RADC/CADC Loan and REO Structured Transaction 2010-2 

CUSTODIAL AND PAYING AGENCY AGREEMENT 


by and among 


RADC/CADC VENTURE 2010-2, LLC, as Company 


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 


listed on Schedule I hereto, as Collateral Agent, 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


in its capacity as Receiver for various failed financial institutions 


listed on Schedule I hereto, as Initial Member, 


COLFIN 2011 ADC FUNDING, LLC, as Private Owner, 


and 


WELLS FARGO BANK, NATIONAL ASSOCIATION, as Bank 


Dated as ofJanuary 26, 2011 

RADC!CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

133121353 
TABLE OF CONTENTS 


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


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


ARTICLE II PAYING AGENT AND PURCHASE MONEY NOTE ..........................................6 


Section 2.1 
 Appointment of Paying Agent .....................................................................6 


..........................................................................6 


...........................................................................................................6 


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


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


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


Section 2.2 
 Delivery of Documentation 

Section 2.3 
 Duties 

Section 2.4 
 Fonns of Purchase Money Note 

Section 2.5 
 Authorized Amount; Denominations; Prepayment. 

Section 2.6 
 Intentionally Ornitted.Execution, Delivery and Dating 

Section 2.8 
 Intentionally Omitted ................................................................................. 17 


Section 2.9 


Section 2.10 
 Payments with Respect to the Purchase Money Note ................................ 18 


Section 2.11 
 Mandatory Exchange ................................................................................. 19


Section 2.12 


Section 2.13 
 Withholding ...............................................................................................20 


...........................................................................21 


............................................................................................21 


...............................................................................................21 


.........................................................................21 


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


Section 2.14 
 Persons Deemed Owners 

Section 2.15 
 Holder Voting 

Section 2.16 
 Cancellation 

Section 2.17 
 Section 3(c)(7) Procedures 

Section 2.18 
 Transfer ofthe Purchase Money Note by Receiver 

Intentionally Omitted. Registration, Registration ofTransfer and 


Exchange or Conversion ..............................................................................9 


Mutilated, Defaced, Destroyed, Lost or Stolen Purchase Money 


Note Beneficially Owned by Persons Not Qualified Institutional 


Section 2.7 


Note............................................................................................................ 17 


Buyers or Qualified Purchasers ................................................................. 19 


ARTICLE III ACCOUNTS .........................................................................................................23 


Section 3.1 
 Collection Account ....................................................................................23 


................................................................................. .25 


..................................................................................25 


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


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


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


........................................................... .29 


.............................................................. .29 


.............................................................. .30 


Section 3.2 
 Distribution Account 

Section 3.3 
 Defeasance Account. 

Section 3.4 
 Reserved 

Section 3.5 
 Reserved 

Section 3.6 
 Working Capital Reserve Account. 

Section 3.7 
 Excess Working Capital Advances 

Section 3.8 
 Discretionary Funding Advances 

Section 3.9 
 Private Owner Pledged Account. 

ARTICLE IV ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS .....................30 


Section 4.1 Investment of Funds in Accounts ..............................................................30 


,Section 4.2 Interest........................................................................................................32 


Section 4.3 Inadequately Identified Amounts ...............................................................32 


Section 4.4 Payment Procedures ...................................................................................32 


ARTICLE V DISTRIBUTIONS ..................................................................................................32 


Section 5.1 Priority of Payments ..................................................................................32 


(i) 

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Section 5.2 Notices ofPayment Failure........................................................................34 


ARTICLE VI CUSTODIAL DOCUMENTS ..............................................................................34 


Section 6.1 Delivery ofCustodial Documents ..............................................................34 


Section 6.2 Examination ofCustodian Files; Copies ....................................................38 


Section 6.3 Shipment ofCustodial Documents ........................................................... .38 


ARTICLE VII CUSTODIAN ......................................................................................................38 


Section 7.1 Appointment of the Custodian .................................................................. .38 


Section 7.2 Obligations of the Custodian .................................................................... .39 


ARTICLE VIII FEES AND EXPENSES ....................................................................................41 


Section 8.1 Fees and Expenses .....................................................................................41 


ARTICLE IX REMOVAL OR RESIGNATION.........................................................................41 


Section 9.1 Removal or Resignation ofCustodian and Paying Agent .........................41 


ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS ............................43 


Section 10.1 Representations, Warranties and Covenants ..............................................43 


Section 10.2 Insurance ....................................................................................................43 


ARTICLE XI REPORTS .............................................................................................................44 


Section 11.1 Custodian and Paying Agent Report ..........................................................44 


Section 11.2 Additional Reports .....................................................................................44 


Section 11.3 Company and Servicer Distribution Date Accounting ..............................45 


Section 11.4 Distribution Date Instructions ....................................................................46 


Section 11.5 Books and Records ....................................................................................46 


ARTICLE XII NO ADVERSE INTERESTS ..............................................................................47 


Section 12.1 No Adverse Interests ..................................................................................47 


ARTICLE XIII LIABILITY AND INDEMNIFICATION .........................................................47 


Section 13.1 Liability; Indemnification ..........................................................................47 


ARTICLE XIV CUSTODIAN AND PAYING AGENT ............................................................49 


Section 14.1 Reliance of Custodian and Paying Agent ..................................................49 


ARTICLE XV T AXES .................................................................................................................50 


Section 15.1 Tax Reports ................................................................................................50 


Section 15.2 Stamp and Other Similar Taxes .................................................................50 


Section 15.3 Tax Characterization ..................................................................................50 


Section 15.4 Back-Up Withholding ................................................................................50 


ARTICLE XVI TERM .................................................................................................................51 


Section 16.1 Term ...........................................................................................................51 


ARTICLE XVII AUTHORIZED REPRESENTATIVES ...........................................................51 


Section 17.1 Authorized Representatives .......................................................................51 


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ARTICLE XVIII NOTICES ........................................................................................................ 51 


Section 18.1 Notices ....................................................................................................... 51 


ARTICLE XIX MISCELLANEOUS ........................................................................................... 53 


Section 19.I Governing Law .......................................................................................... 53 


Section I9.2 Waiver ofJury Trial. .................................................................................. 54 


Section I9.3 Jurisdiction; Venue and Service ................................................................. 54 


Section I9 .4 Counterparts ............................................................................................... 56 


Section I9 .5 Severability ................................................................................................ 56 


Section 19.6 Compliance With Law ............................................................................... 56 


Section I9.7 Entire Agreement ....................................................................................... 56 


Section 19.8 Assignment; Binding Effect.. ..................................................................... 56 


Section 19.9 Rights Cumulative ..................................................................................... 51 


Section I9.I 0 Amendments .............................................................................................. 51 


Section 19.II Headings .................................................................................................... 57 


Schedule and Exhibits 

Schedule I List ofVarious Failed Financial Institutions 

Exhibit A Asset Schedule 

Exhibit B-1 Form of Certificated Note 

Exhibit B-2 Form of Global Note 

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

Exhibit C-2 Form ofCertificate for the Acquisition of RegulationS Certificated Note 

Exhibit C-3 Form of Certificate for the Acquisition of Rule I44A Certificated Note 

Exhibit C-4 Form ofCertificate for Transfer or Exchange of Certificated Note to Rule I44A 

Global Note 

Exhibit D Form ofDTC Notice to Investors 

Exhibit E Form of Collateral Certificate 

Exhibit F Review Procedures 

Exhibit G Form of Supplemental Delivery Certificate 

Exhibit H Request for Release and Receipt ofCustodial Documents 

Exhibit I Request for Release and Receipt of Debt Documents 

Exhibit J Fees and Expenses ofCustodian and Paying Agent 

Exhibit K Custodian and Paying Agent Report 

Exhibit L Form ofLost Instrument Affidavit 

Exhibit M Authorized Representatives 

Exhibit N Form of Account Control Agreement 

Exhibit 0 Form oflnvestor Certification for Website Access 

Exhibit P Form of Private Owner Account Control Agreement 

(iii) 

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CUSTODIAL AND PAYING AGENCY AGREEMENT 


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

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

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

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

RECITALS 

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

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

Schedule; and 

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

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

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

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

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

Holder, a Purchase Money Note with a principal face amount of$100,275,473.00; 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 Guaranty Agreement; and 

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

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

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

requirements set forth in the Reimbursement, Security and Guaranty Agre.ement to take 

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

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

Operating Agreement; and 

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

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

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

contemplated by this Agreement; and 

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

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

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

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

contemplated by this Agreement; and 

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

to perform the services contemplated by this Agreement; and 

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

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

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

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

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

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

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

ARTICLE I 


DEFINITIONS AND CONSTRUCTION 


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

Agreement shall have the meanings and definitions set forth in that certain RADC/CADC 201 0-2 

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

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

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

meanings and definitions hereinafter respectively set forth below. 

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

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

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

is located to convey fee title. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Agencies. 

"Agreement" has the meaning given in the preamble. 

"Asset Schedule and Exception List" means a list ofthe Assets and Acquired Property, 

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

Asset that has been delivered to the Custodian, (i) the Borrower name and any identification 

number assigned to the Asset, (ii) the location to which the Custodial Documents with respect to 

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

Documents were released by the Custodian. 

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

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

designated, in writing as required by Section I 7. I, by such Person to the Custodian to act as an 

authorized representative of such Person for purposes of this Agreement. 

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

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

Section 17A of the Exchange Act. 

"Company Accounts" has the meaning given in Section 4. I (b). 

"Collateral Certificate" has the meaning given in Section 6. I (b). 

"Company Principal Prepayment Amount" means any voluntary amounts deposited 

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

principal on the Purchase Money Note. 

"Custodial Delivery Failure" has the meaning given in Section 13. I (c). 

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

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

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

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

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

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

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

Reimbursement, Security and Guaranty Agreement and the Account Control Agreement 

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

respective successors. 

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

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

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

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

information. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Money Note. 

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

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

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

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

meanings given in Section 2.7(a). 

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

Security and Guaranty Agreement. 

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

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

Property) or in which the Acquired Property is located. 

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

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

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

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

"Termination" has the meaning given in Section 8.1. 

"Transferee Certificate" has the meaning given in Section 2. 7(j). 

Section 1.2 Rules 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 ofthis Agreement. 

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

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

they are in fact followed by such words. 

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

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

such period. 

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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 ofthe appropriate gender. 

ARTICLE II 


PAYING AGENT AND PURCHASE MONEY NOTE 


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

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

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

accepts such appointment. 

Section 2.2 Delivery ofDocumentation. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

unless any one ofthe following events has occurred: 

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

accordance with the provisions of Section 9 .I, the Custodian shall deliver the Debt Agreements 

and the Private Owner Account Control Agreement to the successor Paying Agent in accordance 

with Section 9.1. 

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

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

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

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

instructions provided in such notice. 

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

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

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

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

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

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

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

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

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

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

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

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

occurred. 

Section 2.4 Forms of Purchase Money Note. 

(a) Forms Generally. 

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

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

Note in the principal face amount of $100,275,473.00 (inclusive of the Purchase Money Note 

Issuance/Guaranty Fee). 

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

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

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

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

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

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

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

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

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

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

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

otherwise. 

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

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

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

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

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

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

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

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

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

transferred to a Person that (I) is not a U.S. Person and is acquiring the Purch~se Money Note in 

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

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

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

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

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

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

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

Agent and counsel to the Company. 

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

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

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

shall bear a legend in substantially the following form: 

FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF 

THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, 

THIS PURCHASE MONEY NOTE IS BEING ISSUED WITH 

ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE 

FEDERAL DEPOSIT INSURANCE CORPORATION AT 

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

20429, ATTENTION: RALPH MALAMI, AND THE FDIC 

WILL PROVIDE YOU WITH THE ISSUE PRICE AND THE 

YIELD TO MATURITY OF THIS PURCHASE MONEY NOTE. 

Section 2.5 Authorized Amount; Denominations; Prepayment 

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

delivered under this Agreement is limited to U.S.$1 00,275,473.00 except for a Purchase Money 

Note executed and delivered upon registration of transfer of, or in exchange for, or in lieu of, the 

Purchase Money Note pursuant to Section 2.7 or 2.9 ofthis Agreement. 

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

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

Note may be issued in a different amount, so long as such amount exceeds the minimum denomination 

ofU.S.$250,000) (each such denomination, an "Authorized Denomination"). Any interest in the 

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

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

principal may be transferred only in its entirety. 

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

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

mandatory prepayment to the extent required as a result of the acceleration of all or a portion of the 

Purchase Money Note following the occurrence of an Event of Default). 

Section 2.6 Execution, Delivery and Dating. 

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

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

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

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Custodial and Paying Agency Agreement 

13312135.3 
(b) The Purchase Money Note bearing the manual or facsimile signatures of 

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

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

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

offices at the date ofissuance of the Purchase Money Note. 

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

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

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

pursuant to this Agreement shall be dated the date oftheir execution. 

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

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

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

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

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

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

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

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

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

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

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

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

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

principal or face amount ofthe Purchase Money Note so restructured. 

Section 2.7 Registration, Registration ofTransfer and Exchange or Conversion. 

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

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

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

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

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

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

Registrar, the Company shall promptly appoint a successor. 

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

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

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

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

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

and the Paying Agent shall have the right to rely upon a ct;rtificate executed on behalf of the 

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

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

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

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

reflected in the Purchase Money Note Register. 

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Custodial and Paying Agency Agreement 

I 3312135.3 
(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, the new Purchase Money Note of any Authorized Denomination and of 

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

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

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

for a Purchase Money Note of like terms, in any Authorized Denomination 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. 

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

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

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

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

exchange. 

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

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

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

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

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

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

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

connection therewith. 

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

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

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

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

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

mortgage pool (as such term is defined in Section 770 I (I) of the Code) and is exempt under 

applicable state or foreign securities Laws. 

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

(i) to a transferee that is a Person whom the seller r~asonably believes is a Qualified Institutional 

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

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

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

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

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

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13312135.3 
transferee that is a Qualified Purchaser purchasing for its own account or for the account of a 

Qualified Purchaser. 

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

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

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

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

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

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

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

without further inquiry or investigation. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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13312135.3 
attached to this Agreement, in the case of a Regulation S Certificated Note, and Exhibit C-3 

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

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

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

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

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

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

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

clause (A) above. 

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

only be made in accordance with this Section 2.7(m). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Custodial and Paying Agency Agreement 

13312135.3 
the case of transfer of a Regulation S Certificated Note, and Exhibit C-3 to this Agreement, in 

the case of transfer of a Rule I 44A Certificated Note, executed and delivered by the proposed 

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

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

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

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

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

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

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

If the Holder of the Rule I 44A Certificated Note wishes at any time to exchange 

such Rule 144A Certificated Note for the a Rule I44A Certificated Note of a different 

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

any time to exchange such Regulation S Certificated Note for a Regulation S Certificated Note 

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

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

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

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

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

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

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

Certificated Note in accordance with Section 2. I6, record the exchange in the Purchase Money 

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

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

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

Holder and in an Authorized Denomination. 

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

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

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

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

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

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

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

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

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

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

Regulation S Certificated Note, and Exhibit C-3 to this Agreement, in the case of Rule I44A 

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

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

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

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

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

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

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Custodial and Paying Agency Agreement 

13312135.3 
(n) If the Purchase Money Note is issued upon the transfer, exchange or 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

agree, as follows: 

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

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

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

a Qualified Purchaser. 

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

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

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

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

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

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

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

which it resides or is located. 

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

forth in the applicable exhibit attached to this Agreement. 

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

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

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

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

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

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

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

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

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

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

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

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

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Custodial and Paying Agency Agreement 

13312135.3 
in order to ascertain compliance with this paragraph and (H) understands that the Company may 

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

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

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

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

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

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

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

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

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

the Purchase Money Note. 

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

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

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

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

retirement account, Keogh plan 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 

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

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

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

prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

action inconsistent with such treatment. 

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Custodial and Paying Agency Agreement 

13312135.3 
(ix) If it is not a "U.S. person" as defined in Section 7701(a)(30) of the 

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

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

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

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

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

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

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

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

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

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

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

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

foregoing representations, and it consents to such reliance. 

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

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

set forth in this Section 2. 7, including the Exhibits referenced herein. 

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

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

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

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

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

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

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

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

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

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

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

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

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

accordance with this Section 2. 7 shall be null and void ab initio and shall not be given effect for 

any purpose hereunder. 

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

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

Person. 

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

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

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

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13312135.3 
from the Securities Act, applicable state securities Laws or the applicable Laws of any other 

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

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

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

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

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

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

terms. 

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

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

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

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

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

Company to also adopt such alternate forms of transfer certificate. 

Section 2.8 Intentionally Omitted. 

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

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

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

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

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

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

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

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

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

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

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

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

and bearing a number not contemporaneously outstanding. 

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

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

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

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

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

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

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

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

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

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

except that any mutilated Purchase Money Note shall be surrendered. 

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Custodial and Paying Agency Agreement 

13312135.3 
(d) Upon the issuance of any new Purchase Money Note pursuant to this 

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

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

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

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

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

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

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

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

Agreement. 

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

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

lost or stolen Purchase Money Note. 

Section 2.10 Payments with Respect to the Purchase Money Note. 

(a) All reductions in the principal amount ofthe Purchase Money Note (or the 

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

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

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

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

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

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

distributions that were carried by such other Purchase Money Note. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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apply to any Purchase Money Note so long as such Purchase Money Note remains in book-entry 

form, in which case all payments shall be made through the applicable Clearing Agency. All 

notices and communications to be given to the Note Owners and all payments to be made to 

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

order of the registered Holders. Neither the Company nor the Paying Agent shall have any 

responsibility or liability for any aspects of the records maintained by the Depository or any of 

the Agent Members relating to or for payments made thereby on account of beneficial interests 

in a Global Note. 

Section 2.11 Mandatory Exchange. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

original aggregate principal amount of Certificated Note of an Authorized Denomination. 

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

Qualified Purchasers. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

such sale or the exercise of such discretion. 

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

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

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

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

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

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

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

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

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

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

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

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

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

the Purchase Money Note. 

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

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

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

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

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

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

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

by notice to the contrary. 

Section 2.15 Holder Voting. 

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

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

Holder of more than fifty percent (50%)of the interests in the Purchase Money Note consents. 

Notwithstanding the foregoing, with respect to each ofthe following, such consent requirement 

shall only be satisfied if each affected interest Holder in the Purchase Money Note consents: 

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

due date for, or reduce the amount of any scheduled repayment of principal of, the Purchase 

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

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

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

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

otherwise modify this Section 2.15; and 

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

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

payment under the Guaranty Agreement. 

Section 2.16 Cancellation. A Purchase Money Note surrendered for payment, 

registration or transfer, exchange or redemption, or deemed lost or stolen, shall, if surrendered to 

any Person other than the Paying Agent, be delivered to the Paying Agent, shall be promptly 

cancelled by it and may not be reissued or resold. No Purchase Money Note shall be issued in 

lieu of or in exchange for a Purchase Money Note cancelled as provided in this Section 2.16, 

except as expressly permitted by this Agreement. A cancelled Purchase Money Note held by the 

Paying Agent shall be destroyed or held by the Paying Agent in accordance with its standard 

retention policy unless the Company shall direct that it be returned to it. 

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

(a) Depository Actions. The Company shall direct the Depository to take the 

following steps in connection with a Rule 144A Global Note: 

(i) The Company shall direct the Depository to include the "3c7'' 

marker in the Depository 20-character security descriptor and the 48-character additional 

descriptor for the Rule 144A Global Note in order to indicate that sales are limited to Persons 

that are both Qualified Institutional Buyers and Qualified Purchasers. 

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

Depository to deliver order ticket delivered by the Depository to purchasers to contain the 

Depository 20-character security descriptor and shall direct the Depository to cause each 

Depository deliver order ticket delivered by the Depository to purchasers in electronic form to 

contain the "3c7'' indicator and a related user manual for participants, which shall contain a 

description ofthe relevant restrictions. 

(iii) The Company shall instruct the Depository to send a notice 

substantially in the form attached as Exhibit D hereto to all Depository participants in connection 

with the offering ofthe Rule 144A Global Note. 

(iv) The Company shall advise the Depository that it is a Section 

3(c)(7) issuer and shall request the Depository to include the Rule 144A Global Note in the 

Depository's "Reference Directory" ofSection 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 Note. 

(b) Bloomberg Screens, Etc. The Company from time to time shall request all 

third-party vendors to include on screens maintained by such vendors appropriate legends 

regarding Rule 144A and Section 3(c)(7} restrictions on the Rule 144A Global Note. Without 

limiting the foregoing, the Company shall request Bloomberg, L.P. to include the following on 

each Bloomberg screen containing information about the Rule 144A Global Note: 

(i) "Security Description" page I describing the security states: 

"I44N3c7 "ok"; Reg S/3c7 "ok"; 144A/DTC Book Entry; RegS/Certificated; 

(ii) "Security Description" page I states: "See Page 3 for Comments"; 

(iii) "Security Description" page 3 states: "RESTRICTIONS: These 

securities are being offered under the Securities Act only (a} in book-entry and certificated form 

to "qualified institutional buyers" under Rule I44A and (b) in certificated form to non-U.S. 

Persons in offshore transactions under Regulation S, where (a) and (b) are also "qualified 

purchasers" within the meaning ofSection 3(c)(7) ofthe U.S. Investment Company Act." 

Notwithstanding the foregoing, in the event that Bloomberg is not able to include the language 

contained in subsections (b)(i) and (b)(ii) above, the purchaser will ensure as of the Closing Date 

that "Security Description" page 3 states: "I44N3c7 "ok"; Reg S/3c7 "ok"; 144A/DTC Book 

Entry; RegS/Certificated" in addition to the language in subsection (b)(iii) above. 

(c) CUSIP. The Company shall cause each "CUSIP" number obtained for the 

Rule 144A Global Note to have an attached "fixed field" that contains "3cT' and "144A ~' 

indicators. 

Section 2.I8 Transfer of the Purchase Money Note by Receiver. Subject to the 

requirements and restrictions for the transfer of the Purchase Money Note pursuant to this 

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Agreement, the Receiver shall be permitted, without restriction, to assign, sell, transfer, 

participate, pledge, or otherwise hypothecate the Purchase Money Note in whole or in part, to 

subsequent purchasers. The Private Owner agrees to cooperate with and assist, and to cause the 

Company to so cooperate and assist, the Receiver in any such actual or proposed assignment, 

sale, transfer, participation, pledge, syndication, or hypothecation as requested by the Receiver, 

including by providing information required by securities disclosure Laws and as would 

otherwise be provided customarily in connection with the issuance and sale of similar debt, and 

entering into a fiscal and paying agent agreement and other agreements with respect to the 

Purchase Money Note or the assignment, sale, transfer, participation, pledge, syndication or 

hypothecation thereof. The Private Owner agrees to cooperate with, and to cause the Company 

to cooperate with, the Receiver as initial Holder of the Purchase Money Note, to make any 

amendments to the Purchase Money Note and other Transaction Documentation, and issue any 

applicable legal opinions of Company counsel, to effect any such assignment, sale, transfer, 

participation, pledge, syndication or hypothecation; provided that no such amendment will 

adversely affect in any material respect (i) the amount or timing of distributions to the Private 

Owner or the Initial Member pursuant to the Priority of Payments or (ii) any other rights or 

obligations of the Paying Agent, Private Owner, or the Initial Member pursuant to the 

Transaction Documents, in each case unless such adversely affected Paying Agent, Private 

Owner or Initial Member, as applicable, shall have consented to the applicable provisions 

resulting in such adverse effect. The reasonable legal fees of outside counsel for the Company 

(excluding any legal fees of outside counsel performing services for the Private Owner or the 

Initial Member) in connection with the preparation and review of any such documents and 

issuance ofsuch legal opinions shall be deemed a Servicing Expense and paid by the Company. 

ARTICLE III 


ACCOUNTS 


Section 3.1 Collection Account. 

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

with the Paying Agent, which shall at all times be an Eligible Account. For all Asset Proceeds 

with respect to any Group ofAssets received by the Receiver during the Interim Servicing Period 

for which the Servicing Transfer Date has not occurred, the Receiver shall transfer any such 

Asset Proceeds, net of any Interim Servicing Expenses and Pre-Approved Charges then due and 

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

Paying Agent for deposit into the Collection Account. For all Asset Proceeds with respect to any 

Group ofAssets received after the Interim Servicing Period and for which the Servicing Transfer 

Date has occurred, the Company shall transfer, or cause the Servicer or any Subservicer to 

transfer, all Asset Proceeds within two (2) Business Days of receipt of such funds to the Paying 

Agent for deposit into the Collection Account; provided, that all amounts received from 

Borrowers which are required to be deposited to Escrow Accounts under the Asset Documents 

will not be applied to the Collection Account as Asset Proceeds. No funds from any other source 

(other than Asset Proceeds, interest or earnings on the Asset Proceeds, funds transferred from the 

Working Capital Reserve Account pursuant to the LLC Operating Agreement and Section 3 .6, 

funds advanced by the Manager as Excess Working Capital Advances pursuant to the LLC 

Operating Agreement and Section 3.7 and funds advanced by the Manager as Discretionary 

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Funding Advances pursuant to the LLC Operating Agreement and Section 3.8) shall be 

commingled in the Collection Account. 

(b) [Reserved] 

(c) Amounts on deposit in (or that are required to have been deposited into) 

the Collection Account (including interest and earnings thereon) shall be applied (i) first, to the 

repayment of any Discretionary Funding Advance that the Manager has made with respect to any 

Asset together with accrued and unpaid interest on such Discretionary Funding Advances, but 

only to the extent of Asset Proceeds from the Asset with respect to which the Discretionary 

Funding Advance was made (and subject to Section 5.2 of the Reimbursement, Security and 

Guaranty Agreement); (ii) second, to the payment of the then-outstanding amount of Servicing 

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

(including Servicing Expenses and Pre-Approved Charges incurred by the Private Owner and the 

Manager); (iii) third, to fund any Funding Draws permitted pursuant to any Asset Documents; 

(iv) fourth, to pay any Permitted Vertical Completion Expenses pursuant to Section 12.6 of the 

LLC Operating Agreement; provided, however, that any Discretionary Funding Advances may 

be used to fund Substantially Complete Vertical Development only with respect to the Asset to 

which such Discretionary Funding Advances relate; and (v) the balance, if any, to be transferred 

to the Distribution Account in accordance with Section 3 .2. 

(d) At any time during the Interim Servicing Period, the Initial Member is 

authorized to request the withdrawal of funds from the Collection Account to pay Interim 

Servicing Expenses and Pre-Approved Charges. The Manager is authorized to request the 

withdrawal offunds from the Collection Account at any time to pay Servicing Expenses and }>reApproved Charges, to fund any Funding Draws and to pay any Permitted Vertical Completion 

Expenses, all in accordance with the terms ofthis Agreement and the Related Agreements, and if 

the Receiver, the Company, the Servicer or any Subservicer at any time erroneously deposits any 

amount into the Collection Account, the Manager is authorized to request the withdrawal of such 

amount and instruct the Paying Agent to pay such amount to the Receiver, the Company, the 

Servicer or any Subservicer, as applicable. The Manager shall provide such requests to the 

Paying Agent in accordance with Section 18.1. 

(e) The Paying Agent shall invest the amounts on deposit in the Collection 

Account in Permitted Investments in accordance with investment directions from the Company, 

but with a maturity that allows for their allocation and transfer to the Distribution Account in 

accordance with Section 3.2. 

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

withdraw funds from the Collection Account only to pay Discretionary Funding Advances, the 

Interim Servicing Expenses, Servicing Expenses and Pre-Approved Charges, to fund any 

Funding Draws, to pay any Permitted Vertical Completion Expenses and to t:t;ansfer funds to the 

Distribution Account pursuant to Section 3.2 and as otherwise' set forth in this Agreement and 

not for any other purpose. The Collection Account (and all funds therein) shall be subject to the 

security interest granted to the Collateral Agent under the Reimbursement, Security and 

Guaranty Agreement and to the Account Control Agreement in substantially the form attached to 

this Agreement as Exhibit N. 

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Section 3.2 Distribution Account. 

(a) On the Closing Date, the Company shall have established the Distribution 

Account with the Paying Agent, which shall at all times be an Eligible Account. The Paying 

Agent shall transfer from the Collection Account to the Distribution Account, for application 

pursuant to Section 5.1, not later than 12:00 p.m. New York time on the Business Day 

immediately preceding each Distribution Date, the amount specified in the Distribution Date 

instructions delivered pursuant to Section 11.4 for such Distribution Date as determined as of the 

close ofbusiness on the Determination Date with respect to the applicable Due Period. 

(b) No funds from any other source shall be commingled in the Distribution 

Account other than interest or earnings on the funds held in the Distribution Account and 

funding from the Collection Account as described in this Section. 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: I. 

(c) The Paying Agent shall be authorized and directed to withdraw funds from 

the Distribution Account only to make disbursements in accordance with this Agreement and not 

for any other purpose. The Distribution Account (and all funds therein) shall be subject to the 

security interest granted to the Collateral Agent under the Reimbursement, Security and 

Guaranty Agreement and to the Account Control Agreement. 

Section 3.3 Defeasance Account. 

(a) On the date hereof, the Company shall have established the Defeasance 

Account with the Paying Agent. The Paying Agent shall transfer funds to the Defeasance 

Account pursuant to the Priority of Payments. 

(b) The Purchase Money Note Guarantor, in accordance with Section 17(a) of 

the Guaranty Agreement, shall deposit any amounts payable pursuant to the Guaranty Agreement 

in respect of the Guaranteed Obligations (as such term is defined in the Guaranty Agreement), if 

any, in the Defeasance Account by 12:00 p.m. New York time on the date that is one Business 

Day prior to any Distribution Date on which an acceleration payment with respect to any 

Purchase Money Note is due and payable or, in connection with the final payment of the 

Purchase Money Note on the Maturity Date, by 12:00 p.m. New York time on the date that is 

one Business Day prior to the Maturity Date, in each case, for further distribution by the Paying 

Agent to the Holder; provided that the Purchase Money Note Guarantor has received written 

demand therefor from the Holder or from the Paying Agent on such Holder's behalf pursuant to 

Section 17(a) ofthe Guaranty Agreement no later than 5:00p.m. New York time on the date that 

is four (4) Business Days prior to such Distribution Date or, in connection with the final payment 

of the Purchase Money Note on the Maturity Date, the Maturity Datt?. In addition, the Company 

may deposit any Company Principal Prepayment Amount in the Defeasance Account, provided 

that such amount is deposited in the Defeasance Account at least one Business Day prior to the 

related Distribution Date, to be applied by the Paying Agent as a principal prepayment (or a 

portion thereof) on such Distribution Date in accordance with the related Distribution Date 

Report or the Maturity Date Report. To the extent the Paying Agent receives amounts from the 

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Purchase Money Note Guarantor to be used to pay interest on overdue principal of the Purchase 

Money Note, the Paying Agent shall deposit such amounts into the Defeasance Account and 

shall distribute such amounts to the Holder on the date the principal is paid to the Holder. Any 

overdue principal on the Purchase Money Note and interest thereon may be paid to the Holder on 

any Business Day without regard to whether such day is a Distribution Date. If, on any 

Distribution Date on which an acceleration payment with respect to the Purchase Money Note is 

due and payable or on the Maturity Date, a payment is due from the Purchase Money Note 

Guarantor but not timely received, then at such time as the Paying Agent does receive such 

payment together with any interest thereon as provided in Section 17(b) of the Guaranty 

Agreement, the Paying Agent shall deposit such amounts into the Defeasance Account for 

further distribution by the Paying Agent to the Holder. To the extent the Paying Agent otherwise 

receives amounts from the Purchase Money Note Guarantor paid pursuant to Section 17(b) of the 

Guaranty Agreement, the Paying Agent shall deposit such amounts into the Defeasance Account 

for further distribution by the Paying Agent to the applicable Holder. Any amounts deposited 

into the Defeasance Account pursuant to Section 17(b) of the Guaranty Agreement shall not be 

included when calculating the balance in the account. 

(c) No funds from any other source (other than interest or earnings on 

amounts described in Section 3.3(d) and (i) amounts deposited pursuant to this Section 3.3, (ii) 

deposits made by the Purchase Money Note Guarantor as described in this Section 3.3, (iii) 

deposits made by the Manager pursuant to Section 5.5(b)(y) of the LLC Operating Agreement or 

(iv) amounts deposited as Purchase Money Note Asset Value pursuant to Section 6.3 of the 

Contribution Agreement) shall be commingled in the Defeasance Account. 

(d) The Paying Agent shall invest the amounts on deposit in the Defeasance 

Account in Permitted Investments in accordance with investment directions from the Initial 

Member; provided, however, upon the delivery of a copy of the Guaranty Notice to the Paying 

Agent, the Purchase Money Note Guarantor shall thereafter be the Person to provide the 

investment directions pursuant to this Section 3.3(d) and the Paying Agent shall be entitled to 

rely upon such Guaranty Notice for purposes of this Agreement. Income or gain from such 

investments will be available to be applied with other amounts in accordance with Sections 

.1.Kg} and .(j). 

(e) If, on the Maturity Date (or any Distribution Date on which an 

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

Note), there exists a Net Loss on Investments with respect to the Defeasance Account and the 

amount in the Defeasance Account is less than the amount required to pay all amounts owing to 

the Holder on the Maturity Date or Distribution Date, then prior to any liquidation and payment 

described in the following provisions of this Section 3.3, the Purchase Money Note Guarantor 

shall deposit into the Defeasance Account the lesser of (i) the amount of such Net Loss on 

Investments or (ii) the portion of such Net Loss on Investments that is required to increase the 

amount in the Defeasance Account to the amount owing to the Holder on the Maturity Date or 

Distribution Date. ' 

(f) If the Manager in its discretion elects to provide Excess Working Capital 

Advances to cure a Purchase Money Note Trigger Event as described in Section 3.7, the 

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Manager shall direct the Paying Agent to deposit such Excess Working Capital Advances into 

the Defeasance Account. In addition, upon the repurchase of an Asset pursuant to Section 6.3 of 

the Contribution Agreement, the portion of the Repurchase Price constituting the Purchase 

Money Note Asset Value shall be deposited into the Defeasance Account. 

(g) On the Maturity Date and on any Distribution Date on which an 

acceleration payment or prepayment of principal with respect to the Purchase Money Note is due 

and payable, the Paying Agent shall, after making all disbursements required pursuant to Section 

5.1, liquidate all or a portion of the Defeasance Account sufficient to pay all amounts owing to 

the Holder of the Purchase Money Note on the Maturity Date or such Distribution Date, as 

applicable, and pay all proceeds of such liquidation to the Holder of the Purchase Money Note. 

(h) Intentionally omitted. 

(i) Following the Maturity Date and the payment in full of the Holder of the 

Purchase Money Note, the Paying Agent shall liquidate the Defeasance Account and deposit any 

and all proceeds of such liquidation in accordance with Section 3.3(k). 

(j) The Paying Agent is authorized and directed to withdraw funds from the 

Defeasance Account only to make disbursements in accordance with this Agreement and not for 

any other purpose. The Defeasance Account (and all funds therein) shall be subject to the 

security interest granted to the Collateral Agent pursuant to the Reimbursement, Security and 

Guaranty Agreement and to the Account Control Agreement. 

(k) If on the Distribution Date on which the final deposit is required to be 

made into the Defeasance Account under Section 5.1(b)(iv), the actual deposit made into such 

account exceeds the amount that would have been required on such date had the earnings on the 

account since the related Determination Date been taken into account, then such excess deposit 

shall be removed from the Defeasance Account, deposited into the Distribution Account and on 

the next Distribution Date applied with other funds in accordance with the Priority of Payments. 

Section 3.4 Reserved. 

Section 3.5 Reserved. 

Section 3.6 Working Capital Reserve Account. 

(a) On the date hereof, the Company shall have established the Working 

Capital Reserve Account with the Paying Agent for the purpose of paying the Working Capital 

Expenses, Funding Draws and making payments for Permitted Vertical Completion Expenses. 

To the extent there are insufficient funds in the Collection Account with which to pay the 

outstanding amount of the Working Capital Expenses then due and payable, then the Company 

may instruct the Paying Agent to release some br all of the funds from the Working Capital 

Reserve Account (in an amount that the Manager determines in the exercise of its reasonable 

discretion) and allocate and distribute such released funds to the Collection Account, from which 

the funds will be available to pay such Working Capital Expenses. In addition, if the Company 

elects to undertake any Substantially Complete Vertical Development, then the Company may 

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instruct the Paying Agent to release some or all of the funds in the Working Capital Reserve 

Account in an amount that the Manager determines in the exercise of its reasonable discretion 

and allocate and distribute such released funds to the Collection Account, from which such funds 

will be available to pay the related Permitted Vertical Completion Expenses. 

(b) The Working Capital Reserve Account shall be held in trust by the Paying 

Agent for the benefit of the Company and shall be established and maintained for the sole 

purpose of holding and distributing the funds in the Working Capital Reserve Account. The 

Working Capital Reserve Account shall be funded initially in accordance with Section 12.11 of 

the LLC Operating Agreement and thereafter replenished through deposits made into the 

Working Capital Reserve Account in accordance with Section 5.l(b)(v) of this Agreement. 

(c) At all times prior to the Purchase Money Note Defeasance Date, the 

Manager, in the exercise of its reasonable discretion, shall determine the Working Capital 

Reserve target on deposit in the Working Capital Reserve Account as of a certain Determination 

Date, which shall be in such an amount that is equal to or greater than the Working Capital 

Reserve Floor but not more than the Working Capital Reserve Cap; provided, however, that the 

Manager, in the exercise of its reasonable discretion, may determine to release funds from the 

Working Capital Reserve Account and reduce the Working Capital Reserve to an amount below 

the Working Capital Reserve Floor if such funds are required to pay Working Capital Expenses 

then due and payable so long as the balance of the Working Capital Reserve Account is restored 

to the Working Capital Reserve Floor as soon thereafter as is practicable. 

(d) At the time of the Final Distribution, the Paying Agent shall allocate and 

distribute all remaining funds held in the Working Capital Reserve Account to the Collection 

Account, from which account the funds will be transferred to the Distribution Account and made 

available for distribution in accordance with the Priority of Payments pursuant to Section 5.1 of 

this Agreement and the LLC Operating Agreement. 

(e) In addition, if the Manager determines in the exercise of its reasonable 

discretion that the funds held in the Working Capital Reserve Account in excess of the Working 

Capital Reserve Floor no longer are necessary to satisfy the purposes for which the Working 

Capital Reserve has been established, the Manager may instruct the Paying Agent to release such 

excess funds from the Working Capital Reserve Account, and thereafter the Paying Agent shall 

allocate and distribute such excess funds to the Collection Account, from which account the 

funds will be transferred to the Distribution Account and made available for distribution in 

accordance with the Priority of Payments pursuant to Section 5.1 of this Agreement and the LLC 

Operating Agreemertt. 

(f) The Paying Agent shall invest the amounts on deposit in the Working 

Capital Reserve Account in Permitted Investments in accordance with investment directions 

from the Company but with maturities, that allow for their transfer in accordance with this 

Section 3.6. No funds from any other source (other than interest or earnings on the funds held in 

the Working Capital Reserve Account and funding from the Members as described in this 

Section) shall be commingled in the Working Capital Reserve Account. 

(g) 	 The Paying Agent is authorized and directed to withdraw funds from the 

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13312135.3 
Working Capital Reserve Account only to make disbursements in accordance with this 

Agreement and not for any other purpose. The Working Capital Reserve Account (and all funds 

therein) shall be subject to the security interest granted to the Collateral Agent pursuant to the 

Reimbursement, Security and Guaranty Agreement and to the Account Control Agreement. 

Section 3.7 Excess Working Capital Advances. The Manager shall, except as 

otherwise provided in Section 12.6 of the LLC Operating Agreement, be required to make 

Excess Working Capital Advances to the Paying Agent from its own funds in accordance with 

the terms described in Section 5.5 of the LLC Operating Agreement and to the extent that there 

are insufficient funds in the Collection Account or the Working Capital Reserve Account 

(including, as applicable by a permitted release of such funds to the Collection Account or as 

otherwise permitted herein) with which to pay Working Capital Expenses. In addition, the 

Manager may, but shall not be required, to make Excess Working Capital Advances to the 

Paying Agent from its own funds (a) in accordance with the terms described in Section 5.5 of the 

LLC Operating Agreement to the extent there are insufficient funds in the Collection Account 

and also insufficient funds in the Working Capital Reserve Account (with such sufficiency of the 

Working Capital Reserve Account measured by funds in excess of the Working Capital Reserve 

Floor, and including, as applicable by a permitted release of such excess funds to the Collection 

Account or as otherwise permitted herein) to fund the Defeasance Account by such amount as 

may be required to cure a Purchase Money Note Trigger Event and (b) in accordance with the 

terms described in Section 5.5 of the LLC Operating Agreement to the extent there are 

insufficient funds in the Collection Account and also insufficient funds in the Working Capital 

Reserve Account (with such sufficiency of the Working Capital Reserve Account measured by 

funds in excess of the Working Capital Reserve Floor, and including, as applicable by a 

permitted release of such excess funds to the Collection Account or as otherwise permitted 

herein). The Manager shall direct the Paying Agent to deposit any Excess Working Capital 

Advances (i) to pay Working Capital Expenses into the Collection Account (from which the 

funds will be available to pay such Working Capital Expenses), and (ii) as may be required to 

cure a Purchase Money Note Trigger Event into the Defeasance Account. 

Section 3.8 Discretionary Funding Advances. Pursuant to Section 5.4 of the LLC 

Operating Agreement, the Manager may make, at its discretion, Discretionary Funding Advances 

from its own funds to fund Permitted Vertical Completion Expenses on an Asset-by-Asset basis 

to the extent that funds are not available in the Collection Account for such purpose, and the 

Working Capital Reserve has reached the Working Capital Reserve Floor. All Discretionary 

Funding Advances are to be designated as applicable only to the Asset to which such 

Discretionary Funding Advance relates. Any Discretionary Funding Advances are to be 

deposited into the Collection Account, from which the funds will be available to be disbursed to 

the Borrower (with respect to the Collateral) or used by the Company (with respect to the 

Acquired REO Property), as applicable, to pay the Permitted Vertical Completion Expenses 

relating to the specified Asset. Notwithstanding anything to the contrary herein or in any other 

Transaction Document, any amounts disbursed or advanced by the Company in respect of 

Discretionary Fun,ding Advances made by the Manager to the Company shall be disbursed or 

advanced in accordance with Section 5.4 of the LLC Operating Agreement on behalf of the 

Company and not on behalf of the Manager in its individual capacity. The Manager agrees and 

acknowledges that the making of a Discretionary Funding Advance to the Company, and the 

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13312135.3 
advancing or disbursing of such amount by the Company in respect of an Asset, shall not create 

(i) a mortgage, Lien, security interest or other encumbrance in favor of, or for the benefit of, the 

Manager in respect of such Asset, and (ii) a participation interest or other rights in favor of, or 

for the benefit of, the Manager in respect of any existing mortgage, Lien or security interest held 

by or on behalfofthe Company relating to such Asset. 

Section 3.9 Private Owner Pledged Account. 

(a) On the date hereof, the Private Owner shall have established the Private 

Owner Pledged Account with the Paying Agent for the exclusive purpose of holding Qualifying 

Cash Collateral, whether such Qualifying Cash Collateral is delivered on the date hereof or 

subsequent to the date hereof in full and complete substitution for a Qualifying Letter of Credit 

pursuant to the LLC Operating Agreement, or if the proceeds of such Qualifying Letter of Credit 

are to be deposited in such Private Owner Pledged Account upon the liquidation or drawing 

down thereof pursuant to the LLC Operating Agreement. The Private Owner Pledged Account 

(and all funds therein) shall be subject to the security interest granted for the benefit of the Initial 

Member pursuant to the LLC Operating Agreement, this Agreement and the Private Owner 

Account Control Agreement in substantially the form attached to this Agreement as Exhibit Q. 

In no event shall the Private Owner have any right or authority to withdraw any funds from the 

Private Owner Pledged Account except as expressly provided in Section 3.9(b) below. The 

Paying Agent shall invest the amounts on deposit in the Private Owner Pledged Account in 

Permitted Investments in accordance with investment directions from the Private Owner but with 

maturities that allow for their transfer in accordance with this Section 3.9. 

(b) From time to time, at the request of the Private Owner, the Paying Agent 

may release funds from the Private Owner Pledged Account to the Private Owner only to the 

extent that, after such release, the remaining balance of the Qualifying Cash Collateral on deposit 

in the Private Owner Pledged Account is not less than the Private Owner Pledged Amount. Any 

such release shall be pursuant to applicable instructions and documentation satisfactory to, and 

executed by (or with the written consent of), both of the Initial Member and the Private Owner 

(and prepared at the sole cost and expense ofthe Private Owner). 

(c) At the time of the Final Distribution, the Paying Agent shall distribute all 

remaining funds held in the Private Owner Pledged Account to the Private Owner. 

ARTICLE IV 

ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS 

Section 4.1 Investment ofFunds in Accounts. 

(a) The Purchase Money Note Guarantor, as long as the Purchase Money 

Note is outstanding and, thereafter, the Company, shall at all times direct the Paying Agent to, 

and, upon receipt of such investment direction, the Paying Agent shall, invest, pending deposit 

into the Collection Account, the Working Capital Reserve Account, the Distribution Account, 

the Defeasance Account and the Private Owner Pledged Account, as applicable, amounts 

received and retained in such accounts, as so directed in Permitted Investments. If the Purchase 

Money Note Guarantor or the Company, as applicable, shall not have given any such investment 

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13312135.3 
directions, the Paying Agent shall seek investment directions from such Person. If the Purchase 

Money Note Guarantor or the Company, as applicable, does not provide the Paying Agent with 

investment directions pursuant to Sections 3.1, 3.3, 3.6, 3.9 or 4.1, the balance standing to the 

credit of the Collection Account, the Working Capital Reserve Account, the Distribution 

Account, or the Defeasance Account and the Private Owner Pledged Account, as applicable, will 

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

Paying Agent may earn fees associated with Permitted Investments. 

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

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

Reserve Account, the Distribution Account, the Defeasance Account (collectively, the 

"Company Accounts") and the Private Owner Pledged Account, after application of all other 

available funds, the Paying Agent shall allocate to the Account to which such funds are to be 

transferred a portion of any Permitted Investment that would otherwise have to be liquidated to 

accomplish such transfer in an amount corresponding to the amount to be so transferred. 

Whenever the Paying Agent is directed or authorized in accordance with the terms hereof to 

make a transfer of funds from the Company Accounts (unless such transfer is between the 

Company Accounts), if, after application of all other available funds, liquidation of a Permitted 

Investment is necessary to make any such transfer, the Paying Agent is authorized to liquidate 

such Permitted Investment. If any Permitted Investment so liquidated is then allocated to more 

than one Company Account, and it is not possible to liquidate only the portion ofsuch Permitted 

Investment allocated to the Company Account from which such transfer is to be made, then the 

entire Permitted Investment shall be liquidated, and the proceeds of such liquidation shall be 

allocated to the Company Accounts involved in the same proportion as the allocation of such 

Permitted Investment, except that the net costs and expenses, if any, of such liquidation 

(including any loss of principal) shall be allocated entirely to the Company Account from which 

the transfer of funds was required to be made. The Paying Agent shall liquidate all those 

Permitted Investments that can be liquidated without interest cost or penalty before it shall 

liquidate any Permitted Investment, the liquidation of which would involve an interest cost or 

penalty. The Paying Agent shall have no liability with respect to any interest cost or penalty on 

the liquidation of any Permitted Investment pursuant to this Section 4.1. 

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

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

Note Guarantor, the Initial Member, or the Company, as applicable, pursuant to this Agreement. 

(d) All references in this Agreement to the Accounts and to cash, moneys or 

funds therein or balances thereof shall include the investments in which such moneys are 

invested. 

(e) The Paying Agent may execute any investment directions provided to it in 

respect of the Permitted Investments through its Affiliates, and neither the Paying Agent nor its 

'Affiliates shall have a duty to monitor the investment rating of any such Permitted Investments. 

The Paying Agent will have no obligation to invest or reinvest any funds if all or a portion of 

such funds are deposited with the Paying Agent after I I :00 a.m. New York time on the day of 

deposit. Directions to invest or reinvest that are received after II :00 a.m. New York time will be 

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Custodial and Paying Agency Agreement 

13312135.3 
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 ofthis Agreement. 

Section 4.2 Interest. Any interest or other earnings accrued on any balances in any 

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

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

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

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

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

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

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

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

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

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

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

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

Guarantor and the Collateral Agent). 

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

by the Paying Agent from the Distribution Account or the Defeasance Account in accordance 

herewith shall be paid by the Paying Agent from amounts on deposit in such account on the 

related Distribution Date or on the Maturity Date, as applicable, in immediately available funds 

(but not before such amounts become immediately available to it). All payments made by the 

Paying Agent shall be made to such account(s) as shall be designated in writing by the Company 

in accordance with the Distribution Date Report or the Maturity Date Report, as applicable, and 

this Agreement. 

ARTICLE V 


DISTRIBUTIONS 


Section 5.1 Priority of Payments. 

(a) Before each Distribution Date, the Paying Agent shall disburse amounts 

transferred to the Distribution Account from the Collection Account pursuant to Section 3.2 for 

application by the Paying Agent in accordance with the priorities set forth in Section 5.1 (b) 

below (the "Priority of Payments") and pursuant to the Distribution Date instructions contained 

in the Distribution Date Reports delivered pursuant to Section 11.3. Notwithstanding any 

provisions in this Agreement to the contrary, however, the Paying Agent shall take disbursement 

inst~ctions from the Initial Member with respect to the distributions payable to the Private 

Owner pursuant to Section 5.l(b)(vii) below upon the delivery of written notice from the Initial 

Member to the Paying Agent providing that such distributions instead should be paid to the 

Initial Member pursuant to the terms of the LLC Operating Agreement. Absent delivery of such 

written notice, the Paying Agent shall pay in accordance with Section 5.l(b)(vii) below. 

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Custodial and Paying Agency Agreement 

13312135.3 
(b) On each Distribution Date, all funds in the Distribution Account will be 

distributed in the following order of priority except as otherwise provided in Section 5.2 of the 

Reimbursement, Security and Guaranty Agreement: 

(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 ofthis Agreement; 

(ii) second, (A) for each Due Period during the Interim Servicing 

Period, with respect to each Group ofAssets, to pay to (1) the Initial Member, for each Asset for 

which it provides servicing, the applicable Interim Servicing Fee, together with any unpaid 

portion of the Interim Servicing Fee for any prior Due Period, and (2) the Manager the Interim 

Management Fee, together with any unpaid portion ofthe Interim Management Fee for any prior 

Due Period, and (B) for each Due Period following the Interim Servicing Period, with respect to 

such Group ofAssets for which it provides servicing, to pay to the Manager an amount equal to 

the Management Fee, together with any unpaid portion ofthe Management Fee for any prior Due 

Period; 

(iii) third, to repay any Excess Working Capital Advances made by the 

Manager pursuant to Section 5.5 ofthe LLC Operating Agreement and Section 3.7 above; 

(iv) fourth, prior to the Purchase Money Note Defeasance Date and 

subject to the provisions of Section 3.6 above, all ofthe remaining amount (as may be necessary) 

shall be utilized to replenish the Working Capital Reserve Account until the amount of funds 

held in the Working Capital Reserve Account is no less than the Working Capital Reserve Floor 

and to deposit such other sums into the W otking Capital Reserve Account as the Manager shall 

determine in its discretion, subject to the Working Capital Reserve Cap; 

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

accrued interest thereon at the Reimbursement 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, Security and Guaranty Agreement for previous payments made 

by it pursuant to the Guaranty Agreement; 

(vi) sixth, as long as any Purchase Money Note remains outstanding, 

such sums remaining until the Defeasance Account equals the outstanding principal balance of 

the Purchase Money Note; and 

(vii) finally, all remaining amounts shall be distributed to the Initial 

Member and the Private Owner in accordance with Section 6.6 ofthe LLC Operating Agreement. 

(c) Any Repurchase Price proceeds shall be paid as follows: the amount of the 

Purchase Money Note Asset Value shall be deposited in the Defeasance Account as provided in 

Section 5.l(b) above and the amount of the Equity Asset Value shall be paid to the Initial 

Member and the Private Owner in accordance with Section 6.6 ofthe LLC Operating Agreement 

as provided in Section 5.1(b) above. 

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Section 5.2 Notices ofPayment Failure. 

(a) The Paying Agent shall deliver prompt written notice to the Company, the 

Purchase Money Note Guarantor and the Collateral Agent in the event that it fails to receive in 

full on the related Distribution Date or the Maturity Date, as applicable (based on the applicable 

Distribution Date Report or Maturity Date Report), the amount required to be paid by the 

Company on any Distribution Date or the Maturity Date, as applicable, which notice shall 

include a statement that the required payment was not made by the Company in full and shall set 

forth the amount of such required payment and in the case of receipt of a partial payment, the 

amount of such partial payment. 

(b) If the Paying Agent has actual knowledge of any actual payment failure in 

advance of the related Distribution Date or the Maturity Date, as applicable, it will deliver 

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

Agent as soon as is practicable in accordance with the previous sentence. Upon the Paying 

Agent's receipt from the Collateral Agent or the Purchase Money Note Guarantor of written 

notice at its Office that an Event of Default pursuant to the Reimbursement, Security and 

Guaranty Agreement (and as such term is defined therein) has occurred, the Paying Agent shall 

deliver prompt written notice to the Holder ofthe occurrence ofsuch Event ofDefault. 

(c) If the Paying Agent receives notice from the Holder that the Purchase 

Money Note has been declared immediately due and payable in accordance with its terms no 

later than noon (Eastern Time) on the fourth (4th) Business Day prior to a Distribution Date, the 

Paying Agent shall determine the amount payable by the Purchase Money Note Guarantor 

pursuant to the Guaranty Agreement (based on the related Distribution Date Report) and shall 

make a demand therefor no later than the fourth (4th) Business Day prior to such Distribution 

Date to the Purchase Money Note Guarantor in accordance with Section 17(a) of the Guaranty 

Agreement. 

(d) If the Paying A~ent receives any such notice from the Holder later than 

noon (Eastern Time) on the fourth (4t) Business Day prior to a Distribution Date, the Paying 

Agent shall determine the amount payable by the Purchase Money Note Guarantor pursuant to 

the Guaranty Agreement (based on the Distribution Date Report for the immediately succeeding 

Distribution Date) and shall make a demand therefor no later than four (4) Business Days prior to 

the immediately succeeding Distribution Date to the Purchase Money Note Guarantor in 

accordance with Section 17(a) of the Guaranty Agreement. 

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 of the 

Custodian at Wells Fargo Document Custody, 1055 lOth Avenue, SE, Minneapolis, MN 55414, 

Attention: Kathy Marshall (the "Office"). 

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13312135.3 
(b) Collateral Certificate; Exceptions. The Custodian shall make available 

during normal business hours, and at such other hours as may be reasonable in the 

circumstances, to the Company (and representatives of the Company and, if the Company so 

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

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

of not more than ten (I 0) days prior to the delivery of possession of the same to the Custodian. 

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

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

the Collateral Agent a certificate, substantially in the form annexed to this Agreement as Exhibit 

E, to the effect that the Custodian has received and reviewed the Custodial Documents and 

including an Asset Schedule and Exception List ("Collateral Certificate"). In reviewing the 

documents provided with respect to an Asset, the Custodian shall examine the same in 

accordance with the procedures set forth on Exhibit F to this Agreement and determine, with 

respect to each such document, whether it (i) appears regular on its face (i.e., is not mutilated, 

damaged, tom, defaced or otherwise physically altered), (ii) relates to such Asset, (iii) 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 Asset 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 ofRADC/CADC Venture 2010-2, LLC, without recourse" and signed 

in the name of the Federal Deposit Insurance Corporation as Receiver, and an allonge providing 

for the endorsement of the Note and endorsed "Pay to the order of , without 

recourse" and signed by the Company as the last endorsee; and in the event that the original Note 

is not available, a fully executed Assignment and Lost Instrument Affidavit in the form of 

Exhibit L hereto; 

(ii) the original or a copy of the Mortgage with evidence of recording 

thereon, or a copy thereof from the applicable Recording Office, or a copy thereof together with 

an officer's certificate of the related Borrower, title company, escrow agent or closing attorney 

certifying that such represents a true and correct copy of the original and that such original has 

been submitted for recordation in the applicable Recording Office; 

(iii) the originals or copies of all assumption, Modification, 

consolidation or extension agreements (if any) with evidence of recording thereon, or copies 

thereof from the applicable Recording Office, or certified copies thereof together with a 

certification by or other similar evidence from the applicable Recording Office or an officer's 

certificate of the related Borrower, title company, escrow agent or closing attorney certifying that 

such represents a true and correct copy of the original and that such original has been submitted 

for recordation in the applicable Recording Office; 

(iv) Acquired Property Files; 

(v) except in the case of any MERS Designated Loan, the original 

Mortgage Assignment 	in blank for each Loan, in form and substance acceptable for recording 

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13312135.3 
and signed in the name of the Federal Deposit Insurance Corporation as Receiver for various 

failed financial institutions to the Company; 

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

Mortgage Assignment in blank for each Loan, in form and substance acceptable for recording 

and signed in the name of the Company to the Collateral Agent; 

(vii) except in the case of any MERS Designated Loan, the originals or 

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

copies thereof 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 or a copy of the 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, or a true and correct 

copy ofthe title policy from the issuing title company; 

(ix) the originals of all Collateral Documents executed in connection 

with the Asset, if available; 

(x) Uniform Commercial Code financing statements with recording 

information thereon from the Recording Offices if necessary to perfect the security interest of the 

Asset under the Uniform Commercial Code; 

(xi) if the equity interests of any Ownership Entity are certificated, the 

certificate representing such equity interest and the stock power executed in blank; and if the 

equity interests ofany Ownership Entity are not certificated, an Assignment of LLC Interest 

. similar in form to Exhibit I ofthe Contribution Agreement; 

(xii) any bailee letters regarding any Notes or other Custodial 

Documents held by the bailee; 

(xiii) solely with respect to each MERS Designated Asset, a MERS 

Report; and 

(xiv) the REO Collateral Documents; and 

(xv) such other documents for each Asset as determined by the 

Company, the Purchase Money Note Guarantor or the Collateral Agent. 

(d) Supplemental Deliveries. The Company agrees that it shall deliver or 

cause to be delivered to the Custodian (i) any and all additional Custodial Documents with 

respect to an Asset that is not Acquired Property within ten (I 0) days following the execution 

and delivery of any such instrument and (ii) any and all Custodial Documents with respect to any 

Asset within ten (I 0) days following receipt of any such instrument. All such deliveries of 

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Custodial and Paying Agency Agreement 

13312135.3 
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 Asset with respect to which each such Custodial 

Document relates. After the receipt thereof, the Custodian shall (A) examine the additional 

Custodial Documents provided with respect to an Asset in accordance with the review 

procedures set forth on Exhibit F (the "Review Procedures") and, determine, with respect to 

each such document, whether it (i) appears regular on its face (i.e., is not mutilated, damaged, 

tom, defaced or otherwise physically altered), (ii) relates to such Asset, (iii) 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 an 

Asset are placed in the file for the related Asset. In the event the Custodian determines that the 

Supplemental Delivery Certificate is inaccurate, the Custodian shall so notify the Company in 

writing no later than the first Business Day following its receipt of the Supplemental Delivery 

Certificate. Within seven (7) Business Days after the receipt of the additional Custodial 

Documents by the Custodian, the Custodian shall provide the Company (with a copy to the 

Purchase Money Note Guarantor and the Collateral Agent) with a Collateral Certificate, to the 

effect that the Custodian has received and reviewed the additional Collateral Documents, and 

include a revised Asset Schedule and Exception List. 

(e) Asset Schedules; Exception Lists; Review Procedures. Each Asset 

Schedule and Exception List shall list all Exceptions using such codes as shall be in form and 

substance agreed to by the Custodian and the Company. Each Asset Schedule and Exception 

List delivered by the Custodian to the Company shall supersede and cancel the Asset Schedule 

and Exception List previously delivered by the Custodian to the Company hereunder, and shall 

replace the then existing Asset Schedule and Exception List to be attached to the Collateral 

Certificate. Notwithstanding anything to the contrary set forth herein, in the event that the Asset 

Schedule and Exception List attached to the Collateral Certificate is different from the most 

recently delivered Asset Schedule and Exception List, then the most recently delivered Asset 

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

of each Asset Schedule and Exception List to the Company shall constitute the Custodian's 

representation that, other than the Exceptions listed as part of the last delivered Asset Schedule 

and Exception List: (i) all documents required to be delivered in respect of an Asset pursuant to 

Section 6.1(c) of this Agreement have been delivered and are in the possession of the Custodian 

as part of the Custodial Documents, (ii) all such documents have been reviewed and examined by 

the Custodian in accordance with the review procedures specified on Exhibit F and in this 

Agreement and appear on their face to be regular and to relate to such Asset and to satisfy 

(except in the case of a MERS Designated Asset) the requirements set forth in Section 6.1 (c) of 

this Agreement, (iii) subject to the provisions of Section 7.2(b), each Asset (except in the case of 

a MERS Designated Asset) identified on such Asset Schedule and Exception List is being held 

by the Custodian as the bailee for the Company and (iv) subject to the provisions of Section 

7.2(b), each MERS Designated Asset is being held by MERS® as the nominee for the Company. 

In connection with an Asset Schedule and Exception List delivered hereunder by the Custodian, 

the Custodian shall make no representations as to and shall not be responsible for verifying, 

except as set forth in Section 6.1 (b) of this Agreement, (A) the validity, legality, enforceability, 

due authorization, recordability, sufficiency or genuineness of any of the Custodial Documents 

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or (B) the collectability, insurability, effectiveness or suitability of any such Asset. To the extent 

that any of the documents or materials required to be provided by the Company to the Custodian 

pursuant to Sections 6.1 (c) (ii) - (iii), (vii) and (viii) are not available as originals or as certified 

copies and the absence of such item would not, in the reasonable judgment of the Company, 

affect the value of the Asset or the ability to enforce the rights of the mortgagee, the Company 

shall not be required to expend more than nominal funds to provide such original or certified 

copies unless or until they are necessary for the enforcement of such rights, or unless or until the 

Purchase Money Note Guarantor or the Collateral Agent provides written notice to the Custodian 

that they require the Company to act to cure such exceptions, and all such matters shall remain as 

exceptions on the Asset Schedule and Exception List. 

Section 6.2 Examination of Custodian Files; Copies. 

(a) Upon reasonable prior written notice to the Custodian, the Company, the 

Collateral Agent and the Purchase Money Note Guarantor and their respective agents, 

accountants, attorneys and auditors, and any other Persons designated by any of the foregoing, in 

writing as authorized to access and review the Custodial Documents, shall be permitted during 

normal business hours to examine the Custodial Documents. 

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

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

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

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 pursuant to this Agreement, the Company shall deliver to the Custodian 

written instructions as to the method of shipment and the shipper that the Custodian is to utilize 

in connection with the transmission of such Custodial Documents. The Company shall arrange 

for the provision of such services at its sole cost and expense (or, at the Custodian's option, 

reimburse the Custodian for all costs and expenses incurred by the Custodian consistent with 

such instructions) and will maintain such insurance against loss or damage to the Custodial 

Documents as the Company may deem appropriate. It is expressly agreed that in no event shall 

the Custodian have any liability for any losses or damages to any Person, including the 

Company, arising out of actions of the Custodian pursuant to this Section 6.3 consistent with the 

instructions of the Company. In the event that the Custodian does not receive such written 

instructions, the Custodian shall be authorized and shall be indemnified as provided in this 

Agreement to utilize a nationally recognized courier service. 

ARTICLE VII 


CUSTODIAN 


Section 7.1 Appointment 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. 

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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 Assets to the Collateral Agent. Pursuant to the terms and 

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

all of its rights, title and interest in and to the Assets and the Custodial Documents to the 

Collateral Agent for the benefit of the Purchase Money Note Guarantor and the other Secured 

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

security for certain obligations of the Company pursuant to the Guaranty Agreement. 

Accordingly, notwithstanding anything to the contrary contained in this Agreement, the 

Custodian acknowledges and agrees that it holds possession of the Note and the other Custodial 

Documents for the Collateral Agent's benefit pursuant to Section 9-313(c) of the Uniform 

Commercial Code and as bailee for the Collateral Agent, and the Custodian shall mark its 

records to reflect the pledge of the Assets and the Custodial Documents by the Company to the 

Collateral Agent. The Custodian's records shall reflect the pledge of the Assets and the 

Custodial Documents by the Company to the Collateral Agent until such time as the Custodian 

receives written instructions in the form of Exhibit H from the Company, including a 

certification that it is entitled pursuant to the Reimbursement, Security and Guaranty Agreement 

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

are no longer pledged by the Company to the Collateral Agent, at which time the Custodian shall 

change its records to reflect the release of the pledge of the Assets and the Custodial Documents 

and that the Custodian is holding the Assets and the Custodial Documents as custodian for, and 

for the benefit of, the Company; provided, however, that, subject to the provisions of Section 

7.2(d), such pledge shall not affect the right of the Custodian to rely on instructions from the 

Company hereunder. With respect to all Collateral Documents that are removed from the 

Custodian's possession, the Custodian shall use commercially reasonable efforts to obtain the 

return of such removed Custodial Documents until such time as the Custodial Documents are 

returned and provide on a monthly basis to the Collateral Agent and the Company a report 

identifying the released (and unreturned) Custodial Documents. 

(c) Qualification to Conduct Business. Nothing contained in this Agreement 

shall be construed to require the Custodian to qualify to do business in any jurisdi~tion 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 

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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 pursuant to the Reimbursement, Security and Guaranty 

Agreement. Upon the Custodian's receipt from the Collateral Agent or the Purchase Money 

Note Guarantor of written notice at its Office that, or information leading it to conclude that, an 

Event of Default pursuant to the Reimbursement, Security and Guaranty Agreement (and as 

defined therein) has occurred and is continuing, the Custodian promptly shall notify the 

Collateral Agent in writing and seek instructions from (and take instructions only from) the 

Collateral Agent as to any action to be taken by the Custodian pursuant to this Agreement. 

(e) Third Party Demands. In the event that (i) the Company or the Custodian 

shall be served by a third party with any type oflevy, attachment, writ or court order with respect 

to any Custodial Document or (ii) a third party shall institute any court proceeding by which any 

Custodial Document shall be required to be delivered otherwise than in accordance with the 

provisions of this Agreement, the party receiving such service shall promptly deliver or cause to 

be delivered to the other parties to this Agreement copies of all court papers, orders, documents 

and other materials concerning such proceedings. The Custodian shall, to the extent permitted 

by Law, continue to hold and maintain all of the Custodial Documents that are the subject of 

such proceedings pending a final, nonappealable order of a court of competent jurisdiction 

permitting or directing disposition thereof. Upon final determination of such court, the 

Custodian shall release such Custodial Documents as directed by the Company, which shall give 

a direction consistent with such court determination. 

(f) Release of Custodial Documents. Subject to the provisions of Section 

7.2(e), the Custodian shall retain the Custodial Documents in its possession and custody at all 

times during the term hereofunless any one (1) ofthe following events has occurred: 

(i) If the Custodian has resigned or has been removed in accordance 

with the provisions of Section 9.1, the Custodian shall deliver the Custodial Documents to the 

successor Custodian in accordance with Section 9 .1. 

(ii) If the Custodian has received a notice in the form of Exhibit H 

from an Authorized Representative of the Company stating that the Company has received all 

amounts due under an Asset, or a discounted payoff as payment in full of such Asset, the 

Custodian shall release the related Custodial Documents to the Company or to the Manager in 

accordance with the instructions provided in such notice. 

(iii) If the Custodian has received notice in the form of Exhibit H from 

an Authorized Representative of the Company that the Company or the Private Owner needs the 

Custodial Documents in order to foreclose on a Mortgaged Property, accept a deed in lieu thereof 

or modify or restructure the terms thereof, the Custodian shall release the related Custodial 

Documents to the Company or to the Manager in accordance with the·instructions provided in 

such notice. 

(iv) If the Custodian has received notice in the form of Exhibit H from 

an Authorized Representative of the Company that the Company has agreed to sell an Asset or 

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the Collateral, the Custodian shall deliver the related Custodial Documents to the Company or to 

the Manager in accordance with the instructions provided in such notice. 

(g) No Other Duties. The Custodian shall have no duties or responsibilities as 

Custodian except those that are specifically set forth herein and shall not be liable except for the 

performance of such duties and obligations. No implied covenants or obligations shall be read 

into this Agreement. 

(h) No Investigation. The Custodian shall be under no obligation to make any 

investigation into the facts or matters stated in any resolution, certificate, statement, 

acknowledgement, consent, order or other document that is included in the Custodial 

Documents. 

(i) Cooperation. The Company shall cooperate and use commercially 

reasonable efforts to provide any additional documentation or information reasonably requested 

by the Custodian in performing its duties and obligations hereunder. 

(j) Survival. The provisions of this Section 7.2 shall survive the resignation 

or removal of the Custodian and Paying Agent and the termination of this Agreement. 

ARTICLE VIII 


FEES AND EXPENSES 


Section 8.1 Fees and Expenses. The Bank shall charge such fees for its services and 

be reimbursed for such of its expenses pursuant to this Agreement as are set forth on Exhibit J, 

which fees and expenses must be reasonable and customary and which fees and expenses shall 

not include any attorneys' or other professionals' fees and expenses. The Company shall pay 

such fees and expenses. The Private Owner shall pay any fees and expenses in connection with 

the Private Owner Pledged Account. Upon the resignation or removal of the Bank as Custodian 

or Paying Agent or the termination or assignment ("Termination") of this Agreement, all fees 

and expenses as described in this Section also shall terminate as of the date of Termination; 

provided, however, that the Bank will be entitled to receive fees and expenses accruing prior to 

the date of Termination. Nothing in this Section 8.1 shall be construed to limit in any way the 

right of the Bank, in its respective capacities as Custodian and Paying Agent, to receive 

indemnification and reimbursement from the Company and the Private Owner, as applicable, 

pursuant to Section 13 .1. 

ARTICLE IX 


REMOVAL OR RESIGNATION 


Section 9.1 Removal or Resignation ofCustodian and Paying Agent. 

(a) Resignation. No resignation or removal of the· Person serving as 

Custodian and Paying Agent pursuant to Section 9.I(a) or (b) shall be effective prior to the 

appointment of a successor Custodian and Paying Agent, the acceptance of such appointment by 

such successor Custodian and Paying Agent and the execution and delivery by such successor 

Custodian and Paying Agent of an Account Control Agreement in the form of Exhibit N to this 

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Agreement or otherwise satisfactory to the Collateral Agent. Subject to the provisions of Section 

9.1(c), the Bank may at any time resign and terminate its obligations as the Custodian and Paying 

Agent pursuant to this Agreement upon at least sixty (60) days' prior written notice to the 

Company, the Initial Member, the Private Owner, the Purchase Money Note Guarantor and the 

Collateral Agent. In the event the Bank resigns it must resign as both the Custodian and Paying 

Agent. Promptly after receipt of notice of the Bank's resignation as the Custodian and Paying 

Agent, subject to the provisions of the LLC Operating Agreement and the Reimbursement, 

Security and Guaranty Agreement as they relate to the Company, the Company shall appoint, by 

written instrument, a successor Custodian and Paying Agent. In the event that no successor shall 

have been appointed as the Custodian and Paying Agent within such sixty (60) day period, the 

Bank may petition any court of competent jurisdiction to appoint a successor Custodian and 

Paying Agent. 

(b) Removal. Subject to the provisions of Section 9 .I (c), the Company or the 

Collateral Agent may remove and discharge the Bank as the Custodian and Paying Agent (or any 

successor custodian and paying agent thereafter appointed) without cause from the performance 

of its obligations pursuant to this Agreement upon at least thirty (30) days' prior written notice to 

the Bank. Promptly after the giving of notice of removal to the Bank as the Custodian and 

Paying Agent, subject to the provisions of the LLC Operating Agreement and the 

Reimbursement, Security and Guaranty Agreement as they relate to the Company, the Company 

shall appoint, by written 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 pursuant to this Agreement, as if originally named the 

Custodian and Paying Agent hereunder. One original counterpart of such instrument shall be 

delivered to each of the Company, the Initial Member, the Private Owner the predecessor 

Custodian and Paying Agent and the successor Custodian and Paying Agent. 

(d) Transfer of Documents. In the event of any removal or resignation as 

Custodian and Paying Agent, the Bank promptly shall transfer to the successor Custodian and 

Paying Agent, as directed, all Custodial Documents and funds deposited in the Accounts, and the 

Company and the Bank shall execute and deliver such instruments and do such other things as 

may reasonably be required for more fully and certainly vesting and confirming in the successor 

Custodian and Paying Agent all rights, powers, duties and obligations ·of the Bank as the 

Custodian and Paying Agent under this Agreement. 

(e) Costs. The Company shall be responsible for payment to the successor 

Custodian and Paying Agent of all fees and expenses of the successor Custodian and Paying 

Agent and any fees and expenses for transferring Custodial Documents and funds deposited in 

the Accounts to the successor Custodian and Paying Agent except with respect to the Private 

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Owner Pledged Account, the fees and expenses with respect to which are to be paid by the 

Private Owner. 

ARTICLE X 


REPRESENTATIONS, WARRANTIES AND COVENANTS 


Section 10.1 Representations, Warranties and Covenants. 

(a) The Bank as the Custodian and Paying Agent, the Company, the Initial 

Member and the Private Owner, as applicable, represent and warrant to each other and to each of 

the parties to this Agreement as follows: 

(i) it has the requisite power and authority and the legal right to 

execute and deliver, and to perform its obligations under, this Agreement, and has taken all 

necessary corporate or other action to authorize its execution, delivery and performance of this 

Agreement; 

(ii) no consent or authorization of, filing with, or other act by or in 

respect of, any United States or non-United States national, federal, state, local or provincial or 

international government or any political subdivision of any governmental, regulatory or 

administrative authority, agency or commission, or judicial or arbitral body, and no consent of 

any other Person (including any stockholder or creditor) is required in connection with the 

execution, delivery, performance, validity or enforceability of this Agreement by it; 

(iii) this Agreement has been duly executed and delivered on behalf of 

it and constitutes a legal, valid and binding obligation of it enforceable in accordance with its 

terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, 

moratorium or similar Laws affecting the enforcement of creditors' rights generally and by 

general principles of equity (whether enforcement is sought in a proceeding in equity or at Law); 

and 

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

Company, the Initial Member, the Private Owner and each of the other parties to this Agreement 

that the Bank is a Qualified Custodian and Paying Agent. 

Section 10.2 Insurance. At its own expense, the Custodian and Paying Agent shall 

maintain at all times and keep in full force and effect (a) fire and other casualty insurance, (b) 

fidelity insurance, (c) theft of documents insurance, (d) forgery insurance, and (e) errors and 

omissions insurance. All such insurance shall be in amounts, with standard coverage and subject 

to deductibles, as are customary for insurance typically maintained by financial institutions 

which act as paying agent and as custodian of collateral substantially similar to the Custodial 

Documents. Upon written request, the Company shall be entitled to receive a certificate of the 

respective insurer that such insurance is in full force and effect. 

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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 Initial Member, the Purchase Money Note Guarantor and the Collateral Agent no 

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

Due Period (the "Custodian and Paying Agent Report") with respect to the Assets and 

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

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

Asset Proceeds or the Management Fee from such Accounts, including the date on which made, 

since the date of the previous report) held by the 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. The Custodian and Paying 

Agent shall also make such Custodian and Paying Agent Reports available to Note Owners each 

month in accordance with Section 2. 7(k) via the Paying Agent's internet website. Access to all 

information on the Paying Agent's internet website will be restricted to Note Owners who 

provide the Paying Agent with a separate investor certification substantially in the form of 

Exhibit 0 attached to this Agreement. As a condition to accessing the Paying Agent's internet 

website, the Paying Agent may require registration and the acceptance of a disclaimer. The 

Paying Agent will not be liable for the dissemination of information in accordance with this 

Agreement. 

(b) The Custodian and Paying Agent Report shall be based on information, 

upon which the Custodian and Paying Agent may conclusively rely, except to the extent that 

such information contains any irregularities or errors manifestly apparent on its face or actually 

known to the Custodian and Paying Agent, included in (i) the Manager's Monthly Report for the 

applicable Due Period and certified by an Authorized Representative of the Manager, (ii) the 

Distribution Date Report for the applicable Due Period, and (iii) such other information as may 

be agreed upon by the parties, all as set forth in Exhibit K. 

Section 11.2 Additional Reports. 

(a) Within two (2) Business Days after receipt of a written request of the 

Company, the Collateral Agent or the Purchase Money Note Guarantor for a Custodial Report or 

an updated Asset Schedule and Exception List, the Custodian and Paying Agent shall provide the 

requesting party with the Custodial Report or the updated Asset Schedule and Exception List, as 

applicable. 

(b) The Custodian and Paying Agent shall provide any additional information 

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

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

any Account. 

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

Period, no later than five (5) Business Days prior to the Distribution Date, the Company shall 

prepare and deliver or cause the Manager to prepare and deliver to the Paying Agent, the Initial 

Member, and the Purchase Money Note Guarantor a report which shall specify the amounts and 

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

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

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

the Company (the "Distribution Date Report"); provided, however, that (unless the Company 

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

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

Periods ending on or before the last day of the month in which the final Servicing Transfer Date 

occurs, unless otherwise agreed between the parties. The Distribution Date Report shall be a 

portion of the Monthly Report to be provided to the Paying Agent, the Initial Member and the 

Purchase Money Note Guarantor in accordance with the LLC Operating Agreement. The 

Distribution Date Report shall contain the following information: 

(a) the aggregate amount of Asset Proceeds as of the close of business on 

such Determination Date, after giving effect to Asset Proceeds received with respect to the 

applicable Due Period; 

(b) the amount of Asset Proceeds received during the applicable Due Period; 

(c) [Intentionally Omitted]; 

(d) for the Collection Account: 

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

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

applicable Due Period plus (B) funds transferred from the Working Capital Reserve Account into 

the Collection Account during the applicable Due Period plus (C) Excess Working Capital 

Advances made by the Manager into the Collection Account during the applicable Due Period 

plus (D) any Discretionary Funding Advances deposited in the Collection Account less (E) the 

total amount of funds withdrawn from the Collection Account as permitted pursuant to 

Section 3.1 during the applicable Due Period; and 

(ii) the amounts payable from the Collection Account (through a 

transfer to the Distribution Account) pursuant to the Priority ofPayments, specifically including: 

(A) The amount of fees and expenses, including any 

indemnification payments, payable to the Custodian and Paying Agent, 

(B) For any Due Period during the Interim Servicing Period, 

the amount of the Interim Servicing· Fee payable to the Initial Member and the Interim 

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

Management Fee payable to the Manager, 

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reimburse to the Manager, 

(C) The amount of Excess Working Capital Advances to be 

(D) 

Reserve Account, 

The amount to be deposited into the Working Capital 

(E) The reimbursement amounts and any accrued interest 

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

the Guaranty Agreement, 

(F) The amount to be deposited in the Defeasance Account, 

and 

(G) The amount payable as distributions to the Initial Member 

and to the Private Owner. 

(iii) With respect to the election by the Company to prepay the 

Purchase Money Note in full or in part in accordance with its terms, the related Company 

Principal Prepayment Amount. 

(e) Any other amounts or calculations required by Section 5.1. 

With respect to the Distribution Date immediately preceding the Maturity Date for the Purchase 

Money Note, the Company shall prepare and deliver or cause the Manager to prepare and deliver 

to the Paying Agent, the Initial Member and the Purchase Money Note Guarantor an additional 

report (the "Maturity Date Report"), which report shall include the amount on deposit in the 

Defeasance Account to pay the Purchase Money Note as of the Maturity Date. 

Section 11.4 Distribution Date Instructions. Each Distribution Date Report shall 

contain instructions to the Paying Agent to withdraw on the related Distribution Date from the 

Distribution Account and the Defeasance Account, as applicable, and pay or transfer the amounts 

set forth in such report in the manner specified, and in accordance with the priorities established, 

in Sections 3.3 and 5.1 of this Agreement, including with respect to any distributions to be made 

to the Holder following an acceleration of the Purchase Money Note prior to the related 

Distribution Date or on the Maturity Date. 

Section 11.5 Books and Records. The Paying Agent shall maintain all such accounts, 

books and records as may be necessary to record properly all transactions carried out by it with 

respect to the Accounts, including the disbursement of all Asset Proceeds. The Paying Agent 

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

and the Collateral. This obligation to maintain a complete and accurate set of records shall 

encompass all files in the Custodian and Paying Agent's custody, possession or control 

pertaining to thf; Assets and the Collateral, including all Custodial Documents. The Paying 

Agent shall permit the Company, the Purchase Money Note Guarantor and the Collateral Agent 

to examine such accounts, books and records that relate to any Account, and shall permit the 

Initial Member and the Private Owner to examine such accounts, books and records that relate to 

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the Private Owner Pledged Account, provided that any such examination shall occur upon 

reasonable prior notice and during normal business hours. 

ARTICLE XII 


NO ADVERSE INTERESTS 


Section 12.1 No Adverse Interests. By execution of this Agreement, the Bank 

represents and warrants that no Responsible Officer of the Bank has any actual knowledge of any 

adverse interest, by way of security or otherwise, in any Asset. The Bank shall not pledge, 

encumber, hypothecate, transfer, dispose of, or otherwise grant any third party interest in, any of 

the Assets pursuant to this Agreement. For the purposes of this Section 12.1, a Responsible 

Officer of the Bank means any managing director, director, associate, principal, vice president, 

assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of 

the Bank customarily performing functions similar to those performed by any of the above 

designated officers and directly responsible for the administration of this Agreement and also 

means, with respect to a particular corporate trust matter, any other officer to whom such matter 

is referred because ofhis or her knowledge of and familiarity with the particular subject. 

ARTICLE XIII 


LIABILITY AND INDEMNIFICATION 


Section 13.1 Liability; Indemnification. 

(a) Except with respect to the Private Owner Pledged Account and the 

Qualifying Cash Collateral on deposit in such Account, the Company shall indemnifY and hold 

harmless the Custodian and Paying Agent and the directors, officers, agents and employees of 

the Custodian and Paying Agent against any and all liabilities, obligations, losses, damages, 

penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature 

whatsoever, including reasonable attorney's fees and litigation costs, that may be imposed on, 

incurred by, or asserted against it or them in any way relating to or arising out of this Agreement 

or any action taken or not taken by it or them hereunder unless such liabilities, obligations, 

losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements were 

imposed on, incurred by or asserted against the Custodian and Paying Agent because of the 

breach by the Custodian and Paying Agent of its obligations pursuant to this Agreement, which 

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 ofthis Agreement. 

(b) The Private Owner shall indemnify and hold harmless the Paying Agent 

and the directors, officers, agents and employees of the Paying Agent against any and all 

liabilities, obligations7 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 ofthis Agreement with respect to the Private Owner Pledged Account or 

the Qualifying Cash Collateral on deposit in such Account or any action taken or not taken by it 

hereunder with respect to the Private Owner Pledged Account or the QualifYing Cash Collateral 

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on deposit in such Account unless such liabilities, obligations, losses, damages, penalties, 

actions, judgments, suits, costs, expenses or disbursements were imposed on, incurred by or 

asserted against the Paying Agent because of the breach by the Paying Agent of its obligations 

pursuant to this Agreement with respect to the Private Owner Pledged Account or the Qualifying 

Cash Collateral on deposit in such Account, which breach was caused by negligence, lack of 

good faith or willful misconduct on the part of the Paying Agent or any directors, officers, agents 

or employees of the Paying Agent. The foregoing indemnification shall survive any resignation 

or removal of the Paying Agent or the termination or assignment of this Agreement. 

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

was not identified as an Exception in the then controlling Asset Schedule and Exception List 

within two (2) Business Days after required or requested by the Company, and such Custodial 

Document is not outstanding pursuant to a Request for Release and Receipt of the Custodial 

Documents in the form attached as Exhibit H (a "Custodial Delivery Failure"), then (i) with 

respect to any missing Note with respect to which a Custodial Delivery Failure has occurred and 

has continued in excess of three (3) Business Days, the Custodian promptly shall deliver to the 

Company upon request a Lost Instrument Affidavit in the form attached as Exhibit L (unless the 

original Note shall have been delivered prior to such time) and (ii) with respect to any missing 

document related to such Asset, including a missing Note, (A) the Custodian shall indemnify the 

Company, the Purchase Money Note Guarantor and the Collateral Agent in accordance with 

Section 13.1(c) and (B) at th'e Company's option, at any time the long term obligations of the 

Custodian are rated below the second highest rating category of Moody's Investors Service, Inc. 

or Standard and Poor's Ratings Group, a division of McGraw-Hill Companies, Inc., the 

Custodian shall obtain and maintain an insurance bond naming the Company, the Purchase 

Money Note Guarantor, the Holder and the Collateral Agent, and their successors in interest and 

assigns as loss payees, insuring against any losses associated with the loss of such document, in 

an amount equal to the then outstanding principal balance of the related Asset or such lesser 

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

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

the Company, the Purchase Money Note Guarantor, the Holder and the Collateral Agent and 

their respective directors, officers, employees, agents and designees, against any and all 

liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or 

disbursements of any kind or nature whatsoever, including reasonable attorneys' fees and 

litigation costs, that may be imposed on, incurred by, or asserted against it or them in any way 

relating to or arising out of a Custodial Delivery Failure or the Custodian and Paying Agent's 

negligence, lack of good faith or willful misconduct or any breach of any of the conditions, 

representations, warranties or obligations of the Custodian and Paying Agent contained in this 

Agreement; provided that in no event shall the Custodian and Paying Agent or any directors, 

officers, agents or employees of the Custodian and Paying Agent have any liability with respect 

to any special, indirect, punitive or consequential damages suffered by the Company. The 

foregoing indemnification shall survive any termination or assignment ofthis Agreement. 

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ARTICLE XIV 


CUSTODIAN AND PAYING AGENT 


Section 14.1 Reliance of Custodian and Paying Agent. 

(a) Documents; Communications. The Custodian and Paying Agent may rely 

conclusively on any request, instruction, certificate, direction, receipt, demand, consent, 

resolution, statement, instrument, opinion, report, notice or other document or communication 

furnished to the Custodian and Paying Agent pursuant to this Agreement or any Asset Document 

that the Custodian and Paying Agent believes in good faith (i) to have been signed or presented 

by an Authorized Representative and (ii) conforms in form to the requirements of this 

Agreement; provided, however, that in the case of any request, instruction, certificate, direction, 

receipt, demand, consent, resolution, statement, instrument, opinion, report, notice or other 

document or communication which by any provision hereof is specifically required to be 

furnished to the Custodian and Paying Agent, the Custodian and Paying Agent shall be under a 

duty to examine the same in accordance with the requirements of this Agreement and any Asset 

Document. 

(b) Requested Instructions. Subject to the provisions of Section 7.2(d), in 

which case the Custodian and Paying Agent shall take instructions only from the Collateral 

Agent, if the Custodian and Paying Agent requests instructions from the Company, the Initial 

Member or the Private Owner, as applicable, with respect to any act, action or failure to act in 

connection with this Agreement, the Custodian and Paying Agent shall be entitled (without 

incurring any liability therefor to the Company, the Collateral Agent, the Purchase Money Note 

Guarantor or any other Person) to refrain from taking such action and continue to refrain from 

acting unless and until the Custodian and Paying Agent shall have received written instructions 

from the Company, the Initial Member or the Private Owner (or the Collateral Agent). 

(c) Certificates. Whenever the Custodian and Paying Agent shall deem it 

necessary or desirable that a matter be proved or established in connection with taking or 

omitting any action by it hereunder, such matter (unless other evidence in respect thereof be 

herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on 

the part of the Custodian and Paying Agent, be deemed to be conclusively proved or established 

by a certificate of an Authorized Representative of the relevant Party delivered to the Custodian 

and Paying Agent. 

(d) Reliance on Experts. The Custodian and Paying Agent may consult with 

and obtain advice from reputable and experienced outside counsel, certified public accountants 

that are nationally recognized, or other experts and the advice or any opinion of such counsel, 

accountants or other experts shall be full and complete authorization and protection in respect of 

any action taken or omitted by it pursuant to this Agreement in good faith and in accordance with 

sm~h advice or opinion of counsel, accountants or other experts. 

(e) Limited Risk. None of the provisions of this Agreement shall require the 

Custodian and Paying Agent to expend or risk its own funds or otherwise to incur any liability, 

financial or otherwise, in the performance of any of its duties pursuant to this Agreement, or in 

the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that 

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repayment ofsuch funds or indemnity satisfactory to it against such risk or liability is not assured 

to it. 

(f) Merger or Consolidation. Any corporation into which the Custodian and 

Paying Agent may be merged or converted or with which it may be consolidated, or any 

corporation resulting from .any merger, conversion or consolidation to which the Custodian and 

the Paying Agent shall be a party, or any corporation succeeding to the business 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 pursuant to this Agreement without the execution or filing of any 

paper with any party to this Agreement or any further act on the part of any of the parties to this 

Agreement except where an instrument of transfer or assignment is required by Law to effect 

such succession, anything in this Agreement to the contrary notwithstanding, provided that any 

such successor shall satisfy the representations, warranties and covenants set forth in Section 

10.1 of this Agreement. The Custodian and Paying Agent or successor Custodian and Paying 

Agent shall provide the Company with written notice prior to or within ten (1 0) days after the 

consummation of any such transaction. At no time shall an Affiliate of the Company or any 

Servicer be the Custodian and Paying Agent pursuant to this Agreement. 

ARTICLE XV 


TAXES 


Section 15.1 Tax Reports. The Custodian and Paying Agent shall not be responsible 

for the preparation or filing of any reports or returns relating to federal, state or local income 

Taxes with respect to this Agreement, other than in respect of the Custodian and Paying Agent's 

compensation or for reimbursement of expenses. 

Section 15.2 Stamp and Other Similar Taxes. The Company agrees to indemnify and 

hold harmless the Custodian and Paying Agent from, and shall reimburse the Custodian and 

Paying Agent for, any present or future claim for liability for any stamp or other similar Tax and 

any penalties or interest with respect thereto, which may be assessed, levied or collected by any 

jurisdiction in connection with this Agreement. The obligations of the Company pursuant to this 

Section 15.2 shall survive the termination ofthe other provisions of this Agreement. 

Section 15.3 Tax Characterization. The Holder and Note Owner of a Purchase Money 

Note, by acceptance of the Purchase Money Note or its interest in the Purchase Money Note, 

shall be deemed to have agreed to treat, and shall treat, the Purchase Money Note as debt of the 

Company for U.S. federal income Tax purposes except as otherwise required by Law. 

Section 15.4 Back-Up Withholding. Each Holder and Note Owner of a Purchase 

Money Note, by acceptance of the Purchase Money Note or its interest in the Purchase Money 

Note, shall be deemed to understand and acknowledge that failure to provide the Company, the 

Custodian or the Paying Agent with an originally executed version of the applicable U.S. federal 

income Tax certifications (generally, an Internal Revenue Service Form W-9 (or successor 

applicable form) in the case of a Person that is a U.S. Person or an appropriate Internal Revenue 

Service Form W-8 (or successor applicable form) in the case of a Person that is not a U.S. 

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Person) may result in U.S. federal back-up withholding from payments in respect ofthe Purchase 

Money Note. 

ARTICLE XVI 


TERM 


Section 16.1 Term. This Agreement shall terminate upon (a) the first to occur of (i) the 

final payment or other liquidation of all of the Assets and (ii) disposition of all Collateral 

(including any Acquired Property), and (b) the release and delivery to the Company of all 

Custodial Documents held by or in the possession of the Custodian in accordance with the terms 

of this Agreement. Notwithstanding anything to the contrary herein, this Agreement may be 

terminated without cause upon at least thirty (30) days' prior written notice to the Custodian and 

Paying Agent, by any of the Company, the Purchase Money Note Guarantor or the Collateral 

Agent. · 

ARTICLE XVII 


AUTHORIZED REPRESENTATIVES 


Section 17.1 Authorized Representatives. Each individual designated as an Authorized 

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

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

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

pursuant to this Agreement, is set forth on Exhibit M. From time to time, any Person may, by 

delivering to the other parties hereto a revised copy of Exhibit M or any resolution, incumbency 

certificate or similar document setting forth the officers of such Person, which officers shall be 

deemed to be Authorized Representatives of such Person for purposes of this Agreement, change 

such Person's Authorized Representatives (and amend this Agreement to so provide), but until a 

new Exhibit M or resolution, incumbency certificate or similar document with the information 

regarding the successor Authorized Representatives is delivered to a party in accordance with 

this Agreement, that party shall be entitled to rely conclusively on the Exhibit M or resolution, 

incumbency certificate or similar document, as applicable, last delivered hereunder. The parties 

acknowledge and agree that, unless and until the occurrence of an Event of Default pursuant to 

the LLC Operating Agreement and the removal of the Private Owner as the Manager pursuant to 

the LLC Operating Agreement, the Private Owner will have the right to designate Authorized 

Representatives of the Company and that notwithstanding any provisions in this Agreement to 

the contrary, however, upon the delivery of written notice to the Custodian and Paying Agent by 

the Initial Member of the occurrence of an Event ofDefault by the Private Owner pursuant to the 

LLC Operating Agreement and the removal of the Private Owner as the Manager pursuant to the 

LLC Operating Agreement, the Initial Member or the replacement Manager appointed pursuant 

to Section 3 .13( a) of the LLC Operating Agreement will have the right to designate replacement 

Authorized Representatives of the Company. 

ARTICLE XVIII 


NOTICES 


Section 18.1 Notices. All notices, requests, demands and other communications 

required or permitted to be given or delivered under or by reason of the provisions of this 

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13312135.3 
Agreement shall be in writing and shall be mailed or delivered to the applicable address or 

electronic mail address of the parties specified below for such Person or to such other address, 

electronic mail address or telephone number as shall be designated by such party in a notice to 

the other parties. All such notices and other communications shall be deemed to be given or 

made upon the earlier to occur of (i) actual receipt (or refusal thereof) by the relevant party 

hereto and (ii) (A) if delivered by hand or by nationally recognized courier service, when signed 

for (or refused) by or on behalf of the relevant party hereto; (B) if delivered by mail, four 

Business Days after deposit in the mails, postage prepaid; and (C) if delivered by electronic mail, 

when delivered. In no event shall a voice mail message be effective as a notice, communication 

or confirmation hereunder. From time to time, any Person may designate a new address for 

purposes of notice hereunder by notice to such effect to the other Persons identified below. 

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

exchange of Purchase Money Note: 

Wells Fargo Bank, National Association 


9062 Old Annapolis Road 


Columbia, Maryland 21 045 


Attention: Client Services Manager 


Reference: RADC/CADC Venture 201 

E-Mail Addresses: 

For purposes ofcancellation and presentment of the Purchase Money Note: 

Wells Fargo Bank, National Association 


9062 Old Annapolis Road 


Columbia, Maryland 21 045 


Attention:. Client Services Manager 


Reference: RADC/CADC Venture 2010-2, LLC 

E-Mail Addresses: 

For purposes of transfer and/or exchange of the Purchase Money Note: 

Wells Fargo Bank, National Association 


9062 Old Annapolis Road 


Columbia, Maryland 21045 


Attention: Client Services Manager 


Reference: RADC/CADC Venture 2010-2, LLC 

E-Mail Addresses: 

Ifto the Company: 

RADCICADC Venture 2010-2, LLC 

2450 Broadway, 6th Floor 

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Santa Monica, California 90404 

Attention: Paul A. Fuhrman 

E-mail Address: 

with a copy to: 

Colony Capital, LLC 

660 Madison A venue 

New York, New York 10065 

Attn: Ronald M. Sanders 

E-mail Address: 

If to the Purchase Money Note Guarantor, the Collateral Agent, or the Initial 

Member: 

Assistant Director, Structured Transactions- Resolutions and Receiverships 

Federal Deposit Insurance Corporation 

550 17th Street, N.W. 

Room F-7014 

Washington, D.C. 20429 

Attention: Ralph Malami 

E-mail Address: RMalami@fdic.gov 

with a copy to: 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

E-mail Address: DGearin@fdic.gov 

ARTICLE XIX 


MISCELLANEOUS 


Section 19.1 Governing Law. EACH PARTY TO THIS AGREEMENT AGREES 

AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL 

OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS TO BE 

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE 

OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT 

MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT 

TO THE LAW OF ANOTHER JURISDICTION AND EACH PARTY TO THIS 

AGREEMENT UNCONDITIONALLY AND IRREVOCABLY W AlVES ANY CLAIM TO 

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ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL 

ACTION OR INACTION BY ANY PARTY TO THIS AGREEMENT . 

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

MEMBER, THE PRIVATE OWNER, THE PURCHASE MONEY NOTE GUARANTOR, THE 

COLLATERAL AGENT AND THE BANK HEREBY IRREVOCABLY AND 

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

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

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

A JURY. 

Section 19.3 Jurisdiction; Venue and Service. 

(a) Each of the Company, the Initial Member, the Private Owner and the 

Bank, for itself and its Affiliates, hereby irrevocably and unconditionally: 

(i) consents to the jurisdiction of the United States District Court for the 

Southern District of New York and to the jurisdiction of the United States District Court for the 

District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

commenced by the Purchase Money Note Guarantor or the Collateral Agent arising out of, 

relating to, or in connection with this Agreement or any Transaction Document, and waives any 

right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the Initial Member, the Purchase 

Money Note Guarantor, the Holder or the Collateral Agent, as applicable, files the suit, action or 

proceeding without the consent of the Initial Member, the Purchase Money Note Guarantor, the 

Holder or the Collateral Agent, as applicable; 

(B) assert that venue is improper in either the United States 

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

District of Columbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

New York for any suit, action or proceeding against it or any of its Affiliates commenced by the 

Initial Member, the Purchase Money Note Guarantor, the Holder, or the Collateral Agent arising 

out of, relating to, or in connection with this Agreement or any Transaction Document (other 

than the LLC Operating Agreement), and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the Initial Member, the Purchase 

Money Note Guarantor, the Holder, or the Collateral Agent, as applicable; 

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(B) assert that venue is improper in the Supreme Court of the 

State ofNew York; or 

(C) assert that the Supreme Court of the State of New York is 

an inconvenient forum. 

(iii) agrees to bring any suit, action or proceeding by the Company, the 

Bank, or its Affiliate against the Initial Member, the Purchase Money Note Guarantor, the 

Holder, or the Collateral Agent in only either the United States District Court for the Southern 

District ofNew York or the United States District Court for the District ofColumbia, and waives 

any right to remove or transfer such suit, action or proceeding to any other court or disputeresolution forum without the consent of the Initial Member, the Purchase Money Note 

Guarantor, the Holder, or the Collateral Agent, as applicable, and agrees to consent thereafter to 

transfer of the suit, action or proceeding to either the United States District Court for the 

Southern District ofNew York or the United States District Court for the District of Columbia at 

the option of the Initial Member, the Purchase Money Note Guarantor, the Holder, or the 

Collateral Agent, as applicable; and 

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

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

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

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

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

forum without the consent of the Initial Member, the Purchase Money Note Guarantor, the 

Holder, or the Collateral Agent, as applicable. 

(b) Each of the Company and the Bank, on behalf of itself and its Affiliates, 

hereby irrevocably and unconditionally agrees that any final judgment entered against it in any 

suit, action or proceeding falling within Section 19.3(a) may be enforced in any court of 

competent jurisdiction. 

(c) Subject to the provisions of Section 19.3(d), each ofthe Company and the 

Bank, on behalf ofitself and its Affiliates, and each ofthe Initial Member, the Private Owner, the 

Purchase Money Note Guarantor, the Holder and the Collateral Agent hereby irrevocably and 

unconditionally agrees that service of all writs, process and summonses in any suit, action or 

proceeding pursuant to Section 19.3(a) or Section 19.3(b) may be effected by the mailing of 

copies thereof by registered or certified mail, postage prepaid, to it at its address for notices 

pursuant to Section 18.1 (with copies to such other Persons as specified therein); provided, 

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. 

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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 toge¢.er 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 iri all manner and 

respects as an original agreement and shall be considered to have the same binding legal effect as 

if it were the original signed version thereof delivered in Person. No signatory to this Agreement 

shall raise the use of a facsimile machine or other electronic means to deliver a signature or the 

fact that any signature or agreement was transmitted or communicated through the use of a 

facsimile machine or other electronic means as a defense to the formation or enforceability of a 

contract and each such Person forever waives any such defense. 

Section 19.5 Severability. Any provision of this Agreement which is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (i) if such provision is prohibited or unenforceable in such jurisdiction only as to a 

particular Person or Persons and/or under any particular circumstance or circumstances, such 

provision shall be ineffective, but only in such jurisdiction and only with respect to such 

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

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 oi scope of such provision and/or the Persons against whom, 

and/or the circumst~nces 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 ofany 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 ofits obligations hereunder. 

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

the Company, the Initial Member, the Private Owner, the Purchase Money Note Guarantor, the 

Holder, the Collateral Agent and the Bank with respect to the subject m11tter 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 

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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 ofthe Custodian and 

Paying Agent, the Initial Member, the Private Owner, the Purchase Money Note Guarantor, the 

Holder, the Collateral Agent and the Company pursuant to this Agreement shall be in addition to 

all rights, powers and remedies given to the Custodian and Paying Agent, the Initial Member, the 

Private Owner, the Purchase Money Note Guarantor, the Holder the Collateral Agent and the 

Company by virtue of any statute or rule of Law, or any other agreement, all of which rights, 

powers and remedies shall be cumulative and may be exercised successively or concurrently. 

Section 19.10 Amendments. Subject to the requirements of the LLC Operating 

Agreement as they relate to the Company, this Agreement may be amended from time to time by 

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

Agent and the Custodian and Paying Agent or, if such written agreement relates to the Private 

Owner Pledged Account or the Qualifying Cash Collateral on deposit in such Account, the Initial 

Member, the Private Owner and the Paying Agent. 

Section 19.11 Headings. Paragraph titles or captions contained in this Agreement are 

inserted only as a matter of convenience and for reference and in no way define, limit, extend or 

describe the scope of this Agreement or the intent of any provisions hereof. All section and 

paragraph references contained herein shall refer to sections and paragraphs in this Agreement 

unless otherwise specified. 

(remainder ofpage blank) 

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13312135.3 
IN WITNESS WHEREOF, the Bank, the Purchase Money Note Guarantor, the Collateral 

Agent, the Initial Member, the Private Owner and the Company have each caused this 

Agreement to be executed as of the date first written above. 

RADC/CADC VENTURE 2010-2, LLC, 

as the Company 

By: COLFIN 2011 ADC FUNDING, LLC, a 

Delaware limited liability company, as Manager 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Note Guarantor 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

[Signature Pages to Custodial and Paying Agency Agreement] 

RA.DC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312135.2 
IN WITNESS WHEREOF, the Bank, the Purchase Money Note Guarantor, the Collateral 

Agent, the Initial Member, the Private Owner and the Company have each caused this 

Agreement to be executed as of the date first written above. 

RADC/CADC VENTURE 2010-2, LLC, 

as the Company 

By: COLFIN 2011 ADC FUNDING, LLC, a 

Delaware limited liability company, as Manager 

By: 

Name: Mark M. Hedstrom 

Title: Vice President 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Note Guarantor 

By: 

Name: Heidi Silverberg 


Title: Attorney-in-Fact 


[Signature Pages to Custodial and Paying Agency Agreement] 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312135.2 
FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each of the various failed financial institutions 

listed on Schedule I hereto, as Collateral Agent 

By: 


Name: Heidi 


Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each of the various failed financial institutions 

listed on Schedule I hereto, as Initial Member 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

COLFIN 2011 ADC FUNDING, LLC, a 

Delaware limited liability company, as the Private 

Owner 

By: 

Name: Mark M. Hedstrom 

Title: Vice President 

WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as the Bank 

By: 

Name: Amy Doyle 

Title: Vice President 

[Signature Pages to Custodial and Paying Agency Agreement] 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312135.2 
FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each ofthe various failed fmancial institutions 

listed on Schedule I hereto, as Collateral Agent 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each ofthe various failed financial institutions 

listed on Schedule I hereto, as Initial Member 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

COLFIN 2011 ADC FUNDING, LLC, a 

Delaware limited liability company, as the Private 

WELLS FARGO BANK, NATIONAL 

ASSOCIATION, as the Bank 

By: 

Name: Amy Doyle 

Title: Vice President 

[Signature Pages to Custodial and Paying Agency Agreement] 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312135.2 
FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each ofthe various failed fmancial institutions 

listed on Schedule I hereto, as Collateral Agent 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its separate capacities as 

receiver with respect to the separate receiverships 

for each of the various failed financial institutions 

listed on Schedule I hereto, as Initial Member 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

COLFIN 2011 ADC FUNDING, LLC, a 

Delaware limited liability company, as the Private 

Owner 

By: 

Name: Mark M. Hedstrom 

Title: Vice President 

WELLS FARGO BANK, NATIONAL 

[Signature Pages to Custodial and Paying Agency Agreement] 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

!33121352 
SCHEDULE I 

RADC/CADC Venture 2010-2 

List of Various Failed Financial Institutions 

Bank Name CtiY State Fund Closin2. Date 

Security Bank of Bibb County (SRES) Macon GA 10085 7/24/2009 

Desert Hills Bank Phoenix AZ 10205 3/26/2010 

Irwin Union Bank & Trust Company Columbus IN 10120 9/18/2009 

Irwin Union Bank F.S.B. Columbus IN 10121 9/18/2009 

Warren Bank Warren MI 10125 10/02/2009 

Hillcrest Bank of Florida Naples FL 10131 10/23/2009 

Republic Federal Bank, N.A. Miami FL 10158 12/11/2009 

Citizens State Bank New Baltimore MI 10162 12/18/2009 

Rockbridge Commercial Bank Atlanta GA 10164 12/18/2009 

Barnes Banking Company Kaysville UT 10171 1/15/2010 

Florida Community Bank Immokalee FL 10181 1/29/2010 

Centennial Bank Ogden UT 10193 3/05/2010 

Citizens Bank & Trust Company of Chicago Chicago IL 10220 4/23/2010 

The Bank of Bonifay Bonifay FL 10234 5/07/2010 

Arcola Homestead Savings Bank Arcola IL 10246 6/04/2010 

AmTrust Bank Cleveland OH 10155 12/4/2009 

Independent Bankers' Bank Springfield IL 10166 12/18/2009 

Bank of Leeton Leeton MO 10174 1/22/2010 

CF Bancorp (Citizens First) Port Huron MI 10226 4/30/2010 

13297937.1 
EXHIBIT A 


ASSET SCHEDULEL: RADC pp. 1-23; CADC pp. 1-6 


A-1 


RADC/CADC Venture 20 I 0-2 


Custodial and Paying Agency Agreement 


13312147.4 
EXHIBIT B-1 


[FORM OF CERTIFICATED NOTE] 


RADC/CADC Venture 2010-2 Structured Transaction 

RADC/CADC VENTURE 2010-2, LLC 

PURCHASE MONEY NOTE 

(REGULATION S CERTIFICATED) 

(Maturity Date January 26, 2018) 

$0 

ISIN No.: 

CUSIP No.: 

Certificate No.: RADC/CADC-1 

Issuance Date: January 26, 2011 

THIS PURCHASE MONEY NOTE HAS NOT BEEN AND WILL NOT BE 

REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE 

"SECURITIES ACT"), ANY STATE SECURITIES LAWS IN THE UNITED STATES OR 

THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND THE ISSUER HAS NOT 

BEEN REGISTERED UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS 

AMENDED (THE "INVESTMENT COMPANY ACT"). 

THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS PURCHASE MONEY 

NOTE, REPRESENTS THAT IT HAS OBTAINED THIS PURCHASE MONEY NOTE IN A 

TRANSACTION IN COMPLIANCE WITH THE SECURITIES ACT, THE INVESTMENT 

COMPANY ACT AND ALL OTHER APPLICABLE LAWS OF THE UNITED STATES OR 

ANY OTHER JURISDICTION, AND THE RESTRICTIONS ON SALE AND TRANSFER 

SET FORTH IN THE CUSTODIAL AND PAYING AGENCY AGREEMENT. THE HOLDER 

HEREOF, BY ITS ACCEPTANCE OF THIS PURCHASE MONEY NOTE, FURTHER 

REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT WILL NOT REOFFER, 

RESELL, PLEDGE OR OTHERWISE TRANSFER THIS PURCHASE MONEY NOTE (OR 

ANY INTEREST HEREIN) EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, 

THE INVESTMENT COMPANY ACT AND ALL OTHER APPLICABLE LAWS OF ANY 

JURISDICTION AND IN ACCORDANCE WITH THE CERTIFICATIONS AND OTHER 

REQUIREMENTS SPECIFIED IN THE CUSTODIAL AND PAYING AGENCY 

AGREEMENT REFERRED TO HEREIN (A) TO A TRANSFEREE THAT IS A PERSON 

WHOM THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL 

BUYER" AS DEFINED IN RULE 1·44A UNDER THE SECURITIES ACT PURCHASING 

FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A "QUALIFIED INSTITUTIONAL 

BUYER" IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OR (B) TO 

A TRANSFEREE (1) THAT IS NOT A U.S. PERSON (AS DEFINED IN REGULATIONS OF 

B-1-1 

RADC/CADC Venture 20 I 0-2 

Custodial and Paying Agency Agreement 

13312147.4 
EXHIBIT B-2 


FORM OF GLOBAL NOTE 


RADC/CADC Venture 2010-2 Structured Transaction 

RADC/CADC VENTURE 2010-2, LLC 

PURCHASE MONEY NOTE (GLOBAL 144A) 

(Maturity Date: January 26, 2018) 

$[ 1 Certificate No.: RADC/CADC-1 


ISIN No.: ._[______. Issuance Date: January 26, 2011 


CUSIP No.: [_____. 


THIS PURCHASE MONEY NOTE HAS NOT BEEN AND WILL NOT BE 

REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (,THE 

"SECURITIES ACT"), ANY STATE SECURITIES LAWS IN THE UNITED STATES OR 

THE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND THE ISSUER HAS NOT 

BEEN REGISTERED UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS 

AMENDED (THE "INVESTMENT COMPANY ACT"). 

' ' 

THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS PURCHASE MONEY 

NOTE, REPRESENTS THAT IT HAS OBTAIN ED THIS PURCHASE MONEY NOTE IN A 

TRANSACTION IN 'COMPLIANCE WITH THE SECURITIES ACT, THE INVESTMENT 

'COMPANY ACT, AND ALL OTHER APPLICABLE LAWS OF THE UNITED STATES OR 

ANY OTHER JURISDICTION AND THE RESTRICTIONS ON SALE AND TRANSFER SET 

FORTH IN THE CUSTODIAL AND PAYING AGENCY AGREEMENT. THE HOLDER 

HEREOF, BY ITS ACCEPTANCE OF THIS PURCHASE MONEY NOTE, FURTHER 

REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT WILL NOT REOFFER, 

RESELL, PLEDGE OR OTHERWISE TRANSFER THIS PURCHASE MONEY NOTE (OR 

ANY INTEREST HEREIN) EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, 

THE INVESTMENT COMPANY ACT AND ALL OTHER APPLICABLE LAWS OF ANY 

JURISDICTION AND IN ACCORDANCE WITH THE CERTIFICATIONS AND OTHER 

REQUIREMENTS SPECIFIED IN THE CUSTODIAL AND PAYING AGENCY 

AGREEMENT REFERRED TO HEREIN (A) TO A TRANSFEREE THAT IS A PERSON 

WHOM THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL 

BUYER" AS SUCH TERM IS DEFINED IN RULE 144A UND,ER THE SECURITIES ACT 

PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A "QUALIFIED 

INSTITUTIONAL BUYER" IN COMPLIANCE WITH RULE 144A UNDER THE 

SECURITIES ACT OR (B) TO A TRANSFEREE (1) THAT IS NOT A U.S. PERSON (AS 

B-2-1 

RAOC/CAOC Venture 20 I 0-2 

Custodial and Paying Agency Agreement 

13312147.4 
SUCH TERM IS DEFINED IN REGULATION S OF THE SECURITIES ACT) AND IS 

ACQUIRING THIS PURCHASE MONEY NOTE IN AN OFFSHORE TRANSACTION (AS 

SUCH TERM IS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN 

COMPLIANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE 

SECURITIES ACT AND (2) THAT IS NOT A "U.S. RESIDENT" WITHIN THE MEANING 

OF INVESTMENT COMPANY ACT, AND, IN THE CASE OF BOTH CLAUSES (A) AND 

(B), AND, IN EACH CASE, TO A TRANSFEREE (1) THAT IS A "QUALIFIED 

PURCHASER" WITHIN THE MEANING OF SECTION 3(c)(7) OF THE INVESTMENT 

COMPANY ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF 

A QUALIFIED PURCHASER, AND (2) THAT (i) WAS NOT FORMED FOR THE PURPOSE 

OF INVESTING IN THE ISSUER (EXCEPT WHEN EACH BENEFICIAL OWNER OF THE 

PURCHASER IS A QUALIFIED PURCHASER), (ii) HAS RECEIVED THE NECESSARY 

CONSENT FROM ITS BENEFICIAL OWNERS IF THE PURCHASER IS A PRIVATE 

INVESTMENT COMPANY FORMED BEFORE APRIL 30, 1996, (iii) IS NOT A BROKERDEALER THAT OWNS AND INVESTS ON A DISCRETIONARY BASIS LESS THAN 

U.S.$25,000,000 IN SECURITIES OF UNAFFILIATED ISSUERS, (iv) IS NOT A PENSION, 

PROFIT SHARING OR OTHER RETIREMENT TRUST FUND OR PLAN IN WHICH THE 

PARTNERS, BENEFICIARIES OR PARTICIPANTS, AS APPLICABLE, MAY DESIGNATE 

THE PARTICULAR INVESTMENTS TO BE MADE, AND IN A TRANSACTION THAT 

MAY BE EFFECTED WITHOUT LOSS OF ANY APPLICABLE INVESTMENT COMPANY 

ACT EXEMPTION, (v) WILL PROVIDE NOTICE TO ANY SUBSEQUENT TRANSFEREE 

OF THE TRANSFER RESTRICTIONS PROVIDED IN THIS LEGEND, (vi) WILL HOLD 

AND TRANSFER PURCHASE MONEY NOTE IN AN AMOUNT OF NOT LESS THAN 

U.S. $250,000 FOR IT OR FOR EACH ACCOUNT FOR WHICH IT IS ACTING, (vii) WILL 

PROVIDE THE ISSUER AND PAYING AGENT FROM TIME TO TIME SUCH 

INFORMATION AS THEY MAY REASONABLY REQUEST IN ORDER TO ASCERTAIN 

COMPLIANCE WITH THIS LEGEND AND (viii) UNDERSTANDS THAT THE ISSUER 

MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN ITS SECURITIES 

FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES. EACH PURCHASER OR 

TRANSFEREE OF THIS PURCHASE MONEY NOTE WILL BE DEEMED TO HAVE 

MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN THE 

CUSTODIAL AND PAYING AGENCY AGREEMENT. 

THIS PURCHASE MONEY NOTE IS NOT TRANSFERABLE EXCEPT IN 

ACCORDANCE WITH THE RESTRICTIONS DESCRIBED HEREIN AND IN THE 

CUSTODIAL AND PAYING AGENCY AGREEMENT. ANY SALE OR TRANSFER IN 

VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE 

VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE 

TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO 

THE ISSUER, THE PAYING AGENT OR ANY INTERMEDIARY. EACH TRANSFEROR 

OF THIS PURCHASE MONEY NOTE AGREES TO PROVIDE NOTICE OF THE 

TRANSFER RESTRICTIONS SET FORTH HEREIN .AND IN THE CUSTODIAL AND 

PAYING AGENCY AGREEMENT TO THE TRANSFEREE. IN ADDITION TO THE 

FOREGOING, THE ISSUER HAS THE RIGHT, UNDER THE CUSTODIAL AND PAYING 

AGENCY AGREEMENT, TO COMPEL ANY OWNER OF A BENEFICIAL INTEREST IN 

B-2-2 

RADC/CADC Venture 2010..2 

Custodial and Paying Agency Agreement 

13312147.4 
THIS PURCHASE MONEY NOTE THAT IS A NON-PERMITTED HOLDER (AS SUCH 

TERM IS DEFINED IN THE CUSTODIAL AND PAYING AGENCY AGREEMENT) TO 

SELL ITS INTEREST IN THIS PURCHASE MONEY NOTE, OR MAY SELL SUCH 

INTEREST ON BEHALF OF SUCH OWNER. 

PRIOR TO PURCHASING THIS PURCHASE MONEY NOTE, PURCHASER 

SHOULD CONSULT COUNSEL WITH RESPECT TO THE AVAILABILITY AND 

CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR 

TRANSFER. THE ISSUER HAS NOT AGREED TO REGISTER THIS PURCHASE MONEY 

NOTE UNDER THE SECURITIES ACT, TO QUALIFY THE PURCHASE MONEY NOTE 

UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION 

RIGHTS TO ANY HOLDER. 

PRINCIPAL OF THIS PURCHASE MONEY NOTE IS PAYABLE AS SET FORTH 

HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS PURCHASE 

MONEY NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE 

FACE HEREOF. ANY PERSON ACQUIRING THIS PURCHASE MONEY NOTE MAY 

ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE PAYING 

AGENT. 

EACH PURCHASER OR TRANSFEREE OF THIS PURCHASE MONEY NOTE OR 

ANY INTEREST THEREIN WHO IS A PLAN TRUSTEE OR IS ACTING ON BEHALF OF 

A PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY 

ACT OF 1974, AS AMENDED ("ERISA"), OR TO SECTION 4975 OF THE INTERNAL 

REVENUE CODE OF 1986, AS AMENDED (THE "INTERNAL REVENUE CODE") OR A 

PLAN SUBJECT TO ANY NON-U. S., FEDERAL, STATE OR LOCAL LAW 

SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE 

INTERNAL REVENUE CODE ("SIMILAR LAW"), OR USING PLAN ASSETS TO EFFECT 

SUCH TRANSFER SHALL BE DEEMED TO HAVE REPRESENTED THAT THE 

ACQUISITION AND HOLDING OF THIS PURCHASE MONEY NOTE (OR ANY 

INTEREST HEREIN) WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED 

TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE INTERNAL 

REVENUE CODE OR A VIOLATION OF SIMILAR LAW. 

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

REVENUE CODE, THIS PURCHASE MONEY NOTE IS BEING ISSUED WITH ORIGINAL 

ISSUE DISCOUNT. YOU MAY CONTACT THE FEDERAL DEPOSIT INSURANCE 

CORPORATION AT 550 17TH STREET, N.W., ROOM F-7014, WASHINGTON, D.C. 20429, 

ATTENTION: RALPH MALAMI, AND THE FDIC WILL PROVIDE YOU WITH THE 

ISSUE PRICE AND THE YIELD TO MATURITY OF THIS PURCHASE MONEY NOTE. 

ANY TRANSFER, PLEDGE OR OTf;IER USE OF THIS PURCHASE MONEY NOTE 

FOR VALUE OR OTHERWISE BY OR TO 1\NY PERSON IS WRONGFUL SINCE THE 

REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN, UNLESS 

THIS PURCHASE MONEY NOTE IS PRESENTED BY AN AUTHORIZED 

REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY("DTC"), NEW YORK, 

B-2-3 

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Custodial and Paying Agency Agreement 

13312147.4 
NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, 

EXCHANGE OR PAYMENT AND ANY PURCHASE MONEY NOTE ISSUED IS 

REGISTERED IN THE NAME OF CEDE & CO. OR OF SUCH OTHER ENTITY AS IS 

REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 

HEREON IS MADE TO CEDE & CO.). 

THE FAILURE TO PROVIDE THE ISSUER, THE CUSTODIAN OR THE PAYING 

AGENT WITH THE APPLICABLE U.S. FEDERAL INCOME TAX CERTIFICATIONS 

(GENERALLY, AN INTERNAL REVENUE SERVICE FORM W-9 (OR SUCCESSOR 

APPLICABLE FORM) IN THE CASE OF A PERSON THAT IS A "UNITED STATES 

PERSON" WITHIN THE MEANING OF SECTION 7701 (A)(30) OF THE INTERNAL 

REVENUE CODE OR AN APPROPRIATE INTERNAL REVENUE SERVICE FORM W-8 

(OR SUCCESSOR APPLICABLE FORM) IN THE CASE OF A PERSON THAT IS NOT A 

"UNITED STATES PERSON" WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE 

INTERNAL REVENUE CODE) MAY RESULT IN THE IMPOSITION OF U.S. FEDERAL 

BACK-UP WITHHOLDING UPON PAYMENTS TO THE HOLDER IN RESPECT OF THIS 

PURCHASE MONEY NOTE. 

EXCEPT AS OTHERWISE INDICATED IN THE CUSTODIAL AND PAYING 

AGENCY AGREEMENT, INTERESTS IN THIS GLOBAL NOTE MUST BE HELD IN 

MINIMUM DENOMINATIONS OF U.S.$250,000 AND INTEGRAL MULTIPLES OF 

U.S.$10,000 IN EXCESS THEREOF. 

B-2-4 

RAOC/CAOC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
RADC/CADC VENTURE 2010-2, LLC · 

PURCHASE MONEY NOTE (GLOBAL 144A) 

(Maturity Date: January 26, 20 18) 

$[.______. Certificate No.: RADC/CADC 


ISIN NO.:(._ _____.) Issuance Date: January 26, 2011 


CUSIP NO.: ._[____.] 


FOR VALUE RECEIVED, RADC/CADC Venture 2010-2, LLC, a Delaware limited 

liability company (herein referred to as the "Issuer"), hereby unconditionally promises to pay to 

the order of Cede & Co., or its successors and registered assigns, the principal sum of 

$[ ([ and 001100 United States Dollars)(or such other amount as 

shall be the outstanding principal amount of this Purchase Money Note shown on Schedule A 

hereto). No interest shall accrue on the outstanding principal amount of this Purchase Money 

Note. The entire outstanding principal amount of this Purchase Money Note shall be due and 

payable on January 26, 2018 (the "Maturity Date") or such earlier date as such amount shall 

become due and payable pursuant to the terms of this Purchase Money Note. 

The principal of this. Purchase Money Note is payable in such coin or currency of the 

. United States of America as at the time of payment is legal tender for payment of public and 

private debts. All payments made by the Issuer with respect to this Purchase Money Note shall 

be subject to the Priority of Payments set forth in Section 5.1 of the Custodial and Paying 

Agency Agreement (as hereinafter defined). This Purchase Money Note is subject to all terms of 

the Custodial and Paying Agency Agreement. Unless otherwise defined herein, capitalized terms 

used in this Purchase Money Note have the meanings provided in, or by reference in, that certain 

Custodial and Paying Agency Agreement, dated as of January 26, 2011· (as further amended, 

· supplemented or restated from time to time, and including any substantially similar agreement 

entered into by Issuer and any new or successor custodian and paying agent, the "Custodial and 

Paying Agency Agreement"), among the Issuer, the Federal Deposit Insurance Corporation, in 

its corporate capacity, as the Purchase Money Note Guarantor, the Federal J;>eposit Insurance 

Corporation, in its capacity as Receiver for various failed financial institutions listed on Schedule 

I hereto as Collateral Agent pursuant to the Reimbursement, Security and Guaranty Agreement, 

dated as of January 26, 2011 (as amended, supplemented or restated from time to time, the 

''Reimbursement, Security and Guaranty Agreement") and Wells Fargo Bank, National 

Association. 

This Purchase Money Note may not be prepaid, in whole or in part, without the prior 

written consent of the Purchase Money Note Guarantor. Any amount repaid or prepaid pursuant 

to this Purchase Money Note rpay not be reborrowed. 

The Holder, by acceptance of this Purchase Money Note, covenants and agrees that no 

recourse may be taken, directly or indirectly, with respect to the rights of the Issuer pursuant to 

B-2-5 

RAOC/CAOC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
the Custodial and Paying Agency Agreement or any Transaction Documents or under any 

certificate or other writing delivered in connection therewith, against the Paying Agent or the 

Servicer or any of their Affiliates. 

Payments on this Purchase Money Note will be made by the Paying Agent by wire 

transfer of immediately available funds to such account as may be specified from time to time by 

the Holder, as of the relevant Record Date, to the Paying Agent in writing or, at the option ofthe 

Holder hereof, by check to such address as the Holder shall have designated to the Paying Agent 

in writing, in each case without the presentation or surrender of this Purchase Money Note or the 

making of any notation hereon. Notwithstanding the foregoing, the final payment on this 

Purchase Money Note will be made only upon presentation and surrender of this Purchase 

Money Note at the office or agency maintained for that purpose by the Paying Agent in 

Minneapolis, Minnesota. If any payment of principal of, or any other amount owed by the Issuer 

pursuant to, this Purchase Money Note becomes due and payable on a day other than a Business 

Day, the maturity thereof shall be extended to the next succeeding Business Day. 

This Purchase Money Note is limited in right of payment to certain collections and 

recoveries respecting the Assets and payments, deposits and advances pursuant to the Custodial 

and Paying Agency Agreement, all as more specifically set forth in the Custodial and Paying 

Agency Agreement. As provided in the Custodial and Paying Agency Agreement, deposits and 

withdrawals from the Accounts may be made by the Paying Agent from time to time for 

purposes other than distributions to the Holder, such purposes including investment in Permitted 

Investments. 

This Purchase Money Note is a registered note and may be transferred only upon 

surrender to the Paying Agent (with concurrent written notice to the Issuer of the requested 

transfer) of this Purchase Money Note for registration and transfer, duly endorsed by, or 

accompanied by a written instrument of transfer duly executed by, the registered Holder hereof 

or its attorney duly authorized in writing. Upon surrender ofthis Purchase Money Note as above 

provided, together with the name, address and other information for notices of the transferee, the 

Paying Agent shall promptly register the transfer, record the transfer on this Purchase Money 

Note and deliver the same to the transferee. A transfer of this Purchase Money Note shall be 

effective upon registration of the transfer by the Paying Agent. Prior to registration of such a 

transfer, the Person in whose name this Purchase Money Note is registered shall be deemed the 

owner and Holder thereof for all purposes hereof, and the Issuer shall not be affected by any 

notice or knowledge to the contrary. 

Upon request by a transferee of this Purchase Money Note that a new Purchase Money 

Note be issued or upon receipt by the Issuer of evidence reasonably satisfactory to it of the 

ownership of and the loss, theft, destruction or mutilation of this Purchase Money Note and (a) in 

the case of loss, theft or destruction, of indemnity reasonably satisfactory to it, or (b) in the case 

of a request by a ·transferee that a new Purchase Money Note be issued or in the case of 

mutilation, upon surrender and cancellation of the Purchase Money Note, within two Business 

Days thereafter, the Issuer shall execute and deliver, in lieu thereof, a new Purchase Money 

Note. 

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13312147.4 
The Paying Agent, the Servicer, the Issuer and any agent of any of the foregoing, may 

treat the Person in whose name this Purchase Money Note is registered as the owner and Holder 

hereof for all purposes, and none of the foregoing shall be affected by notice to the contrary. 

Upon the occurrence of an Event of Default specified in Section 4.1 (b )(i)(A) of the 

Reimbursement, Security and Guaranty Agreement, this Purchase Money Note shall forthwith 

automatically become immediately due and payable, both as to principal and as to any other 

amounts owed by the Issuer hereunder, without any action on the part of the Holders (as of the 

relevant Record Date) and without the consent of the Purchase Money Note Guarantor. Upon 

the occurrence of any other Event of Default defined in the Reimbursement, Security and 

Guaranty Agreement, the Holder may, with the consent of the Purchase Money Note Guarantor, 

in addition to any other available remedy, by notice in writing to the Issuer, the Purchase Money 

Note Guarantor and the Paying Agent, declare this Purchase Money Note to be immediately due 

and payable, together with any other amounts owed by the Issuer hereunder, and on delivery of 

such a notice, the unpaid principal amount of this Purchase Money Note and any other amounts 

owed by the Issuer hereunder, shall forthwith become immediately due and payable without the 

necessity of any presentment, demand, protest or any other notice of any kind, all of which are 

hereby expressly waived by the Issuer. 

If and to the extent the Purchase Money Note Guarantor makes any payment to 

the Holder pursuant to or in connection with the Guaranty Agreement, the Purchase Money Note 

Guarantor shall be subrogated to all of the rights of the Holder with respect to any claim to which 

such payment relates to the extent of such payment, and the Holder, upon acceptance of any such 

payment, will be deemed to have assigned to the Purchase Money Note Guarantor any and all 

claims it may have against the Issuer or others and for which the Holder receives payment from 

the Purchase Money Note Guarantor under the Guaranty Agreement. Upon the request of the 

Purchase Money Note Guarantor, the Holder shall execute written assignments of such claims. 

No delay, omission or waiver on the part of the Holder in exercising any right pursuant to 

this Purchase Money Note shall operate as a waiver of such right or any other right of the 

Holder, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or 

waiver of the same or any other right on any future occasion. Except as otherwise set forth 

herein, the rights and remedies of the Holder are cumulative and not exclusive of any rights or 

remedies the Holder would otherwise have. 

The Issuer's obligations pursuant to this Purchase Money Note are absolute and 

unconditional and shall not be affected by any circumstance whatsoever, and the Issuer hereby 

agrees to make, or cause the Paying Agent to make, all payments pursuant to this Purchase 

Money Note in full and when due, whether in respect to principal or any other amount owed by 

the Issuer pursuant to this Purchase Money Note, without notice, demand, counterclaim, setoff, 

deduction, defense, abatement, suspension, limitation, deferment, diminution, recoupment or 

other right that the Issuer may have against the Holder hereof or any other Person, but subject in 

all respects to the priority of payments set forth in Section 5.1 of the Custodial and Paying 

Agency Agreement, and the Issuer hereby waives and agrees not to assert any defense (other 

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13312147.4 
than payment in accordance with the terms hereof), right of counterclaim, setoff or recoupment, 

or other right which it may have against the Holder hereof or any other Person. 

All notices, requests, demands, and other communications required or permitted to be 

given or delivered under or by reason of the provisions of this Purchase Money Note shall be in 

writing and shall be mailed or delivered to the applicable address or electronic mail address of 

the parties specified below for such Person or to such other address or electronic mail address as 

shall be designated by such party in a notice to the other parties. All such notices and other 

communications shall be deemed to be given or made upon the earlier to occur of (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 (which form of delivery is subject to the 

provisions of this paragraph), when delivered. In no event shall a voice mail message be 

effective as a notice, communication or confirmation pursuant to this Purchase Money Note. 

If to the Issuer, to: 

RADC/CADC Venture 2010-2, LLC 

2450 Broadway, 6th Floor 

Santa Monica, California 90404 

Attention: Paul A Fuhrman 

E-mail Address: 

with a copy to: 

Colony Capital, LLC 

660 Madison A venue 

New York, New York 10065 

Attention: Ronald M. Sanders 

E-mail 

and if to the Holder hereof, to the Custodian and Paying Agent on its behalf: 

Wells Fargo Bank, National Association 


9062 Old Annapolis Road 


Columbia, Maryland 21045 


Attention: Client Services Manager 


Reference: RADC/CADC Venture 2010-2 


E-Mail Addresses: 


B-2-8 

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13312147.4 
with copies to: 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

E-mail Address: DGearin@fdic.gov 

In case any one or more of the provisions hereof should be invalid, illegal or 

unenforceable in any respect, the validity, legality and enforceability of the remaining provisions 

contained herein shall not in any way be affected or impaired thereby. 

This Purchase Money Note shall bind the Issuer and the successors of the Issuer, and the 

term "Issuer" herein shall include the successors of the Issuer. 

The terms of this Purchase Money Note may be amended from time to time only by the 

written agreement of the Issuer and the Holder, subject in all instances to the terms of the 

Guaranty Agreement. 

This Purchase Money Note and the rights and the duties of the Issuer and the Holder 

hereunder shall be governed by and construed in accordance with the law of the State of New 

York, excluding any conflict of laws rule or principle that might refer the governance or the 

construction of this Purchase Money Note to the law of another jurisdiction. 

(a) Each of the Issuer and the Holder (if such Holder is not the FDIC; any 

Holder that is not the I:DIC, a "Non-FDIC Holder"), on behalf of itself and its Affiliates, 

irrevocably and unconditionally: 

(i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

commenced by any Holder (if such Holder is the FDIC; the Holder that is the FDIC, the "FDIC 

HoJder") arising out of, relating to, or in connection with this Purchase Money Note or any 

Transaction Document, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the FDIC Holder files the suit, 

action or proceeding without the consent of the FDIC Holder; 

(B) assert that venue is improper in either the United States 

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

District o Columbia; or 

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13312147.4 
(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum. 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

New York for any suit, action or proceeding against it or any of its Affiliates commenced by the 

FDIC Holder arising out of, relating to, or in connection with this Purchase Money Note or any 

Transaction Document (other than the LLC Operating Agreement), and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent ofthe FDIC Holder; 

(B) assert that venue is improper in the Supreme Court of the 

State ofNew York; or 

(C) assert that the Supreme Court of the State of New York is 

an inconvenient forum. 

(iii) agrees to bring any suit, action or proceeding by the Issuer, any 

Non-FDIC Holder, or its Affiliates against the FDIC Holder arising out of, relating to, or in 

connection with this Purchase Money Note or any Transaction Document in only either the 

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

Court for the District of Columbia, and waives any right to remove or transfer such suit, action or 

proceeding to any other court or dispute-resolution forum without the consent of the FDIC 

Holder, and agrees to consent thereafter to transfer of the suit, action or proceeding to either the 

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

Court for the District of Columbia at the option ofthe FDIC Holder; and 

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

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

jurisdiction to hear a suit, action or proceeding falling within paragraph (a)(iii) above, to bring 

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

any right to remove or transfer such suit, action or proceeding to any other court or disputeresolution forum without the consent ofthe FDIC Holder. 

(b) Each of the Issuer and any Non-FDIC Holder, on behalf of itself and its 

Affiliates, hereby irrevocably and unconditionally agrees that any final judgment entered against 

it in any suit, action or proceeding falling within paragraph (a) above may be enforced in any 

court ofcompetent jurisdiction. 

(c) Subject to the provisions of paragraph (d) below, each of the Issuer and 

the Holder, on behalf of itself and its Affiliates, hereby irrevocably and unconditionally agrees 

that service of all writs, process and summonses in any suit, action or proceeding pursuant to 

paragraph (a) or paragraph (b) above may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to it at its address for notices set forth in this 

Purchase Money Note (with copies to such other Persons as specified herein); provided, 

B-2-10 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
however, that nothing contained in this paragraph (c) shall affect the right of any party to serve 

process in any other manner permitted by Law. 

(d) Nothing in paragraph (a), paragraph (b) or paragraph (c) above shall 

constitute consent to jurisdiction in any court by the FDIC, other than as expressly provided in 

paragraph (a)(iii) and paragraph (a)(iv) above, or in any way limit the FDIC's right to remove, 

transfer, seek to dismiss, or otherwise respond to any suit, action, or proceeding against it in any 

forum. 

EACH OF THE ISSUER AND THE HOLDER HEREBY IRREVOCABLY AND 

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

ANY DISPUTE ARISING OUT OF OR RELATING TO THIS PURCHASE MONEY NOTE 

AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE 

SITTING WITHOUT A JURY. 

Interests in this Global Note may be exchanged for a beneficial interest in the 

corresponding Certificated Note, subject to the restrictions as set forth in the Custodial and 

Paying Agency Agreement. 

This Global Note is subject to mandatory exchange for the corresponding Certificated 

Note under the limited circumstances set forth in the Custodial and Paying Agency Agreement. 

Upon redemption, repayment, exchange of or increase in any interest represented by this 

Global Note, this Global Note shall be endorsed on Schedule A hereto to reflect the reduction of 

or increase in the principal amount evidenced hereby. 

Title to Purchase Money Note shall pass by registration in the Purchase Money Note 

Register kept by the Purchase Money Note Registrar, which initially shall be the Paying Agent. 

No service charge shall be made for registration of transfer or exchange of this Purchase 

Money Note, but the Paying Agent may require payment of a sum sufficient to cover any tax or 

other governmental charge payable in connection therewith. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

B-2-11 

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Custodial and Paying Agency Agreement 

13312147.4 
-------------------------------

IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually 

or in facsimile, by the Initial Member as ofthe date first shown above. 

RADC/CADC VENTURE 2010-2, LLC 

By: 	 Federal Deposit Insurance Corporation, 

as Receiver for those failed financial institutions 

listed on Schedule I hereto, as Initial Member 

By: 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

B-2-12 


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Custodial and Paying Agency Agreement 

13312147.4 
SCHEDULE I 

RADC/CADC Venture 2010-2 

List of Various Failed Financial Institutions 

Bank Name CitY State Fund Closini! Date 

Security Bank of Bibb County (SRES) Macon GA 10085 7/24/2009 

Desert Hills Bank Phoenix AZ 10205 3/26/2010 

Irwin Union Bank & Trust Company Columbus IN 10120 9/18/2009 

Irwin Union Bank F.S.B. Columbus IN 10121 9/18/2009 

Warren Bank Warren MI 10125 10/02/2009 

Hillcrest Bank of Florida Naples FL 10131 10/23/2009 

Republic Federal Bank, N.A. Miami FL 10158 12/11/2009 

Citizens State Bank New Baltimore MI 10162 12118/2009 

Rockbridge Commercial Bank Atlanta GA 10164 12/18/2009 

Barnes Banking Comp_any Kaysville UT 10171 1115/2010 

Florida Community Bank Immokalee FL 10181 1129/2010 

Centennial Bank I Ogden UT 10193 3/05/2010 

Citizens Bank & Trust Company of Chicago Chicago IL 10220 4/23/2010 

The Bank of Bonifay Bonifay FL 10234 5/07/2010 

Arcola Homestead Savings Bank Arcola IL 10246 6/04/2010 

AmTrust Bank Cleveland OH 10155 12/4/2009 

Independent Bankers' Bank Springfield IL 10166 12/18/2009 

Bank of Leeton Leeton MO 10174 1122/2010 

CF Bancorp (Citizens First) Port Huron MI 10226 4/30/2010 

13297937.1 
SCHEDULE A 

SCHEDULE OF EXCHANGES OR REDEMPTIONS 

The following exchanges, redemptions, repayments of or increase in the whole or a part of the 

Purchase Money Note represented by this Global Note have been made: 

Remaining principal 

Part ofprincipal amount of amount of this Global 

Date exchange/ Original principal this Global Note Note following such Notation made by 

redemption/repayment! amount of this exchanged/redeemed/ exchange/redemption! or on behalf of the 

increase made Global Note repaid/increased repayment!increase Issuer 

B-2-14 

RADC/CADC Venture 20 I 0-2 

Custodial and Paying Agency Agreement 

13312147.4 
------------------ -------

EXHIBITC-1 

Form of Qualified Institutional Buyer and Qualified Purchaser Certification 

[Letterhead of Prospective Note Purchaser/Exchanger] 

RADC/CADC Venture 2010-2, LLC 

Wells Fargo Bank, National Association, as Paying Agent 

Re: Purchase Money Note due January 26,2018 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of January 

26, 2011, (as modified and supplemented and in effect from time to time, the "Custodial and 

Paying Agency Agreement") among RADC/CADC Venture 2010-2, LLC, ColFin 2011 ADC 

Funding, LLC, the Federal Deposit Insurance Corporation, in its corporate capacity, as the 

guarantor of the Purchase Money Note, the Federal Deposit Insurance Corporation, in its 

capacity as the Receiver for various failed financial institutions listed on Schedule I thereto, as 

the Initial Member and as the Collateral Agent under the Reimbursement, Security and Guaranty 

Agreement, and Wells Fargo Bank, National Association. All capitalized terms used but not 

defined herein are used as defined in the Custodial and Paying Agency Agreement. 

In connection with the undersigned's purchase of the Purchase Money Note due January 

26, 2018 (the "Note"), as set forth below, the undersigned hereby represents, acknowledges and 

agrees as follows: 

It is (A) a "qualified institutional buyer" as defined in Rule 144A under the Securities Act 

of 1933, as amended, and is acquiring the Note in reliance on the exemption from Securities Act 

registration provided by Rule 144A thereunder and (B) a "qualified purchaser" for purposes of 

Section 3(c)(7) ofthe Investment Company Act of 1940, as amended. 

Name ofPurchaser: Dated: 

By: ------------------------­ Name: 


Title: 


Principal amount of: $[__________. 

C-1-1 

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Custodial and Paying Agency Agreement 

13312147.4 
EXHIBITC-2 

Form ofCertificate for the 


Acquisition of RegulationS Certificated Note 


[Letterhead of Prospective Note Purchaser/Exchanger] 


RADC/CADC Venture 2010-2, LLC 


Wells Fargo Bank, National Association, as Paying Agent 


Re: Purchase Money Note due January 26, 2018 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of January 

26, 2011, (as modified and supplemented and in effect from time to time, the "Custodial and 

Paying Agency Agreement") among RADC/CADC Venture 2010-2, LLC, ColFin 2011 ADC 

Funding, LLC, the Federal Deposit Insurance Corporation, in its corporate capacity, as the 

guarantor of the Purchase Money Note, the Federal Deposit Insurance Corporation, in its 

capacity as the Receiver for various failed financial institutions listed on Schedule I thereto, as 

the Initial Member and the Collateral Agent under the Reimbursement, Security and Guaranty 

Agreement, and Wells Fargo Bank, National Association. All capitalized terms used but not 

defined herein are used as defined in the Custodial and Paying Agency Agreement. 

In connection with the undersigned's purchase of the Purchase Money Note due January 

26, 2018 (the "Purchase Money Note"), as set forth below, the undersigned hereby represents, 

acknowledges and agrees as follows: 

1. It is aware that the sale of the Purchase Money Note to it is being made in reliance 

on the exemption from registration provided by Regulation S ("Regulation S") under the 

Securities Act of 1933, as amended ("Securities Act"); it is not, and will not be, a "U.S. person," 

as defined in Regulation S; it is a "qualified purchaser" (a "Qualified Purchaser") within the 

meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"); 

it is aware that in connection with a transfer of any Regulation S Certificated Note to a U.S. 

Person, such Regulation S Certificated Note must be exchanged for a Rule 144A Certificated 

Note or a beneficial interest in a Rule 144A Global Note; and its purchase of the Purchase 

Money Note will comply with all applicable laws in any jurisdiction in which it resides or is 

located. 

2. It understands that the Purchase Money Note will bear a legend set forth in the 

applicable Exhibit attached to the Custodial and Paying Agency Agreement. 

3. It (1) was not formed for the purpose of investing in the Company (except when 

each beneficial owner of the purchaser is a Qualified Purchaser), (2) has received the necessary 

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

C-2-1 

RADC/CAOC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
before April 30, 1996, (3) is not a broker-dealer that owns and invests on a discretionary basis 

less than U.S.$25,000,000 in securities ofunaffiliated issuers, (4) 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, (5) will provide 

notice to any subsequent transferee of the transfer restrictions provided in the legend, (6) will 

hold and transfer Purchase Money Note in an amount of not less than U.S.$250,000 for it or for 

each account for which it is acting, (7) will provide the Company and Paying Agent from time to 

time such information as they may reasonably request in order to ascertain compliance with this 

paragraph and (8) understands that the Company may receive a list of participan:ts holding 

positions in its securities from one or more book-entry depositories. 

4. It 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 it 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 the Custodial and Paying Agency 

Agreement and the legend on such Purchase Money Note. It acknowledges that no representation 

has been made as· to the availability of any exemption under the Securities Act or any state 

securities laws for resale of the Purchase Money Note. 

5. On each day from the date on which it acquires the Purchase Money Note o~ 

interest therein through and including the date on which it disposes of its interests in such 

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

of, any employee benefit plan subject to Title I of ERISA or any plan, individual retirement 

account, Keogh plan 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 non­

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

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

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 Similar Law). 

6. It understands that the Custodial and Paying Agency Agreement permits the 

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

144A Certificated Note) who is determined not to be both a Qualified Institutional Buyer and a 

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

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

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

sell the Purchase Money Note (x) to a Person who is a Qualified Ins~itutional Buyer in a 

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

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

form of a Regulation S Certificated Note and who is not a U.S. Person in atransaction meeting 

the requirements ofRegulationS and, in the case of both clauses (x) and (y), to a person that is a 

C-2-2 

RAOC/CAOC Venture2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
------------------ ------

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

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

Note or interest therein in accordance with and pursuant to the terms ofthe Custodial and Paying 

Agency Agreement. 

7. It acknowledges that it is its intent and that it understands it is the intent of the 

Company that, for purposes of U.S. federal income, state and local income and any other income 

taxes, the Company will be treated as a partnership, the Purchase Money Note will be treated as 

indebtedness of the Company; it agrees to such treatment and agrees to take no action 

inconsistent with such treatment. 

8. If it is not a "U.S. person" as defined in Section 7701(a)(30) of the Code, it is not 

acquiring any Purchase Money Note as part of a plan to reduce, avoid or evade U.S. federal 

income taxes owed, owing or potentially owed or owing. 

9. It is aware that, except with respect to a Certificated Note, the Purchase Money 

Note will be represented by one or more Rule 144A Global Note and that the beneficial interests 

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

10. It agrees that it will not offer or sell, transfer, assign, or otherwise dispose of any 

Purchase Money Note or any interest therein except (A) pursuant to an exemption from, or in a 

transaction not subject to, the registration requirements of the Securities Act and any applicable 

state securities laws or the applicable laws of any other jurisdiction and (B) in accordance with 

the provisions of the Custodial and Paying Agency Agreement, to which provisions it agrees it is 

subject. 

11. It understands that the Company, the Paying Agent and the Receiver, their 

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

representations, and it consents to such reliance. 

12. It will provide notice to each Person to whom it proposes to transfer any interest 

in a Purchase Money Note of the transfer restrictions and representations set forth in Section 2. 7 

ofthe Custodial and Paying Agency Agreement, including the Exhibits referenced therein. 

Name of Purchaser: Dated: 

By: _______________________ 


Name: 


Title: 


Principal amount of: $_______ 

C-2-3 


RADC/CADC Venture 20 I 0-2 

Custodial and Paying Agency Agreement 

13312147.4 
EXHIBIT C-3 

Fonn of Certificate for the 


Acquisition ofRule 144A Certificated Note 


RADC/CADC Venture 2010-2, LLC 

Wells Fargo Bank, National Association, as Paying Agent 

Re: Purchase Money Note due January 26, 2018 

Ladies and Gentlemen: 

Reference is made to the Custodial and Paying Agency Agreement dated as of January 

26, 2011, (as modified and supplemented and in effect from time to time, the "Custodial and 

Paying Agency Agreement") among RADC/CADC Venture 2010-2, LLC, ColFin 2011 ADC 

Funding, LLC, the Federal Deposit Insurance Corporation, in its corporate capacity, as the 

guarantor of the Purchase Money Note, the Federal Deposit Insurance Corporation, in its 

capacity as the Receiver for various failed financial institutions listed on Schedule I thereto, as 

the Initial Member and the Collateral Agent under the Reimbursement, Security and Guaranty 

Agreement, and Wells Fargo Bank, National Association. All capitalized tenus used but not 

defined herein are used as defined in the Custodial and Paying Agency Agreement. 

This letter relates to U.S.$ principal amount ofthe Purchase Money Note due 

January 26, 2018 (the "Purchase Money Note") that are held in the fonn of a beneficial interest 

in a Rule 144A Global Note in the name of (the "Holder") through the Depository. 

[The Holder has requested a transfer of such beneficial interest in a Rule 144A Global Note for a 

beneficial interest in a Certificated Note to be held in the name of (the 

"Transferee").] [The Holder has requested an exchange of such beneficial interest in a Rule 

144A Global Note for a beneficial interest in a Certificated Note to be held in the name of the 

Holder.] In connection with the undersigned's acquisition of the Purchase Money Note, the 

undersigned hereby represents, acknowledges and agrees as follows: 

1. It is aware that the sale of the Purchase Money Note to it is being made in reliance 

on the exemption from registration provided by Rule 144A ("Rule 144A") under the Securities 

Act of 1933, as amended (the "Securities Act") and understands that the Purchase Money Note 

offered in reliance on Rule 144A will bear a legend set forth in the applicable exhibit to the 

Custodial and Paying Agency Agreement; it is a "qualified institutional buyer" ("Qualified 

Institutional Buyer") as defined in Rule 144A; and it is a "qualified purchaser" (a "Qualified 

Purchaser") within the meaning of the Investment Company Act of 1940, as amended (the 

"Investment Company Act"). 

2. It understands that the Purchase MoneY. Note will bear a legend set forth in the 

applicable Exhibit attached to the Custodial and Paying Agency Agreement. 

3. It (I) was not fonned for the purpose of investing in the Company (except when 

each beneficial owner of the purchaser is a Qualified Purchaser), (2) has received the necessary 

C-3-1 

RAOC/CAOC Venture2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
consent from its beneficial owners if the purchaser is a private investment company formed 

before April 30, 1996, (3) 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, (4) 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, (5) will provide 

notice to any subsequent transferee of the transfer restrictions provided in the legend, (6) will 

hold and transfer the Purchase Money Note in an amount of not less than U.S.$250,000 for it or 

for each account for which it is acting, (7) will provide the Company and Paying Agent from 

time to time such information as they may reasonably request in order to ascertain compliance 

with this paragraph and (8) understands that the Company may receive a list of participants 

holding positions in its securities from one or more book-entry depositories. 

4. It 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 it 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 the Custodial and Paying Agency 

Agreement and the legend on such Purchase Money Note. It acknowledges that no representation 

has been made as to the availability of any exemption under the Securities Act or any state 

securities laws for resale of the Purchase Money Note. 

5. On each day from the date on which it acquires the Purchase Money Note or 

interest therein through and including the date on which it disposes of its interests in such 

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

of, any employee benefit plan subject to Title I of ERISA or any plan, individual retirement 

account, Keogh plan 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 ("Similar Law") or (B) its acquisition and holding 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 Similar Law). 

6. It understands that the Custodial and. Paying Agency Agreement permits the 

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

144A Certificated Note) who is determined not to be both a Qualified Institutional Buyer and a 

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

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

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

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

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

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

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

C-3-2 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
the requirements ofRegulation S and, in the case ofboth clauses (x) and (y), to a person that is a 

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

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

Note or interest therein in accordance with and pursuant to the terms ofthe Custodial and Paying 

Agency Agreement. 

7. It acknowledges that it is its intent and that it understands it is the intent of the 

Company that, for purposes of U.S. federal income, state and local income and any other income 

taxes, the Company will be.treated as a partnership, the Purchase Money Note will be treated as 

indebtedness of the Company; it agrees to such treatment and agrees to take · no action 

inconsistent with such treatment. 

8. If it is not a "U.S. person" as defined in Section 770l(a)(30) of the Code, it is not 

acquiring any Purchase 'Money Note as part of a plan to reduce, avoid or evade U.S. federal 

income taxes owed, owing or potehtially owed or owing. 

9. It is aware that, except with respect to a Certificated Note, the Purchase Money 

Note 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. 

I0. It agrees that i't will not offer or sell, transfer, assign, or otherwise dispose of any 

Purchase Money Note or any interest therein except (A) pursuant to an exemption from, or in a 

. transaction not subject to, the registration requirements of the Securities Act and any applicable 

state securities laws or the applicable laws of any other jurisdiction and (B) in accordance with 

the provisions of the Custodial and Paying Agency Agreement, to which provisions it agrees it is 

subject. 

11. It understands that the Company, the Paying· Agent and the Receiver, their 

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

. representations, and it consents to such reliance. . 

I 

12. It will provide notice to each Person to whom it proposes to transfer any interest 

in the Purchase Money Note o,f the transfer restrictions and representations set forth in Section 

2.7 of the Custodial and Paying Agency Agreement, including the Exhibits referenced therein. 

C-3-3 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
------------------- ----- Name ofPurchaser: Dated: 

By: ___________________________ 


Name: 


Title: 


Principal amount of: $_______ 

Taxpayer identification number: 

Address for notices: 

Wire transfer information for payments: 

Bank: 

Address: 

Bank ABA#: 

Account#: 

Telephone: FAO 

Facsimile: Attention: 

Attention: 

Registered Name: 

C-3-4 


RADC/CAOC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
Delivery Instructions: 

This certificate and the statements contained herein are made for your benefit. 

[INSERT NAME OF HOLDER] 

By: ___________________________ 

Name: 

Title: 

Dated: ____ 

C-3-5 


RADCICADC Venture2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
EXHIBIT C-4 

Form of Certificate for Transfer or Exchange of 


Certificated Note to Rule 144A Global Note 


RADC/CADC Venture 2010-2, LLC 

Wells Fargo Bank, National Association, as Paying Agent 

Re: Purchase Money Note due January 26, 2018 

Reference is made to the Custodial and Paying Agency Agreement dated as of January 

26, 2011, (as modified and supplemented and in effect from time to time, the "Custodial and 

Paying Agency Agreement") among RADC/CADC Venture 2010-2, LLC, ColFin 2011 ADC 

Funding, LLC, the Federal Deposit Insurance Corporation, in its corporate capacity, as the 

guarantor of the Purchase Money Note, the Federal Deposit Insurance Corporation, in its 

capacity as the Receiver for various failed financial institutions listed on Schedule I thereto, as 

the Initial Member and the Collateral Agent under the Reimbursement, Security and Guaranty 

Agreement, and Wells Fargo Bank, National Association. All capitalized terms used but not 

defined herein are used as defined in the Custodial and Paying Agency Agreement. 

This letter relates to U.S.$ principal amount of the Purchase Money Note due 

January 26, 2018 (the "Purchase Money Note") registered in the name of (the 

"Holder"). [The Holder has requested a transfer of a Certificated Note for a beneficial interest in 

a Rule 144A Global Note to be held in the name of (the "Transferee") through the 

Depositary.] [The Holder has requested an exchange of a Certificated Note for a beneficial 

interest in a Rule 144A Global Note to be held in the name of Holder through the Depositary.] 

In connection with such request, the Holder does hereby certify that the [Holder is a 

Qualified Institutional Buyer and is also a Qualified Purchaser] [Holder reasonably believes that 

the Transferee is a Qualified Institutional Buyer, is obtaining such beneficial interest in a 

transaction meeting the requirements of Rule 144A and in accordance with any applicable 

securities laws of any state of the United States or any other jurisdiction, and is also a Qualified 

Purchaser]. 

C-4-1 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
------

This certificate and the statements contained herein are made for your benefit. 

[INSERT NAME OF HOLDER] ' 

By: ____~--------------------- Name: 

Title: 

Dated: 

C-4-2 

RADCICADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
EXHIBITD 

FORM OF DTC NOTICE TO INVESTORS 

The Depository Trust Company 

IMPORTANT NOTICE 

DATE: 	 [______.. 

TO: 	 ALL PARTICIPANTS 

FROM: 	 RADCICADC Venture 2010-2, LLC (the "Company") 

Re.: 	 Non-Guaranteed Purchase Money Note due (CUSIP No. -------' 


(the "Note") 


The Company referred to above is putting Participants on notice that they are required to 

follow these purchase and transfer restrictions with regard to the above-referenced Note, issued 

in accordance with the Custodial and Paying Agency Agreement dated as of January_, 2011, 

(as modified and supplemented and in effect from time to time) among RADC/CADC Venture 

2010-2, LLC, CoiF in 2011 ADC Funding, LLC, the Federal Deposit Insurance Corporation, in 

its corporate capacity, as the guarantor of the Purchase Money Note, the Federal Deposit 

Insurance Corporation, in its capacity as the Receiver for various failed financial institutions 

listed on Schedule I thereto, as the Initial Member and the Collateral Agent under the 

Reimbursement, Security and Guaranty Agreement, and Wells Fargo Bank, National Association 

(as so modified or supplemented, the "Custodial and Paying Agency Agreement"). 

In order to qualify for the exemption provided by Section 3(c)(7) under the Investment 

Company Act of 1940, as amended (the "Investment Company Act"), and the exemption 

provided by Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), 

offers, sales and resales of the above-referenced Note may only be made in minimum 

denominations of U.S.$250,000 and integral multiples of U.S.$10,000 in excess thereof to 

"qualified institutional buyers" ("QIBs") within the meaning of Rule 144A that are also 

"qualified purchasers" ("~") within the meaning of Section 2(a)(51 )(A) of the Investment 

Company Act. Each purchaser of the Note (I) represents to and agrees with the Company that if 

the Note is a Rule 144A Global Note (as defined in the Custodial and Paying Agency 

Agreement), (i) the purchaser is a QIB that is a QP (a "QIB/QP"); (ii) the purchaser is not a 

broker-dealer that owns and invests on a discretionary basis less than U.S.$25 million in 

securities of unaffiliated issuers; (iii) the purchaser is not a pension, profit sharing or other 

retirement trust fund or plan in which the partners, beneficiaries or participants, as applicable, 

may designate the particular investments to be made, and in a transaction that may be effected 

without loss of any applicable Investment Company Act exemption; (iv) the QIB/QP is acting for 

its own account or the account of another QIB/QP; (v) the purchaser is not formed for the 

purpose of investing in the Company (except when each beneficial owner of the purchaser is a 

QP); (vi) the QIB/QP has received the necessary consent from its beneficial owners if it is a 

private investment company formed before April 30, 1996 and (vii) the purchaser will provide 

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13312147.4 
notice of the transfer restrictions to any subsequent transferees and (II) acknowledges that the 

Company has not been registered under the Investment Company Act and the Note has not been 

registered under the Securities Act and represents to and agrees with the Company that, for so 

long as the Note is outstanding, it will not offer, resell, pledge or otherwise transfer the Note 

except (i) to a QIB that is also a QP in a transaction meeting the requirements of Rule 144A or 

(ii) to person that is not a U.S. Person and is a QP in a transaction outside ofthe United States in 

accordance with Regulation S. Each purchaser or transferee will be deemed to have made the 

representations and agreements set forth in the Custodial and Paying Agency Agreement. 

The Custodial and Paying Agency Agreement provides that the Company shall have the 

right to require any holder of Rule a 144A Global Note who is determined not to have been both 

a QIB and a QP at the time of purchase of the Note to sell the Note to (A) a QIB that is also a QP 

in a transaction meeting the requirements of Rule 144A or (B) a person who will take delivery in 

the form of an interest in a Certificated Note (as defined in the Custodial and Paying Agency 

Agreement) and who is not a U.S. Person but is a QP in a transaction outside of the United States 

in accordance with Regulation S. 

The restrictions on transfer required by the Company (outlined above) will reflected 

under the notation "3c7" in DTC's User Manuals and in upcoming editions of DTC's Reference 

Directory. 

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13312147.4 
------

----------------

EXHIBIT E 


FORM OF COLLATERAL CERTIFICATE 

,2__ 

RADC/CADC Venture 2010-2, LLC 

Attention: 

Re: 	 Custodial and Paying Agency Agreement, dated as of the 26th day of January, 2011, by 

and among RADC/CADC Venture 2010-2, LLC, as the Company, ColFin 2011 ADC 

Funding, LLC, the Federal Deposit Insurance Corporation, in its corporate capacity, as 

the Purchase Money Note Guarantor, the Federal Deposit Insurance Corporation, in its 

capacity as the Receiver for various failed financial institutions listed on Schedule I 

thereto, as the Initial Member and the Collateral Agent, and Wells Fargo Bank, National 

Association, as the Custodian and Paying Agent ("Custodial and Paying Agency 

Agreement") 

Ladies and Gentlemen: 

In accordance with the provisions of Section 6.1 (b) of the Custodial and Paying Agency 

Agreement, the undersigned, as Custodian, hereby certifies that other than the Exceptions listed 

as part of the Asset Schedule and Exceptions List attached hereto (a) (i) it has received all of the 

Custodial Documents required to be delivered with respect to each Asset identified on the Asset 

Schedule and Exceptions List attached hereto, and (ii) the Custodial Documents for each such 

Asset are as listed on such Asset Schedule and Exceptions List, (b) all documents have been 

reviewed and examined by the Custodian in accordance with the Review Procedures, and (c) 

based upon its examination of the Custodial Documents, such documents appear (i) regular on 

their face (i.e., are not mutilated, damaged, tom, defaced or otherwise physically altered); (ii) to 

relate to the Assets with respect to which they purport to relate; (iii) to have been executed by the 

named parties; (iv) to be what they purport to be; and (v) where applicable, to be recorded. 

The Custodian makes no representations in or by this Certificate and/or the Custodial and 

Paying Agency Agreement as to: (i) the validity, legality, enforceability or genuineness of any 

of the Custodial Documents or any of the Assets, or (ii) the collectability, insurability, 

effectiveness or suitability of any ofthe Assets. 

Initially capitalized terms used and not otherwise defined herein shall have the meanings 

assigned to such terms in the Custodial and Paying Agency Agreement. 

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13312147.4 
In confirmation of your acknowledgement of the foregoing, please sign this certificate in 

the place provided below and return an executed copy to us. 

Wells Fargo Bank, National Association, 

as the Custodian 

By: ____________________________ 

Name: 

Title: 

Acknowledged: 

RADC/CADC Venture 2010-2, LLC, as the 

Company 

By: 	 ColFin 2011 ADC Funding, LLC, 

a Delaware limited liability company, 

its Manager 

By: ___________________________ 


Name: 


Title: 


E-2 


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Custodial and Paying Agency Agreement 

13312147.4 
EXHIBIT F 


REVIEW PROCEDURES 

1. The Note and Mortgage each appear to bear an original signature or signatures 

purporting to be the signature or signatures of the Person or Persons named as the maker and 

Borrower, or in the case of copies of the Mortgage, that such copies bear a reproduction of such 

signature. 

2. The amount of the Note is the same as the amount specified on the related 

Mortgage and Asset Schedule. 

3. The original mortgagee is the same as the payee on the Note. 

4. The Mortgage contains a legal description other than address, city and state; 

provided that Custodian shall have no responsibility for the accuracy, validity or completeness of 

such legal description. 

5. The notary section (acknowledgment) ts present and attached to the related 

Mortgage and is signed. 

6. None of the original Note, the copy of the Mortgage, or the original Mortgage 

Assignment, contain any notations on their face which appear in the good faith judgment of 

Custodian to evidence any claims, liens, security interests, encumbrances or restrictions on 

transfer or any other alterations which appear irregular on their face, or if altered, such 

alterations have the initials of the person(s) named as the Borrower. 

7. The Note is endorsed in blank by the original payor or the last endorsee. 

8. Each original Mortgage Assignment in blank and any intervening assignment of 

mortgage, if applicable, appears to bear the original signature of the named mortgagee or 

beneficiary including any subsequent assignors, as applicable, or in the case of copies with 

respect to intervening Mortgage Assignments, that such copies appear to bear a reproduction of 

such signature or signatures, and the intervening Mortgage Assignments evidence a complete 

chain of assignment and transfer of the related Mortgage from the originating Person to the 

Company or in the case of a MERS Designated Loan to MERS®. The Custodian shall have no 

obligation to determine whether the certifications referenced in the foregoing sentence are 

authorized or issued by any particular person or officer or by a person who is in fact an 

Authorized Representative or is otherwise authentic. 

9. The date of each intervening Mortgage Assignment is on or after the date of the 

related Mortgage and/or the immediately preceding assignment, as the case may be. 

10. The notary section (acknowledgment) is present and attached to each intervening 

assignment and is signed. 

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13312147.4 
11. Based upon a review of the Note, the Asset number, the Mortgagor's name, the 

address of the Mortgaged Property, the original amount of the Note, the original mortgage 

interest rate, the date of the Note, the first payment date and the maturity date and any other 

fields as mutually agreed upon as set forth in the Asset Schedule are correct. 

12. The Acquired Property Deed appears to bear an original signature or signatures 

purporting to be the signature or signatures of the Person or Persons named as grantor, or in the 

case of copies of the Acquired Property Deed, that such copies bear a reproduction of such 

signature. 

13. The Acquired Property Deed contains a legal description other than address, city 

and state and has evidence of recording thereon provided that the Custodian shall have no 

responsibility for the accuracy or completeness of such legal description. 

14. Each document has been executed by the named parties herein. 

15. The Mortgage, Acquired Property Deed and Mortgage Assignments have 

evidence of recording. 

16. Each MERS Designated Loan has been issued a MERS® identification number. 

F-2 

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13312147.4 
EXHIBITG 


FORM OF SUPPLEMENTAL DELIVERY CERTIFICATE 


-------' 2__ 


[____________~ 

Re: 	 Custodial and Paying Agency Agreement, dated as of the 26th day of January, 2011, by 

and among RADC/CADC Venture 2010-2, LLC, as the Company, ColFin 2011 ADC 

Funding, LLC, the Federal Deposit Insurance Corporation, in its corporate capacity, as 

the Purchase Money Note Guarantor, the Federal Deposit Insurance Corporation, in its 

capacity as the Receiver for various failed financial institutions listed on Schedule I 

thereto, as the Initial Member and the Collateral Agent, and Wells Fargo Bank, National 

Association, as the Custodian and Paying Agent ("Custodial and Paying Agency 

Agreement"). 

Ladies and Gentlemen: 

In accordance with the provisions of Section 6.1 (d) of the Custodial and Paying Agency 

Agreement, the Company, hereby certifies that: (i) attached is a list of additional Custodial 

Documents relating to the Assets, identifYing with respect to each such Custodial Document the 

related Asset or, as the case may be, relating to any newly acquired Acquired Property, and (ii) 

enclosed with this certificate are the Custodial Documents listed on the attached. 

Initially capitalized terms used and not otherwise defined herein shall have the meanings 

assigned to such terms in the Custodial and Paying Agency Agreement. 

In confirmation of your acknowledgement of the foregoing, please sign this certificate in 

the place provided below and return an executed copy to us. 

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13312147.4 
Wells Fargo Bank, National Association, 

as the Custodian 

By:------------------------~

Name: 

Title: 

Acknowledged: 

RADC/CADC Venture 2010-2, LLC, as the 

Company 

By: 	 Col Fin 2011 ADC Funding, LLC, 

a Delaware limited liability company, 

its Manager 

By: ___________________________ 


Name: 


Title: 


G-2 


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133121474 
--

EXHIBIT H 

REQUEST FOR RELEASE AND RECEIPT OF CUSTODIAL DOCUMENTS 

To: 	 Wells Fargo Document Custody 


1055 lOth Avenue, SE 


Minneapolis, MN 55414 


Ref: Request for Release 


Re: 	 Custodial and Paying Agency Agreement, dated as of the 26th day of January, 2011, by 

and among RADC/CADC Venture 2010-2, LLC, as the Company, ColFin 2011 ADC 

Funding, LLC, the Federal Deposit Insurance Corporation, in its corporate capacity, as 

the Purchase Money Note Guarantor, the Federal Deposit Insurance Corporation, in its 

capacity as the Receiver for various failed financial institutions listed on Schedule I 

thereto, as the Initial Member and the Collateral Agent, and Wells Fargo Bank, National 

Association, as the Custodian and Paying Agent ("Custodial and Paying Agency 

Agreement") 

1. In connection with the administration of the Custodial Documents held by you as the 

Custodian pursuant to the Custodial and Paying Agency Agreement, we request the release, and 

acknowledge and certifY receipt of, the Custodial Documents for the Assets described on 

Schedule A attached hereto for the reason indicated below. 

Reason for Requesting Documents (check one) 

1. 	 Loan to be paid in full or received or discounted pay-off accepted or to be 

accepted as payment in full. 

2. 	 Loan to be foreclosed on, or to be modified or restructured, or deed to be accepted 

in lieu thereof or required pursuant to court order or other reason related to 

litigation, as permitted under the Custodial and Paying Agency Agreement. 

3. 	 Asset agreed to be sold. 

4. 	 Acquired REO Property to be refinanced or developed. 

2. If some or all of the Custodial Documents for a specified Asset have been previously 

released to us, please release to us any additional Custodial Documents in your possession 

relating to that Asset. If item 2 is checked, upon our return, as appropriate, of the Custodial 

Documents to you as Custodian, please acknowledge your receipt by signing in the space ~ 

indicated below, and returning this form. · 

H-1 

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13312147.4 
RADC/CADC Venture 2010-2, LLC, as the 

Company 

By: 	 ColFin 2011 ADC Funding, LLC, 

a Delaware limited liability company, 

its Manager 

By: __________________________ 

Name: 


Title: 


Acknowledged, solely for purposes of paragraph 2 

above: 

Wells Fargo Bank, N .A. as Custodian 

By:_________________________ 

Name: 

Title: 

H-2 


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13312147.4 
------------------

-----------------------------

EXHIBIT I 

REQUEST FOR RELEASE AND RECEIPT OF DEBT DOCUMENTS 

To: 	 Wells Fargo Bank, N.A. 

9062 Old Annapolis Road 

Columbia, MD 21045 

Attn: 

Ref: RADC/CADC Venture 2010-2, LLC 

Re: 	 Custodial and Paying Agency Agreement, dated as of the 26th day of January, 2011, by 

and among RADC/CADC Venture 2010-2, LLC, as the Company, CoiFin 2011 ADC 

Funding, LLC, the Federal Deposit Insurance Corporation, in its corporate capacity, as 

the Purchase Money Note Guarantor, the Federal Deposit Insurance Corporation, in its 

capacity as the Receiver for various failed financial institutions listed on Schedule I 

thereto, as the Initial Member and the Collateral Agent, and Wells Fargo Bank, National 

Association, as the Custodian and Paying Agent ("Custodial and Paying Agency 

Agreement") 

In connection with the administration of the Debt Agreements held by you as the Paying 

Agent pursuant to the Custodial and Paying Agency Agreement, we request the release, and 

acknowledge and certify receipt of, the Debt Agreement described on Schedule A attached 

hereto. 

Federal Deposit Insurance Corporation, in its 

capacity as Receiver for various failed financial 

institutions listed on Schedule I thereto 

By: 

Name: 

Title: 

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Custodial and Paying Agency Agreement 

13312147.4 
EXHIBIT J 


FEES AND EXPENSES OF CUSTODIAN AND PAYING AGENT 


The Custodian and Paying Agent shall be paid the following fees pursuant to Section 8.1 of this 

Agreement: 

1. 	 On the initial Distribution Date, an Acceptance fee of $10,000, and a File Review 

Fee of$75 for each Loan listed on Exhibit A attached hereto. 

2. 	 On every Distribution Date, including the initial Distribution Date, a Monthly 

Administration Fee of$2,500; a Monthly Safekeeping Fee of $2.90' for each Loan 

listed on Exhibit A attached hereto that has not been released by the Custodian as 

of the first day of the related Due Period; and a File Release Fee of $35 for each 

Loan listed on Exhibit A attached hereto that has been released by the Custodian 

during the related Due Period. 

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13312147.4 
EXHIBIT K 

CUSTODIAN AND PAYING AGENT REPORT 

Due Period: This report is for the period from _____ to and including _____ 

Class CUSIP Original Beginning Principal Ending Monthly 

Balance Monthly Distributions Balance 

Balance 

(A) 

Collection Account 

Beginning Balance 

Ending Balance 

Activity 

Distribution Account 

Beginning Balance 

Ending Balance 

Activity 

Date 

[ ] 

[ ] 

Date 

[ ] 

[ ] 

Date 

[ ] 

[ ] 

Date 

[ ] 

[ ] 

[ ] [ ] [ ] 

Balance 

[ ] 


[ ] 


Amount 

[ ] 


[ ] 


Balance 

[ ] 


[ ] 


Amount 

[ ] 

[ ] 

K-1 


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13312147.4 
Defeasance Account 

Date Balance 

Beginning Balance [ ] [ ] 

Ending Balance [ ] [ ] 

Activity Date Amount 

[ ] [ ] 

[ ] [ ] 

Working CaRita! Reserve Account 

Date Balance 

Beginning Balance [ ] [ ] 

Ending Balance [ ] [ ] 

Activity Date Amount 

[ ] [ ] 

[ ] [ ] 

Private Owner Pledged Account 

Beginning Balance 

Ending Balance 

Activity 

DISTRIBUTION REPORT 

Date Balance 

[ ] [ ] 

[ ] [ ] 

Date Amount 

[ ] 

[ ] 

TOTAL FUNDS FOR DISTRIBUTION 

Distributions: 

To Custodian and Paying Agent 

Custodian and Paying Agent Fees and Expenses 

[ ] 

[ ] 

Amount 

$ 

$ 

K-2 


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13312147.4 
To Working Capital Reserve Account 


Replenishment ofWorking Capital Reserve $ 


To Defeasance Account 


Deposit to Defeasance Account $ 


To Purchase Money Note Guarantor 


Reimbursements to Purchase Money Note Guarantor $ 


To Private Owner/Manager: 

Reimbursement of Excess Working Capital Advances $ 

Interim Management Fee (I) ____ 

Management Fee (2) ____ 

Distribution on Equity 

Total to Private Owner/Manager $ 

To Initial Member 

(I) 

Interim Servicing Fee $ 

Distribution on Equity 


Total to Initial Member $ 


TOTAL DISTRIBUTIONS $ 

Note: 

(I) Applicable only to Interim Servicing Period. 

(2) Applicable to Due Periods following the Interim Servicing Period. 

Purchase Money Note Trigger Event 

Note: A Purchase Money Note Trigger Event cannot occur before[____,, 201_] 

Actual Ratio [ ] 

Target Ratio [ ] 

Date Interval Target Ratio 

o;o 

January __, 2015 -January_, 25 

2016 

January_, 2016 -January __, 50 

2017 

January __, 2017- January__, 75 

2018 

January __, 2018 100 

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13312147.4 
-------- -----------------

---------------

---------------------

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EXHIBITL 


FORM OF LOST INSTRUMENT AFFIDAVIT 


(Note to Preparer: When preparing the actual Affidavit delete this instruction and the reference 

to Exhibit Land the language "Form ofLost Instrument Affidavit" above.) 

STATE OF ______ § 

§ 

COUNTY OF----..,.-­ § 

LOST INSTRUMENT AFFIDAVIT 

(Multibank RADC/CADC Venture 2010-2 Loan REO Structured Transaction) 

Before me, the undersigned authority, personally appeared 

___________, who upon being duly cautioned and sworn deposes and says and 

represents and warrants, to the best of his /her knowledge, as follows: 

1. That slhe is the for 

-------- ____________,whose address is ____________ 

(the "Custodian"). 

2. The Custodian is the document custodian for RADCICADC Venture 

2010-2, LLC (the "Company") and, as such, was in possession of certain documents with 

respect to that certain loan, obligation or interest in a loan or obligation evidenced by a 

promissory note, evidencing an indebtedness or evidencing rights in an indebtedness (the 

"Instrument"), as follo'-":s: 

Loan Number: 

}{arne ofMaker:------------------­

Original Principal Balance: --------­

Date ofInstrument: 

3. That the original Instrument has been lost or misplaced. The Instrument 

was not where it was assumed to be, and a diligent search to locate the Instrument was 

undertaken, without results. 

4. That if the Custodian subsequently locates the Instrument, the Custodian 

shall use reasonable efforts to provide written notice to the Company and deliver the Instrument 

to the Company in accordance with written instructions received from the Company (or such 

other party designated in writing by the Company). 

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13312147.4 
--------------------------------------

------

5. That the purpose of this affidavit is to establish such facts. This affidavit 

shall not confer any rights or benefits, causes or claims, representations or warranties (including, 

without limitation, regarding ownership or title to the Instrument or the obligations evidenced 

thereby) upon the Company, its successors or assigns. 

6. That the Custodian hereby indemnifies and holds harmless the Company 

and its Affiliates and their respective successors, assigns, directors, officers, employees, 

contractors and agents (the "Indemnified Parties") from and against any and all claims 

(including any claim by any individual or entity for the collection of any sums due under or with 

respect to the Instrument), liabilities, losses, damages, costs and expenses (including reasonable 

attorneys' fees) incurred by any ofthe Indemnified Parties and arising out of or resulting from (i) 

the Custodian's inability to find the Instrument and deliver it to the Company, or (ii) any 

inaccuracy or misstatement of fact, or a breach of any representation, warranty or agreement or 

duty contained, in this affidavit. 

7. This affidavit shall be governed by and construed in accordance with the 

laws of the State ofNew York without reference to any rules of conflicts oflaws that might refer 

the governance or construction ofthis affidavit to the law of any other jurisdiction. 

By: 

Name: 

Title: 

Signed and sworn to before me this __ day of________________ 

Notary Public 


(SEAL] My Commission expires: 


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13312147.4 
----

ACKNOWLEDGMENT 

STATE OF _____________ § 

§ 

COUNTY OF ___________ § 

Before me, the undersigned authority, a Notary Public in and for the county and 

state aforesaid, on this day personally appeared , known to 

me to be the person whose name is subscribed to the foregoing instrument, as _______ 

of acting in the capacity stated above, and acknowledged to 

me that slhe executed the same as the act of , for the 

purposes and consideration therein expressed, and in the capacity therein stated. 

Given under my hand and seal of office on this the day of 

---------'20_ 

Notary Public 

[SEAL] My Commission expires: ________ 

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13312147.4 
EXHIBITM 

AUTHORIZED REPRESENTATIVES 

I. Authorized Representatives ofthe Manager: 

Paul Fuhrman Signature 

Mark M. Hedstrom Signature 

Name Signature 

2. Authorized Representatives ofthe Custodian and Paying Agent: 

Amy Doyle Signature 

Name Signature 

Name Signature 

3. Authorized Representatives ofthe Purchase Money Note Guarantor: 

Heidi Silverberg Signature 

Ralph Malami Signature 

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13312147.4 
4. 	 Authorized Representatives ofthe Collateral Agent: 

Heidi Silverberg Signature 


Ralph Malami Signature 


5. 	 Authorized Representatives ofthe Receiver: 

Heidi Silverberg Signature 


Ralph Malami Signature 


6. 	 Authorized Representatives ofthe Federal Deposit Insurance Corporation, 

in its corporate capacity: 

Heidi Silverberg Signature 


Ralph Malami Signature 


7. 	 Authorized Representatives of the Private Owner: 

Paul Fuhrman 	 Signature 

Mark M. Hedstrom 	 Signature 

Name 	 Signature 

M-2 

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13312147.4 
EXHIBITN 


FORM OF ACCOUNT CONTROL AGREEMENT 


Structured Transaction RADC/CADC Venture 2010-2 

ACCOUNT CONTROL AGREEMENT 

THIS ACCOUNT CONTROL AGREEMENT (as the same shall be amended or 

supplemented, this "Agreement") is made and entered into as of the 26th day of January, 2011 

by and among RADC/CADC Venture 2010-2, LLC, a Delaware limited liability company (the 

"Company"), the Federal Deposit Insurance Corporation (in any capacity, the "FDIC"), in its 

separate capacities as receiver with respect to the separate receiverships for each of the various 

Failed Banks (the "Failed Banks") identified in Schedule I to the Custodial and Paying Agency 

Agreement (in such capacity, the "Receiver"), acting as Collateral Agent for the Secured Parties 

pursuant to the Reimbursement, Security and Guaranty Agreement referred to below (including 

its permitted successors and assigns, the "Collateral Agent") and Wells Fargo Bank, National 

Association, a national banking association (the "Bank"). Capitalized terms used herein, to the 

extent the same are defined in the Agreement of Common Definitions and not otherwise defined 

herein, shall have the respective meaning and definitions given in the Agreement of Common 

Definitions (as defined below). 

WHEREAS, the FDIC, as Receiver and the Initial Member, ColFin 2011 ADC 

Funding, LLC, as the Private Owner, the Company, the Purchase Money Note Guarantor, the 

Collateral Agent, the Bank and Colony AMC 2011 ADC, LLC, as Servicer, have entered into 

that certain RADC/CADC Venture 2010-2 Structured Transaction - Agreement of Common 

Definitions, dated as of the Closing Date (the "Agreement of Common Definitions"); 

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

the Company has granted the Collateral Agent a first priority security interest in certain accounts 

created by the Company, as more fully set forth therein; 

WHEREAS, pursuant to the Custodial and Paying Agency Agreement, the 

Company is required to establish and maintain certain accounts with the Bank; 

WHEREAS, the Company has established the following accounts with the Bank 

in the name of the Company for the benefit of the Collateral Agent, which accounts are to be 

maintained with the Bank pursuant to the Custodial and Paying Agency Agreement (collectively, 

the "Accounts" and, each, an "Account"): the Collection Account (bearing account number 

[ ), Distribution Account (bearing account number [ ), Defeasance 

Account (bearing account number [ ), and the Working Capital Reserve Account 

(bearing account number [ ____---' 

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13312147.4 
WHEREAS, the Company has granted to the Collateral Agent a security interest 

m the Accounts and all amounts held therein and the proceeds thereof pursuant to the 

Reimbursement, Security and Guaranty Agreement. 

NOW, THEREFORE, in consideration of the foregoing and for other good and 

valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties 

hereby agree as follows: 

Section I. Transfers to and from the Accounts; Control; Conflicting Orders or 

Instructions. 

(a) The Accounts shall be funded pursuant to the terms of the 

Custodial and Paying Agency Agreement and the LLC Operating Agreement. The parties agree 

that all amounts received by the Bank for credit to any of the Accounts are, except as provided 

below, to be used for the purposes set forth in the Custodial and Paying Agency Agreement and 

the LLC Operating Agreement. The Bank agrees that if at any time it shall receive any order 

from the Collateral Agent (i) directing disposition of funds in any Account or (ii) directing 

transfer or redemption of the financial assets relating to the Accounts, the Bank shall comply 

with such entitlement order or instruction without further consent by the Company or any other 

Person. Without limitation of the foregoing, from and after receipt by the Bank of a written 

notice from the Collateral Agent that an Event of Default has occurred and is continuing (a 

"Notice of Event of Default"), the Bank shall comply with the Collateral Agent's instructions 

concerning the disposition of funds in the Accounts without further consent ofthe Company, and 

the Bank shall not (i) transfer funds from any of the Accounts to the Company without the prior 

written consent ofthe Collateral Agent, (ii) act on the instruction of any party other than the 

Collateral Agent without the prior written consent ofthe Collateral Agent, or (iii) cause or permit 

withdrawals from any of the Accounts in any manner not approved by the Collateral Agent in 

writing. 

(b) Notwithstanding anything to the contrary contained herein, if at 

any time the Bank shall receive conflicting orders or instructions from the Collateral Agent and 

the Company, the Bank shall follow the orders or instructions of the Collateral Agent and not the 

Company. 

Section 2. Accounts. The Bank hereby confirms and agrees that: 

(a) Neither the Bank nor the Company shall change the name or 

account number of any Account without the prior written consent of the Collateral Agent; 

(b) Each Account is a "deposit account" (as defined in Section 9­

1 02(a)(29) ofthe UCC) or "securities account" (as defined in Section 8-501 ofthe UCC) and the 

Bank is a "bank" (each within the meaning of Section 9-102 ofthe UCC); 

(c) If and to the extent any Account is a "securities account" (as 

defined in Section 8-501 of the UCC): 

N-2 

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Custodial and Paying Agency Agreement 

13312147.4 
(i) all securities, financial assets or other property credited to 

each Account other than cash shall be registered in the name of the Bank, indorsed to the Bank 

or in blank or credited to another securities account maintained in the name ofthe Bank. In no 

case will any financial asset credited to any Account be registered in the name of the Company, 

payable to the order ofthe Company or specially indorsed to the Company unless the foregoing 

have been specially indorsed to the Bank or in blank; 

(ii) all financial assets delivered to the Bank pursuant to the 


Custodial and Paying Agency Agreement will be promptly credited to the appropriate Account; 


and 


(iii) the Bank hereby agrees that each item of property (whether 

investment property, financial asset, security, instrument or cash) credited to any Account (to the 

extent that it constitutes a "securities account" (as defined in Section 8-501 ofthe UCC)) shall be 

treated as a "financial asset" within the meaning of Section 8-102(a)(9) ofthe UCC. 

(d) Without limitation of the Collateral Agent's rights under Section 1 

above, from and after receipt of a Notice ofEvent of Default from the Collateral Agent, the Bank 

shall comply with any stop payment orders given by the Collateral Agent with respect to items 

presented for payment by the Company; 

(e) There are no other agreements entered into between the Bank and 


the Company with respect to any Account other than the Custodial and Paying Agency 


Agreement that would affect the Bank's abilities to carry out its duties as set forth herein; 


(f) The Bank has not entered into, and until the termination of this 

Agreement will not enter into, any agreement with any other Person relating to any Account 

and/or any funds held therein pursuant to which it has agreed, or will agree, to comply with 

entitlement orders (as defined in Section 8-102(a)(8) of the UCC) or instructions (within the 

meaning of Section 9-104 ofthe UCC) ofsuch other Person; and 

(g) The Bank has not entered into, and until the termination of this 

Agreement will not enter into, any agreement with the Company purporting to limit or condition 

the obligation ofthe Bank to comply with entitlement orders (as defined in Section 8-102(a)(8) 

of the UCC) or instructions (as defined in Section 9-104 ofthe UCC) ofthe Collateral Agent as 

set forth in Section 1 above. 

Section 3. Subordination ofLien; Waiver of Set-Off. In the event that the 

Bank has or subsequently obtains by agreement, by operation ofLaw or otherwise a security 

interest in any Account or any funds held therein, the Bank hereby agrees that such security 

interest shall be subordinate to the security interest ofthe Collateral Agent. The funds and other 

items deposited into any Account will not be subject to deduction, set-off, banker's Lien, or any 

other right in favor of any Person other than the Collateral Agent (except that the Bank may set 

off (i) all amounts due to the Bank in respect of customary fees and expenses for the routine 

maintenance and operation ofsuch Account (excluding fees payable pursuant to Section 11 ), 

(ii) the face amount of any checks which have been credited to such Account but are 

N-3 

RAOC/CADC Venture 2010..2 

Custodial and Paying Agency Agreement 

13312147.4 
subsequently returned unpaid because ofuncollected or insufficient funds, and (iii) other 


returned items or mistakes made in, crediting such Account). 


Section 4. CHOICE OF LAW. (a) Law Governing this Agreement. EACH 

PARTY TO THIS AGREEMENT AGREES AND ELECTS THAT, IN ACCORDANCE WITH 

THE LAWS OF THE STATE OF NEW YORK, THIS AGREEMENT SHALL BE 

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE 

STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE 

THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS 

AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. FOR PURPOSES OF THE 

UNIFORM COMMERCIAL CODE, NEW YORK SHALL BE DEEMED TO BE THE 

"BANK'S JURISDICTION." EACH PARTY TO THIS AGREEMENT 

UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT 

THE LAWS OF ANY OJHER JURISDICTION GOVERN THIS AGREEMENT. NOTHING 

IN THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL ACTION OR INACTION BY 

ANY PARTY TO THIS AGREEMENT. 

(b) Location of Financial Institution. Regardless of any provision in any other 

agreement, for purposes of the UCC, New York shall be the location ofthe bank for purposes of 

Sections 9-301,9-304 and 9-307 of the UCC and the securities intermediary for purposes of 

Sections 9-301 and 9-307 and Section 8-110 ofthe UCC. 

(c) Law Governing Accounts. Each Account shall be governed by the Laws 

of the State of New York. 

Section 5. Conflict with Other Agreements; Amendment. 

In the event of any conflict between this Agreement (or any portion 

hereof) and any other agreement between the Company and the Bank now existing or hereafter 

. entered into, the terms of this Agreement shall prevail. 

No amendment or modification of this Agreement or waiver of any right 

hereunder shall be binding on any party hereto unless it is in writing and is signed by all of the 

parties hereto. 

Section 6. Adverse Claims. Except for the claims and interests ofthe 

Collateral Agent and the Company in each Account, the Bank does not have actual knowledge of 

any claim to, or interest in, such Account or in any "financial assets" (as defined in Section 8­

102(a) ofthe UCC), cash or funds credited thereto. If any Person asserts any Lien, encumbrance 

or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or 

similar process) against such Account or against any funds held therein, upon a Responsible 

Officer of the Bank receiving written notice of such Lien, encumbrance or adverse Claim, the 

Bank will promptly notifY the Collateral Agent and the Company thereof. For the purposes bf 

this Section 6, a "Responsible Officer" of the Bank means any managing director, director, 

associate, principal, vice president, assistant vice president, assistant secretary, assistant 

treasurer, trust officer or any other officer of the Bank customarily performing functions similar 

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13312147.4 
to those performed by any of the above designated officers and directly responsible for the 

administration ofthis Agreement and also means, with respect to a particular corporate trust 

matter, any other officer to whom such matter is referred because ofhis or her knowledge of and 

familiarity with the particular subject. 

Section 7. Successors. The terms of this Agreement shall be binding upon, 

and shall inure to the benefit of, the parties hereto and their respective corporate successors or 

heirs and personal representatives who obtain such rights solely by operation ofLaw. 

Section 8. Notices. All notices, requests, demands, and other 

communications required or permitted to be given or delivered under or by reason of the 

provisions of this Agreement shall be in writing and shall be mailed or delivered to the 

applicable address or electronic mail address of the parties specified below for such Person or to 

such other address or electronic mail address as shall be designated by such party in a notice to 

the other parties. All such notices, requests, demands and other communications shall be 

deemed to be given or made upon the earlier to occur of(i) actual receipt (or refusal thereof) by 

the relevant party hereto and (ii) (A) if delivered by hand or by nationally recognized courier 

service, when signed for (or refused) by or on behalf of the relevant party hereto, and (B) if 

delivered by electronic mail (which form ofdelivery is subject to the provisions of this 

paragraph), when delivered and capable ofbeing accessed from the recipient's office computer, 

provided that any notice, request, demand or other communication that is received other than 

during regular business hours ofthe recipient shall be deemed to have been given at the opening 

of business on the next Business Day of the recipient. In no event shall a voice mail message 

be effective as a notice, communication or confirmation hereunder. 

Ifto the Bank: 

Wells Fargo Bank, National Association 


9062 Old Annapolis Road 


Columbia, Maryland 21045 


Attention: Client Services Manager 


Reference: RADC/CADC Venture 201 

E-Mail Addresses: 

Ifto the Company: 

RADCICADC Venture 2010-2, LLC 

2450 Broadway, 61

h Floor 

Santa Monica, California 90404 

Attention: Paul A. Fuhrman 

E-mail Address: 

with a copy to: 

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RAOC/CAOC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
Colony Capital, LLC 

660 Madison A venue 

New York, New York 10065 

Attention: Ronald M. Sanders 

E-mail Address: 

Ifto the Collateral Agent: 

Assistant Director of Structured Transactions -Resolutions and Receiverships 

Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email Address: RMalami@fdic.gov 

with a copy to: 

Senior Counsel 


FDIC Legal Division 


Litigation and Resolutions Branch, Receivership Section 


Special Issues Unit 


3501 Fairfax Drive (Room E-7056) 


Arlington, VA 22226 


Attention: David Gearin 


Email Address: DGearin@fdic.gov 


Ifto the Private Owner (including in its role as Manager and/or Tax Matters Member), 

to: 

2450 Broadway, 6th Floor 


Santa Monica, California 90404 


Attention: Paul A. Fuhrman 

E-mail Address: 

with a copy to: 

Colony Capital, LLC 

660 Madison A venue 

New York, New York 10065 

Attention: Ronald M. Sanders 

E-mail Address: 

N-6 

RADC/CADC Venture 20 I 0-2 

Custodial and Paying Agency Agreement 

13312147.4 
Section 9. Termination. The obligations ofthe Bank to the Collateral Agent 

pursuant to this Agreement shall continue in effect until the Collateral Agent has notified the 

Bank oftermination ofthis Agreement in writing. The Collateral Agent agrees with the 

Company to provide aNotice of Termination in substantially the form of Exhibit A hereto to the 

Bank on or after the termination ofthe Collateral Agent's security interest in any Account 

pursuant to, or as otherwise provided by, the terms ofthe Reimbursement, Security and Guaranty 

Agreement. 

Section 10. Limitation of Liability; Indemnification ofthe Bank. The 

Company and the Collateral Agent hereby agree that (a) the Bank is released from any and all 

liabilities to the Company and the Collateral Agent arising from the terms of this Agreement and 

compliance by the Bank with the terms hereof, except to the extent that such liabilities arise from 

the Bank's bad faith, willful misconduct or negligence and (b) the Company, its successors and 

assigns shall indemnify and save harmless the Bank from and against any loss, liability or 

expense incurred without bad faith, willful misconduct or negligence on the part of the Bank, its 

officers, directors and agents, arising out of or in connection with the execution and performance 

of this Agreement or the maintenance of any of the Accounts, including the reasonable actual 

costs and expenses ofdefending themselves against any claim or liability in connection with the 

performance of any of their powers or duties hereunder. The Bank's right to indemnification 

hereunder shall survive the termination of this Agreement and the earlier resignation or removal 

ofthe Bank. 

Section 11. Fees. The Bank shall charge such fees for its services under this 

Agreement as shall be set forth in a separate agreement between the Bank and the Company, the 

payment of which fees, together with the Bank's expenses in connection herewith (including, 

without limitation, attorneys' and agents' fees and expenses), shall be the obligation ofthe 

Company. The obligation of the Company to pay the Bank such fees and reimburse the Bank for 

such expenses shall survive the resignation or removal of the Bank (for all fees and expenses 

incurred prior to such resignation or removal) or the termination or assignment ofthis 

Agreement. 

Section 12. Counterparts. This Agreement may be executed in any number of 

counterparts, including by facsimile or other electronic means of communication, all of which 

shall constitute one and the same instrument, and any party hereto may execute this Agreement 

by signing and delivering one or more counterparts. 

Section 13. Jurisdiction; Venue and Service. 

(a) Each of the Company and the Bank, for itself and its Affiliates, hereby 

irrevocably and unconditionally: 

(i) consents to the jurisdiction of th~ United States District Court for 

the Southern District ofNew York and to the jurisdiction of the United States District 

Court for the District of Columbia for any suit, action or proceeding against it or any of 

its Affiliates commenced by the Collateral Agent arising out of, relating to, or in 

connection with this Agreement or any Transaction Document, and waives any right to: 

N-7 

RAOC/CADC Venture 20 I 0-2 

Custodial and Paying Agency Agreement 

13312147.4 
(A) 	 remove or transfer such suit, action or proceeding to any court or 

dispute-resolution forum other than the court in which the Collateral 

Agent files the suit, action or proceeding without the consent of the 

Collateral Agent; 

(B) 	 assert that venue is improper in either the United States District Court 

for the Southern District ofNew York or the United States District 

Court for the District ofColumbia; or 

(C) 	 assert that the United States District Court for the Southern District 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 ofthe State of 

New York for any suit, action or proceeding against it or any of its Affiliates 

commenced by the Collateral Agent arising out of, relating to, or in connection with 

this Agreement or any Transaction Document (other than the LLC Operating 

Agreement), and waives any right to: 

(A) 	 remove or transfer such suit, action or proceeding to any other court or 

dispute-resolution forum without the consent ofthe Collateral Agent; 

(B) 	 assert that venue is improper in the Supreme Court of the State ofNew 

York; or 

(C) 	 assert that the Supreme Court ofthe State ofNew York is an 

inconvenient forum. 

(iii) agrees to bring any suit, action or proceeding by the Company, the 

Bank, or its A~flliates against the Collateral Agent arising out of, relating to; or in 

connection with this Agreement or any Transaction Document in only either the United 

' States District Court for the Southern District ofNew York or the United States District 

Court for the District of Columbia, and waives any right to remove or transfer such suit, 

action or proceeding to any other court or dispute-resolution forum without the consent 

of the Collateral Agent, and agrees to consent thereafter to transfer of the suit, action or 

proceeding to either the United States District Court for the Southern District of New 

York or the United States District Court for the District of Columbia at the option of the 

Collateral Agent; and 

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

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

jurisdiction to hear a suit, action or proceeding falling within Section 13(a)(iii), to bring 

that suit, action or proceeding in only the Supreme Court of the State ofNew York, and 

waives any right to remove or transfer such suit, action or proceeding to any other court 

or dispute-resolution forum without the consent of the Collateral Agent. 

N-8 

RADCICADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
(b) Each ofthe Company and the Bank, on behalf ofitself and its Affiliates, hereby 

irrevocably and unconditionally agrees that any final judgment entered against it in any suit, 

action or proceeding falling within Section 13(a) may be enforced in any court of competent 

jurisdiction. 

(c) Subject to the provisions of Section 13(d), each ofthe Company and the Bank, on 

behalfofitself and its Affiliates, and the Collateral Agent hereby irrevocably and 

unconditionally agrees that service of all writs, process and summonses in any suit, action or 

proceeding pursuant to Section 13(a) or Section 13(b) may be effected by the mailing of copies 

thereofby registered or certified mail, postage prepaid, to it at its address for notices pursuant to 

Section 8 (with copies to such other Persons as specified therein); provided, however, that 

nothing contained in this Section 13(c) shall affect the right of any party to serve process in any 

other manner permitted by Law. 

(d) Nothing in this Section 13 shall constitute consent to jurisdiction in any court by 

the FDIC, other than as expressly provided in Section 13(a)(iii) and Section 13(a)(iv), or in any 

way limit the FDIC's right to remove, transfer, seek to dismiss, or otherwise respond to any suit, 

action, or proceeding against it in any forum. 

Section 14. Representations ofthe Bank. The Bank hereby represents: 

(a) Each Account has been established as set forth herein and each 

Account will be maintained in the manner set forth herein until termination ofthis Agreement; 

(b) Each Account is either (i) a "securities account" (as defined in 

Section 8-501 ofthe UCC) or (ii) a "deposit account" (as defined in Section 9-102(a)(29) ofthe 

UCC); 

(c) The Bank is a "securities intermediary" within the meaning of 

Section 8-102(a)(l4) of the UCC and a "bank" within the meaning of Section 9-102(a)(8) ofthe 

UCC; 

(d) The Bank is not a "clearing corporation" within the meaning of 

Section 8-102(a)(5) ofthe UCC; and 

(e) This Agreement is the valid and legally binding obligation ofthe 

Bank. 

[SIGNATURE PAGE FOLLOWS] 

N-9 


RADC/CAOC Venture20!0-2 

Custodial and Paying Agency Agreement 

13312147.4 
IN WITNESS WHEREOF, the parties hereto have caused this Account Control 

Agreement to be executed as of the day and year first above written. 

Company: 

RADC/CADC Venture 2010-2, LLC 

By: 	 ColFin 2011 ADC Funding, LLC, a 

Delaware limited liability company, its 

Manager 

By: 

Name: Mark M. Hedstrom 

Title: Vice President 

Collateral Agent: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

FAILED BANKS 

By:______________ 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

Bank: 

Wells Fargo Bank, National Association 

By:________________ 

Name: Amy Doyle 


Title: Vice President 


N-10 


RAOC/CAOC Venture2010-2 

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13312147.4 
-------

EXHIBIT A 

FORM OF NOTICE OF TERMINATION 

[LETIERHEAD OF COLLATERAL AGENT] 

(Date] 

Wells Fargo Bank, National Association 

Attention: 

Re: Notice ofTermination of Account Control Agreement 

You are hereby notified that the Account Control Agreement, dated as of January 

26, 2011, among you, the undersigned and RADC/CADC Venture 2010-2, LLC (the 

"Company"), a copy of which is attached hereto (the "Agreement"), is terminated and that you 

have no further obligations to the Collateral Agent pursuant to the Agreement. Notwithstanding 

any previous instructions to you, you are hereby instructed to accept all future directions with 

respect to any of the Accounts from the Company. This notice terminates any obligations you 

may have to the Collateral Agent with respect to any of the Accounts; provided, however, that 

nothing contained in this notice shall alter any obligations which you may otherwise owe to the 

Collateral Agent pursuant to any other agreement. Capitalized terms used but not defined in this 

notice shall have the meanings given to them in the Agreement. 

Very truly yours, 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

IN ITS SEPARATE CAPACITIES AS RECEIVER 

WITH RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE FAILED 

BANKS, as Collateral Agent 

By:______________ 

Name: 

Title: 

A-1 


RAOC/CAOC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
Acknowledged and Agreed: 

RADC/CADC Venture 2010-2, LLC 

By: ColFin 2011 ADC Funding, LLC, a Delaware limited liability company, its Manager 

By: 


Name: ____________________ _ 


Title: 


A-2 

RADC/CADC Venture2010..2 

Custodial and Paying Agency Agreement 

13312147.4 
SCHEDULE I 

RADC/CADC Venture 2010-2 

List of Various Failed Financial Institutions 

Bank Name CtiY State Fund Closine: Date 

Security Bank of Bibb County (SRES) Macon GA 10085 7/24/2009 

Desert Hills Bank Phoenix AZ 10205 3/26/2010 

Irwin Union Bank & Trust Company Columbus IN 10120 9/18/2009 

Irwin Union Bank F.S.B. Columbus IN 10121 9/18/2009 

Warren Bank Warren MI 10125 10/02/2009 

Hillcrest Bank of Florida Naples FL 10131 10/23/2009 

Re_public Federal Bank, N.A. Miami FL 10158 12111/2009 

Citizens State Bank New Baltimore MI 10162 12118/2009 

Rockbridge Commercial Bank Atlanta GA 10164 12/18/2009 

Barnes Banking Company Kaysville UT 10171 1115/2010 

Florida Community Bank Immokalee FL 10181 1/29/2010 

Centennial Bank Ogden UT 10193 3/05/2010 

Citizens Bank & Trust Company ofChicago Chicago IL 10220 4/23/2010 

The Bank of Bonifay Bonifay FL 10234 5/07/2010 

Arcola Homestead Savings Bank Arcola IL 10246 6/04/2010 

AmTrust Bank Cleveland OH 10155 12/4/2009 

Independent Bankers' Bank SQrin_g_field IL 10166 12/18/2009 

Bank of Leeton Leeton MO 10174 1122/2010 

CF Bancorp (Citizens First) Port Huron MI 10226 4/30/2010 

13297937.1 
----------------

EXHIBITO 


FORM OF INVESTOR CERTIFICATION FOR WEBSITE ACCESS 


Attention: 

Reference: RADC/CADC Venture 2010-2, LLC 

Re: 	 Multibank RADC/CADC Venture 2010-2 Loan and REO Structured 

Transaction, Name ofNote 

[In accordance with the Custodial and Paying Agency Agreement dated January 26, 2011, 

(the "Agreement"), by and among RADC/CADC Venture 2010-2, LLC (the "Issuer"), 

ColFin 2011 ADC Funding, LLC, the Federal Deposit Insurance Corporation in its corporate 

capacity, as the Purchase Money Note Guarantor, the Federal Deposit Insurance Corporation 

in its capacity as Receiver for various failed financial institutions listed on Schedule I thereto, 

as the Collateral Agent and the Initial Member, and Wells Fargo Bank, National Association 

(the "Paying Agent"), with respect to the above referenced Note (the "Note"), the 

undersigned hereby certifies and agrees as follows:] 

1. 	 The undersigned is a beneficial owner of the Note. 

2. 	 The undersigned is requesting access to the Paying Agent's internet website containing 

certain information (the "Information") and/or is requesting the information identified on the 

schedule attached hereto (also, the "Information") pursuant to the provisions of the 

Agreement. 

3. 	 In consideration of the Paying Agent's disclosure to the undersigned of the Information, or 

access thereto, the undersigned will keep the Information confidential (except from such 

outside persons as are assisting it in making an evaluation in connection with purchasing the 

Note, from its accountants and attorneys, and otherwise from such governmental or banking 

authorities or agencies to which the undersigned is subject), and such Information will not, 

without the prior written consent of the Paying Agent, be otherwise disclosed by the 

undersigned or by its officers, directors, partners, employees, agents or representatives 

(collectively, the "Representatives") in any manner whatsoever, in whole or in part. 

'4. 	 The undersigned will not use or disclose the Information in any manner which could result in 

a violation of any provision of the Securities Act of 1933, as amended (the "Securities Act"), 

or the Securities Exchange Act of 1934, as amended, or would require registration of any 

Note pursuant to Section 5 of the Securities Act. 

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RADC/CADC Venture 20 I 0-2 

Custodial and Paying Agency Agreement 

13312147.4 
5. 	 The undersigned shall be fully liable for any breach of this agreement by itself or any of its 

Representatives and shall indemnify the Paying Agent and the Issuer for any loss, liability or 

expense incurred thereby with respect to any such breach by the undersigned or any of its 

Representatives. 

6. 	 Capitalized terms used but not defined herein shall have the respective meanings assigned 

thereto in the Agreement. 

IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by 

its duly authorized officer, as of the day and year written above. 

Beneficial Owner 


By: 


Title: ---------------­


Company: 


Phone: 


0-2 


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Custodial and Paying Agency Agreement 

13312147.4 
EXHIBIT P 


FORM OF PRIVATE OWNER ACCOUNT AGREEMENT 


RADC/CADC Venture 2010-2, LLC 

PRIVATE OWNER ACCOUNT 


CONTROL AGREEMENT 


THIS PRIYATE OWNER ACCOUNT CONTROL AGREEMENT (as the same 

shall be amended or supplemented, this "Agreement") is made and entered into as of the 26th 

day of January, 2011 by and among ColFin 2011 ADC Funding, LLC, a Delaware limited 

liability company (the "Private Owner"), the Federal Deposit Insurance Col-poration (in any 

capacity, the "FDIC"), in its separate capacities as receiver with respect to the separate 

receiverships for each of the various Failed Banks (the "Failed Banks") identified in Schedule I 

to the LLC Operating Agreement defined below (in such capacity, the "Receiver"), as the Initial 

Member under the LLC Operating Agreement, acting herein for itself and for the benefit of the 

Company and the Indemnified Parties defined in the LLC Operating Agreement (including it~ 

permitted successors and assigns, the "Initial Member") and Wells Fargo Bank, National 

Association, a national banking association (the "Bank"). Capitalized terms used herein, to the 

extent the same are defined in the Agreement of Common Definitions and not otherwise defined 

herein, shall have the respective meaning and definitions given in the Agreement of Common 

Definitions (defined b~low). · 

WHEREAS, the FDIC, as Receiver and Initial Member, the Private Owner, 

· RADC/CADC Ventur~ 2010-2, LLC, a Delaware limited liability company (the "Company"), 

the Purchase Money Note Guarantor, the Collateral Agent, the Bank and the Servicer, have 

entered into the RADC/CADC Venture 2010-2 Structured Transaction-Agreement of Common 

Definitions dated as of the Closing Date (the "Agreement of Common Definitions"); 

WHEREAS, pursuant to the LLC Operating Agreement, the Private Owner has 

granted to the Initial Member (for itself and for the benefit of the Company and the Indemnified 

Parties as defined therein) a first priority security interest in the Private Owner Pledged Account; 

WHEREAS, pursuant to the Custodial and Paying Agency Agreement, the Private 

Owner is required to establish and maintain the Private Owner Pledged Account with the Bank; 

WHEREAS, the Private Owner has established the following account with the 

Bank in the name ofthe Private Owner for the benefit of the Initial Member (for itself and for the 

further benefit of the Company and the Indemnified Parties), which account is to be maintained 

with the Bank pursuant to the Custodial and Paying Agency Agreement, bearing account number 

[ (the "Account"); and 

P-1 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
WHEREAS, the Account is the Private Owner Pledged Account, such that the 

Private Owner has, pursuant to the LLC Operating Agreement, granted to the Initial Member (for 

itself and for the benefit of the Company and the Indemnified Parties) a security interest in the 

Account and all amounts held therein and the proceeds thereof as collateral for the Private 

Owner Obligations. 

NOW, THEREFORE, in consideration of the foregoing and for other good and 

valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties 

hereby agree as follows: 

Section 1. Transfers to and from the Account; Control; Conflicting Orders or 

Instructions. (a) The Account shall be funded pursuant to the terms of the Custodial and Paying 

Agency Agreement and the LLC Operating Agreement. The parties agree that all amounts 

received by the Bank for credit to the Account are, except as provided below, to be used for the 

purposes set forth in the Custodial and Paying Agency Agreement and the LLC Operating 

Agreement. The Bank agrees that if at any time it shall receive any order from the Initial 

Member (i) directing disposition of funds in the Account or (ii) directing transfer or redemption 

of the financial assets relating to the Account, the Bank shall comply with such entitlement order 

or instruction without further consent by the Private Owner or any other Person. The Bank shall 

not (i) except as expressly permitted below with respect to Permitted Investments, act on the 

instruction of the Private Owner or any other Person (other than the Initial Member) without the 

prior written consent of the Initial Member, or (ii) cause or permit withdrawals from the Account 

in any manner not approved by the Initial Member in writing. The Private Owner may direct the 

Bank to cause funds in the Account to be invested in Permitted Investments (which shall remain 

in and be credited to the Account) pursuant to the Custodial and Paying Agency Agreement (but 

may not request any transfers or withdrawals from the Account, including in connection with or 

as a result of such Permitted Investments, it being understood that any such withdrawals, 

including as may be permitted pursuant to the Custodial and Paying Agency Agreement, shall be 

pursuant to instructions by, or with the written consent of, the Initial Member); provided, that, 

from and after receipt by the Bank of a written notice from the Initial Member that an Event of 

Default has occurred and is continuing (a "Notice of Event of Default"), the Bank shall cease to 

comply with any such instructions from the Private Owner with respect to Permitted Investments 

and shall comply exclusively with the Initial Member's instructions concerning the investment 

and disposition of funds in the Account without further consent ofthe Company. 

(b) Notwithstanding anything to the contrary contained herein, if at 

any time the Bank shall receive conflicting orders or instructions from the Initial Member and 

the Private Owner, the Bank shall follow the orders or instructions of the Initial Member and not 

the Private Owner. 

Section 2. Account. The Bank hereby confirms and agrees that: 

(a) Neither the Bank nor the Private Owner shall change the name or 

account number of the Account without the prior written consent of the Initial Member; 

P-2 

RADC/CADC Venture 2010-2 

Custodial and Paying Agency Agreement 

13312147.4 
(b) The Account is a "deposit account" (as defined in Section 9­

1 02(a)(29) of the UCC as in effect in any applicable jurisdiction) or "securities account" (as 

defined in Section 8-501 of the UCC) and the Bank is a "bank" (each within the meaning of 

Section 9-102 ofthe UCC); 

(c) If and to the extent the Account ts a "securities account" (as 

defined in Section 8-501 ofthe UCC): 

(i) all securities, financial assets or other property credited to 

the Account other than cash shall be registered in the name ofthe Bank, indorsed to the Bank or 

in blank or credited to another securities account maintained in the name ofthe Bank. In no case 

will any financial asset credited to the Account be registered in the name of the Private Owner, 

payable to the order of the Private Owner or specially indorsed to the Private Owner unless the 

foregoing have been specially indorsed to the Bank or in blank; 

(ii) all financial assets delivered to the Bank pursuant to the 

Custodial and Paying Agency Agreement will be promptly credited to the Account; and 

(iii) the Bank hereby agrees that each item of property (whether 

investment property, financial asset, security, instrument or cash) credited to the Account (to the 

extent that it constitutes a "securities account" (as defined in Section 8-501 of the UCC)) shall be 

treated as a "financial asset" within the meaning of Section 8-102(a)(9) ofthe UCC. 

(d) Without limitation of the Initial Member's rights under Section 1 

above, from and after receipt of a Notice of Event of Default from the Initial Member, the Bank 

shall comply with any stop payment orders given by the Initial Member with respect to items 

presented for payment by the Private Owner; 

(e) There are no other agreements entered into between the Bank and 

the Private Owner with respect to the Account other than the Custodial and Paying Agency 

Agreement and the LLC Operating Agreement; 

(f) The Bank has not entered into, and until the termination of this 

Agreement will not enter into, any agreement with any other Person relating to the Account 

and/or any funds held therein pursuant to which it has agreed, or will agree, to comply with 

entitlement orders (as defined in Section 8-102(a)(8) of the UCC) or instructions (within the 

meaning of Section 9-104 ofthe UCC) ofsuch other Person; and 

(g) The Bank has not entered into, and until the termination of this 

Agreement will not enter into, any agreement with the Private Owner purporting to limit or 

condition the obligation of the Bank to comply with entitlement orders (as defined in Section 8­

102(a)(8) of the UCC) or instructions (as defined in Section 9-104 of the UCC) of the Initial 

Member as set forth in Section 1 above. 

Section 3. Private Owner Pledged Account Acknowledgement. The Private 

Owner hereby acknowledges that (i) the Account is the Private Owner Pledged Account 

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13312147.4 
referenced in the LLC Operating Agreement, and (ii) for purposes of the pledge of a first priority 

Lien on and security interest in the Account under the LLC Operating Agreement, the security 

interest granted thereunder includes a security interest in all amounts on deposit in the Account, 

and any and all Investment Property, Financial Assets or other Property (including uninvested 

funds) from time to time credited to the Account or deposited or carried therein, any and all 

investments made with funds therein, and any and all proceeds, products, income, benefits, 

substitutions or replacements to any of the foregoing, whether now owned or existing, or 

hereafter acquired and arising. For purposes of this Section 3, "Investment Property", "Financial 

Assets" and "Property" shall each have the meaning given to such terms in the UCC. 

Section 4. Subordination of Lien; Waiver of Set-Off. In the event that the 

Bank has or subsequently obtains by agreement, by operation of Law or otherwise a security 

interest in the Account or any funds held therein, the Bank hereby agrees that such security 

interest shall be subordinate to the security interest of the Initial Member. The funds and other 

items deposited into the Account will not be subject to deduction, set-off, banker's Lien, or any 

other right in favor of any Person other than the Initial Member (except that the Bank may set off 

(i) all amounts due to the Bank in respect of customary fees and expenses for the routine 

maintenance and operation of the Account (excluding fees payable pursuant to Section 12), 

(ii) the face amount of any checks which have been credited to the Account but are subsequently 

returned unpaid because of uncollected or insufficient funds, and (iii) other returned items or 

mistakes made in crediting the Account). 

Section 5. CHOICE OF LAW. 

(a) Law Governing this Agreement. EACH PARTY TO THIS AGREEMENT 

AGREES AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE 

GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS 

TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF 

THE STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR 

PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF 

THIS AGREEMENT TO THE LAWS OF ANOTHER JURISDICTION, AND EACH PARTY 

TO THIS AGREEMENT UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY 

CLAIM TO ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL 

ACTION OR INACTION BY ANY PARTY TO THIS AGREEMENT. FOR PURPOSES OF 

THE UCC, THE STATE OF NEW YORK SHALL BE DEEMED TO BE THE "BANK'S 

JURISDICTION." 

(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN 

ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUDING ANY 

CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE 

OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAWS OF ANOTHER 

JURISDICTION. 

(c) Location of Financial Institution. Regardless of any provision in any other 

agreement, for purposes of the UCC, New York shall be the location ofthe bank for purposes of 

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13312147.4 
Sections 9-301, 9-304 and 9-307 of the UCC and the securities intermediary for purposes of 

Sections 9-301 and 9-307 and Section 8-110 ofthe UCC. 

(d) Law Governing Account. The Account shall be governed by the Laws of 


the State ofNew York. 


Section 6, Conflict with Other Agreements; Amendment. 

In the event of any conflict between this Agreement (or any portion 


hereof) and any other agreement between the Private Owner and the Bank now existing or 


hereafter entered into, the terms ofthis Agreement shall prevail. 


No amendment or modification of this Agreement or waiver of any right 


hereunder shall be binding on any party hereto unless it is in writing and is signed by all of the 


parties hereto. 


Section 7. Adverse Claims. Except for the claims and interests of the Initial 

Member and the Private Owner in the Account, the Bank does not have actual knowledge of any 

claim to, or interest in, the Account or in any "financial assets" (as defined in Section 8-1 02( a) of 

the UCC), cash or funds credited thereto. If any Person asserts any Lien, encumbrance or 

adverse claim (including any' writ, garnishment, judgment, warrant of attachment, execution or 

similar process) against the Account or against any funds held therein, upon a Responsible 

Officer of the Bank receiving written notice of such Lien, encumbrance or adverse claim, the 

Bank will promptly notify the Initial Member and the Private Owner thereof For the purposes 

of this Section 7, a "Responsible Officer" of the Bank means any managing director, director, 

associate, principal, vice president, assistant vice president, assistant secretary, assistant 

treasurer, trust officer or any other officer of the Bank customarily performing functions similar 

to those performed by any of the above designated officers and directly responsible for the 

administration of this Agreement and also means, with respect to a particular corporate trust 

matter, any other officer to whom such matter is referred because of his or her knowledge of and 

familiarity with the particular subject. 

Section 8. Successors. The terms of this Agreement shall be binding upon, 

and shall inure to the benefit of, the parties hereto and their respective corporate successors or 

heirs and personal representatives who obtain such rights solely by operation of Law. 

Section 9. Notices. All notices, requests, demands, and other 

communications required or permitted to be given or delivered under or by reason of the 

provisions of this Agreement shall be in writing and shall be mailed or delivered to the 

applicable address or electronic mail address of the parties specified below for such Person or to 

such other address or electronic mail address as shall be designated by such party in a notice to 

the other parties. All such notices, requests, demands and other communications shall be 

deemed to be given or made upon the earlier to occur of(i) actual receipt (or refusal thereof) by' ' 

the relevant party hereto and (ii) (A) if delivered by hand or by nationally recognized courier 

service, when signed for (or refused) by or on behalf of the relevant party hereto, and {B) if 

delivered by electronic mail (which form of delivery is subject to the provisions of this 

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13312147.4 
paragraph), when delivered and capable of being accessed from the recipient's office computer, 

provided that any notice, request, demand or other communication that is received other than 

during regular business hours of the recipient shall be deemed to have been given at the opening 

of business on the next Business Day of the recipient. In no event shall a voice mail message 

be effective as a notice, communication or confirmation hereunder. 

Ifto the Bank: 

Wells Fargo Bank, National Association 


9062 Old Annapolis Road 


Columbia, Maryland 21 045 


Attention: Client Services Manager 


Reference: RADC/CADC Venture 2010-2, LLC 


E-Mail Addresses: 

lfto the Private Owner: 

2450 Broadway, 6th Floor 

Santa Monica, California 90404 

Attention: Paul A. Fuhrman 

E-mail Address: 

with a copy to: 

Colony Capital, LLC 

660 Madison A venue 

New York, New York 10065 

Attention: Ronald M. Sanders 

E-mail Address: 

Ifto the Initial Member: 

Assistant Director, Structured Transactions -Resolutions and Receiverships 

Federal Deposit Insurance Corporation 

550 I 7th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email Address: RMalami@fdic.gov 

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13312147.4 
with a copy to: 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, VA 22226 

Attention: David Gearin 

Email Address: dgearin@fdic.gov 

Section I 0. Termination. The obligations of the Bank to the Initial Member 

pursuant to this Agreement shall continue in effect until the Initial Member has notified the Bank 

of termination of this Agreement in writing. The Initial Member agrees with the Private Owner 

to provide a Notice of Termination in substantially the form of Exhibit A hereto to the Bank on 

or after the termination of the Initial Member's security interest in the Account pursuant to, or as 

otherwise provided by, the terms ofthe LLC Operating Agreement. 

Section 11. Limitation of Liability; Indemnification of the Bank. The Private 

Owner and the Initial Member hereby agree that (a) the Bank is released from any and all 

liabilities to the Private Owner and the Initial Member arising from the terms of this Agreement 

and compliance by the Bank with the terms hereof, except to the extent that such liabilities arise 

from the Bank's bad faith, willful misconduct or negligence and (b) the Private Owner, its 

successors and assigns shall indemnifY and save harmless the Bank from and against any loss, 

liability or expense incurred without bad faith, willful misconduct or negligence on the part of 

the Bank, its officers, directors and agents, arising out of or in connection with the execution and 

performance of this Agreement or the maintenance of the Account, including the reasonable 

actual costs and expenses of defending themselves against any claim or liability in connection 

with the performance of any of their powers or duties hereunder. The Bank's right to 

indemnification hereunder shall survive the termination of this Agreement and the earlier 

resignation or removal of the Bank. 

Section 12. Fees. The Bank shall charge such fees for its services under this 

Agreement as shall be set forth in a separate agreement between the Bank and the Private Owner, 

the payment of which fees, together with the Bank's expenses in connection herewith (including, 

without limitation, attorneys' and agents' fees and expenses), shall be the obligation of the 

Private Owner. The obligation of the Private Owner to pay the Bank such fees and reimburse the 

Bank for such expenses shall survive the resignation or removal of the Bank (for all fees and 

expenses incurred prior to such resignation or removal) or the termination or assignment of this 

Agreement. 

Section 13. Counterparts. This Agreement may be executed·in, any number of 

counterparts, including by facsimile or other electronic means of communication, all of which 

shall constitute one and the same instrument, and any party hereto may execute this Agreement 

by signing and delivering one or more counterparts. 

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13312147.4 
Section 14. Jurisdiction; Venue and Service. 

(e) Each of the Private Owner and the Bank, for itself and its Affiliates, hereby 

irrevocably and unconditionally: 

(i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District 

Court for the District of Columbia for any suit, action or proceeding against it or any of 

its Affiliates commenced by the Initial Member arising out of, relating to, or in 

connection with this Agreement or any Transaction Document, and waives any right to: 

(X) 	 remove or transfer such suit, action or proceeding to any court or 

dispute-resolution forum other than the court in which the Initial 

Member files the suit, action or proceeding without the consent of the 

Initial Member; 

(Y) 	 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 

(Z) 	 assert that the United States District Court for the Southern District of 

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

Columbia is an inconvenient forum. 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

New York for any suit, action or proceeding against it or any of its Affiliates commenced 

by the Initial Member arising out of, relating to, or in connection with this Agreement or 

any Transaction Document (other than the LLC Operating Agreement), and waives any 

right to: 

(A) 	 remove or transfer such suit, action or proceeding to any other court or 

dispute-resolution forum without the consent of the Initial Member; 

(B) 	 assert that venue is improper in the Supreme Court of the State ofNew 

York; or 

(C) 	 assert that the Supreme Court of the State of New York IS an 

inconvenient forum. 

(iii) agrees to bring any suit, action or proceeding by the Private 

Owner, the Bank, or its Affiliates against the Initial Member arising out of, relating to, or 

in connection with this Agreement or any Transaction Document in only either the 

United States District Court for the Southern District of New Y,ork or the United States 

District Court for the District of Columbia, and waives any right to remove or transfer 

such suit, action or proceeding to any other court or dispute-resolution forum without the 

consent of the Initial Member, and agrees to consent thereafter to transfer of the suit, 

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13312147.4 
action or proceeding to either the United States District Court for the Southern District of 

New York or the United States District Court for the District of Columbia at the option of 

the Initial Member; 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 14(a)(iii), to bring 

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

waives any right to remove or transfer such suit, action or proCeeding to any other court 

or dispute-resolution forum without the consent of the Initial Member. 

(f) Each of the Private Owner 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 14(a) may be enforced in any court of competent 

jurisdiction. 

(g) Subject to the provisions of Section 14(d), each of the Private Owner and the 

Bank, on behalf of itself and its Affiliates, and the Initial Member hereby irrevocably and 

unconditionally agrees that service of all writs, process and summonses in any suit, action or 

proceeding pursuant to Section 14(a) or Section 14(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 9 (with copies to such other Persons as specified therein); provided, however, that 

nothing contained in this Section 14(c) shall affect the right of any party to serve process in any 

other manner permitted by Law. 

(h) Nothing in this Section 14 shall constitute consent to jurisdiction in any court by 

the FDIC, other than as expressly provided in Section 14(a)(iii) and Section 14(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 15. Representations ofthe Bank. The Bank hereby represents: 

(a) The Account has been established as set forth herein and the 

Account will be maintained in the manner set forth herein until termination of this Agreement; 

(b) The Account is either (i) a "securities account" (as defined in 

Section 8-501 ofthe UCC) or (ii) a "deposit account" (as defined in Section 9-102(a)(29) of the 

UCC); 

(c) The Bank is a "securities intermediary" within the meaning of 

Section 8-102(a)(l4) of the UCC and a "bank" within the meaning of Section 9-102(a)(8) of the 

UCC; 

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13312147.4 
(d) The Bank is not a "clearing corporation" within the meaning of 

Section 8-102(a)(5) ofthe UCC; and 

(e) This Agreement is the valid and legally binding obligation of the 

Bank. 

[SIGNATURE PAGE FOLLOWS] 

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Custodial and Paying Agency Agreement 

13312147.4 
IN WITNESS WHEREOF, the parties hereto have caused this Private Owner 

Account Control Agreement to be executed as ofthe day and year first above written. 

Private Owner: 

COLFIN 2011 ADC FUNDING, LLC, a 

Delaware limited liability company 

By: --------------------~ 

Name: Mark M. Hedstrom 

Title: Vice President 

Initial Member: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, IN ITS SEPARATE 

CAPACITIES AS RECEIVER WITH 

RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE 

FAILED BANKS 

By:______________ 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

WELLS FARGO BANK, NATIONAL 

ASSOCIATION, a national banking association 

By:___________________ 

Name: Amy Doyle 

Title: Vice President 

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13312147.4 
EXHIBIT A 


FORM OF NOTICE OF TERMINATION 

[LETTERHEAD OF INITIAL MEMBER] 

[Date] 

Wells Fargo Bank, National Association 

Attention: _______ 

Re: Notice ofTermination of Private Owner Account Control Agreement 

You are hereby notified that the Private Owner Account Control Agreement, 

dated as ofJanuary 26, 2011, among you, the undersigned and CofFin 2011 ADC Funding, LLC 

(the "Private Owner"), a copy of which is attached hereto (the "Agreement"), is terminated and 

that you have no further obligations to the Initial Member pursuant to the Agreement. 

Notwithstanding any previous instructions to you, you are hereby instructed to accept all future 

directions with respect to the Account from the Private Owner. This notice terminates any 

obligations you may have to the Initial Member with respect to the Account; provided, however, 

that nothing contained in this notice shall alter any obligations which you may otherwise owe to 

the Initial Member pursuant to any other agreement. Capitalized terms used but not defined in 

this notice shall have the meanings given to them in the Agreement. 

Very truly yours, 

FEDERAL DEPOSIT INSURANCE CORPORATION, 

IN ITS SEPARATE CAPACITIES AS RECEIVER 

WITH RESPECT TO THE SEPARATE 

RECEIVERSHIPS FOR EACH OF THE FAILED 

BANKS, as Initial Member 

By:______________ 

Name: 

Title: 

A-1 


RAOC/CA DC Venture 20 I 0-2 

Custodial and Paying Agency Agreement 

13312147.4 
Acknowledged and Agreed: 

CoiFin 2011 ADC Funding, LLC, a Delaware limited liability company 

By: ______________________ 

Name: 

Title: 

A-2 

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13312147.4