EXECUTION
 

CUSTODIAL AND PAYING AGENCY AGREEMENT 

by and among 

MULTIBANK 2010-1 SFR VENTURE, LLC, 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

in its corporate capacity, as Purchase Money Note Guarantor,
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

in its capacity as Receiver for various failed financial institutions,
 

as Collateral Agent
 

and
 

WELLS FARGO BANK, N.A.,
 

as Bank
 

Dated as of April 1, 2010 

FDIC SFR 2010-1 

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

TABLE OF CONTENTS
 

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

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

Section 1.2 Rules of Construction ..................................................................................8
 

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

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

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

Section 2.3 Duties ...........................................................................................................9
 

Section 2.4 Forms of Purchase Money Note ................................................................10
 

Section 2.5 Authorized Amount; Stated Maturity; Denominations; Prepayment.........12
 

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

Section 2.7 Registration, Registration of Transfer and Exchange ................................13
 

Section 2.8 Reissuance of the Purchase Money Note ...................................................26
 

Note ............................................................................................................26
 

Section 2.10 Payments with Respect to the Purchase Money Note................................27
 

Section 2.11 Mandatory Exchange .................................................................................28
 

Buyers or Qualified Purchasers .................................................................29
 

Section 2.13 Withholding ...............................................................................................29
 

Section 2.14 Persons Deemed Owners ...........................................................................30
 

Section 2.15 Holder Voting ............................................................................................30
 

Section 2.16 Cancellation ...............................................................................................30
 

Section 2.17 Section 3(c)(7) Procedures.........................................................................31
 

ARTICLE III ACCOUNTS .........................................................................................................32
 

Section 3.1 Collection Account ....................................................................................32
 

Section 3.2 Distribution Account..................................................................................33
 

Section 3.3 [Intentionally Omitted] ..............................................................................33
 

Section 3.4 [Intentionally Omitted] ..............................................................................33
 

Section 3.5 Special Reserve Account ...........................................................................34
 

Section 3.6 [Intentionally Omitted] ..............................................................................34
 

Section 3.7 Liquidity Account ......................................................................................34
 

Section 3.8 Excess Liquidity Advances ........................................................................35
 

ARTICLE IV ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS.....................36
 

Section 4.1 Investment of Funds in Accounts ..............................................................36
 

Section 4.2 Interest........................................................................................................37
 

Section 4.3 Inadequately Identified Amounts...............................................................37
 

Section 4.4 Payment Procedures ...................................................................................37
 

ARTICLE V DISTRIBUTIONS ..................................................................................................37
 

Section 5.1 Priority of Payments ..................................................................................37
 

Section 5.2 Notices of Payment Failure........................................................................39
 

FDIC SFR 2010-1
 

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

ARTICLE VI CUSTODIAL DOCUMENTS ..............................................................................39
 

Section 6.1 Delivery of Custodial Documents..............................................................39
 

Section 6.2 Examination of Custodian Files; Copies....................................................42
 

Section 6.3 Shipment of Custodial Documents ............................................................43
 

ARTICLE VII CUSTODIAN ......................................................................................................43
 

Section 7.1 Appointment of the Custodian ...................................................................43
 

Section 7.2 Obligations of the Custodian .....................................................................43
 

ARTICLE VIII FEES AND EXPENSES ....................................................................................46
 

Section 8.1 Fees and Expenses .....................................................................................46
 

ARTICLE IX REMOVAL OR RESIGNATION.........................................................................46
 

Section 9.1 Removal or Resignation of Custodian and Paying Agent .........................46
 

ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS ............................47
 

Section 10.1 Representations, Warranties and Covenants ..............................................47
 

Section 10.2 Insurance ....................................................................................................48
 

ARTICLE XI REPORTS .............................................................................................................48
 

Section 11.1 Custodian and Paying Agent Report ..........................................................48
 

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

Section 11.3 Company and Servicer Distribution Date Accounting ..............................49
 

Section 11.4 Distribution Date Instructions....................................................................50
 

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

ARTICLE XII NO ADVERSE INTERESTS ..............................................................................51
 

Section 12.1 No Adverse Interests ..................................................................................51
 

ARTICLE XIII LIABILITY AND INDEMNIFICATION .........................................................51
 

Section 13.1 Liability; Indemnification ..........................................................................51
 

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

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

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

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

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

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

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

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

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

ARTICLE XVIII NOTICES ........................................................................................................54
 

Section 18.1 Notices .......................................................................................................54
 

FDIC SFR 2010-1
 

Form of Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 

 


 


 

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

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

Section 19.2 Waiver of Jury Trial ...................................................................................56 

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

Section 19.4 Counterparts ...............................................................................................58 

Section 19.5 Severability ................................................................................................58 

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

Section 19.7 Entire Agreement .......................................................................................59 

Section 19.8 Assignment; Binding Effect.......................................................................59 

Section 19.9 Rights Cumulative .....................................................................................59 

Section 19.10 Amendments ..............................................................................................59
 

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

Schedule and Exhibits 

Exhibit A [Reserved] 

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 

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Form of Custodial and Paying Agency Agreement 

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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 Note or the Unrestricted Note represented by Global

Note 

FDIC SFR 2010-1 

Form of Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 April 1, 2010, by and among Multibank 2010-1 SFR 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 Note (as such term is defined below) (together with its successors and 

assigns, the “Purchase Money Note Guarantor”), the FDIC, in its capacity as the Receiver, as 

the Collateral Agent under the Reimbursement and Security Agreement (as such term is defined 

below) (in such capacity, or any successor collateral agent, the “Collateral Agent”), and Wells 

Fargo Bank, N.A., a national banking association, as Custodian and Paying Agent (the “Bank”). 

RECITALS 

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

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

Mortgage 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 Contribution Agreement dated as of the Closing Date, pursuant to which the 

Receiver, in its capacity as the Initial Member, transferred all of its right, title, and interest in and 

to the Mortgage Loans to the Company partly as a capital contribution and partly as a sale and, in 

consideration for the transfer of the Mortgage Loans to the Company to the extent such transfer 

constitutes a sale, the Company has issued to the FDIC, as a Holder, the Purchase Money Note, 

dated of the Closing Date, in the aggregate principal face amount of $137,449,238.00; and 

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

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

that certain Purchase Money Note Guaranty; and 

WHEREAS, pursuant to the Reimbursement and Security Agreement dated as of the date 

Closing Date, by and among the Company, the Collateral Agent and the Purchase Money Note 

Guarantor, the Company has pledged the Mortgage Loans and other underlying collateral to the 

Collateral Agent for the benefit of the Purchase Money Note Guarantor, and the Reimbursement 

and Security Agreement requires that the Company retain a document custodian, meeting the 

requirements set forth in the Reimbursement and Security 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 LLC 

Operating Agreement dated as of the Closing Date; 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 

FDIC SFR 2010-1 

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 

 


 

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

to perform the services contemplated by this Agreement; and 

WHEREAS the Company 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, certain terms used in this 

Agreement shall have the meaning and definitions set forth in that certain Agreement of 

Common Definitions dated as of the Closing Date among the Initial Member, the Company and 

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

and definitions hereinafter respectively set forth. 

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

“Acquired Property Deed” means the instrument or document required by the law of 

the jurisdiction in which the Acquired Property is located to convey fee title. 

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

applicable, the following: (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 

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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 applicable servicer certifying that such lease is a true, correct and complete 

copy of the original document, and (y) if required by the Purchase Money Note Guarantor, the 

original assignment of such lease from the lessor thereunder to the Ownership Entity or a copy 

thereof together with a certificate of the applicable servicer certifying that such assignment is a 

true, correct and complete copy of the original document. 

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

Agencies. 

“Agreement” has the meaning given in the preamble. 

“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. 

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

“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. 

“Clearstream” means Clearstream Banking, société anonyme, a corporation organized 

under the laws of Grand Duchy of Luxembourg, or any successor thereto. 

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

LLC Interest Sale Agreement. 

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

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

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

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

by the Custodian, the following: (i) the borrower’s name and any identification number assigned 

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

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

Documents were released by the Custodian. 

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

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

respective successors. 

FDIC SFR 2010-1 3 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
“Euroclear” means Euroclear Bank S.A./N.V. as operator of the Euroclear System, and 

any successor thereto. 

“Exception” means, with respect to any Mortgage 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). 

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

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

“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. 

“Foreclosure Loss” means any loss realized when the Company completes the 

foreclosure on a Mortgage Loan and realizes final recovery on any Underlying Collateral 

securing such Mortgage Loan through liquidation and recovery of all insurance proceeds. 

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

“Holder” means any Person or Persons whose name appears on the Purchase Money 

Note Register as the registered holder or holders of the Purchase Money Note. 

“Holder Percentage” means, with respect to each Holder, a fraction (expressed as a 

percentage, carried out to the ninth decimal place), (i) the numerator of which is the outstanding 

principal amount of the Purchase Money Note for such Holder at such time and (ii) the 

denominator of which is the aggregate outstanding principal amount of the Purchase Money 

Note at such time. 

“Interest Proceeds” means with respect to any Distribution Date, all amounts on deposit 

in the Distribution Account other than those items included in Principal Proceeds. 

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

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

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

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

otherwise and any sale proceeds received in connection with a Final Disposition. 

“Loss” means, in respect of any Mortgage Loan, the amount equal to (as applicable and 

without duplication): (a) with respect to any Mortgage Loan Finally Disposed of by the 

Company, the amount (if any) by which the Unpaid Principal Balance of such Mortgage Loan, 

all unpaid interest accrued thereon, and all Recovery Expenses related thereto (in each case as of 

FDIC SFR 2010-1 4

Custodial and Paying Agency Agreement 

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the date of the Final Disposition) exceeds the proceeds from such Final Disposition; (b) with 

respect to any Mortgage Loan maturing subsequent to the Cut-Off Date (including as a result of 

acceleration) as to which collection efforts have ceased, the amount (if any) by which the Unpaid 

Principal Balance of such Mortgage Loan, all interest accrued thereon, and all Recovery 

Expenses related thereto immediately prior to its maturity exceeds the principal payments and 

fees received by the Company in connection with its maturity; (c) the amount of any Foreclosure 

Loss in respect of such Mortgage Loan; or (d) the amount of any Short-Sale Loss in respect of 

such Mortgage Loan. 

“Loss Severity” means, with respect to any Determination Date, the fraction, expressed 

as a percentage, the numerator of which is the aggregate of Losses incurred during the related 

Due Period and the denominator of which is the Unpaid Principal Balance (determined in each 

case immediately prior to liquidation) of the Mortgage Loans with respect to which such Losses 

were incurred. 

“Mortgage Loan Schedule and Exception List” means a list of the Mortgage Loans 

and Acquired Property, identifying, with respect to each Mortgage Loan, each Exception, and 

that sets forth, with respect to any Mortgage Loan that has been released by the Custodian, the 

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

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

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

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

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

Agreement. 

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

other information. 

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

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

“Performance Tests” means collectively, the Severity Test and the Principal Reduction 

Test. 

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

“Principal Proceeds” means with respect to any Distribution Date, (i) any and all 

proceeds received as principal payments on the Mortgage Loans during the related Due Period 

(excluding Permitted Investments purchased with Interest Proceeds), (ii) any and all proceeds 

received from sales or dispositions of any Mortgage Loans during such Due Period, and (ii) all 

Liquidation Proceeds (including any such proceeds attributed to unpaid interest thereon), 

insurance proceeds, condemnation payments, rental income, draws on additional collateral, 

including but not limited to letters of credit and guaranties, and forfeited deposits on contracts of 

sale received during such Due Period. 

FDIC SFR 2010-1 5 Custodial and Paying Agency Agreement 

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“Principal Reduction Test”: (i) shall be inapplicable for the period from the Closing 

Date to but not including the date of the first anniversary of the Closing Date; (ii) shall be 

satisfied for any Distribution Date in each period set forth below if the outstanding principal 

amount of the Purchase Money Note as of the Determination Date immediately prior to such 

Distribution Date does not exceed the percentage set forth below opposite such period of the 

original principal balance of the Purchase Money Note: 

Period Percentage 

The date of the first anniversary of the Closing Date 

to but not including the date of the second anniversary of 

the Closing Date 90% 

the date of the second anniversary of the Closing Date 

to but not including the date of the third anniversary of 

the Closing Date 80% 

the date of the third anniversary of the Closing Date 

to but not including the date of the fourth anniversary of 

the Closing Date 70% 

the date of the fourth anniversary of the Closing Date 

to but not including the date of the fifth anniversary of 

the Closing Date 60% 

the date of the fifth anniversary of the Closing Date 

to but not including the date of the sixth anniversary of 

the Closing Date 50% 

the date of the sixth anniversary of the Closing Date 

to but not including the date of the seventh anniversary of 

the Closing Date 40% 

the date of the seventh anniversary of the Closing Date 

to but not including the date of the eighth anniversary of 

the Closing Date 30% 

the date of the eighth anniversary of the Closing Date 

to but not including the date of the ninth anniversary of 

the Closing Date 20% 

the date of the ninth anniversary of the Closing Date 

to but not including the date of the tenth anniversary of 

the Closing Date 10% 

“Purchase Money Note Guaranty Fee Rate” is one percent (1.00%) per annum, 

computed on the basis of a 360-day year comprised of twelve 30-day months. 

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“Purchase Money Note Guaranty Fee” is the product of (a) one-twelfth (1/12th) of the 

Purchase Money Note Guaranty Fee Rate and (b) the aggregate unpaid principal balance of the 

Purchase Money Note on the related Determination Date. 

“Purchase Money Note Interest Rate” is equal to 4.00% per annum, computed on the 

basis of a 360-day year comprised of twelve 30-day months. 

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

meanings given in Section 2.7(a). 

“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. 

“Receiver” has the meaning given in the recitals. 

“Record Date” means, with respect to any Distribution Date, the date on which the 

Holders entitled to receive a payment in respect of principal, interest or other amounts on such 

Distribution Date are determined, such being the Determination Date. 

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

the Mortgaged Property is located with respect to any given Mortgage Loan (if such Mortgage 

Loan is not Acquired Property) or in which the Acquired Property is located. 

“Recovery Expenses” means for any period, the amount of actual, reasonable and 

necessary out-of-pocket expenses paid to third parties (other than the Private Owner or any of its 

Affiliates) by or on behalf of the Company to recover amounts owed with respect to any 

Mortgage Loan as to which a Loss was incurred. 

“Regulation S” means “Regulation S” promulgated pursuant to the Securities Act. 

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

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

“Required Special Reserve Amount” means an amount equal to $2,000,000.00. 

“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). 

“Severity Test” shall be satisfied for any Distribution Date if the average Loss Severity 

(weighted by the unpaid principal balance of the Loans with respect to which Losses were 

incurred during the applicable Due Period) for the immediately preceding three (3) 

Determination Dates does not exceed 80%. 

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“Short-Sale Loss” means any loss resulting from the Company’s agreement with a 

mortgagor to accept a payoff in an amount less than the balance due on any Mortgage Loan. 

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

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

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

“Termination” has the meaning given in Section 8.1. 

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

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

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. 

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(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. 

ARTICLE II
 

PAYING AGENT AND PURCHASE MONEY NOTE
 

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

Agreement, the Company hereby appoints 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 Note, the Purchase Money 

Note Guaranty, the Reimbursement and Security 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 Note 

Guarantor or the Collateral Agent and delivered to it, subsequent to the date of this Agreement 

promptly upon execution and delivery and to deliver each instrument amending or modifying 

any agreement previously delivered to the Paying Agent. Copies of the Contribution Agreement 

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. 

(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 

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

FDIC SFR 2010-1 9 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
communication in order to determine whether a clerical error or inadvertent mistake has 

occurred. 

Section 2.4 Forms of Purchase Money Note. 

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

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

notations, legends or endorsements required by law, stock exchange rule or usage. 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 Note 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 Note. Subject to Section 2.4(d) below, if the 

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 purchaser of such Purchase Money Note 

wishes to take delivery of such Purchase Money Note in the form of beneficial interests in a 

Global Note, the purchaser 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 Note 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 [ ]a

, 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 

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

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

FDIC SFR 2010-1 10 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 a portion of the 

Purchase Money Note represented by this Temporary Regulation S Global 

Note, further Purchase Money Note 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 an additional Purchase Money Note 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 a permanent Global 

Note 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 Note Notations. 

(c) Rule 144A Global Note. 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 a temporary Global Note 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 Note Guarantor determines that the 

Purchase Money Note is exempt from the registration requirements of the Securities Act (the 

“Unrestricted Note”), 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 an Unrestricted Note. 

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

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

FDIC SFR 2010-1 11

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
as issued at a discount to its stated redemption price at maturity for federal income tax purposes 

shall bear a legend in substantially the following form: 

FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE 

INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS 

PURCHASE MONEY NOTE IS BEING ISSUED WITH ORIGINAL 

ISSUE DISCOUNT. YOU MAY CONTACT THE FEDERAL DEPOSIT 

INSURANCE CORPORATION AT 550 17TH STREET, N.W., ROOM 

F-7014, WASHINGTON, D.C. 20429, ATTENTION: [_________], 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 the Purchase Money Note that may be 

executed and delivered under this Agreement is limited to U.S.$137,449,238.00 except for a 

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

or in lieu of, another Purchase Money Note pursuant to Section 2.7, 2.8 or 2.9 of this Agreement. 

The Purchase Money Note shall be issuable in minimum denominations of U.S.$500,000 and 

integral multiples of U.S.$1,000 in excess thereof (except that one Purchase Money Note may be 

issued in a different amount which must be in excess of the minimum denomination) (each such 

denomination, an “Authorized Denomination”) 

(b) . 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. 

Section 2.6 Execution, Delivery and Dating 

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

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

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

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

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

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

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

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

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

Closing Date shall be dated as of the Closing Date. Any other Purchase Money Note that is 

executed and delivered after the Closing Date for any other purpose under this Agreement shall 

be dated the date of its execution. 

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

another Purchase Money Note shall be issued in Authorized Denominations reflecting the 

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

FDIC SFR 2010-1 12

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
exchanged or replaced, but shall represent only the current outstanding principal or face amount 

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

Purchase Money Note is divided into more than one Purchase Money 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 

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

of such subsequently issued Purchase Money Note. 

Section 2.7 Registration, Registration of Transfer and Exchange. 

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

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

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

Money Note. The Paying Agent is hereby initially appointed “Purchase Money Note 

Registrar” for the purpose of registering the Purchase Money Note and transfers of such 

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

Money Note Registrar, the Company shall promptly appoint a successor. 

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

Purchase Money Note Registrar, the Company will give the Paying Agent and the Purchase 

Money Note Guarantor prompt notice of the appointment of a Purchase Money Note Registrar 

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

the Paying Agent shall have the right to inspect the Purchase Money Note Register at all 

reasonable times and to obtain copies thereof and the Paying Agent shall have the right to rely 

upon a certificate executed on behalf of the Purchase Money Note Registrar by an officer thereof 

as to the names and addresses of the Holders of the Purchase Money Note and the principal or 

face amounts and numbers of such Purchase Money Note. Upon written request at any time, the 

Purchase Money Note Registrar promptly shall provide to the Company or the Collateral Agent a 

current list of Holders as reflected in the Purchase Money Note Register. 

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

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

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

transferee or transferees, one or more new Purchase Money Note of any Authorized 

Denomination and of like terms and a like aggregate principal or face amount. The Company 

shall furnish a copy of the executed Purchase Money Note to the Purchase Money Note 

Registrar. 

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

for one or more 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 Note Registrar for exchange, the Purchase Money Note Registrar shall prepare, 

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

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

Note to the Purchase Money Note Registrar. 

FDIC SFR 2010-1 13 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
(e) All Purchase Money Note issued upon any registration of transfer or 

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

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

under this Agreement, as the Purchase Money Note surrendered upon such registration of 

transfer or exchange. 

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

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

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

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

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

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

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

connection therewith. 

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

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

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

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

“publicly traded partnership” (as such term is defined in Section 7704 of the Code) and is exempt 

under applicable state or foreign securities laws. 

The Restricted Note 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, (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. An Unrestricted Note 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”). 

(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 

FDIC SFR 2010-1 14

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 a Certificated Note and a Global Note that 

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

(i) Rule 144A Global Note to Temporary Regulation S Global Note or 

Regulation S Global Note. 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 Note Registrar of (A) instructions given in 

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

Money Note 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 

Authorized Denomination applicable to such Holder’s Purchase Money Note, 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 Note, 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 Note 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, 

FDIC SFR 2010-1 15 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 Note Registrar of (A) instructions from Euroclear, Clearstream and/or 

the Depository, as the case may be, directing the Purchase Money Note 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 

Note, 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 

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

Note 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 Note 

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, 

FDIC SFR 2010-1 16 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
transfer or cause the transfer of such interest for an equivalent principal amount of one or more 

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

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

directing the Paying Agent to deliver one or more such Certificated Note, designating the 

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

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

such Certificated Note being equal to the 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 Note 

Registrar shall instruct the Depository to reduce, or cause to be reduced, the applicable Rule 

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

Global Note to be transferred and the Purchase Money Note Registrar shall record the transfer in 

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

deliver one or more Certificated Note 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 Note 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 

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

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

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

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

Certificated Note, (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 Note to be executed and delivered to such Holder (the aggregate 

outstanding principal amounts of such Certificated Note being the same as the beneficial interest 

in the Rule 144A Global Note to be exchanged), then the Purchase Money Note 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 Note Register in accordance with Section 2.7(a) and 

authenticate and deliver one or more Certificated Note 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 Note as described 

below. Upon receipt by the Purchase Money Note 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 Note, designating the registered name or names, address, payment instructions, the 

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

FDIC SFR 2010-1 17

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
outstanding principal amounts of such Certificated Note 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 Note 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 Note Registrar shall record the transfer in the Purchase 

Money Note 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 

Note 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 Note Registrar shall 

instruct the Depository to reduce 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 exchanged, shall record the 

exchange in the Purchase Money Note 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 

FDIC SFR 2010-1 18 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 Note 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. 

(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 

FDIC SFR 2010-1 19 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 

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 

FDIC SFR 2010-1 20 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 a Purchase Money Note 

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 

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) the investor 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 Note 

is 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 Note has 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 Note, such Purchase Money Note may 

be offered, resold, pledged or otherwise transferred only in accordance with the provisions of this 

Agreement and the legend on such Purchase Money Note. 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 any Purchase Money Note. 

(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 

FDIC SFR 2010-1 21

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 

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 

FDIC SFR 2010-1 22

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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. 

(vii) Such beneficial owner, if it is not a "United States 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 

FDIC SFR 2010-1 23 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
will be deemed to have made the representations set forth in clauses (ii), (iii), (iv), (vi), (vii), 

(viii), (ix) and (x) 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 under the Securities Act and understands that the Purchase Money Notes offered in reliance on 

Regulation S under the Securities Act 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. 

(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 

FDIC SFR 2010-1 24

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
(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, 

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; 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 

FDIC SFR 2010-1 25 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 Note 

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

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

Company to also adopt such alternate forms of transfer certificate. 

Section 2.8 Reissuance of the Purchase Money Note. The Company, at the direction 

of the Purchase Money Note Guarantor, may prepay the entire unpaid principal balance of the 

Purchase Money Note (such prepaid Purchase Money Note, the “Prepaid Purchase Money 

Note”) and reissue a new Purchase Money Note (such reissued Purchase Money Note, a 

“Reissued Purchase Money Note”) to the Receiver (or its assignee) with terms and conditions, 

other than the Purchase Money Note Interest Rate, substantially similar to the terms and 

conditions of the Prepaid Purchase Money Note; provided, however, that (x) (i) the maturity date 

of such Reissued Purchase Money Note shall not be later than the tenth anniversary of the 

Closing Date and (ii) the outstanding principal amount of such Reissued Purchase Money Note at 

the time of its issuance shall be equal to the then outstanding principal amount of the related 

Maturing Purchase Money Note 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 or (ii) any other rights or obligations of the Private Owner 

pursuant to this Agreement or any Ancillary Document (other than the Purchase Money Note). 

Simultaneously with the issuance of any Reissued Purchase Money Note, the Company shall use 

the proceeds of such Reissued Purchase Money Note to prepay the Holders of the Prepaid 

Purchase Money Note in accordance with their Holder Percentages. The Reissued Purchase 

Money Note shall be subject to all of the terms and conditions of this Agreement and the 

Reimbursement and Security Agreement. 

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

(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 

FDIC SFR 2010-1 26 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
predecessor Purchase Money Note, the Company, the Purchase Money Note Registrar and the 

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

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

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

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

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

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

a new Purchase Money Note pay 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 Note. 

Section 2.10 Payments with Respect to the Purchase Money Note. 

(a) All reductions in the principal amount of a Purchase Money Note (or one or more 

predecessor Purchase Money Notes) effected by payments and 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 

FDIC SFR 2010-1 27

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
specified in the Purchase Money Note Register. Upon final payment due on the maturity of a 

Purchase Money Note, the Holder thereof shall present and surrender 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 

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(m) 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 Note. 

(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 

FDIC SFR 2010-1 28 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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. 

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 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 Note 

and selling such interest to the highest such bidder. However, the Company 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 Non-Permitted Holder, by their acceptance of an interest in the Purchase 

Money Note, agree to cooperate with the Company and the Paying Agent to effect such transfers. 

The proceeds of such sale, net of any commissions, expenses and taxes due in connection with 

such sale, shall be remitted to the Non-Permitted Holder. The terms and conditions of any sale 

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 Note sold as 

a result of any such sale or the exercise of such discretion. 

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

the Company to any 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 

FDIC SFR 2010-1 29 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
sufficient funds for the payment of any tax that is legally owed in connection therewith (but such 

authorization shall not prevent the Company from contesting any such tax in appropriate 

proceedings and withholding payment of such tax, if permitted by Law, pending the outcome of 

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

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

taxes, duties, assessments or governmental charges imposed on payments in respect of the 

Purchase Money Note. 

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

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

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

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

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

Purchase Money Note Guaranty, in any case in which consent of the Holders is required, such 

consent requirement shall be satisfied if the Holders of more than fifty percent (50%) of the 

outstanding principal amount of the Purchase Money Note 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, the Purchase 

Money Note; (II) affect adversely the interests, rights or obligations of any Holder individually 

in comparison to any other Holder; (III) change any place of payment where, or the coin or 

currency in which, the Purchase Money Note is payable; (IV) amend or otherwise modify the 

definition of “Event of Default” as defined in the Purchase Money Note; or (V) amend, waive or 

otherwise modify this Section 2.15; and 

(b) any amendment, waiver or other modification that would release the 

Purchase Money Note Guarantor from all or any part of its obligation to make each and every 

payment under the Purchase Money Note Guaranty. 

Section 2.16 Cancellation. Any 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 

lieu of or in exchange for any Purchase Money Note canceled as provided in this Section 2.16, 

except as expressly permitted by this Agreement. All cancelled Purchase Money Notes held by 

FDIC SFR 2010-1 30 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 Qualified Purchasers. 

(ii) The Company shall direct the Depository to cause each physical 

Depository 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 Note 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 

Bloomberg screen containing information about the Rule 144A Global Notes or the Unrestricted 

Notes represented by Global Notes: 

FDIC SFR 2010-1 31 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 

 


 

(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. 

(a) The Receiver shall transfer all Mortgage Loan Proceeds (i) it receives during the 

Interim Servicing Period with respect to Mortgage Loans for which the Servicing Transfer Date 

has not occurred, net of any Servicing Expenses and Pre-Approved Charges then due and 

payable to the Receiver, no later than two (2) Business Days prior to the applicable Distribution 

Date to the Paying Agent for deposit into the Collection Account and (ii) it receives after the 

Interim Servicing Period with respect to the Mortgage Loans for which the Servicing Transfer 

Date has occurred promptly following receipt to the Paying Agent for deposit into the Collection 

Account. 

(b) For all Mortgage Loan Proceeds with respect to any Group of Mortgage Loans by 

or on behalf of the Company 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 Mortgage 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 Mortgage Loan Proceeds, interest or earnings on the Mortgage Loan 

Proceeds, funds transferred from the Liquidity Account pursuant to Section 3.7, funds advanced 

by the Manager as Excess Liquidity Advances pursuant to the LLC Operating Agreement and 

Section 3.8) shall be commingled in the Collection Account. Amounts on deposit in the 

Collection Account (including interest and earnings thereon) shall be distributed as follows: 

(i) first, to the payment of the then-outstanding amount of Servicing 

Expenses and Pre-Approved Charges either then due and payable or subject to 

reimbursement; 

FDIC SFR 2010-1 32 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
(ii) second, to fund any Funding Draws permitted pursuant to any 

Mortgage Loan Document; and 

(iii) third, the balance, if any, to be transferred to the Distribution 

Account. 

(c) 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 and to fund any Funding Draws. 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. 

(d) Upon instruction, the Paying Agent shall be authorized and directed to withdraw 

funds from the Collection Account only to pay the Servicing Expenses and Pre-Approved 

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 and Security 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 and Security Agreement and to the Account Control 

Agreement. 

Section 3.3 [Intentionally Omitted] 

Section 3.4 [Intentionally Omitted] 

FDIC SFR 2010-1 33 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
Section 3.5 Special Reserve Account 

(a) On the Closing Date, the Company shall establish the Special Reserve Account 

with the Paying Agent for the purpose of holding any funds drawn by the Company under the 

Qualifying Letter of Credit pursuant to the LLC Operating Agreement. 

(b) Earnings on investments (including any earned interest thereon) made pursuant to 

Section 4.1 of funds on deposit in the Special Reserve Account shall be immediately deposited in 

the Special Reserve Account. 

(c) At the time of the Final Distribution, the Paying Agent shall allocate in 

accordance with the Distribution Date Report provided to it and distribute all remaining funds 

held in the Special Reserve Account to the Collection Account from which account the funds 

will be transferred to the Distribution Account and paid to the Private Owner pursuant to the 

LLC Operating Agreement. 

(d) No funds from any other source (other than interest and earnings on the funds 

on deposit in the Special Reserve Account and funds deposited pursuant to Section 5.3 of the 

LLC Operating Agreement as described in Section 3.5(b) above) shall be deposited in the 

Special Reserve Account. The Paying Agent shall withdraw funds from the Special Reserve 

Account in accordance with the Distribution Date Report provided to it only upon (i) receipt of a 

written certification from the Initial Member stating that there has been a breach of the 

obligations of the Manager as set forth in the LLC Operating Agreement or (ii) the winding up of 

the Company for delivery to the Private Owner. The Special Reserve Account (and all funds 

therein) shall be subject to (i) the security interest granted to the Collateral Agent under the 

Reimbursement and Security Agreement and (ii) to the related Account Control Agreement. 

Section 3.6 [Intentionally Omitted] 

Section 3.7 Liquidity Account 

(a) On the date hereof, the Company shall establish the Liquidity Account with the 

Paying Agent for the purpose of: 

(i) paying the Operating Expenses to the extent there are insufficient 

funds in the Collection Account with which to pay the outstanding amount of the 

Operating Expenses then due and payable, in which case the Company shall instruct the 

Paying Agent to withdraw funds on deposit in the Liquidity Account in an amount that 

the Manager determines in the exercise of its reasonable discretion and deposit such 

funds into the Collection Account; and 

(ii) funding all Funding Draws as permitted pursuant to the applicable 

Mortgage 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 

Liquidity Account and allocate and distribute such released funds to the Company for the 

funding of such Funding Draws. 

FDIC SFR 2010-1 34 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
(b) The Liquidity Account shall be funded and thereafter replenished at the discretion 

of the Manager through deposits made in the Liquidity Account in accordance with Section 

5.1(b)(vii) of this Agreement. Earnings on investments (including any earned interest thereon) 

made pursuant to Section 4.1 of funds on deposit in the Liquidity Account shall be immediately 

deposited in the Liquidity Account. 

(c) At any time after the Liquidity Account has been funded as described herein, the 

Company may, in the exercise of its reasonable discretion, instruct the Paying Agent to release 

some or all of the funds on deposit in the Liquidity Account and allocate and distribute such 

released funds to the Collection Account. 

(d) The Manager, in the exercise of its reasonable discretion, shall determine the 

amount of funds to be on deposit in the Liquidity Account, which amount shall at all times be 

less than or equal to the Liquidity Account Cap. At the time of the Final Distribution, the Paying 

Agent shall allocate in accordance with the Distribution Date Report provided to it and distribute 

all remaining funds held in the Liquidity 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 at any time after the Purchase Money Note Maturity Date, 

the Manager, in the exercise of its reasonable discretion, determines that the funds on deposit 

in the Liquidity Account are no longer necessary to satisfy the purposes for which the Liquidity 

Account has been established, the Manager may instruct the Paying Agent to withdraw such 

excess funds from the Liquidity Account and allocate and distribute such excess funds to the 

Collection Account from which account the funds shall be transferred to the Distribution 

Account and made available for distribution in accordance with the Priority of Payments 

pursuant to Section 5.1 of this Agreement and the LLC Operating Agreement. 

(e) No funds from any other source (other than interest and earnings on the funds 

on deposit in the Liquidity Account and funds deposited pursuant to Section 12.11 of the LLC 

Operating Agreement as described in Section 3.7(b) above) shall be deposited in the Liquidity 

Account. The Paying Agent shall withdraw funds from the Liquidity Account only to make 

distributions in accordance with this Agreement and for no other purpose. The Liquidity 

Account (and all funds therein) shall be subject to (i) the security interest granted to the 

Collateral Agent under the Reimbursement and Security Agreement and (ii) to the related 

Account Control Agreement. 

Section 3.8 Excess Liquidity Advances 

The Manager shall make Excess Liquidity Advances to the Paying Agent for deposit into 

the Collection Account 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 in the 

Collection Account and the Liquidity Account with which to pay Operating Expenses, other than 

the Management Fee and any Interim Management Fee, in full. The Manager shall deposit any 

Excess Liquidity Advances into the Collection Account from which the funds will be available to 

pay such Operating Expenses. 

FDIC SFR 2010-1 35 Custodial and Paying Agency Agreement 

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ARTICLE IV

ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS
 

Section 4.1 Investment of Funds in Accounts. 

(a) The Company or the Purchase Money Note Guarantor, as applicable, shall 

at all times direct the Paying Agent to, and, upon receipt of such investment direction, the Paying 

Agent shall, invest, amounts on deposit and retained in the Collection Account, the Liquidity 

Account and the Special Reserve Account, as so directed in Permitted Investments. Upon receipt 

of conflicting investment directions from the Company and the Purchase Money Note Guarantor, 

the Paying Agent shall follow the investment directions of the Purchase Money Note Guarantor. 

If neither the Company nor the Purchase Money Note Guarantor shall have given any such 

investment directions, the Paying Agent shall seek investment directions from such Persons 

within three (3) Business Days after transfer of such funds to the Collection Account, the 

Liquidity Account, or the Special Reserve Account, as applicable. If neither the Company nor 

the Purchase Money Note Guarantor shall have provided the Paying Agent with investment 

directions pursuant to this Section 4.1, the balance standing to the credit of the Collection 

Account, the Liquidity Account or the Special Reserve Account, as applicable, will remain 

uninvested with no liability for interest thereon. It is agreed and understood that the Paying 

Agent may earn fees associated with Permitted Investments. 

(b) Whenever the Paying Agent is directed or authorized in accordance with 

the terms hereof to make a transfer of funds among the Collection Account, the Liquidity 

Account, the Distribution Account and the Special Reserve Account (collectively, the 

“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 authorized in 

accordance with the terms hereof to make a transfer of funds from the Accounts (unless such 

transfer is between 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 Account, and it is not possible to liquidate only the portion of such Permitted 

Investment allocated to the 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 Accounts involved in the same proportion as the allocation of such Permitted Investment, 

except that the net costs and expenses, if any, of such liquidation (including any loss of principal) 

shall be allocated entirely to the Account from which the transfer of funds was required to be 

made. The Paying Agent shall liquidate all those Permitted Investments that can be liquidated 

without interest cost or penalty before it shall liquidate any Permitted Investment, the liquidation 

of which would involve an interest cost or penalty. The Paying Agent shall have no liability with 

respect to any interest cost or penalty on the liquidation of any Permitted Investment pursuant to 

this Section 4.1. 

(c) The Paying Agent shall have no liability with respect to Permitted 

Investments (or any losses resulting therefrom) made at the direction of the Company or the 

Purchase Money Note Guarantor, as applicable, pursuant to this Agreement. 

FDIC SFR 2010-1 36 Custodial and Paying Agency Agreement 

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(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 or on any investment thereof, shall be credited to and deposited in such Account and 

thereafter be applied without differentiation from other funds in such Account. 

Section 4.3 Inadequately Identified Amounts. If the Paying Agent receives any 

amount that is inadequately or incorrectly identified and the Paying Agent is unable to determine 

the Account into which such amount is to be credited, the Paying Agent shall notify the 

Company, the Purchase Money Note Guarantor and the Collateral Agent of such event and shall 

request instructions as to the Account into which such amount should be credited. The Paying 

Agent shall credit such amount to the Collection Account until such time as it receives 

instructions from the Company (with the written consent of the Purchase Money Note Guarantor 

and the Collateral Agent) stating that such amount should be credited to another Account in 

accordance with this Agreement, in which case it shall credit such amount, if still available, to 

the Account designated by the Company (with the written consent of the Purchase Money Note 

Guarantor and the Collateral Agent). 

Section 4.4 Payment Procedures. All amounts that from time to time are distributable 

by the Paying Agent from the Distribution Account 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, on or before each 

Distribution Date, the Paying Agent shall distribute amounts transferred to the Distribution 

Account from the Collection Account pursuant to Section 3.2 for application by the Paying 

FDIC SFR 2010-1 37 Custodial and Paying Agency Agreement 

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Agent in accordance with the priorities set forth in Sections 5.1(b) and (c) below (the “Priority 

of Payments”) and pursuant to the Distribution Date instructions contained in the Distribution 

Date Reports delivered pursuant to Section 11.3. 

(b) On each Distribution Date, the Paying Agent shall distribute all Interest 

Proceeds in the Distribution Account 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, to reimburse the Manager for any Excess Liquidity 

Advances; 

(iii) third, (A) for each Due Period during the Interim Servicing Period, 

with respect to each Mortgage Loan for which the Initial Member provides interim servicing, to 

pay to (1) the Initial Member the Interim Servicing Fee, and (2) the Manager, an amount equal to 

the Management Fee less the Interim Servicing Fee (the “Interim Management Fee”), and (B) 

for each Due Period following the Interim Servicing Period, with respect to each Mortgage Loan, 

to pay to the Manager an amount equal to the Management Fee; 

(iv) fourth, to pay to the Purchase Money Note Guarantor the full 

amount of the Purchase Money Note Guaranty Fee together with any accrued interest thereon 

then due and payable; 

(v) fifth, to pay any reimbursement amounts, together with any 

accrued interest thereon at the Purchase Money Note Interest Rate, due and payable as of the 

Determination Date for the applicable Due Period to the Purchase Money Note Guarantor 

pursuant to the Reimbursement and Security Agreement for previous payments made by it under 

the Purchase Money Note Guaranty; 

(vi) sixth, to pay the aggregate amount of interest accrued through and 

including the Determination Date for the applicable Due Period and unpaid on the Purchase 

Money Note; 

(vii) seventh, to fund the Liquidity Account established by the 

Company as and to the extent permitted by Section 3.7 of this Agreement; and 

(viii) eighth, any amount remaining to the Initial Member and the 

Private Owner, pro rata based on their respective Percentage Interests. 

(c) On each Distribution Date, the Paying Agent will distribute all Principal 

Proceeds in the Distribution Account in the following order of priority: 

(i) first, if there are any outstanding amounts due and payable under 

items (b)(i) through (vii) above, then to such items in the order of priority set forth therein; 

FDIC SFR 2010-1 38 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
(ii) second, if any Performance Test is not satisfied on the 

Determination Date prior to such Distribution Date, all remaining Principal Proceeds shall be 

applied as a payment of principal on the Purchase Money Note until the first to occur of(a) both 

Performance Tests are satisfied or (b) the outstanding principal balance ofthe Purchase Money 

Note is reduced to zero; and 

(iii) third, any Principal Proceeds remaining after the distributions in 

clauses (c)(i) and (ii) above, shall be distributed concurrently as follows: 

1. 	 67% as payments ofprincipal on the Purchase Money Note, 

until the outstanding principal balance ofthe Purchase 

Money Note is reduced to zero; 

2. 	 33% (or 100% ifthe outstanding principal balance ofthe 

Purchase Money Note is equal to zero) to the Initial 

Member and the Private Owner, pro rata based on their 

respective Percentage Interests. 

provided, however that ifthe outstanding principal balance ofthe 

Purchase Money Note is equal to zero, then 100% ofthe Principal 

Proceeds being distributed pursuant to this clause (iii) shall be distributed 

pursuant to clause (iii)(2). 

Section 5.2 Notices ofPayment Failure. The Paying Agent shall deliver prompt 

written notice to the Company, the Purchase Money Note Guarantor and the Collateral Agent in 

the event that it fails to receive in full the amount required to be paid by the Company pursuant 

to Article V ofthis Agreement, 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 ofreceipt of a partial payment, the amount ofsuch partial payment. 

ARTICLE VI 


CUSTODIAL DOCUMENTS 


Section 6.1 Delivery ofCustodial 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 ofthe 

Custodian at Wells F Document Custody, 751 Kasota Avenue, 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 ofthe Company and, ifthe Company so 

determines, the Receiver) an office space at the Office that is sufficient to accommodate up to six 

(6) people to review the Custodial Documents with representatives ofthe Custodian for a period 

ofnot more than ten (10) days prior to the delivery ofpossession ofthe same to the Custodian. 

Within forty-five (45) days after delivery ofthe Custodial Documents to the Custodian, the 

Custodian shall execute and deliver to the Company, the Purchase Money Note Guarantor and 

FDIC SFR 2010-1 39 

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 

Mortgage Loan Schedule and Exception List (“Collateral Certificate”). In reviewing the 

documents provided with respect to a Mortgage 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 Mortgage 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 Mortgage 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 2010-1 SFR 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 Mortgage Loan, the 

original Mortgage Assignment in blank for each Mortgage Loan, in form and substance 

acceptable for recording and signed in the name of the Federal Deposit Insurance Corporation as 

Receiver for various failed financial institutions to the Company; 

(vi) except in the case of any MERS Designated Mortgage Loan, the 

original Mortgage Assignment in blank for each Mortgage 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 Mortgage Loan, the 

originals of all intervening Mortgage Assignments (if any) with evidence of recording thereon, or 

FDIC SFR 2010-1 40 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 Mortgage 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 

Mortgage 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 Mortgage 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 Mortgage 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 Mortgage 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 

Mortgage 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 Mortgage Loan or Acquired Property, (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, and (B) ensure that all such Custodial Documents with 

respect to a Mortgage Loan or Acquired Property are placed in the file for the related Mortgage 

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 

FDIC SFR 2010-1 41

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
shall provide the Company (with a copy to the Purchase Money Note Guarantor and the 

Collateral Agent) with a Collateral Certificate, to the effect that the Custodian has received and 

reviewed the additional Underlying Collateral Documents, and include a revised Mortgage Loan 

Schedule and Exception List. 

(e) Mortgage Loan Schedules and Exception Lists; Review Procedures. Each 

Mortgage 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 Mortgage Loan 

Schedule and Exception List delivered by the Custodian to the Company shall supersede and 

cancel the Mortgage Loan Schedule and Exception List previously delivered by the Custodian to 

the Company hereunder, and shall replace the then existing Mortgage 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 Mortgage Loan Schedule and Exception List 

attached to the Collateral Certificate is different from the most recently delivered Mortgage Loan 

Schedule and Exception List, then the most recently delivered Mortgage Loan Schedule and 

Exception List shall control and be binding upon the parties hereto. The delivery of each 

Mortgage 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 Mortgage Loan 

Schedule and Exception List: (i) all documents required to be delivered in respect of a Mortgage 

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 Mortgage Loan or Acquired Property and to satisfy (except in the case of a 

MERS Designated Mortgage Loan) the requirements set forth in Section 6.1(c) of this 

Agreement, (iii) subject to the provisions of Section 7.2(b), each Mortgage Loan (except in the 

case of a MERS Designated Mortgage Loan) or Acquired Property identified on such Mortgage 

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 Mortgage Loan is 

being held by MERS® as the nominee for the Company. In connection with a Mortgage 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 Mortgage 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 Note Guarantor and their respective agents, 

accountants, attorneys and auditors, and any other Persons designated by the Company, the 

Collateral Agent or the Purchase Money Note 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. 

FDIC SFR 2010-1 42

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 

 


 

(b) Upon the request of the Company, the Collateral Agent or the Purchase 

Money Note Guarantor, and at the cost and expense of the requesting party, the Custodian shall 

provide copies of any requested Custodial Documents; provided, however, the requesting party 

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. 

(b) Pledge of Mortgage Loans to the Collateral Agent. Pursuant to the terms 

and conditions of the Reimbursement and Security Agreement, the Company has pledged all of 

its rights, title and interest in and to the Mortgage Loans, the Acquired Property and the 

Custodial Documents to the Collateral Agent for the benefit of the Purchase Money Note 

Guarantor and the other Secured Parties (as defined in the Reimbursement and Security 

Agreement) as security for certain obligations of the Company under the Purchase Money Note 

FDIC SFR 2010-1 43 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
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 

Mortgage 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 Mortgage 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 and Security 

Agreement to request the release of the Custodial Documents being requested for release and that 

the Mortgage 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 Mortgage Loans, the Acquired Property and the Custodial Documents and that the 

Custodian is holding the Mortgage 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 and Security Agreement. 

Upon the Custodian’s receipt from the Collateral Agent or the Purchase Money Note Guarantor 

of written notice at its Office that an Event of Default under the Reimbursement and Security 

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 

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 

FDIC SFR 2010-1 44

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
release of 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 Mortgage Loan, or a discounted payoff as payment in full of such Mortgage 

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, the Manager or the Servicer 

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 or for any other authorized servicing 

activity, the Custodian shall release the related Custodial Documents to the Company, the 

Manager or the Servicer, as applicable, 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 Mortgage 

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) [Intentionally Omitted]. 

(h) 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. 

(i) 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. 

(j) 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. 

(k) 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. 

FDIC SFR 2010-1 45 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 

 


 


 


 

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 including, 

without limitation, the reasonable and customary attorneys’ fees of the Bank. The provisions of this 

Section 8.1 shall survive any resignation or removal of the Bank as Custodian or Paying Agent or the 

termination or assignment of this Agreement. 

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 Purchase 

Money Note 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 and Security 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 Note 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 and Security Agreement as they relate to the Company, the Company 

shall appoint, by written instrument, a successor Custodian and Paying Agent. 

(c) Effectiveness. Upon appointment of a successor Custodian and Paying 

Agent, the successor Custodian and Paying Agent shall execute, acknowledge and deliver an 

instrument accepting such appointment under, and agreeing to be bound by the terms of, this 

Agreement, at which time the resignation or removal of the predecessor Custodian and Paying 

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 predecessor Custodian and Paying Agent and the successor Custodian 

and Paying Agent. 

FDIC SFR 2010-1 46 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
(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. 

ARTICLE X 

REPRESENTATIONS, WARRANTIES AND COVENANTS 

Section 10.1 Representations, Warranties and Covenants. The Bank as Custodian and 

Paying Agent and the Company, as applicable, represent and warrant to each other as follows: 

(a) 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; 

(b) 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; 

(c) 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 

(d) the Bank as Custodian and Paying Agent represents and warrants to the 

Company 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 Mortgage 

FDIC SFR 2010-1 47

Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 

 


 

Loan Documents and other Custodial Documents and (vii) is not an Affiliate of the Company or 

of 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 Note Guarantor and the Collateral Agent, no later than 

12:00 noon, New York City time, on each Distribution Date, a report for the applicable Due 

Period (the “Custodian and Paying Agent Report”) with respect to the Mortgage Loans and 

Underlying Collateral (including the Accounts setting forth in reasonable detail the balances of 

and any investments in such Accounts as of such date and all deposits to and disbursements, 

including of all Mortgage Loan Proceeds or the Management Fee from such 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 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 Note Guarantor for a Custodial Report or 

an updated Mortgage Loan Schedule and Exception List, the Custodian and Paying Agent shall 

provide the requesting party with the Custodial Report or the updated Mortgage Loan Schedule 

and Exception List, as applicable. 

FDIC SFR 2010-1 48 Custodial and Paying Agency Agreement 

Pool Nos. 24020 and 24021 
(b) The Custodian and Paying Agent shall provide any additional information 

or reports relating to the Accounts and the transactions therein reasonably requested from time to 

time by the Company, the Collateral Agent or the Purchase Money Note Guarantor in the case of 

any Account. 

Section 11.3 Company and Servicer Distribution Date Accounting. For each Due 

Period no later than 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 Note Guarantor a report which shall specify the amounts and 

recipients of all funds to be distributed by the Paying Agent on the relevant Distribution Date as 

determined as of the close of business on the applicable Determination Date and certified by an 

Authorized Representative (who shall be the chief financial officer (or an equivalent officer)) of 

the Company (the “Distribution Date Report”); provided, however, that (unless the Company and 

the Initial Member agree otherwise) the Initial Member will prepare and deliver to the Paying 

Agent and the Purchase Money Note Guarantor the Distribution Date Report for all Due Periods 

ending on or before April 1, 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 

Note Guarantor in accordance with the LLC Operating Agreement. The Distribution Date 

Report shall contain the following information: 

(a) the aggregate amount of Mortgage Loan Proceeds as of the close of 

business on such Determination Date, after giving effect to Mortgage Loan Proceeds received 

with respect to the applicable Due Period; 

Due Period; 

(b) the amount of Mortgage Loan Proceeds received during the applicable 

(c) [Intentionally Omitted] 

(d) for the Collection Account: 

(i) the amount to be transferred from the Collection Account to the 

Distribution Account which shall equal the sum of: (A) all Mortgage Loan Proceeds received in 

the applicable Due Period plus (B) funds transferred from the Liquidity Account plus (C) any 

Excess Liquidity Advances deposited in the Collection Account plus (D) the Interim Servicing 

Fee, the Interim Management Fee and the Management Fee received for the applicable Due 

Period less (E) 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 

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Management Fee payable to the Manager; and for any Due Period thereafter, the amount of the 

Management Fee payable to the Manager, 

(C) The amount to be reimbursed to the Manager for Excess 

Liquidity Advances, 

(D) The amount of the Purchase Money Note Guaranty Fee and 

any accrued interest thereon payable to the Purchase Money Note Guarantor, 

(E) The reimbursement amounts and any accrued interest 

thereon payable to the Purchase Money Note Guarantor for previous payments made by it under 

the Purchase Money Note Guaranty, 

(F) The amount to be deposited in the Special Reserve 

Account, 

(G) The amount of Interest Proceeds to be deposited in the 

Liquidity Account, 

(H) The amount of Principal Proceeds to be deposited in the 

Liquidity Account, 

(I) The amount of Interest Proceeds payable as distributions to 

the Initial Member and to the Private Owner, 

(J) The amount of Principal Proceeds payable as distributions 

to the Initial Member and to the Private Owner, and 

(K) Any other amounts or calculations required pursuant to 

Section 5.1. 

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 Mortgage Loan Proceeds. The Paying 

Agent also shall maintain a complete and accurate set of files, books and records regarding the 

Mortgage Loans 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 Mortgage Loans and the Underlying Collateral, including 

all Custodial Documents. The Paying Agent shall permit the Company, the Purchase Money 

Note Guarantor and the Collateral Agent to examine such accounts, books and records that relate 

to any Account, provided that any such examination shall occur upon reasonable prior notice and 

during normal business hours. 

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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 Mortgage Loan, and hereby waives 

and releases any such interest which it may have in any Mortgage Loan as of the date hereof. 

The Mortgage 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 

Mortgage Loans. 

ARTICLE XIII
 

LIABILITY AND INDEMNIFICATION
 

Section 13.1 Liability; Indemnification. 

(a) 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) In the event that the Custodian fails to produce a Custodial Document that 

was not identified as an Exception in the then controlling Mortgage 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 Mortgage Loan, including a missing Note, (A) the 

Custodian shall indemnify the Company, the Purchase Money Note Guarantor and the Collateral 

Agent in accordance with Section 13.1(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 

FDIC SFR 2010-1 51 Custodial and Paying Agency Agreement 

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Money Note 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 Mortgage Loan or such lesser 

amount requested by the Company in the Company’s sole discretion. 

(c) The Custodian and Paying Agent hereby indemnifies and holds harmless 

the Company, the Purchase Money Note 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. 

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 Mortgage 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 

Mortgage 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 with respect 

to any act, action or failure to act in connection with this Agreement, the Custodian and Paying 

Agent shall be entitled (without incurring any liability therefor to the Company, the Collateral 

Agent, the Purchase Money Note Guarantor or any other Person) to refrain from taking such 

action and continue to refrain from acting unless and until the Custodian and Paying Agent shall 

have received written instructions from the Company (or the Collateral Agent, as the case may 

be). 

FDIC SFR 2010-1 52 Custodial and Paying Agency Agreement 

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(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 

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 

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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 Mortgage 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 Note 

Guarantor and the Collateral Agent. 

ARTICLE XVII
 

AUTHORIZED REPRESENTATIVES
 

Section 17.1 Authorized Representatives. Each individual designated as an Authorized 

Representative of any Person is authorized to give and receive notices, requests and instructions 

and to deliver certificates and documents in connection with this Agreement on behalf of such 

Person, and the specimen signature for each such Authorized Representative, initially authorized 

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. 

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. 

FDIC SFR 2010-1 54 Custodial and Paying Agency Agreement 

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If to the Bank: 

If to the Bank for all purposes other than cancellation, presentment, transfer and/or 

exchange of Purchase Money Note: 

Wells Fargo Bank, NA
 

9062 Old Annapolis Road
 

Columbia, Maryland 21045
 

Attn: Client Services Manager
 

Ref: Multibank 2010-1 SFR Venture LLC
 

For purposes of cancellation and presentment of Purchase Money Notes: 

Wells Fargo Bank, NA
 

6th Street & Marquette Avenue
 

Minneapolis, Minnesota 55479
 

Attn: Corporate Trust Services Bondholder Communications
 

Ref: Multibank 2010-1 SFR Venture LLC
 

For purposes of transfer and/or exchange of Purchase Money Notes: 

Wells Fargo Bank, NA
 

6th Street & Marquette Avenue
 

Minneapolis, Minnesota 55479
 

Attn: Corporate Trust Services Transfer Agent Department
 

Ref: Multibank 2010-1 SFR Venture LLC
 

If to the Company: 

Multibank 2010-1 SFR Venture, LLC 

5032 Parkway Plaza Blvd 

Charlotte, NC 28217 

Attention: Shaun Ahmad 

E-Mail Address: Shaun.Ahmad@roundpointmortgage.com 

with a copy to: 

Multibank 2010-1 SFR Venture, LLC 

5032 Parkway Plaza Blvd 

Charlotte, NC 28217 

Attention: Peter Schancupp 

E-Mail Address: Peter.Schancupp@roundpointmortgage.com 

If to the Purchase Money Note Guarantor or the Collateral Agent: 

Manager, Capital Markets & Resolutions 

Federal Deposit Insurance Corporation 

FDIC SFR 2010-1 55 Custodial and Paying Agency Agreement 

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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, VA 22226 

Attention: David Gearin 

E-Mail Address: DGearin@fdic.gov 

with a copy by email to: 

Thomas Raburn
 

E-Mail Address: TRaburn@fdic.gov
 

with a copy of notices or communications to Collateral Agent only to: 

James Hammett
 

Resolutions & Receivership Specialist
 

Federal Deposit Insurance Corporation
 

1601 Bryan Street
 

Dallas, TX 75201
 

JHammett@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 hereto. 

Section 19.2 Waiver of Jury Trial. EACH OF THE COMPANY, THE PURCHASE 

MONEY NOTE 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. 

FDIC SFR 2010-1 56 Custodial and Paying Agency Agreement 

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Section 19.3 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 Purchase Money Note 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 Note 

Guarantor or the Collateral Agent, as applicable, files the suit, action or proceeding without the 

consent of the Purchase Money Note 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 

Purchase Money Note 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 Purchase Money Note 

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 Purchase Money Note 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 

Purchase Money Note 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 

FDIC SFR 2010-1 57 Custodial and Paying Agency Agreement 

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

Columbia at the option of the Purchase Money Note Guarantor or the Collateral Agent, as 

applicable; and 

(iv) agrees, if the United States District Court for the Southern District 

of New York and the United States District Court for the District of Columbia both lack 

jurisdiction to hear a suit, action or proceeding falling within Section 19.3(a)(iii), to bring that 

suit, action or proceeding in only the Supreme Court of the State of New York, and waives any 

right to remove or transfer such suit, action or proceeding to any other court or dispute-resolution 

forum without the consent of the Purchase Money Note 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 Purchase Money Note 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 

FDIC SFR 2010-1 58 Custodial and Paying Agency Agreement 

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particular Person or Persons and/or under such particular circumstance or circumstances, as the 

case may be; (ii) without limitation of clause (i), such provision shall in any event be ineffective 

only as to such jurisdiction and only to the extent of such prohibition or unenforceability, and 

such prohibition or unenforceability in such jurisdiction shall not invalidate or render 

unenforceable such provision in any other jurisdiction; and (iii) without limitation of clauses (i) 

or (ii), such ineffectiveness shall not invalidate any of the remaining provisions of this 

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

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

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

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

court shall have the power to, and shall, (x) modify such provision (including, to the extent 

applicable, by limiting the duration or scope of such provision and/or the Persons against whom, 

and/or the circumstances under which, such provision shall be effective in such jurisdiction) for 

purposes of such proceeding to the minimum extent necessary so that such provision, as so 

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

modified pursuant to clause (x), in such proceeding. Nothing in this Section 19.5 is intended to, 

or shall, limit (1) the ability of any party to this Agreement to appeal any court ruling or the 

effect of any favorable ruling on appeal or (2) the intended effect of Section 19.1. 

Section 19.6 Compliance With Law. Except as otherwise specifically provided herein, 

each party to this Agreement shall, at its own cost and expense, obey and comply with all 

applicable laws, as they may pertain to such party’s performance of its obligations hereunder. 

Section 19.7 Entire Agreement. This Agreement contains the entire agreement between 

the Company, the Purchase Money Note Guarantor, the Collateral Agent and the Custodian with 

respect to the subject matter hereof and supersedes any and all other prior agreements, whether 

oral or written. 

Section 19.8 Assignment; Binding Effect. Except as is permitted pursuant to the 

provisions of this Agreement providing for successor Custodians and Paying Agents, the 

Custodian and Paying Agent shall not assign or delegate this Agreement or any of its rights or 

obligations hereunder without the prior written consent of the Company and any such purported 

assignment or delegation without such consent shall be void ab initio. This Agreement shall be 

binding on and inure to the benefit of the parties hereto and their respective successors and 

permitted assigns, and no other Person or Persons shall have any rights or remedies under or by 

reason of this Agreement. 

Section 19.9 Rights Cumulative. The rights, powers and remedies of the Custodian and 

Paying Agent, the Purchase Money Note Guarantor, the 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 Purchase Money Note 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 19.10Amendments. 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 

FDIC SFR 2010-1 59 Custodial and Paying Agency Agreement 

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written agreement signed by the Company, the Purchase Money Note Guarantor, the Collateral 

Agent and the Custodian and Paying Agent. 

Section 19.11Headings. 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. 

FDIC SFR 2010-1 60 Custodial and Paying Agency Agreement 

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IN WITNESS WHEREOF. the Bank, the Purchase Money Note Guarantor, the Collateral 

Agent and the Company have each caused this Agreement to be executed as of the date first 

written above. 

WELLS FARGO BANK, N.A., as Custodian and 

Paying Agent 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Note Guarantor 

By:--------------------------------­ Name: Ralph Malan1i 


Title: Attorney-in-Fact 


FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver for each ofthe Failed Banks, as Collateral 

Agent 

By:---------------------------------­ Name: Ralph Malami 


Title: Attorney-in-Fact 


MULTIBANK 2010-1 SFR VENTURE, LLC 

By: RoundPoint Ventures I, LLC, as Manager 

By: 


Name: 


Title: 


FDIC SFR 2010-1 

Custodial and Paying ,\gency Agreement 

Pool Nos. 24020 and 24021 
IN WlTNESS WHEREOF, the Bank. the Purchase Money Note Guarantor, the Collateral 

Agent and the Company have each caused this Agreement to be executed as of the date first 

written above. 

WELLS FARGO BANK, N.A .. as Custodian and 

Paying Agent 

By: ______________ 

Name: 

Title: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Note Guarantor 

Name: Ralph Malami 


Title: Attorney-in-Fact 


FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver for each of the Failed Banks, as Collateral 

Agent 

By: 

: Ralph Malami 

Title: Attorney-in-Fact 

MULTIBANK 2010-1 SFR VENTURE, LLC 

BY: RoundPoint Ventures I. LLC. as Manager 

By: ______________ 

Name: 

Title: 

FDIC SFR 2010-1 

Custodial and Paying Agency Agreement 

Pool Nos. 2~020 and 2402 I 
---------------------------

IN WITNESS WHEREOF, the Bank, the Purchase Money Note Guarantor, the Collateral 

Agent and the Company have each caused this Agreement to be executed as ofthe date first 

written above. 

WELLS FARGO BANK, N.A., as Custodian and 

Paying Agent 

By:---· 

Name: 


Title: 


FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Note Guarantor 

By: 

Name: Ralph Malami 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver for each ofthe Failed Banks, as Collateral 

Agent 

By:___-,--____ 

Name: Ralph Malami 

Title: Attorney-in-Fact 

MULTIBANK 2010-1 SFR VENTURE, LLC 

By: RoundPoint Ventures I, LLC, as Manager 

By 

Name: Shaun Ahmad 

Title: Vice President 

FDIC SFR 2010-1 

Custodial and Paying Agency Agreement 

Pool No~. 24020 and 24021