 

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase Money 

Notes, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells Fargo 

Bank, N.A.. All capitalized terms used but not defined herein are used as defined in the 

Custodial and Paying Agency Agreement. 

This letter relates to U.S.$_________ principal amount of Purchase Money Notes due 

[February 25, 2012][February 25, 2013][February 25, 2014]20 (the “Notes”) that are held in the 

form of a beneficial interest in a [Temporary] Regulation S Global Note in the name of 

_________ (the “Holder”) through [Euroclear] [Clearstream],21 which in turn holds through the 

Depository. [The Holder has requested a transfer of such beneficial interest in a [Temporary] 

Regulation S Global Note for a beneficial interest in a Rule 144A Global Note to be held in the 

name of _________ (the “Transferee”) through the Depository.]22 [The Holder has requested an 

exchange of such beneficial interest in a [Temporary] Regulation S Global Note for a beneficial 

interest in a Rule 144A Global Note to be held in the name of the Holder through the 

Depository.]23 

19 

20 

21 

22 

Insert as appropriate 

Insert as appropriate 

Insert as appropriate 

Insert for transfers 

23 Insert for exchanges 

C-3-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

In connection with such request, the Holder does hereby certify that the [Holder is a 

Qualified Institutional Buyer that is also a Qualified Purchaser]24 [Holder reasonably believes 

that the Transferee 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].25 

This certificate and the statements contained herein are made for your benefit. 

[INSERT NAME OF HOLDER] 

By: 

Name: 

Title: 

Dated: __________, ____ 

24 Insert for exchanges 

25 Insert for transfers 

C-3-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

 

 


 

EXHIBIT C-4 

FORM OF QUALIFIED INSTITUTIONAL BUYER/QUALIFIED PURCHASER
 

[Letterhead of Prospective Note Purchaser/Exchanger] 

Multibank 2009-1 CML-ADC Venture, LLC 

c/o Wells Fargo Bank, N.A., as Paying Agent 

6th Street & Marquette Avenue 

Minneapolis, MN 55479 

Attn: Corporate Trust Services Transfer Agent Department 

Re: Purchase Money Notes due [February 25, 2012][February 25, 2013][February 25, 2014]26 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of February 

9, 2010 (as modified and supplemented and in effect from time to time, the “Custodial and 

Paying Agency Agreement”) among Multibank 2009-1 CML-ADC Venture, LLC, the Federal 

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase Money 

Notes, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells Fargo 

Bank, N.A.. All capitalized terms used but not defined herein are used as defined in the 

Custodial and Paying Agency Agreement. 

In connection with the undersigned’s purchase of the Purchase Money Notes due 

[February 25, 2012], [February 25, 2013] or [February 25, 2014] (the “Notes”), as set forth 

below, the undersigned hereby represents, acknowledges and agrees as follows: 

It is (A)(I) a “qualified institutional buyer” as defined in Rule 144A under the Securities 

Act of 1933, as amended, and is acquiring the Notes in reliance on the exemption from Securities 

Act registration provided by Rule 144A thereunder and (B) it is also a “qualified purchaser” for 

purposes of Section 3(c)(7) of the Investment Company Act of 1940, as amended. 

Name of Purchaser: ____________________ Dated: __________ 

By: 

Name: 

Title: 

Aggregate principal amount of: 

26 Insert as appropriate 

C-4-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
Purchase Money Notes due [February 25, 2012]: $__________ 

Purchase Money Notes due [February 25, 2013]: $__________ 

Purchase Money Notes due [February 25, 2014]: $__________ 

C-4-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

 

 

EXHIBIT C-5 

FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE OF 

GLOBAL NOTE TO CERTIFICATED NOTE 

Multibank 2009-1 CML-ADC Venture, LLC 

c/o Wells Fargo Bank, N.A., as Paying Agent 

6th Street & Marquette Avenue 

Minneapolis, MN 55479 

Attn: Corporate Trust Services Transfer Agent Department 

Re: Purchase Money Notes due [February 25, 2012][February 25, 2013][February 25, 2014]27 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of February 

9, 2010 (as modified and supplemented and in effect from time to time, the “Custodial and 

Paying Agency Agreement”) among Multibank 2009-1 CML-ADC Venture, LLC, the Federal 

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase Money 

Notes, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells Fargo 

Bank, N.A.. All capitalized terms used but not defined herein are used as defined in the 

Custodial and Paying Agency Agreement. 

This letter relates to U.S.$__________ principal amount of Purchase Money Notes due 

[February 25, 2012][February 25, 2013][February 25, 2014]28 (the “Notes”) that are held in the 

form of a beneficial interest in a [Rule 144A Global Note] [Temporary Regulation S Global 

Note] [Regulation S Global Note] in the name of _________ (the “Holder”) through the 

Depository. [The Holder has requested a transfer of such beneficial interest in a [Rule 144A 

Global Note] [Temporary Regulation S Global Note] [Regulation S Global Note] for a beneficial 

interest in a Certificated Note to be held in the name of _________ (the “Transferee”).]29 [The 

Holder has requested an exchange of such beneficial interest in a [Rule 144A Global Note] 

[Temporary Regulation S Global Note] [Regulation S Global Note] for a beneficial interest in a 

Certificated Note to be held in the name of the Holder.]30 In connection with the undersigned’s 

acquisition of the Notes, the undersigned hereby represents, acknowledges and agrees as follows: 

1. Either: 

27 

28 

29 

Insert as appropriate 

Insert as appropriate 

Insert for transfers 

30 Insert for exchanges 

C-5-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
(a) 

(b) 

it is a “qualified institutional buyer” (“Qualified Institutional 

Buyer”) as defined in Rule 144A (“Rule 144A”) under the 

Securities Act of 1933, as amended (“the Securities Act”) and is 

acquiring the Notes in reliance on the exemption from Securities 

Act registration provided by Rule 144A thereunder, (B) is a 

“qualified purchaser” (a “Qualified Purchaser”) within the 

meaning of the Investment Company Act of 1940, as amended (the 

“Investment Company Act”), and (C) understands the Notes will 

bear a legend set forth in the applicable exhibit attached to the 

Custodial and Paying Agency Agreement. In addition, it 

represents and warrants that it (i) was not formed for the purpose 

of investing in either of the Company (except when each beneficial 

owner of the purchaser is a Qualified Purchaser), (ii) has received 

the necessary consent from its beneficial owners if the purchaser is 

a private investment company formed before April 30, 1996, (iii) 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, 

(iv) 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, (v) will provide 

notice to any subsequent transferee of the transfer restrictions 

provided in the legend, (vi) will hold and transfer Notes in an 

amount of not less than U.S.$500,000 for it or for each account for 

which it is acting, and (vii) will provide the Company and Paying 

Agent from time to time such information as it may reasonably 

request in order to ascertain compliance with this paragraph 

(1) and (viii) understands that the Company may receive a list of 

participants holding positions in its securities from one or more 

book-entry depositories; or 

it is aware that the sale of the Notes to it is being made in reliance 

on the exemption from registration provided by Regulation S under 

the Securities Act (“Regulation S”) and understands that the Notes 

offered in reliance on Regulation S will bear a legend set forth in 

the applicable exhibit to the Custodial and Paying Agency 

Agreement. The Notes may not at any time be held by or on 

behalf of U.S. Persons as defined in Regulation S under the 

Securities Act. It and each beneficial owner of the Notes that it 

holds is not, and will not be, a “U.S person,” as defined in 

Regulation S or a “U.S. resident,” within the meaning of the 

Investment Company Act, and its purchase of the Notes will 

comply with all applicable laws in any jurisdiction in which it 

C-5-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
resides or is located. It does not have its principal place of 

business in any Federal Reserve District of the FRB, or it has 

satisfied and will satisfy all applicable registration and other 

requirements of the FRB in connection with its acquisition of the 

Notes. 

2. It understands that the Notes have been offered only in a transaction not involving 

any public offering in the United States within the meaning of the Securities Act, the Notes have 

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 Notes, the Notes may be offered, resold, pledged or 

otherwise transferred only in accordance with the provisions of the Custodial and Paying Agency 

Agreement and the legend on the Notes. 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 Notes. 

3. In connection with the purchase of the Notes: (A) the Company is not acting as a 

fiduciary or financial or investment advisor for it; (B) it is not relying (for purposes of making 

any investment decision or otherwise) upon any advice, counsel or representations (whether 

written or oral) of the Company or the Receiver or any of their agents (in their capacities as 

such), other than any statements in a current offering circular for the Notes and any 

representations expressly set forth in a written agreement with such party; (C) it has consulted 

with its own legal, regulatory, tax, business, investment, financial and accounting advisers to the 

extent it has deemed necessary and has made its own investment decisions based upon its own 

judgment and upon any advice from such advisers as it has deemed necessary and not upon any 

view expressed by the Company or the Receiver; (D) its purchase of the Notes will comply with 

all applicable laws in any jurisdiction in which it resides or is located; (E) it is acquiring the 

Notes as principal solely for its own account for investment and not with a view to the resale, 

distribution or other disposition thereof in violation of the Securities Act; (F) it has made 

investments prior to the date hereof and was not formed solely for the purpose of investing in the 

Notes; (G) it is not a (1) partnership, (2) common trust fund or (3) special trust, pension, profit 

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

may designate the particular investments to be made; (H) it may not hold the Note for the benefit 

of any other Person, it will at all times be the sole beneficial owner thereof for purposes of the 

Investment Company Act and all other purposes and it will not sell participation interests in the 

Notes or enter into any other arrangement pursuant to which any other Person will be entitled to 

a beneficial interest in the distributions on the Notes; (I) all securities of the Company purchased 

and held directly or indirectly by it have a value in the aggregate of no more than 40% of its total 

assets or capital (exclusive of government securities and cash items) on an unconsolidated basis; 

and (J) it is a sophisticated investor and is purchasing the Notes with a full understanding of all 

of the terms, conditions and risks thereof, and it is capable of assuming and willing to assume 

those risks. 

4. It represents that at the time of its acquisition and throughout the period of its 

holding and disposition of a Note (or any interest therein), either (A) it is not, and is not acting 

C-5-3 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
on behalf of, or using the assets of, an “employee benefit plan” subject to Title I of the U.S. 

Employee Retirement Income Security Act of 1974, as amended (“ERISA”), an individual 

retirement account, Keogh plan or other arrangement subject to Section 4975 of the U.S. Internal 

Revenue Code of 1986, as amended ( the “Code”), an entity whose underlying assets are 

considered to include “plan assets” of any such plan, account or arrangement or a foreign, 

governmental or other plan which is subject to any non-U.S., federal, state or local law that is 

substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or 

(B) its acquisition, holding (including, without limitation, the exercise of rights thereunder) and 

disposition of the Notes (or any interest therein) will not constitute or result in a non-exempt 

prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case 

of a governmental or other plan, a violation of any substantially similar non-U.S., federal, state 

or local law). 

5. It understands that the Custodial and Paying Agency Agreement permits the 

Company to demand that (A) any holder of Rule 144A Global Notes or Certificated Notes who is 

determined not to be both a Qualified Institutional Buyer and a Qualified Purchaser at the time of 

acquisition of such Notes to sell the Notes (x) to a Person who is both (1) a Qualified 

Institutional Buyer and (2) a Qualified Purchaser 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 interest in a Temporary Regulation S 

Global Note or Regulation S Global Note and who is not a U.S. Person in a transaction meeting 

the requirements of Regulation S and, if the holder does not comply with such demand within 30 

days thereof, the Company may sell such holder’s interest in the Note in accordance with and 

pursuant to the terms of the Custodial and Paying Agency Agreement. 

6. It acknowledges that it is its intent and that it understands it is the intent of the 

Company that, for purposes of United States Federal income, state and local income and any 

other income taxes, the Company will be treated as a partnership, the Notes will be treated as 

indebtedness of the Company; it agrees to such treatment and agrees to take no action 

inconsistent with such treatment. 

7. If it is not a “U.S. person” as defined in Section 7701(a)(30) of the Code, it is not 

acquiring any Notes as part of a plan to reduce, avoid or evade U.S. Federal Income taxes owed, 

owing or potentially owed or owing. 

8. It agrees that it will not offer or sell, transfer, assign, or otherwise dispose of any 

Notes 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 

the Custodial and Paying Agency Agreement, to which provisions it agrees it is subject. 

9. 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 hereby consents to such reliance. 

C-5-4 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
10. It will provide notice to each Person to whom it proposes to transfer any interest 

in the Notes of the transfer restrictions and representations set forth in the Custodial and Paying 

Agency Agreement, including the Exhibits referenced therein. 

11. It has satisfied and will satisfy all applicable registration and other requirements 

of the FRB in connection with its acquisition of the Notes. 

C-5-5 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
Name of Purchaser: ____________________ Dated: __________ 

By: 

Name: 

Title: 

Aggregate principal amount of: 

Purchase Money Notes due [February 25, 2012]: $__________ 

Purchase Money Notes due [February 25, 2013]: $__________ 

Purchase Money Notes due [February 25, 2014]: $__________ 

Taxpayer identification number: 

Address for notices: 

Wire transfer information for payments: 

Bank: 

Address: 

Bank ABA#: 

Account #: 

Telephone: FAO 

Facsimile: Attention: 

Attention: 

Registered Name: 

Delivery Instructions: 

C-5-6 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 

 

This certificate and the statements contained herein are made for your benefit. 

[INSERT NAME OF HOLDER] 

By: __
 

Name: 

Title: 

Dated: __________, ____ 

C-5-7 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

 

 

 

EXHIBIT C-6 

FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE OF 

CERTIFICATED NOTE TO TEMPORARY REGULATION S GLOBAL NOTE OR 

REGULATION S GLOBAL NOTE 

Multibank 2009-1 CML-ADC Venture, LLC 

c/o Wells Fargo Bank, N.A., as Paying Agent 

6th Street & Marquette Avenue 

Minneapolis, MN 55479 

Attn: Corporate Trust Services Transfer Agent Department 

Re: Purchase Money Notes due [February 25, 2012][February 25, 2013][February 25, 2014]31 

Reference is made to the Custodial and Paying Agency Agreement dated as of February 

9, 2010 (as modified and supplemented and in effect from time to time, the “Custodial and 

Paying Agency Agreement”) among Multibank 2009-1 CML-ADC Venture, LLC, the Federal 

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase Money 

Notes, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells Fargo 

Bank, N.A.. All capitalized terms used but not defined herein are used as defined in the 

Custodial and Paying Agency Agreement. 

This letter relates to U.S.$_________ principal amount of Purchase Money Notes due 

[February 25, 2012][February 25, 2013][February 25, 2014]32 (the “Notes”) registered in the 

name of ____________ (the “Holder”). [The Holder has requested a transfer of a Certificated 

Note for a beneficial interest in a Regulation S Global Note to be held in the name of _________ 

(the “Transferee”) through [Euroclear] [Clearstream], which in turn will hold through the 

Depositary.]33 [The Holder has requested an exchange of a Certificated Note for a beneficial 

interest in a Regulation S Global Note to be held in the name of Holder through [Euroclear] 

[Clearstream], which in turn will hold through the Depositary.]34 

In connection with such request, the Holder does hereby certify that (1) the [transfer] 

[exchange] of the beneficial interest in the Notes has been made in compliance with the transfer 

restrictions applicable to the Certificated Notes; [and] (2) the [Holder] [Transferee] is not a U.S. 

31 Insert as appropriate

32 Insert as appropriate

33 Insert for transfers 

34 Insert for exchanges 

C-6-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

person as defined in Regulation S under the Securities Act[; and (3) such transfer has been made 

pursuant to and in accordance with Regulation S.]35 

35 Insert for transfers 

C-6-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 
 

This certificate and the statements contained herein are made for your benefit. 

[INSERT NAME OF HOLDER] 

By: __ 
 

Name: 

Title: 

Dated: __________, ____ 

C-6-3 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

 

 

 

 

EXHIBIT C-7 

FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE OF 

CERTIFICATED NOTE TO RULE 144A GLOBAL NOTE 

Multibank 2009-1 CML-ADC Venture, LLC 

c/o Wells Fargo Bank, N.A., as Paying Agent 

6th Street & Marquette Avenue 

Minneapolis, MN 55479 

Attn: Corporate Trust Services Transfer Agent Department 

Re: Purchase Money Notes due [February 25, 2012][February 25, 2013][February 25, 

2014]36 

Reference is made to the Custodial and Paying Agency Agreement dated as of February 

9, 2010 (as modified and supplemented and in effect from time to time, the “Custodial and 

Paying Agency Agreement”) among Multibank 2009-1 CML-ADC Venture, LLC, the Federal 

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase Money 

Notes, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells Fargo 

Bank, N.A.. All capitalized terms used but not defined herein are used as defined in the 

Custodial and Paying Agency Agreement. 

This letter relates to U.S.$__________ principal amount of Purchase Money Notes due 

[February 25, 2012][February 25, 2013][February 25, 2014]37 (the “Notes”) registered in the 

name of ____________ (the “Holder”). [The Holder has requested a transfer of a Certificated 

Note for a beneficial interest in a Rule 144A Global Note to be held in the name of _________ 

(the “Transferee”) through the Depositary.]38 [The Holder has requested an exchange of a 

Certificated Note for a beneficial interest in a Rule 144A Global Note to be held in the name of 

Holder through the Depositary.]39 

In connection with such request, the Holder does hereby certify that the [Holder is a 

Qualified Institutional Buyer that is also a Qualified Purchaser]40 [Holder reasonably believes 

that the Transferee 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 

36 

37 

38 

Insert as appropriate 

Insert as appropriate 

Insert for transfers 

39 

40 

Insert for exchanges 

Insert for exchanges 

C-7-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

securities laws of any state of the United States or any other jurisdiction, and is also a Qualified 

Purchaser].41 

41 Insert for transfers 

C-7-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
This certificate and the statements contained herein are made for your benefit. 

[INSERT NAME OF HOLDER] 

By: 

Name: 

Title: 

Dated: __________, ____ 

C-7-3 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 


 

EXHIBIT C-8 

FORM OF CERTIFICATE FOR TRANSFER OF 

CERTIFICATED NOTE TO CERTIFICATED NOTE
 

Multibank 2009-1 CML-ADC Venture, LLC 

c/o Wells Fargo Bank, N.A., as Paying Agent 

6th Street & Marquette Avenue 

Minneapolis, MN 55479 

Attn: Corporate Trust Services Transfer Agent Department 

Re: Purchase Money Notes due [February 25, 2012][February 25, 2013][February 25, 2014]42 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of February 

9, 2010 (as modified and supplemented and in effect from time to time, the “Custodial and 

Paying Agency Agreement”) among Multibank 2009-1 CML-ADC Venture, LLC, the Federal 

Deposit Insurance Corporation, in its corporate capacity, as the guarantor of the Purchase Money 

Notes, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as the 

Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells Fargo 

Bank, N.A.. All capitalized terms used but not defined herein are used as defined in the 

Custodial and Paying Agency Agreement. 

In connection with the undersigned’s purchase of the Purchase Money Notes due 

[February 25, 2012], [February 25, 2013] or [February 25, 2014], as set forth below on the 

signature page to this letter (the “Notes”), the undersigned hereby represents, acknowledges and 

agrees as follows: 

1. It is (A) a “qualified institutional buyer” (“Qualified Institutional Buyer”) as 

defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (“the 

Securities Act”) and is acquiring the Notes in reliance on the exemption from Securities Act 

registration provided by Rule 144A thereunder, (B) is a “qualified purchaser” (a “Qualified 

Purchaser”) within the meaning of the Investment Company Act of 1940, as amended (the 

“Investment Company Act”), and (C) understands the Notes will bear a legend set forth in the 

applicable exhibit attached to the Custodial and Paying Agency Agreement. In addition, it 

represents and warrants that it (i) was not formed for the purpose of investing in the Company 

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

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

company formed before April 30, 1996, (iii) 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, (iv) is not a 

42 Insert as appropriate 

C-8-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
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, (v) will provide notice to any subsequent transferee of the transfer restrictions 

provided in the legend, (vi) will hold and transfer Notes in an amount of not less than 

U.S.$500,000 for it or for each account for which it is acting, and (vii) will provide the Company 

and Paying Agent from time to time such information as it may reasonably request in order to 

ascertain compliance with this paragraph (1) and (viii) understands that the Company may 

receive a list of participants holding positions in its securities from one or more book-entry 

depositories. 

2. It understands that the Notes have been offered only in a transaction not involving 

any public offering in the United States within the meaning of the Securities Act, the Notes have 

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 Notes, the Notes may be offered, resold, pledged or 

otherwise transferred only in accordance with the provisions of the Custodial and Paying Agency 

Agreement and the legend on the Notes. 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 Notes. 

3. In connection with the purchase of the Notes: (A) the Company is not acting as a 

fiduciary or financial or investment advisor for it; (B) it is not relying (for purposes of making 

any investment decision or otherwise) upon any advice, counsel or representations (whether 

written or oral) of the Company or the Receiver or any of their agents (in their capacities as 

such), other than any statements in a current offering circular for the Notes and any 

representations expressly set forth in a written agreement with such party; (C) it has consulted 

with its own legal, regulatory, tax, business, investment, financial and accounting advisers to the 

extent it has deemed necessary and has made its own investment decisions based upon its own 

judgment and upon any advice from such advisers as it has deemed necessary and not upon any 

view expressed by the Company or the Receiver; (D) its purchase of the Notes will comply with 

all applicable laws in any jurisdiction in which it resides or is located; (E) it is acquiring the 

Notes as principal solely for its own account for investment and not with a view to the resale, 

distribution or other disposition thereof in violation of the Securities Act; (F) it has made 

investments prior to the date hereof and was not formed solely for the purpose of investing in the 

Notes; (G) it is not a (1) partnership, (2) common trust fund or (3) special trust, pension, profit 

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

may designate the particular investments to be made; (H) it may not hold the Note for the benefit 

of any other Person, it will at all times be the sole beneficial owner thereof for purposes of the 

Investment Company Act and all other purposes and it will not sell participation interests in the 

Notes or enter into any other arrangement pursuant to which any other Person will be entitled to 

a beneficial interest in the distributions on the Notes; (I) all securities of the Company purchased 

and held directly or indirectly by it have a value in the aggregate of no more than 40% of its total 

assets or capital (exclusive of government securities and cash items) on an unconsolidated basis; 

and (J) it is a sophisticated investor and is purchasing the Notes with a full understanding of all 

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of the terms, conditions and risks thereof, and it is capable of assuming and willing to assume 

those risks. 

4. It represents that at the time of its acquisition and throughout the period of its 

holding and disposition of a Note (or any interest therein), either (A) it is not, and is not acting 

on behalf of, or using the assets of, an “employee benefit plan” subject to Title I of the U.S. 

Employee Retirement Income Security Act of 1974, as amended (“ERISA”), an individual 

retirement account, Keogh plan or other arrangement subject to Section 4975 of the U.S. Internal 

Revenue Code of 1986, as amended ( the “Code”), an entity whose underlying assets are 

considered to include “plan assets” of any such plan, account or arrangement or a foreign, 

governmental or other plan which is subject to any non-U.S., federal, state or local law that is 

substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code or 

(B) its acquisition, holding (including, without limitation, the exercise of rights thereunder) and 

disposition of the Notes (or any interest therein) will not constitute or result in a non-exempt 

prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case 

of a governmental or other plan, a violation of any substantially similar non-U.S., federal, state 

or local law). 

5. It understands that the Custodial and Paying Agency Agreement permits the 

Company to demand that (A) any holder of Rule 144A Global Notes or Certificated Notes who is 

determined not to be both a Qualified Institutional Buyer and a Qualified Purchaser at the time of 

acquisition of such Notes or to sell the Notes (x) to a Person who is both (1) a Qualified 

Institutional Buyer and (2) a Qualified Purchaser 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 an interest in a Temporary 

Regulation S Global Note or Regulation S Global Note and who is not a U.S. Person in a 

transaction meeting the requirements of Regulation S and, if the holder does not comply with 

such demand within 30 days thereof, the Company may sell such holder’s interest in the Note in 

accordance with and pursuant to the terms of the Custodial and Paying Agency Agreement. 

6. It acknowledges that it is its intent and that it understands it is the intent of the 

Company that, for purposes of United States Federal income, state and local income and any 

other income taxes, the Company will be treated as a partnership, the Notes will be treated as 

indebtedness of the Company; it agrees to such treatment and agrees to take no action 

inconsistent with such treatment. 

7. If it is not a “U.S. person” as defined in Section 7701(a)(30) of the Code, it is not 

acquiring any Notes as part of a plan to reduce, avoid or evade U.S. Federal Income taxes owed, 

owing or potentially owed or owing. 

8. It agrees that it will not offer or sell, transfer, assign, or otherwise dispose of any 

Notes 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 

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laws or the applicable laws of any other jurisdiction and (B) in accordance with the provisions of 

the Custodial and Paying Agency Agreement, to which provisions it agrees it is subject. 

9. It understands that the Company, the Paying Agent, the Receiver, their respective 

Affiliates and their counsel will rely upon the accuracy and truth of the foregoing 

representations, and it hereby consents to such reliance. 

10. It will provide notice to each Person to whom it proposes to transfer any interest 

in the Notes of the transfer restrictions and representations set forth in the Custodial and Paying 

Agency Agreement, including the Exhibits referenced therein. 

11. It has satisfied and will satisfy all applicable registration and other requirements 

of the FRB in connection with its acquisition of the Notes. 

Name of Purchaser: ____________________ Dated: __________ 

By: 

Name: 

Title: 

Aggregate principal amount of: 

Purchase Money Notes due [February 25, 2012]: $__________ 

Purchase Money Notes due [February 25, 2013]: $__________ 

Purchase Money Notes due [February 25, 2014]: $__________ 

Taxpayer identification number: 

Address for notices: 

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Wire transfer information for payments: 

Bank: 

Address: 

Bank ABA#: 

Account #: 

Telephone: FAO 

Facsimile: Attention: 

Attention: 

Registered Name: 

Delivery Instructions: 

This certificate and the statements contained herein are made for your benefit. 

[INSERT NAME OF HOLDER] 

By: 

Name: 

Title: 

Dated: __________, ____ 

C-8-5 

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EXHIBIT D 

FORM OF DTC NOTICE TO INVESTORS 

The Depository Trust Company 

IMPORTANT NOTICE 

DATE: [__________] 

TO: ALL PARTICIPANTS 

FROM: Multibank 2009-1 CML-ADC Venture, LLC (the “Company”) 

Re.: Purchase Money Note due [February 25, 2012] 

(CUSIP No. [__________]); 

Purchase Money Note due [February 25, 2013] 

(CUSIP No. [__________]); 

Purchase Money Note due [February 25, 2014] 

(CUSIP No. [__________]); 

(collectively, the “Notes”) 

The Company referred to above is putting Participants on notice that they are required to 

follow these purchase and transfer restrictions with regard to the above-referenced Notes. 

In order to qualify for the exemption provided by Section 3(c)(7) under the Investment 

Company Act of 1940, as amended (the “Investment Company Act”), and the exemption 

provided by Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), 

offers, sales and resales of the above-referenced Notes within the United States or to persons that 

are U.S. Persons as defined in Regulation S under the Securities Act (“U.S. Persons”) or U.S. 

residents within the meaning of the Investment Company Act (“U.S. Residents”) may only be 

made in minimum denominations of U.S.$500,000 and integral multiples of U.S.$1,000 in 

excess thereof to “qualified institutional buyers” (“QIBs”) within the meaning of Rule 144A that 

are also “qualified purchasers” (“QPs”) within the meaning of Section 2(a)(51)(A) of the 

Investment Company Act. Each purchaser of Notes (I) represents to and agrees with the 

Company that (A)(i) the purchaser is a QIB that is a QP (a “QIB/QP”); (ii) the purchaser is not a 

broker-dealer that owns and invests on a discretionary basis less than U.S.$25 million in 

securities of unaffiliated issuers; (iii) the purchaser 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; (iv) the QIB/QP is acting for 

its own account or the account of another QIB/QP; (v) the purchaser is not formed for the 

purpose of investing in the Company (except when each beneficial owner of the purchaser is a 

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QP); (vi) the QIB/QP has received the necessary consent from its beneficial owners if it is a 

private investment company formed before April 30, 1996 and (vii) the purchaser will provide 

notice of the transfer restrictions to any subsequent transferees or (B) it is not a U.S. Person or 

U.S. Resident and is acquiring the Notes outside the United States in an Offshore Transaction in 

compliance with Rule 903 or Rule 904 under Regulation S of the Securities Act and 

(II) acknowledges that the Company has not been registered under the Investment Company Act 

and the Notes have not been registered under the Securities Act and represents to and agrees with 

the Company that, for so long as the Notes are outstanding, it will not offer, resell, pledge or 

otherwise transfer the Notes in the United States or to a U.S. Person or a U.S. Resident except to 

a QIB that is also a QP in a transaction meeting the requirements of Rule 144A. Each purchaser 

or transferee will be deemed to have made the representations and agreements set forth in the 

Custodial and Paying Agency Agreement. 

The Custodial and Paying Agency Agreement dated as of February 9, 2010 among 

Multibank 2009-1 CML-ADC Venture, LLC, the Federal Deposit Insurance Corporation, in its 

corporate capacity, as the guarantor of the Purchase Money Notes, the Federal Deposit Insurance 

Corporation, in its capacity as the Receiver, as the Collateral Agent under the Reimbursement, 

Security and Guaranty Agreement and Wells Fargo Bank, N.A., provides that the Company shall 

have the right to (i) require any holder of Notes that is a U.S. Person who is determined not to 

have been both a QIB and a QP at the time of purchase of the Notes to sell the Notes to (i) a 

person that is a QIB that is also a QP in a transaction meeting the requirements of Rule 144A or 

(ii) a person that is not a U.S. Person in a transaction outside of the United States in accordance 

with Regulation S. 

The restrictions on transfer required by the Company (outlined above) will reflected 

under the notation “3c7” in DTC’s User Manuals and in upcoming editions of DTC’s Reference 

Directory. 

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EXHIBIT E 

FORM OF COLLATERAL CERTIFICATE
 

______________, 2____ 

Multibank 2009-1 CML-ADC Venture, LLC 

700 NW 107 Avenue, Suite 400 

Miami, Florida 33172 

Attention: Thekla Blaser Salzman 

Re: Custodial and Paying Agency Agreement, dated February 9, 2010, by and between 

Multibank 2009-1 CML-ADC Venture, LLC as the Company, the Federal Deposit 

Insurance Corporation, as the Purchase Money Notes Guarantor, the Federal Deposit 

Insurance Corporation, as the Collateral Agent, and Wells Fargo Bank, N.A., as the 

Custodian (“Custodial and Paying Agency Agreement”) 

Ladies and Gentlemen: 

In accordance with the provisions of Section 6.1(b) of the Custodial and Paying Agency 

Agreement, the undersigned, as Custodian, hereby certifies that other than the Exceptions listed 

as part of the Loan Schedule and Exceptions List attached hereto (a) (i) it has received all of the 

Custodial Documents required to be delivered with respect to each Loan identified on the Loan 

Schedule and Exceptions List attached hereto, and (ii) the Custodial Documents for each such 

Loan are as listed on such Loan Schedule and Exceptions List, (b) all documents have been 

reviewed and examined by the Custodian in accordance with the Review Procedures, and (c) 

based upon its examination of the Custodial Documents, such documents appear (i) regular on 

their face (i.e., are not mutilated, damaged, torn, defaced or otherwise physically altered); (ii) to 

relate to the Loans with respect to which they purport to relate; (iii) to have been executed by the 

named parties; (iv) to be what they purport to be; and (v) where applicable, to be recorded. 

The Custodian makes no representations in or by this Certificate and/or the Custodial and 

Paying Agency Agreement as to: (i) the validity, legality, enforceability or genuineness of any 

of the Custodial Documents or any of the Loans, or (ii) the collectibility, insurability, 

effectiveness or suitability of any of the Loans. 

Initially capitalized terms used and not otherwise defined herein shall have the meanings 

assigned to such terms in the Custodial and Paying Agency Agreement. 

In confirmation of your acknowledgement of the foregoing, please sign this certificate in 

the place provided below and return an executed copy to us. 

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Wells Fargo Bank, N.A., as the Custodian 

By: _ 
 

Name: 

Title: 

Acknowledged: 

Multibank 2009-1 CML-ADC Venture, LLC, as the 

Company
 

By: RL CML 2009-1 Investments, LLC, 

its Manager 

By: 

Name: Jeffrey P. Krasnoff 

Title: Chief Executive Officer 

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EXHIBIT F 

REVIEW PROCEDURES 

1. The Note and Mortgage each appear to bear an original signature or signatures 

purporting to be the signature or signatures of the Person or Persons named as the maker and 

Borrower, or in the case of copies of the Mortgage, that such copies bear a reproduction of such 

signature. 

2. The amount of the Note is the same as the amount specified on the related 

Mortgage and Loan Schedule. 

3. The original mortgagee is the same as the payee on the Note. 

4. The Mortgage contains a legal description other than address, city and state; 

provided that Custodian shall have no responsibility for the accuracy, validity or completeness of 

such legal description. 

5. The notary section (acknowledgment) is present and attached to the related 

Mortgage and is signed. 

6. None of the original Note, the copy of the Mortgage, or the original Mortgage 

Assignment, contain any notations on their face which appear in the good faith judgment of 

Custodian to evidence any claims, liens, security interests, encumbrances or restrictions on 

transfer or any other alterations which appear irregular on their face, or if altered, such 

alterations have the initials of the person(s) named as the Borrower. 

7. The Note is endorsed in blank by the original payor or the last endorsee. 

8. Each original Mortgage Assignment in blank and any intervening assignment of 

mortgage, if applicable, appears to bear the original signature of the named mortgagee or 

beneficiary including any subsequent assignors, as applicable, or in the case of copies with 

respect to intervening Mortgage Assignments, that such copies appear to bear a reproduction of 

such signature or signatures, and the intervening Mortgage Assignments evidence a complete 

chain of assignment and transfer of the related Mortgage from the originating Person to the 

Company or in the case of a MERS Designated Loan to MERS®. The Custodian shall have no 

obligation to determine whether the certifications referenced in the foregoing sentence are 

authorized or issued by any particular person or officer or by a person who is in fact an 

Authorized Representative or is otherwise authentic. 

9. The date of each intervening Mortgage Assignment is on or after the date of the 

related Mortgage and/or the immediately preceding assignment, as the case may be. 

10. The notary section (acknowledgment) is present and attached to each intervening 

assignment and is signed. 

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11. Based upon a review of the Note, the Loan number, the Mortgagor’s name, the 

address of the Mortgaged Property, the original amount of the Note, the original mortgage 

interest rate, the date of the Note, the first payment date and the maturity date and any other 

fields as mutually agreed upon as set forth in the Loan Schedule are correct. 

12. The Acquired Property Deed appears to bear an original signature or signatures 

purporting to be the signature or signatures of the Person or Persons named as grantor, or in the 

case of copies of the Acquired Property Deed, that such copies bear a reproduction of such 

signature. 

13. The Acquired Property Deed contains a legal description other than address, city 

and state and has evidence of recording thereon provided that the Custodian shall have no 

responsibility for the accuracy or completeness of such legal description. 

14. Each document has been executed by the named parties herein. 

15. The Mortgage, Acquired Property Deed and Mortgage Assignments have 

evidence of recording. 

16. Each MERS Designated Loan has been issued a MERS® identification number. 

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________________________ 

 

 

 

EXHIBIT G 

FORM OF SUPPLEMENTAL DELIVERY CERTIFICATE 

______________, 2____ 

Re: Custodial and Paying Agency Agreement, dated February 9, 2010, by and between 

Multibank 2009-1 CML-ADC Venture, LLC, as the Company, the Federal Deposit 

Insurance Corporation, as the Purchase Money Notes Guarantor, the Federal Deposit 

Insurance Corporation, as the Collateral Agent, and Wells Fargo Bank, N.A., as the 

Custodian (“Custodial and Paying Agency Agreement”) 

Ladies and Gentlemen: 

In accordance with the provisions of Section 6.1(d) of the Custodial and Paying Agency 

Agreement, the Company, hereby certifies that: (i) attached is a list of additional Custodial 

Documents relating to the Loans, identifying with respect to each such Custodial Document the 

related Loan or, as the case may be, relating to any newly acquired Acquired Property, and (ii) 

enclosed with this certificate are the Custodial Documents listed on the attached. 

Initially capitalized terms used and not otherwise defined herein shall have the meanings 

assigned to such terms in the Custodial and Paying Agency Agreement. 

In confirmation of your acknowledgement of the foregoing, please sign this certificate in 

the place provided below and return an executed copy to us. 

G-1 

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WELLS FARGO BANK, N.A., as the Custodian 

By: _ 
 

Name: 

Title: 

Acknowledged: 

MULTIBANK 2009-1 CML-ADC VENTURE, LLC, 

as the Company 

By: RL CML 2009-1 Investments, LLC, 

its Manager 

By: 
 

Name: Jeffrey P. Krasnoff 

Title: Chief Executive Officer
 

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EXHIBIT H 

REQUEST FOR RELEASE AND RECEIPT OF CUSTODIAL DOCUMENTS 

To: Wells Fargo Bank, NA Document Custody 

1055 10th Avenue, S.E. 

Minneapolis, MN 55414 

Ref: Request for Release 

Re: Custodial and Paying Agency Agreement, dated February 9, 2010, by and between 

Multibank 2009-1 CML-ADC Venture, LLC, as the Company, the Federal Deposit 

Insurance Corporation, as the Purchase Money Notes Guarantor, the Federal Deposit 

Insurance Corporation, as the Collateral Agent, and Wells Fargo Bank, N.A., as the 

Custodian (“Custodial and Paying Agency Agreement”) 

In connection with the administration of the Custodial Documents held by you as the 

Custodian pursuant to the Custodial and Paying Agency Agreement, we request the release, and 

acknowledge and certify receipt of, the Custodial Documents for the Loan(s) described on 

Schedule A attached hereto for the reason indicated below. 

Reason for Requesting Documents (check one) 

_____1. Loan to be paid in full or received or discounted pay-off accepted or to be 

accepted as payment in full. 

_____2. Loan to be foreclosed on, or to be modified or restructured, or deed to be accepted 

in lieu thereof or required pursuant to court order or other reason related to 

litigation, as permitted under the Custodial and Paying Agency Agreement. 

_____3. Loan agreed to be sold. 

If some or all of the Custodial Documents for a specified Loan have been previously 

released to us, please release to us any additional Custodial Documents in your possession 

relating to that Loan. If item 2 is checked, upon our return, as appropriate, of the Custodial 

Documents to you as Custodian, please acknowledge your receipt by signing in the space 

indicated below, and returning this form. 

H-1 

Multibank Structured Transaction 2009-1 CML-ADC 

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WELLS FARGO BANK, N.A., as the Custodian 

By: 

Name: 

Title: 

Acknowledged: 

MULTIBANK 2009-1 CML-ADC VENTURE, LLC, 

as the Company 

By: RL CML 2009-1 Investments, LLC, 

its Manager 

By: 

Name: Jeffrey P. Krasnoff 

Title: Chief Executive Officer 

H-2 

Multibank Structured Transaction 2009-1 CML-ADC 

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EXHIBIT I 

REQUEST FOR RELEASE AND RECEIPT OF DEBT AGREEMENTS 

To: Wells Fargo Bank, NA 

9062 Old Annapolis Road 

Columbia, Maryland 21045 

Attn: Client Services Manager, Multibank 2009-1 CML-ADC Venture, LLC 

Re: Custodial and Paying Agency Agreement, dated February 9, 2010, by and between 

Multibank 2009-1 CML-ADC Venture, LLC, as the Company, the Federal Deposit 

Insurance Corporation, as the Purchase Money Notes Guarantor, the Federal Deposit 

Insurance Corporation, as the Collateral Agent, and Wells Fargo Bank, N.A., as the 

Paying Agent and Custodian (“Custodial and Paying Agency Agreement”) 

In connection with the administration of the Debt Agreements held by you as the Paying 

Agent pursuant to the Custodial and Paying Agency Agreement, we request the release, and 

acknowledge and certify receipt of, the Debt Agreement described on Schedule A attached 

hereto. 

Wells Fargo Bank, N.A., as the Paying Agent 

By: 

Name: 

Title: 

Acknowledged: 

Federal Deposit Insurance Corporation, in its 

capacity as Receiver for Various Failed Financial 

Institutions 

By: 

Name: 

Title: 

I-1 

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EXHIBIT J
 

FEES AND EXPENSES OF CUSTODIAN AND PAYING AGENT
 

The Custodian and Paying Agent shall be paid the following fees pursuant to Section 8.1 of this 

Agreement: 

J-1 

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EXHIBIT K 

CUSTODIAN AND PAYING AGENT REPORT
 

CUSTODIAN AND PAYING AGENT REPORT 

DISTRIBUTION REPORT 

TOTAL FUNDS FOR DISTRIBUTION $ ­

Distributions: 

To Custodian and Paying Agent

 Custodian and Paying Agent Fees and Expenses $ ­

To Working Capital Reserve Account 

Replenishment of Working Capital Reserve $ ­

To Defeasance Account 

Deposit to Defeasance Account $ ­

To Purchase Money Note Guarantor 

Reimbursements to Purchase Money Note Guarantor $ ­

To Private Owner/Manager:

 Reimbursement of Excess Working Capital Advances

 Interim Management Fee 

 Management Fee 

 Distribution on Equity 

 Total to Private Owner/Manager

 $ 

$ 

-

-

-

­

­

 (1)

 (2)

To Initial Member

 Interim Servicing Fee

 Distribution on Equity 

$ -

­

 (1)

 Total to Initial Member $ 

TOTAL DISTRIBUTIONS $ ­

Notes: 

(1) Applicable only to Interim Servicing Period. 

(2) Applicable to Due Periods following the Interim Servicing Period. 

­

K-1 

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EXHIBIT L 

FORM OF LOST INSTRUMENT AFFIDAVIT 

 (Note to Preparer: When preparing the actual Affidavit delete this instruction and the reference 

to Exhibit L and the language “Form of Lost Instrument Affidavit” above.) 

STATE OF § 

§ 

COUNTY OF § 

LOST INSTRUMENT AFFIDAVIT 

(Multibank Structured Transaction 2009-1 CML-ADC)
 

Before me, the undersigned authority, personally appeared 

_______________________, who upon being duly cautioned and sworn deposes and says and 

represents and warrants, to the best of his /her knowledge, as follows: 

1. That s/he is the _____________ for Wells Fargo Bank, N.A., whose 

address is _____________________, __________, ___________________ (the “Custodian”). 

2. The Custodian is the document custodian for Multibank 2009-1 CMLADC Venture, LLC (the “Company”) and, as such, was in possession of certain documents with 

respect to that certain loan, obligation or interest in a loan or obligation evidenced by a 

promissory note, evidencing an indebtedness or evidencing rights in an indebtedness (the 

“Instrument”), as follows: 

Loan Number: 

Name of Maker: 

Original Principal Balance: 

Date of Instrument: 

3. That the original Instrument has been lost or misplaced. The Instrument 

was not where it was assumed to be, and a diligent search to locate the Instrument was 

undertaken, without results. 

4. That if the Custodian subsequently locates the Instrument, the Custodian 

shall use reasonable efforts to provide written notice to the Company and deliver the Instrument 

to the Company in accordance with written instructions received from the Company (or such 

other party designated in writing by the Company). 

L-1 

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__________________________________________ 

5. That the purpose of this affidavit is to establish such facts. This affidavit 

shall not confer any rights or benefits, causes or claims, representations or warranties (including, 

without limitation, regarding ownership or title to the Instrument or the obligations evidenced 

thereby) upon the Company, its successors or assigns. 

6. That the Custodian hereby indemnifies and holds harmless the Company 

and its Affiliates and their respective successors, assigns, directors, officers, employees, 

contractors and agents (the “Indemnified Parties”) from and against any and all claims 

(including any claim by any individual or entity for the collection of any sums due under or with 

respect to the Instrument), liabilities, losses, damages, costs and expenses (including reasonable 

attorneys’ fees) incurred by any of the Indemnified Parties and arising out of or resulting from (i) 

the Custodian’s inability to find the Instrument and deliver it to the Company, or (ii) any 

inaccuracy or misstatement of fact, or a breach of any representation, warranty or agreement or 

duty contained, in this affidavit. 

7. This affidavit shall be governed by and construed in accordance with the 

laws of the State of New York without reference to any rules of conflicts of laws that might refer 

the governance or construction of this affidavit to the law of any other jurisdiction. 

Wells Fargo Bank, N.A. 

By: ______________________________________ 

Name: 

Title: 

Signed and sworn to before me this ____ day of _______________, ______. 

Notary Public 

[SEAL] My Commission expires: _____________________ 

L-2 

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ACKNOWLEDGMENT 

STATE OF _________________ §

 § 

COUNTY OF _______________ § 

Before me, the undersigned authority, a Notary Public in and for the county and 

state aforesaid, on this day personally appeared ______________________________, known to 

me to be the person whose name is subscribed to the foregoing instrument, as _______________ 

of ___________________________ acting in the capacity stated above, and acknowledged to 

me that s/he executed the same as the act of _________________________________, for the 

purposes and consideration therein expressed, and in the capacity therein stated. 

Given under my hand and seal of office on this the _____ day of 

___________________, 20___. 

Notary Public 

[SEAL] My Commission expires: 

L-3 

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EXIDBITM 

AUTHORI~D REPRESENTATIVES 

I. Authorized Represt;nlatives of the Company: 

Jeffrey P. Krasnoff 


Thekla Blaser Salzman 


Anthony Seijus 


2. 

{\my Doyle . 

[Signature] 


Judy Rishel 


ISignature) 


Barry Schwurtz 
 - --------·---···- ------· ISignature] 

3. Authorized Represcntati ves of the Purchase Money Notes Guarantor: 

Ralph Mulnmi 


[Signature] 


W.illiam P. Stewart 


ISignature] 


[Signature] 

Authorized Representatives of the Custodian and Paying Age t: 

M-1 
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I 'hohns Cu>tndo:.l ''"" l'u)'lllg ,\~ nq A~r~ ~n~iu 

fl l llitliMJSl 't2}•)1)41H 
4. 	 Authorized Representatives of the Collateral Agent: 

Ralph Malami 

[Signature] 


William P. Stewart 


[Signature] 

5. 	 Authorized Representatives of the Initial Member: 

Ralph Malami 

[Signature] 


William P. Stewart 


[Signature] 

6. 	 Authorized Representatives of the Private Owner: 

~------------------------ ' 

Jeflrey P. Krasnoff 

Thekla Blaser Salzman 

i\11thony Seijas 

[Signature] 

M-2 

Mullltlunk Suue~urcd I rau-:rcllnnl!lll'i·ll'MI ·:\I>C 

I· \hlhils ( 'lblndml amll'u~ 111~ t\~•·nq ,\gr~cnaonl 

,II,X·IIH:IiMISI ''l.l'Jf).I_1X 
EXHIBITM 

AUTHORIZED REPRESENTATIVES 

1. 	 Authorized Representatives ofthe Company: 

Jcffrey I'. Krasnoff 

[Signature! 


Thekla Blaser Sa!Y..man 
 --------·-----­ [Signature] 


AnthonY s~iht'i 

[SignatureJ 

// 

2. 	 Authorized Represcntalives ofthe Custndian and PIDI'i'fih, ent: 

Judv Rishel_______ 

ISignature] 

Barry SchwaxJJ.,""'._______ 

[Signalure1 

3. 	 Authorized Representatives ofthe Purchase Money Notes Guurantt,r: 

_Ralph Malami 

[Signature j 

!Signaturej 

M-1 
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EXHIBIT M 


AUTHORIZED REPRESENTATIVES 


[ Sign;Hurc I 

ISigna tun ..· I 

!Signature l 

.., Aulhori;cd Rqm:scntntivcs ()fthc C'ns!odian and Paying Agent: 

( 


iSignatun:·j 

' ,\ uthnri1cd Rcpr ..:scntati ves ot' the Purdmsc Money Noks Guurantor: 

!Sign<Jtun:j 
EXHIBITM 

AUTHORIZED REPRESENTATIVES 

I . 	 Authorized Representatives ofthe Company: 

JefTrev P. Krasnoff 

(Signature) 

Thekla Blaser Salzman 

(Signature) 

Anthony Seijas 

[Signature) 

2. 	 Authorized Representatives ofthe Custodian and Paying Agent: 

Amy Doyle 

[Signature) 

Judy Rishel 

[Signature] 

Barrv Schwanz 

(Signature] 

3. 

Ralph Malami 

William P. Stewan 

[Signature) 

M-l 

\hdttb;an;. Slna.."t\\:tcd fru._..;~.. lw:'l2~· t l \ tL•.I\fX: 

1 'rnbrts <.:ush>dl3! ;a;,d Pi\ mr ,.\#1-'0C\' .\.ttfi:l"11i\."r.t 

~•S 0031MI~(t1391J-128 
~- Authorized Representatives of the Collateral Agent: 

Ralph Malami 

[Signaturel 


William P. Stewart 


[Signature] 

5. 	 Authorized Representatives of the Initial Member: 

Ralph Malami ===:L-~==~------------~ [Signature] 


William P. Stewart 


(Signature) 

6. 	 Authorized Representatives of the Private Owner: • 

Jeffrey P. Krasnoff 

(Signature] 


Thekla Blaser Salzman 


[Signature] 


Anthonv Seijas 


[Signature] 

M-2 \ 1ulhNni.SrMillr.."d lf~"l!!t)ft20i'W-I ( \ U .,\1){ 


I ,;h:bA> l·u..;o~h.aJ 3nd P:!-~•nr Af."M)" A!'«mfll' 


.:oS.OOJM:!.t''H90HS 
---------------

EXHIBITM 

AUTHORIZED REPRESENTATIVES 

I. 	 Authorized Representatives ofthe Company: 

Jeffrey P. Krasnoff 

[Signature I 


Thekla Blaser Salzman 
 --·-··-·------- --­ [Signature] 


Anthony Seijas 


[Signature] 

2. 	 Authorized Representatives of the Custodian and Paying Agent: 

Amy Doyle 

[Signature] 


Judy Rishel 


[Signature J 


Bam Schwartz 
 - ---·­ [Signature] 

3. 	 Authorized Representatives of the Purchase Money Notes Guarantor: 

Ralph Malami - - --	 ·····------·-------­

William P. Stewart 

:vl-l ~hdt1h nX S:;u-.:turcd I r::nsoh:IJan 2Dtlt). I t 1 ~r \ : }(_ 

l \fnhtt:- <. ' aslm.f :3l a:aJ Pa~tn!! \~~n~~ .\~rt.:l.'llh:li; 

·i<>8-(lii.; ·~,.,1 !S(.,..2 J~)t'·~~ X 
4. Authorized Rcpresentativ·cs of the Collateral Agent: 

Ralph Malami 

[Sign;lt~l 

William P. Stewart J [Signa ~ 

5. Authorized Representatives of the Initial Member: 

Ralph Malami 

William P. Stewart 

[Signatu~ 

6. Authorized Representatives of the Private Owner: • 

Jeffrey P. Krasnoff 

[Signature! 


Thekla Blaser Salzman 


[Signature] 


Anthony Seijas 


[Signaturel 

\1-2 


\·1uittbank. SJrul~<Ji·:d ·~ f,!lh\lO.:t~Dn 2l;O•J- i C'\·1i ·/dX 

I \h:hH\ ( ·u,t,)dt:.tl ;md P.t: 1n~ Agi.'H\. ~ .·'.:!.r ;.·l..'rn"·m 

-foX~(}(; _L!\-1 i\C' -·2 ;<ii~I2X 
EXHIBIT N 

FORM OF ACCOUNT CONTROL AGREEMENT 

Multibank Structured Transaction 2009-1 CML-ADC 

ACCOUNT CONTROL AGREEMENT 

THIS ACCOUNT CONTROL AGREEMENT (as the same shall be amended or 

supplemented, this “Agreement”) is made and entered into as of the 9th day of February, 2010 

by and among Multibank 2009-1 CML-ADC Venture, LLC, a Delaware limited liability 

company (the “Company”), the Federal Deposit Insurance Corporation (in any capacity, the 

“FDIC”), in its separate capacities as receiver with respect to the separate receiverships for each 

of the various Failed Banks (the “Failed Banks”) identified in Schedule 1 to the Custodial and 

Paying Agency Agreement defined below (in such capacity, the “Receiver”), acting as Collateral 

Agent for the Secured Parties pursuant to the Reimbursement, Security and Guaranty Agreement 

referred to below (including its permitted successors and assigns, the “Collateral Agent”) and 

Wells Fargo Bank, N.A., a national banking association (the “Bank”). 

WHEREAS, the Company, the Grantors party thereto the Federal Deposit 

Insurance Corporation, acting in its corporate capacity as Purchase Money Notes Guarantor (in 

such capacity, the “Purchase Money Notes Guarantor”), the Receiver, acting as Initial 

Member, and the Collateral Agent have entered into a Reimbursement, Security and Guaranty 

Agreement, dated as of February 9, 2010 (the “Reimbursement, Security and Guaranty 

Agreement”), pursuant to which the Company has granted the Collateral Agent a first priority 

security interest in certain accounts created by the Company, as more fully set forth therein; 

WHEREAS, the Company, the Purchase Money Notes Guarantor and the Bank, 

acting as Custodian/Paying Agent, have entered into a Custodial and Paying Agency Agreement, 

dated as of February 9, 2010 (the “Custodial and Paying Agency Agreement”), pursuant to 

which the Company is required to establish and maintain certain accounts with the Bank; 

WHEREAS, the Company has established the following accounts with the Bank 

in the name of the Company for the benefit of the Collateral Agent, which accounts are to be 

maintained with the Bank pursuant to the Custodial and Paying Agency Agreement (collectively, 

the “Accounts” and, each, an “Account”): the Collection Account (bearing account number 

), Distribution Account (bearing account number ), Defeasance Account 

(bearing account number ), and Working Capital Reserve Account (bearing account 

number ); 

N-1 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
WHEREAS, the Company has granted to the Collateral Agent a security interest 

in the Accounts and all amounts held therein and the proceeds thereof pursuant to the 

Reimbursement, Security and Guaranty Agreement. 

NOW, THEREFORE, in consideration of the foregoing and for other good and 

valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties 

hereby agree as follows: 

Section 1. Transfers to and from the Accounts; Control; Conflicting Orders or 

Instructions. (a) The Accounts shall be funded pursuant to the terms of the Custodial and 

Paying Agency Agreement and the LLC Operating Agreement defined therein (as so defined 

therein, the “LLC Operating Agreement”). The parties agree that all amounts received by the 

Bank for credit to any of the Accounts are, except as provided below, to be used for the purposes 

set forth in the Custodial and Paying Agency Agreement and the LLC Operating Agreement. 

The Bank agrees that if at any time it shall receive any order from the Collateral Agent (i) 

directing disposition of funds in any Account or (ii) directing transfer or redemption of the 

financial assets relating to the Accounts, the Bank shall comply with such entitlement order or 

instruction without further consent by the Company or any other person. Without limitation of 

the foregoing, from and after receipt by the Bank of a written notice from the Collateral Agent 

that an Event of Default has occurred and is continuing (a “Notice of Event of Default”), the 

Bank shall comply with the Collateral Agent’s instructions concerning the disposition of funds in 

the Accounts without further consent of the Company, and the Bank shall not (i) transfer funds 

from any of the Accounts to the Company without the prior written consent of the Collateral 

Agent, (ii) act on the instruction of any party other than the Collateral Agent without the prior 

written consent of the Collateral Agent, or (iii) cause or permit withdrawals from any of the 

Accounts in any manner not approved by the Collateral Agent in writing. 

(b) Notwithstanding anything to the contrary contained herein, if at 

any time the Bank shall receive conflicting orders or instructions from the Collateral Agent and 

the Company, the Bank shall follow the orders or instructions of the Collateral Agent and not the 

Company. 

Section 2. Accounts. The Bank hereby confirms and agrees that: 

(a) Neither the Bank nor the Company shall change the name or 

account number of any Account without the prior written consent of the Collateral Agent; 

(b) Each Account is a “deposit account” (as defined in Section 9­

102(a)(29) of the UCC) or “securities account” (as defined in Section 8-501 of the UCC) and the 

Bank is a “bank” (each within the meaning of Section 9-102 of the Uniform Commercial Code); 

(c) If and to the extent any Account is a “securities account” (as 

defined in Section 8-501 of the UCC): 

N-2 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
(i) all securities, financial assets or other property credited to 

each Account other than cash shall be registered in the name of the Bank, indorsed to the Bank 

or in blank or credited to another securities account maintained in the name of the Bank. In no 

case will any financial asset credited to any Account be registered in the name of the Company, 

payable to the order of the Company or specially indorsed to the Company unless the foregoing 

have been specially indorsed to the Bank or in blank; 

(ii) all financial assets delivered to the Bank pursuant to the 

Custodial and Paying Agency Agreement will be promptly credited to the appropriate Account; 

and 

(iii) the Bank hereby agrees that each item of property (whether 

investment property, financial asset, security, instrument or cash) credited to any Account (to the 

extent that it constitutes a "securities account" (as defined in Section 8-501 of the UCC)) shall be 

treated as a "financial asset" within the meaning of Section 8-102(a)(9) of the UCC. 

(d) Without limitation of the Collateral Agent’s rights under Section 1 

above, from and after receipt of a Notice of Event of Default from the Collateral Agent, the Bank 

shall comply with any stop payment orders given by the Collateral Agent with respect to items 

presented for payment by the Company; 

(e) There are no other agreements entered into between the Bank and 

the Company with respect to any Account other than the Custodial and Paying Agency 

Agreement; 

(f) The Bank has not entered into, and until the termination of this 

Agreement will not enter into, any agreement with any other Person relating to any Account 

and/or any funds held therein pursuant to which it has agreed, or will agree, to comply with 

entitlement orders (as defined in Section 8-102(a)(8) of the UCC) or instructions (within the 

meaning of Section 9-104 of the UCC) of such other Person; and 

(g) The Bank has not entered into, and until the termination of this 

Agreement will not enter into, any agreement with the Company purporting to limit or condition 

the obligation of the Bank to comply with entitlement orders (as defined in Section 8-102(a)(8) 

of the UCC) or instructions (as defined in Section 9-104 of the UCC) of the Collateral Agent as 

set forth in Section 1 above. 

Section 3. Subordination of Lien; Waiver of Set-Off. In the event that the 

Bank has or subsequently obtains by agreement, by operation of law or otherwise a security 

interest in any Account or any funds held therein, the Bank hereby agrees that such security 

interest shall be subordinate to the security interest of the Collateral Agent. The funds and other 

items deposited into any Account will not be subject to deduction, set-off, banker’s lien, or any 

other right in favor of any Person other than the Collateral Agent (except that the Bank may set 

off (i) all amounts due to the Bank in respect of customary fees and expenses for the routine 

maintenance and operation of such Account (excluding fees payable pursuant to Section 11), 

N-3 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
(ii) the face amount of any checks which have been credited to such Account but are 

subsequently returned unpaid because of uncollected or insufficient funds, and (iii) other 

returned items or mistakes made in crediting such Account). 

Section 4. CHOICE OF LAW. (a) Law Governing this Agreement. THIS 

AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH 

FEDERAL LAW, BUT IF FEDERAL LAW DOES NOT PROVIDE A RULE OF DECISION, 

IT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW 

OF THE STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR 

PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF 

THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. FOR PURPOSES OF 

THE UNIFORM COMMERCIAL CODE, NEW YORK SHALL BE DEEMED TO BE THE 

“BANK’S JURISDICTION.” 

(b) Location of Financial Institution. Regardless of any provision in 

any other agreement, for purposes of the UCC, New York shall be the location of the bank for 

purposes of Sections 9-301, 9-304 and 9-307 of the UCC and the securities intermediary for 

purposes of Sections 9-301 and 9-307 and Section 8-110 of the UCC. 

(c) Law Governing Accounts. Each Account shall be governed by the 

laws of the State of New York. 

Section 5. Conflict with Other Agreements; Amendment. 

In the event of any conflict between this Agreement (or any portion hereof) and 

any other agreement between the Company and the Bank now existing or hereafter entered into, 

the terms of this Agreement shall prevail. 

No amendment or modification of this Agreement or waiver of any right 

hereunder shall be binding on any party hereto unless it is in writing and is signed by all of the 

parties hereto. 

Section 6. Adverse Claims. Except for the claims and interests of the 

Collateral Agent and the Company in each Account, the Bank does not have actual knowledge of 

any claim to, or interest in, such Account or in any “financial assets” (as defined in Section 8­

102(a) of the UCC), cash or funds credited thereto. If any Person asserts any lien, encumbrance 

or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or 

similar process) against such Account or against any funds held therein, upon a Responsible 

Officer of the Bank receiving written notice of such lien, encumbrance or adverse claim, the 

Bank will promptly notify the Collateral Agent and the Company thereof. For the purposes of 

this Section 6, a “Responsible Officer” of the Bank means any managing director, director, 

associate, principal, vice president, assistant vice president, assistant secretary, assistant 

treasurer, trust officer or any other officer of the Bank customarily performing functions similar 

to those performed by any of the above designated officers and directly responsible for the 

administration of this Agreement and also means, with respect to a particular corporate trust 

N-4 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
matter, any other officer to whom such matter is referred because of his or her knowledge of and 

familiarity with the particular subject. 

Section 7. Successors. The terms of this Agreement shall be binding upon, 

and shall inure to the benefit of, the parties hereto and their respective corporate successors or 

heirs and personal representatives who obtain such rights solely by operation of law. 

Section 8. 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 or electronic mail address as shall be designated by such party in a notice to 

the other parties. All such notices, requests, demands 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, and (B) if 

delivered by electronic mail (which form of delivery is subject to the provisions of this 

paragraph), when delivered and capable of being accessed from the recipient’s office computer, 

provided that any notice, request, demand or other communication that is received other than 

during regular business hours of the recipient shall be deemed to have been given at the opening 

of business on the next business day of the recipient. In no event shall a voice mail message be 

effective as a notice, communication or confirmation hereunder. 

If to the Bank: 

Wells Fargo Bank, N.A. 

9062 Old Annapolis Road 

Columbia, MD 21045 

Attention: Client Services Manager 

Ref: Multibank 2009-1 CML-ADC Venture, LLC 

If to the Company: 

Multibank 2009-1 CML-ADC Venture, LLC 

700 NW 107 Avenue 

Suite 400 

Miami, FL 33172 

Attention: Thekla Blaser Salzman 

Email Address: thekla.salzman@rialtocapital.com 

N-5 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 

 


 

with a copy to: 

Bilzin Sumberg Baena Price & Axelrod, LLP 

200 South Biscayne Blvd 

Suite 2500 

Miami, FL 33131 

Attention: Alan Axelrod 

Email Address: aaxelrod@bilzin.com 

If to the Collateral Agent: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami
 

Email Address: RMalami@FDIC.gov 

with a copy to: 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section
 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

Email Address: DGearin@FDIC.gov 

If to the Private Owner (including in its role as Manager and/or Tax Matter 

Member), to: 

RL CML 2009-1 Investments, LLC 

700 NW 107 Avenue 

Suite 400 

Miami, FL 33172 

Attention: Thekla Blaser Salzman 

Email Address: thekla.salzman@rialtocapital.com 

N-6 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
with a copy to: 

Bilzin Sumberg Baena Price & Axelrod, LLP 

200 South Biscayne Blvd 

Suite 2500 

Miami, FL 33131 

Attention: Alan Axelrod 

Email Address: aaxelrod@bilzin.com 

Section 9. Termination. The obligations of the Bank to the Collateral Agent 

pursuant to this Agreement shall continue in effect until the Collateral Agent has notified the 

Bank of termination of this Agreement in writing. The Collateral Agent agrees with the 

Company to provide a Notice of Termination in substantially the form of Exhibit A hereto to the 

Bank on or after the termination of the Collateral Agent’s security interest in any Account 

pursuant to, or as otherwise provided by, the terms of the Reimbursement, Security and Guaranty 

Agreement. 

Section 10. Limitation of Liability; Indemnification of the Bank. The 

Company and the Collateral Agent hereby agree that (a) the Bank is released from any and all 

liabilities to the Company and the Collateral Agent arising from the terms of this Agreement and 

compliance by the Bank with the terms hereof, except to the extent that such liabilities arise from 

the Bank’s bad faith, willful misconduct or negligence and (b) the Company, its successors and 

assigns shall indemnify and save harmless the Bank from and against any loss, liability or 

expense incurred without bad faith, willful misconduct or negligence on the part of the Bank, its 

officers, directors and agents, arising out of or in connection with the execution and performance 

of this Agreement or the maintenance of any of the Accounts, including the reasonable actual 

costs and expenses of defending themselves against any claim or liability in connection with the 

performance of any of their powers or duties hereunder. The Bank’s right to indemnification 

hereunder shall survive the termination of this Agreement and the earlier resignation or removal 

of the Bank. 

Section 11. Fees. The Bank shall charge such fees for its services under this 

Agreement as shall be set forth in a separate agreement between the Bank and the Company, the 

payment of which fees, together with the Bank’s expenses in connection herewith (including, 

without limitation, attorneys’ and agents’ fees and expenses), shall be the obligation of the 

Company. The obligation of the Company to pay the Bank such fees and reimburse the Bank for 

such expenses shall survive the resignation or removal of the Bank (for all fees and expenses 

incurred prior to such resignation or removal) or the termination or assignment of this 

Agreement. 

Section 12. Counterparts. This Agreement may be executed in any number of 

counterparts, including by facsimile or other electronic means of communication, all of which 

shall constitute one and the same instrument, and any party hereto may execute this Agreement 

by signing and delivering one or more counterparts. 

N-7 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
Section 13. Jurisdiction; Venue and Service. 

(a) Each of the Company 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 Collateral Agent arising out of, relating to, or in connection with 

this Agreement or any Ancillary 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 Collateral Agent files the 

suit, action or proceeding without the consent of the Collateral Agent; 

(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 of Columbia; 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 Collateral Agent arising out of, relating to, or in connection with this 

Agreement or any Ancillary 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 Collateral Agent; 

(B) assert that venue is improper in the Supreme Court 

of the State of New 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 Affiliates against the Collateral Agent arising out of, relating to, or in 

connection with this Agreement or any Ancillary Document 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 dispute-resolution forum without the consent of the Collateral Agent, and 

agrees to consent thereafter to transfer of the suit, action or proceeding to either the United States 

N-8 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
District Court for the Southern District of New York or the United States District Court for the 

District of Columbia at the option of the Collateral Agent; 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 13(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 Collateral Agent. 

(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 13(a) may be enforced in any court of 

competent jurisdiction. 

(c) Subject to the provisions of Section 13(d), each of the Company 

and the Bank, on behalf of itself and its Affiliates, 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 13(a) or Section 13(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 8 (with copies to such other Persons as specified therein); provided, however, that 

nothing contained in this Section 13(c) shall affect the right of any party to serve process in any 

other manner permitted by Law. 

(d) Nothing in this Section 13 shall constitute consent to jurisdiction in 

any court by the FDIC, other than as expressly provided in Section 13(a)(iii) and Section 

13(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 14. Capitalized Terms. All capitalized terms used but not defined 

herein shall have the meanings given to them in the Reimbursement, Security and Guaranty 

Agreement. 

Section 15. Representations of the Bank. The Bank hereby represents: 

(a) Each Account has been established as set forth herein and each 

Account will be maintained in the manner set forth herein until termination of this Agreement; 

(b) Each Account is either (i) a "securities account" (as defined in 

Section 8-501 of the UCC) or (ii) a "deposit account" (as defined in Section 9-102(a)(29) of the 

UCC); 

(c) The Bank is a "securities intermediary" within the meaning of 

Section 8-102(a)(14) of the UCC and a "bank" within the meaning of Section 9-102(a)(8) of the 

UCC; 

N-9 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
(d) The Bank is not a "clearing corporation" within the meaning of 

Section 8-102(a)(5) of the UCC; and 

(e) This Agreement is the valid and legally binding obligation of the 

Bank. 

[SIGNATURE PAGE FOLLOWS] 

N-10 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Account Control 

Agreement to be executed as of the day and year first above written. 

Company: 

MULTIBANK 2009-1 CML-ADC VENTURE, 

LLC, a Delaware limited liability company 

By: RL CML 2009-1 Investments, LLC, 

its Manager 

By: 

Name: Jeffrey P. Krasnoff 

Title: Chief Executive Officer 

Collateral Agent: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

FAILED BANKS 

By: 

Name: Ronald Sommers 

Title: Attorney-in-Fact 

Bank: 

WELLS FARGO BANK, N.A. 

By: 

Name: 

Title: 

N-11 

Multibank Structured Transaction 2009-1 CML-ADC 

Exhibits – Custodial and Paying Agency Agreement 

468-003/MISC/2390428.5 
 

 

 


 


 

EXHIBIT A
 

FORM OF NOTICE OF TERMINATION
 

[LETTERHEAD OF COLLATERAL AGENT] 

[Date] 

Wells Fargo Bank, N.A. 

9062 Old Annapolis Road 

Columbia, MD 21045 

Attention: [ ] 

Re: Notice of Termination of Account Control Agreement 

You are hereby notified that the Account Control Agreement, dated as of 

February 9, 2010, among you, the undersigned and Multibank 2009-1 CML-ADC Venture, LLC 

(the “Company”), a copy of which is attached hereto (the “Agreement”), is terminated and that 

you have no further obligations to the Collateral Agent pursuant to the Agreement. 

Notwithstanding any previous instructions to you, you are hereby instructed to accept all future 

directions with respect to any of the Accounts from the Company. This notice terminates any 

obligations you may have to the Collateral Agent with respect to any of the Accounts; provided, 

however, that nothing contained in this notice shall alter any obligations which you may 

otherwise owe to the Collateral Agent pursuant to any other agreement. Capitalized terms used 

but not defined in this notice shall have the meanings given to them in the Agreement. 

Very truly yours, 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

FAILED BANKS, as Collateral Agent 

By:

 Name: 

 Title: 

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Exhibits – Custodial and Paying Agency Agreement 
 

Acknowledged and Agreed: 

Multibank 2009-1 CML-ADC Venture, LLC 

By: RL CML 2009-1 Investments, LLC, its Manager 

By:

 Name: Jeffrey P. Krasnoff 

 Title: Chief Executive Officer 

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468-003/MISC/2390428.5 
EXHIBIT O 

NOTICE FROM DEPOSITORY TO DEPOSITORY PARTICIPANTS IN CONNECTION 

WITH THE OFFERING OF THE RULE 144A GLOBAL NOTES OR THE 

UNRESTRICTED NOTES REPRESENTED BY GLOBAL NOTES 

FORM OF DTC NOTICE TO INVESTORS 

The Depository Trust Company 

IMPORTANT NOTICE 

DATE: [__________] 

TO: ALL PARTICIPANTS 

FROM: Multibank 2009-1 CML-ADC Venture, LLC (the “Company”) 

Re.: Purchase Money Note due February 25, 2012 

(CUSIP No. [__________]); 

Purchase Money Note due February 25, 2013 

(CUSIP No. [__________]); 

Purchase Money Note due February 25, 2014 

(CUSIP No. [__________]); 

(collectively, the “Notes”) 

The Company referred to above is putting Participants on notice that they are required to 

follow these purchase and transfer restrictions with regard to the above-referenced Notes. 

In order to qualify for the exemption provided by Section 3(c)(7) under the Investment 

Company Act of 1940, as amended (the “Investment Company Act”), and the exemption 

provided by Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), 

offers, sales and resales of the above-referenced Notes within the United States or to persons that 

are U.S. Persons as defined in Regulation S under the Securities Act (“U.S. Persons”) or U.S. 

residents within the meaning of the Investment Company Act (“U.S. Residents”) may only be 

made in minimum denominations of U.S.$500,000 and integral multiples of U.S.$1,000 in 

excess thereof to “qualified institutional buyers” (“QIBs”) within the meaning of Rule 144A that 

are also “qualified purchasers” (“QPs”) within the meaning of Section 2(a)(51)(A) of the 

Investment Company Act. Each purchaser of Notes (I) represents to and agrees with the 

Company that (A)(i) the purchaser is a QIB that is a QP (a “QIB/QP”); (ii) the purchaser is not a 

broker-dealer that owns and invests on a discretionary basis less than U.S.$25 million in 

securities of unaffiliated issuers; (iii) the purchaser 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 

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468-003/MISC/2390428.5 
without loss of any applicable Investment Company Act exemption; (iv) the QIB/QP is acting for 

its own account or the account of another QIB/QP; (v) the purchaser is not formed for the 

purpose of investing in the Company (except when each beneficial owner of the purchaser is a 

QP); (vi) the QIB/QP has received the necessary consent from its beneficial owners if it is a 

private investment company formed before April 30, 1996 and (vii) the purchaser will provide 

notice of the transfer restrictions to any subsequent transferees or (B) it is not a U.S. Person or 

U.S. Resident and is acquiring the Notes outside the United States in an Offshore Transaction in 

compliance with Rule 903 or Rule 904 under Regulation S of the Securities Act and (II) 

acknowledges that the Company has not been registered under the Investment Company Act and 

the Notes have not been registered under the Securities Act and represents to and agrees with the 

Company that, for so long as the Notes are outstanding, it will not offer, resell, pledge or 

otherwise transfer the Notes in the United States or to a U.S. Person or a U.S. Resident except to 

a QIB that is also a QP in a transaction meeting the requirements of Rule 144A. Each purchaser 

or transferee will be deemed to have made the representations and agreements set forth in the 

Custodial and Paying Agency Agreement. 

The Custodial and Paying Agency Agreement dated as of the 9th day of February, 2010, 

among Multibank 2009-1 CML-ADC Venture, LLC, the Federal Deposit Insurance Corporation, 

in its corporate capacity, as the guarantor of the Purchase Money Notes, the Federal Deposit 

Insurance Corporation, in its capacity as the Receiver, as the Administrative Agent under the 

Advance Facility, the Federal Deposit Insurance Corporation, in its capacity as the Receiver, as 

the Collateral Agent under the Reimbursement, Security and Guaranty Agreement and Wells 

Fargo Bank, N.A., provides that the Company shall have the right to (i) require any holder of 

Notes that is a U.S. Person who is determined not to have been both a QIB and a QP at the time 

of purchase of the Notes to sell the Notes to (i) a person that is a QIB that is also a QP in a 

transaction meeting the requirements of Rule 144A or (ii) a person that is not a U.S. Person in a 

transaction outside of the United States in accordance with Regulation S. 

The restrictions on transfer required by the Company (outlined above) will reflected 

under the notation “3c7” in DTC’s User Manuals and in upcoming editions of DTC’s Reference 

Directory. 

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