2010-1 CRE Venture, LLC

EXECUTION COPY

CUSTODIAL AND PAYING AGENCY AGREEMENT

by and among

2010-1 CRE VENTURE, LLC,

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

in its corporate capacity, as Purchase Money Notes Guarantor,
 

FEDERAL DEPOSIT INSURANCE CORPORATION,
 

in its capacity as Receiver for various failed financial institutions
 

listed on Schedule 1 hereto, as Collateral Agent
 

FEDERAL DEPOSIT INSURANCE CORPORATION
 

in its capacity as Receiver for various failed financial institutions
 

listed on Schedule 1 hereto, as Initial Member,
 

COLFIN AXLE FUNDING, LLC, as Private Owner,
 

and
 

WELLS FARGO BANK, N.A.
 

Dated as of July 2, 2010

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TABLE OF CONTENTS
 

Page

Article I DEFINITIONS AND CONSTRUCTION...............................................................2
 

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

Section 1.2 Rules of Construction ..................................................................................7
 

Article II PAYING AGENT AND PURCHASE MONEY NOTE.........................................8
 

Section 2.1 Appointment of Paying Agent .....................................................................8
 

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

Section 2.12 Notes Beneficially Owned by Persons Not Qualified Institutional
 

Section 2.2 Delivery of Documentation..........................................................................8
 

Section 2.3 Duties...........................................................................................................8
 

Section 2.4 Forms of Purchase Money Notes.................................................................9
 

Section 2.5 Authorized Amount; Denominations; Prepayment....................................10
 

Section 2.6 Execution, Delivery and Dating.................................................................10
 

Section 2.7 Registration, Registration of Transfer and Exchange ................................11
 

Section 2.8 Reissuance of Purchase Money Notes.......................................................18
 

Notes..........................................................................................................19
 

Section 2.10 Payments with Respect to the Purchase Money Notes..............................20
 

Section 2.11 Mandatory Exchange .................................................................................21
 

Buyers or Qualified Purchasers .................................................................22
 

Section 2.13 Withholding ...............................................................................................22
 

Section 2.14 Persons Deemed Owners ...........................................................................23
 

Section 2.15 Holder Voting ............................................................................................23
 

Section 2.16 Cancellation ...............................................................................................23
 

Section 2.17 Section 3(c)(7) Procedures.........................................................................24
 

Article III ACCOUNTS..........................................................................................................25
 

Section 3.1 Collection Account ....................................................................................25
 

Section 3.2 Distribution Account..................................................................................26
 

Section 3.3 Defeasance Account...................................................................................26
 

Section 3.4 [Intentionally Omitted] ..............................................................................29
 

Section 3.5 [Intentionally Omitted] ..............................................................................29
 

Section 3.6 Working Capital Reserve Account ............................................................29
 

Section 3.7 Excess Working Capital Advances............................................................31
 

Section 3.8 Discretionary Funding Advances...............................................................31
 

Section 3.9 Private Owner Pledged Account................................................................31
 

Article IV ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS .....................32
 

Section 4.1 Investment of Funds in Accounts ..............................................................32
 

Section 4.2 Interest........................................................................................................33
 

Section 4.3 Inadequately Identified Amounts...............................................................33
 

Section 4.4 Payment Procedures...................................................................................33
 

Article V DISTRIBUTIONS .................................................................................................34
 

Section 5.1 Priority of Payments ..................................................................................34
 

Section 5.2 Notices of Payment Failure and Events of Default....................................35
 

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TABLE OF CONTENTS

(continued)

Page

Article VI CUSTODIAL DOCUMENTS...............................................................................36
 

Section 6.1 Delivery of Custodial Documents..............................................................36
 

Section 6.2 Examination of Custodian Files; Copies....................................................39
 

Section 6.3 Shipment of Custodial Documents ............................................................39
 

Article VII CUSTODIAN ........................................................................................................39
 

Section 7.1 Appointment of the Custodian...................................................................40
 

Section 7.2 Obligations of the Custodian .....................................................................40
 

Article VIII FEES AND EXPENSES........................................................................................42
 

Section 8.1 Fees and Expenses .....................................................................................42
 

Article IX REMOVAL OR RESIGNATION .........................................................................42
 

Section 9.1 Removal or Resignation of Custodian and Paying Agent .........................42
 

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

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

Section 10.2 Insurance ....................................................................................................44
 

Article XI REPORTS..............................................................................................................45
 

Section 11.1 Custodian and Paying Agent Report..........................................................45
 

Section 11.2 Additional Reports.....................................................................................45
 

Section 11.3 Company and Servicer Distribution Date Accounting ..............................46
 

Section 11.4 Distribution Date Instructions....................................................................47
 

Section 11.5 Books and Records ....................................................................................47
 

Article XII NO ADVERSE INTERESTS ................................................................................48
 

Section 12.1 No Adverse Interests..................................................................................48
 

Article XIII LIABILITY AND INDEMNIFICATION .............................................................48
 

Section 13.1 Liability; Indemnification ..........................................................................48
 

Article XIV CUSTODIAN AND PAYING AGENT................................................................49
 

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

Article XV TAXES...................................................................................................................51
 

Section 15.1 Tax Reports................................................................................................51
 

Section 15.2 Stamp and Other Similar Taxes.................................................................51
 

Section 15.3 Tax Characterization..................................................................................51
 

Section 15.4 Back-Up Withholding................................................................................51
 

Article XVI TERM ....................................................................................................................51
 

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

Article XVII AUTHORIZED REPRESENTATIVES ................................................................52
 

Section 17.1 Authorized Representatives.......................................................................52
 

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TABLE OF CONTENTS

(continued)

Page

Article XVIII NOTICES...............................................................................................................52
 

Section 18.1 Notices .......................................................................................................52
 

Article XIX MISCELLANEOUS ..............................................................................................54
 

Section 19.1 Governing Law ..........................................................................................54

Section 19.2 Waiver of Jury Trial...................................................................................54

Section 19.3 Jurisdiction; Venue and Service.................................................................54

Section 19.4 Counterparts...............................................................................................56

Section 19.5 Severability ................................................................................................56

Section 19.6 Compliance With Law ...............................................................................57

Section 19.7 Entire Agreement.......................................................................................57

Section 19.8 Assignment; Binding Effect.......................................................................57

Section 19.9 Rights Cumulative .....................................................................................57

Section 19.10 Amendments..............................................................................................57

Section 19.11 Headings ....................................................................................................58

Schedule and Exhibits

Schedule 1 List of Various Failed Financial Institutions

Exhibit A Loan Schedule

Exhibit B-1 Form of Certificated Note

Exhibit B-2 Form of Global Note

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

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

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

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

Global Notes

Exhibit D Form of DTC Notice to Investors

Exhibit E Form of Collateral Certificate

Exhibit F Review Procedures

Exhibit G Form of Supplemental Delivery Certificate

Exhibit H Request for Release and Receipt of Custodial Documents

Exhibit I Request for Release and Receipt of Debt Documents

Exhibit J Fees and Expenses of Custodian and Paying Agent

Exhibit K Custodian and Paying Agent Report

Exhibit L Form of Lost Instrument Affidavit

Exhibit M Authorized Representatives

Exhibit N Form of Account Control Agreement

Exhibit O Form of Investor Certification for Website Access

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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 2nd day of July, 2010 (the “Closing Date”), by and among 2010­

1 CRE Venture, LLC, a Delaware limited liability company (the “Company”), the Federal

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

the guarantor of the Purchase Money Notes (as such term is defined below) (together with its

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

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

Security and Guaranty Agreement (as such term is defined below) (in such capacity, or any

successor collateral agent, the “Collateral Agent”), the FDIC, as Receiver, as the Initial Member

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

Member”), ColFin Axle Funding, LLC, as the Private Owner with respect to the Company (in

such capacity, or any permitted successor or assign, the “Private Owner”), and Wells Fargo

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

RECITALS

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

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

Bank”); and

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

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

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

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

have entered into a Loan Contribution and Sale Agreement, dated as of July 2, 2010 (as

amended, supplemented or modified as of the date hereof, the “Contribution Agreement”),

pursuant to which the Receiver, in its capacity as the Initial Member (the “Initial Member”) of

the Company, transferred all of its right, title, and interest in and to the Loans to the Company

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

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

the FDIC, as a Holder (as such term is defined below) three classes of Purchase Money Notes,

originally dated as of July 2, 2010, in the aggregate principal face amount of $562,965,000

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

and

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

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

that certain Guaranty Agreement, dated as of July 2, 2010 (as further amended, supplemented or

modified as of the date hereof, the “Purchase Money Notes Guaranty”); and

WHEREAS, pursuant to the Reimbursement, Security and Guaranty Agreement, dated as

of July 2, 2010 (as amended, supplemented or modified as of the date hereof, the

“Reimbursement, Security and Guaranty Agreement”), by and among the Company, the

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Collateral Agent and the Purchase Money Notes Guarantor, the Company has pledged the Loans

and other Collateral to the Collateral Agent for the benefit of the Purchase Money Notes

Guarantor, and the Reimbursement, Security and Guaranty Agreement requires that the

Company retain a document custodian, meeting the requirements set forth in the Reimbursement,

Security and Guaranty Agreement, to take possession of the Custodial Documents (as such term

is defined below), in accordance with the terms and conditions hereof; and

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

and Restated Limited Liability Company Operating Agreement, dated as of July 2, 2010 (as

further amended, supplemented or modified as of the date hereof, 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 (as such terms are

defined below) to perform the services contemplated by this Agreement; and

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

Bank an account into which the Qualifying Cash Collateral (as such term is defined below) will

be deposited, which account will be subject to a security interest and pledge for the benefit of the

Initial Member pursuant to the LLC Operating Agreement, and to appoint the Bank as Paying

Agent to perform the services contemplated by this Agreement; and

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

to perform the services contemplated by this Agreement; and

WHEREAS the Company, the Initial Member, the Private Owner and the Bank wish to

enter into this Agreement to, among 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;

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

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

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

ARTICLE I
 

DEFINITIONS AND CONSTRUCTION
 

Section 1.1 Definitions. For purposes of this Agreement, the following terms shall

have the meanings set forth below. Any other defined terms used herein but not defined herein

shall have the meanings set forth in the Agreement of Common Definitions, dated as of July 2,

2010, between the Initial Member, the Company, the Private Owner, the Bank, the Collateral

Agent and the Purchase Money Notes Guarantor.

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

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

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

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

title.

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

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

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

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

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

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

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

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

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

the original Acquired Property Deed has been delivered to the proper recording office for

recordation; (B) as applicable, either (x) a copy of each Acquired Property Deed (which might be

electronic) that is intervening between the lender that obtained title to such property assets as a

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

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

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

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

together with a certificate of the 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 (A) above; (C) the original or copy

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

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

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

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

complete copy of the original document, and (y) if required by the Purchase Money Notes

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

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

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

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

Agencies.

“Agreement” has the meaning given in the preamble.

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

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

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

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

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

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

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

transactions contemplated thereby.

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

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“Authorized Representative” means, with respect to any Person, each individual

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

authorized representative of such Person for purposes of this Agreement.

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

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

Section 17A of the Exchange Act.

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

LLC Interest Sale Agreement.

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

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

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

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

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

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

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

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

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

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

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

by the Custodian.

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

“Defeasance Account Required Deposit Amount” means with respect to any

Distribution Date an amount equal to the lesser of (i) the amount of funds remaining in the

Distribution Account for such Distribution Date after making the distributions provided under

clauses (i) through (iv) of Section 5.1(b) of this Agreement and (ii) $562,965,000 less the sum of

(a) any payments under the Purchase Money Notes Guaranty made by the Purchase Money

Notes Guarantor, (b) any Company Principal Prepayment Amounts, (c) any Excess Working

Capital Advances deposited into the Defeasance Account to cure a Purchase Money Notes

Trigger Event and (d) the greater of (x) the aggregate amount of all previous deposits made into

the Defeasance Account pursuant to Section 5.1(b)(vi) and (y) the sum of the amount on deposit

in the Defeasance Account as of the related Determination Date and the Net Aggregate Purchase

Money Notes Reduction Amount; provided, however, if on any Distribution Date the balance in

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

Purchase Money Notes, the Defeasance Account Required Deposit Amount for all subsequent

Distribution Dates shall be zero.

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

respective successors.

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

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

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

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

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

Federal Reserve Bank.

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

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

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

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

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

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

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

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

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

Money Note at such time.

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

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

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

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

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

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

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

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

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

were released by the Custodian.

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

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

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

information.

“Net Aggregate Purchase Money Notes Reduction Amount” means with respect to

any Determination Date, the excess (if any) of (a) the aggregate principal payments which have

already been made to reduce the balance of (or pay in full) the Purchase Money Notes, over (b)

the sum of (i) any payments under the Purchase Money Notes Guaranty made by the Purchase

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Money Notes Guarantor, (ii) any Company Principal Prepayment Amounts, (iii) any Excess

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

Notes Trigger Event, and (iv) the aggregate principal balance of the Reissued Purchase Money

Notes (if any).

“Net Loss on Investments” means as of any Maturity Date (or any Distribution Date on

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

Money Notes) the excess (if any) of (a) the aggregate of all amounts previously deposited into

the Defeasance Account (i) under Section 5.1(b)(vi), (ii) by the Purchase Money Notes

Guarantor to cover any Net Loss on Investments or as payments under the Purchase Money

Notes Guaranty, (iii) by the Company as Company Principal Prepayment Amounts, (iv) by the

Company as proceeds of any Reissued Purchase Money Note, and (v) by the Manager as Excess

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

Notes Trigger Event over (b) the sum of (i) the balance then in the Defeasance Account, (ii)

amounts previously disbursed from the account to pay principal on the Purchase Money Notes,

and (iii) 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 Notes (such Maturity Date or Distribution Date to be referred to herein 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 herein 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 (x) the Reference Amount plus any deposits into

the Defeasance Account after the Reference Date (other than the deposit of investment earnings)

over (y) 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 Notes.

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

“Office” has the meaning given in Section 6.1.

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

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

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

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

meanings given in Section 2.7(a).

“Purchase Money Notes Reissuance Fee” has the meaning given in Section 2.8(b).

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

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

Property) or in which the Acquired Property is located.

“Regulation S Certificated Note” has the meaning given in Section 2.4(c).

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

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“Similar Law” shall have 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(h).

“Working Capital Reserve Threshold Amount” means the minimum amount to be

deposited in the Working Capital Reserve Account after the Closing Date pursuant to Section

5.1(b)(iv), which amount equals $12,500,000 (inclusive of the initial deposit of $7,500,000).

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

in accordance with the following:

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

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

other Persons that may have been, but at such time have ceased to be, “Affiliates” of such

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

(b) The term “or” is not exclusive.

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

replacement to such law.

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

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

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

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

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

given time.

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

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

provision of this Agreement.

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

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

they are in fact followed by such words.

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

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

such period.

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

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

be deemed to include the personal pronoun of the appropriate gender.

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ARTICLE II
 

PAYING AGENT AND PURCHASE MONEY NOTE
 

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

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

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

such appointment.

Section 2.2 Delivery of Documentation.

(a) Executed original counterparts of the Purchase Money Notes, the Purchase

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

Control Agreement (the “Debt Agreements”) have been delivered to the Paying Agent and the

Paying Agent acknowledges receipt thereof. The Company agrees to deliver to the Paying Agent

each of the Debt Agreements that is executed and delivered by it, or executed by the Purchase

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

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

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

Agreement and the LLC Operating Agreement (or portions thereof) as are necessary for the

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

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

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

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

(b) The Paying Agent shall retain the Debt Agreements in its possession and

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

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

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

to the successor Paying Agent in accordance with Section 9.1.

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

Receipt of the Debt Agreements in the form attached hereto as Exhibit I from an Authorized

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

accordance with the instructions provided in such notice.

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

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

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

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

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

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

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

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

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

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

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

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

occurred.

Section 2.4 Forms of Purchase Money Notes.

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

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

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

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

of one or more (i) certificated notes in definitive, fully registered form without interest coupons

substantially in the form of Exhibit B-1 attached hereto (each, a “Certificated Note”), which

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

as herein provided, or (ii) a 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 Notes and Rule 144A Certificated Notes. Any

Purchase Money Note 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 beneficial

interests in one or more Global Notes (each, a “Rule 144A Global Note”), or (y) a Certificated

Note (each, a “Rule 144A Certificated Note”).

(c) Regulation S Certificated Notes. Any Purchase Money Note sold or

transferred to a Person that (1) is not a U.S. Person and is acquiring the Purchase Money Notes 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 “Regulation S Certificated Note”). The Paying Agent

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

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

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

Agent and counsel to the Company.

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

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

treated as issued at a discount to its stated redemption price at maturity for federal income tax

purposes shall bear a legend in substantially the following form:

FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF

THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,

THIS PURCHASE MONEY NOTE IS BEING ISSUED WITH

ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE

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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 aggregate face amount of Purchase Money Notes that may be

executed and delivered under this Agreement is limited to U.S.$562,965,000 except for Purchase

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

lieu of, other Purchase Money Notes pursuant to Section 2.7, 2.8 or 2.9 of this Agreement.

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

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

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

exceeds the minimum denomination of U.S.$250,000) (each such denomination, an “Authorized

Denomination”). Any interest in a Purchase Money Note equal to or in excess of the applicable

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

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

entirety.

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

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

Section 2.6 Execution, Delivery and Dating.

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

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

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

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

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

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

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

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

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

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

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

this Agreement shall be dated the date of their execution.

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

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

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

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

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

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

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

divided among the Purchase Money Notes delivered in exchange therefor and shall be deemed to

be the original aggregate principal or face amount of such subsequently issued Purchase Money

Notes. In the event that any Purchase Money Notes are restructured or reissued pursuant to

Section 13.5 of the LLC Operating Agreement or Section 2.8 hereof, such Purchase Money

Notes shall be issued in Authorized Denominations reflecting any adjustments to the original

aggregate principal or face amount of the Purchase Money Notes so restructured or reissued.

Section 2.7 Registration, Registration of Transfer and Exchange.

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

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

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

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

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

herein provided. Upon any resignation or removal of the Purchase Money Notes Registrar, the

Company shall promptly appoint a successor.

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

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

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

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

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

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

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

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

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

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

reflected in the Purchase Money Notes Register.

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

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

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

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

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

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

Registrar.

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

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

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

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

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

Company shall execute and deliver the Purchase Money Notes that the Holder making the

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

to the Purchase Money Notes Registrar.

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

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

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

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

transfer or exchange.

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

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

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

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

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

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

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

connection therewith.

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

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

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

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

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

under applicable state or foreign securities laws.

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

be: (1) to a transferee that is a person whom the seller reasonably believes is a Qualified

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

Buyer in compliance with Rule 144A under the Securities Act or (2) to a transferee that is not a

U.S. Person and is acquiring the Purchase Money Notes 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 (1) and (2) of this Section 2.7(i), to a

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

Qualified Purchaser.

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

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 hereto 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

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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 such Purchase Money Note by such Note

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

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

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

materials prepared and provided by the Company; provided that the Paying Agent shall be

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

reasonably appropriate, at its discretion (such as, for example, a disclaimer that such Rule 144A

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

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

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

(l) Transfers and exchanges of Global Notes, in whole or in part, shall only

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

(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 one or more such

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

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

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

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

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

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

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

attached hereto, in the case of Regulation S Certificated Notes, and Exhibit C-3 attached hereto,

in the case of Rule 144A Certificated Notes, executed and delivered by the transferee of such

beneficial interest, then the Purchase Money Notes Registrar shall instruct the Depository to

reduce, or cause to be reduced, the applicable Rule 144A Global Note by the aggregate principal

amount of the beneficial interest in such Rule 144A Global Note to be transferred or exchanged

and the Purchase Money Notes Registrar shall record the transfer or exchange in the Purchase

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

more Certificated Notes registered in the names and amounts specified in clause (A) above.

(m) Transfers and exchanges of Certificated Notes, 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

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

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

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

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

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

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

be credited with such increase, (B) a certificate in the form of Exhibit C-4 hereto 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 is also a Qualified Purchaser or, in the case of a

transfer, such Holder reasonably believes that the Person acquiring such interest in the applicable

Rule 144A Global Note is a Qualified Institutional Buyer, is obtaining such beneficial interest in

a transaction meeting the requirements of Rule 144A and in accordance with any applicable

securities laws of any state of the United States or any other jurisdiction and is also a Qualified

Purchaser and (C) in the case of a transfer, a certificate in the form of Exhibit C-1 hereto

executed and delivered by the proposed transferee stating that it is both a Qualified Institutional

Buyer and a Qualified Purchaser, then the Purchase Money Notes Registrar shall cancel such

Certificated Note in accordance with Section 2.16, record the transfer or exchange in the

Purchase Money Notes Registrar in accordance with Section 2.7(a) and instruct the Depository to

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

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

instructions received pursuant to clause (A) above.

(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 Notes Registrar of (A) such Holder’s Certificated Note properly endorsed for

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

transfer of Regulation S Certificated Notes, and Exhibit C-3 hereto, in the case of transfer of

Rule 144A Certificated Notes, executed and delivered by the proposed transferee, then the

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

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

and, upon execution by the Company, deliver one or more Certificated Notes endorsed for

transfer, registered in the names specified in the assignment described in clause (A) above, in

principal amounts designated by the transferee (the aggregate of such principal amounts being

equal to the aggregate principal amount of the Certificated Notes surrendered by the transferor),

and in Authorized Denominations.

If a Holder of one or more Rule 144A Certificated Notes wishes at any

time to exchange such Rule 144A Certificated Notes for one or more Rule 144A Certificated

Notes of different outstanding principal amounts, or if a Holder of one or more Regulation S

Certificated Notes wishes at any time to exchange such Regulation S Certificated Notes for one

or more Regulation S Certificated Notes of different outstanding principal amounts, such Holder

may exchange or cause the exchange of such Certificated Notes for Certificated Notes endorsed

for exchange as provided below. Upon receipt by the Purchase Money Notes Registrar of

(A) such Holder’s Certificated Notes properly endorsed for such exchange and (B) written

instructions from such Holder designating the number and principal amounts of the Certificated

Notes to be issued (the aggregate outstanding principal amounts being equal to the outstanding

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principal amount of the Certificated Notes surrendered for exchange), then the Purchase Money

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

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

execution by the Company, deliver one or more Certificated Notes endorsed for exchange,

registered in the same name as the Certificated Notes surrendered by such Holder, in different

outstanding principal amounts designated by such Holder and in Authorized Denominations.

If a Holder of one or more Rule 144A Certificated Notes wishes at any

time to exchange such Rule 144A Certificated Notes for one or more Regulation S Certificated

Notes, or if a Holder of one or more Regulation S Certificated Notes wishes at any time to

exchange such Regulation S Certificated Notes for one or more Rule 144A Certificated Notes,

such Holder may exchange or cause the exchange of such Certificated Notes for Certificated

Notes endorsed for exchange as provided below. Upon receipt by the Purchase Money Notes

Registrar of (A) such Holder’s Certificated Notes properly endorsed for such exchange,

(B) written instructions from such Holder designating the number and principal amounts of the

Certificated Notes to be issued (the aggregate outstanding principal amounts being equal to the

outstanding principal amount of the Certificated Notes surrendered for exchange), and (C) a

certificate in the form of Exhibit C-2 hereto, in the case of Regulation S Certificated Notes, and

Exhibit C-3 hereto, in the case of Rule 144A Certificated Notes, executed and delivered by the

proposed transferee, then the Purchase Money Notes Registrar shall cancel such Certificated

Notes in accordance with Section 2.16, record the exchange in the Purchase Money Notes

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

more Certificated Notes endorsed for exchange, registered in the same name as the Certificated

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

Holder and in Authorized Denominations.

(n) If Purchase Money Notes are issued upon the transfer, exchange or

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

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

Purchase Money Notes, the Purchase Money Notes so issued shall bear such applicable legend,

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

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

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

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

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

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

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

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

deliver Purchase Money Notes that do not bear such applicable legend.

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

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

agree, as follows:

(i) In the case of Purchase Money Notes issued in reliance on

Rule 144A: it is aware that the sale of the Purchase Money Notes to it is being made in reliance

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

and a Qualified Purchaser.

(ii) In the case of Purchase Money Notes issued in reliance on

Regulation S: it is aware that the sale of the Purchase Money Notes to it is being made in

reliance on the exemption from registration provided by Regulation S; 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 Notes acquired in accordance with Regulation S, such Purchase Money Notes

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 Notes will comply with all applicable laws

in any jurisdiction in which it resides or is located.

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

set forth in the applicable exhibit attached hereto.

(iv) 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 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 Purchase Money Notes 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.

(v) It understands that such Purchase Money Notes are being offered

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

the Securities Act, such Purchase Money Notes have not been and will not be registered under

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

Purchase Money Notes, such Purchase Money Notes may be offered, resold, pledged or

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

such Purchase Money Notes. 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 Notes.

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

Money Notes 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

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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).

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

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

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

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

of Regulation S Certificated Notes 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 Notes, in either such case

sell the Purchase Money Notes (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 of this 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 Notes

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

action inconsistent with such treatment.

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

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

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

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

Purchase Money Notes 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.

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

dispose of any Purchase Money Notes or any interest therein except (A) pursuant to an

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

Act and any applicable state securities laws or the applicable laws of any other jurisdiction and

(B) in accordance with the provisions of this Agreement, to which provisions it agrees it is

subject.

(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.

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

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

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

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

any Global Note held on their behalf by the Paying Agent, as custodian for the Depository, and

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

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

whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the

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

written certification, proxy or other authorization furnished by the Depository or impair, as

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

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

(q) Notwithstanding any provision to the contrary herein, so long as a

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

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

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

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

any purpose hereunder.

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

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

Person.

(t) Notwithstanding anything contained herein to the contrary, neither the

Paying Agent nor the Purchase Money Notes Registrar shall be responsible for ascertaining

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

Securities Act, applicable state securities laws or the applicable laws of any other jurisdiction,

ERISA, the Code or the Investment Company Act of 1940, as amended; provided that if a

certificate is specifically required by the express terms of this Agreement to be delivered to the

Paying Agent by a holder or transferee of a Purchase Money Note, the Paying Agent shall be

under a duty to receive and examine the same to determine whether or not the certificate

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

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

Notwithstanding the foregoing, with the advice of counsel to the Company, the

Company may adopt one or more other forms of transfer certificate with respect to the transfer of

the Purchase Money Notes after the Closing Date. The Purchase Money Notes Registrar shall be

notified of such action, and upon receipt of such notice and copies of such other forms of transfer

certificate from the Company, shall be deemed to be directed by the Company to also adopt such

alternate forms of transfer certificate.

Section 2.8 Reissuance of Purchase Money Notes.

(a) Upon the maturity of any Purchase Money Note (a “Maturing Purchase

Money Note”), the Company, at the direction of the Purchase Money Notes Guarantor, shall

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reissue such Purchase Money Note (such reissued Purchase Money Note, a “Reissued Purchase

Money Note”) to the Receiver with terms and conditions as are directed by the Receiver and

substantially similar to the terms and conditions of the related Maturing Purchase Money Note

(including not accruing interest) and a new maturity date satisfactory to the Purchase Money

Notes Guarantor; provided that (x) (i) the maturity date of such Reissued Purchase Money Note

shall not be later than June 25, 2017 and (ii) the outstanding principal amount of such Reissued

Purchase Money Note at the time of its issuance shall equal (A) the outstanding principal amount

of the related Maturing Purchase Money Note minus (B) the amounts on deposit in the

Defeasance Account to pay such Maturing Purchase Money Note (including the amount, if any,

of any payments made pursuant to the Purchase Money Notes Guaranty), and (y) no

modification contained in such Reissued Purchase Money Note shall adversely affect (i) the

amount or timing of distributions to the Manager pursuant to the Priority of Payments or (ii) any

other rights or obligations of the Manager pursuant to this Agreement or any Ancillary

Document (other than the Purchase Money Notes). Simultaneously with the issuance of any

Reissued Purchase Money Note, the Company shall deposit the proceeds of such Reissued

Purchase Money Note into the Defeasance Account to repay the Holders of the related Maturing

Purchase Money Note; provided, however, that for purposes of clause (B) of this Section 2.8,

proceeds from Reissued Purchase Money Notes deposited in the Defeasance Account shall not

be included as amounts on deposit to pay such Maturing Purchase Money Note. Each reissued

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

(b) An upfront fee equal to 0.50% of the initial principal balance of the

Reissued Purchase Money Notes shall be payable on the date of reissuance (the “Purchase

Money Notes Reissuance Fee”); provided, however, that the Purchase Money Notes Reissuance

Fee shall be payable only upon the first reissuance of the Reissued Purchase Money Notes and

not for subsequent reissuances of Reissued Purchase Money Notes, if any. The Purchase Money

Notes Reissuance Fee shall include all of the transaction costs associated with the issuance of

such Reissued Purchase Money Notes. The Company’s obligation to pay the Purchase Money

Notes Reissuance Fee shall be satisfied by increasing the aggregate principal amount of such

Reissued Purchase Money Note by an amount equal to the Purchase Money Notes Reissuance

Fee.

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

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

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

their reasonable satisfaction of the destruction, loss or theft of any Purchase Money Note, and

(ii) there is delivered to the Company and the Paying Agent such security or indemnity as may

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

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

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

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

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

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

to which interest has been paid on the mutilated, defaced, destroyed, lost or stolen Purchase

Money Note and bearing a number not contemporaneously outstanding.

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

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

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

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

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

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

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

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

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

a new Purchase Money Note pay such Purchase Money Note without requiring surrender thereof

except that any mutilated Purchase Money Note shall be surrendered.

(d) Upon the issuance of any new Purchase Money Note under this Section

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

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

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

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

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

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

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

proportionately with any and all other Purchase Money Notes duly issued hereunder.

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

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

lost or stolen Purchase Money Notes.

Section 2.10 Payments with Respect to the Purchase Money Notes.

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

or more predecessor Purchase Money Notes) effected by prepayments of principal shall be

binding upon all future Note Owners of such Purchase Money Note and of any Purchase Money

Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof,

whether or not such payment is noted on such Purchase Money Note. Subject to the foregoing,

each Purchase Money Note delivered under this Agreement and upon registration of transfer of

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

principal or distributions that were carried by such other Purchase Money Note.

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

made by or on behalf of the Company, in U.S. dollars to the 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 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

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Date; and (ii) if appropriate instructions for any such wire transfer are not received at least

15 Business Days prior to the relevant Distribution Date, then such payment shall be made by

check drawn on a U.S. bank mailed to the address of the Holder specified in the Purchase Money

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

thereof shall present and surrender such Purchase Money Note at the office of the Paying Agent

on or prior to such maturity; provided that, if the Paying Agent and the Company shall have been

furnished such security or indemnity as may be required by them to save each of them harmless

and an undertaking thereafter to surrender such Purchase Money Note, then, in the absence of

notice to the Company or the Paying Agent that the applicable Purchase Money Note has been

acquired by a bona fide or protected purchaser, and upon written direction from the Company,

such final payment shall be distributed by the Paying Agent without presentation or surrender;

provided further that the foregoing provisos shall not apply to any class of Purchase Money

Notes so long as such class of Purchase Money Notes 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 Notes shall be given or made only to or upon the order of the

registered Holders. Neither the Company nor the Paying Agent shall have any responsibility or

liability for any aspects of the records maintained by 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 one

or more Certificated Notes issued to the beneficial owners thereof if (i) either the Depository

notifies the Company that it is unwilling or unable to continue as depository for such Global

Note or (ii) at any time the Depository ceases to be a Clearing Agency registered under the

Exchange Act and, in each case, a successor depository is not appointed by the Company within

90 days after such notice; and provided that such exchange complies with Section 2.7 hereof.

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

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

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

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

aggregate principal amount of Certificated Notes in Authorized Denominations. Any

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

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

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

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

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

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

a Holder is entitled to take under this Agreement or the Purchase Money Notes.

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

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

supply of Certificated Notes in definitive, fully registered form without interest coupons. The

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Certificated Notes shall be in substantially the same form as the Exhibits to this Agreement with

such changes therein as the Company and Paying Agent shall agree and the Company shall

execute, and the Paying Agent shall deliver, in exchange for the Global Note or Global Notes, as

the case may be, the same original aggregate principal amount of Certificated Notes of

Authorized Denominations.

Section 2.12 Notes Beneficially Owned by Persons Not Qualified Institutional Buyers

or Qualified Purchasers.

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

any transfer of (i) a Rule 144A Global Note or a 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

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) a Qualified Institutional Buyer and a

Qualified Purchaser or (B) 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) 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 shall, promptly after discovery that such Person is a Non-Permitted

Holder by the Company or the Paying Agent (and notice by the Paying Agent to the Company),

send notice to such Non-Permitted Holder demanding that such Non-Permitted Holder transfer

its interest to a Person that is not a Non-Permitted Holder within 30 days of the date of such

notice. If such Non-Permitted Holder fails to so transfer its interest, the Company shall have the

right, without further notice to the Non-Permitted Holder, to sell such interest to a purchaser

selected by the Company that is not a Non-Permitted Holder on such terms as the Company may

choose. The Company, with the assistance of an independent investment bank of national

reputation engaged at the expense of the Company, shall select the purchaser by soliciting one or

more bids from one or more brokers or other market professionals that regularly deal in

securities similar to the Purchase Money Notes and selling such interest to the highest such

bidder. However, the Company may select a purchaser by any other means determined by it in

its sole discretion. The Holder of each Purchase Money Note, the Non-Permitted Holder and

each other Person in the chain of title from the Holder to the Non-Permitted Holder, by their

acceptance of an interest in the Purchase Money Notes, agree to cooperate with the Company

and the Paying Agent to effect such transfers. The proceeds of such sale, net of any

commissions, expenses and taxes due in connection with such sale, shall be remitted to the

Non-Permitted Holder. The terms and conditions of any sale under this subsection shall be

determined in the sole discretion of the Company, and the Company shall not be liable to any

Person having an interest in the Purchase Money Notes sold as a result of any such sale or the

exercise of such discretion.

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

the Company to any 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

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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 Purchase

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

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

Purchase Money Notes.

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

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

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

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

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

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

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

affected by notice to the contrary.

Section 2.15 Holder Voting. In any case in which consent of the “Holders” is required

hereunder, such consent requirement shall be satisfied if the Holders of more than fifty percent

(50%) of the outstanding principal amount of the applicable Class of Purchase Money Notes

consent. Notwithstanding the foregoing, with respect to each of the following, such consent

requirement shall only be satisfied if each affected Holder consents:

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

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

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

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

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

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

otherwise modify this Section 2.15; and

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

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

payment under the Purchase Money Notes Guaranty.

Section 2.16 Cancellation. All Purchase Money Notes surrendered for payment,

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

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

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

lieu of or in exchange for any Purchase Money Notes cancelled as provided in this Section 2.16,

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

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

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

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

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

following steps in connection with the Rule 144A Global Notes:

(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 Notes in order to indicate that sales are limited to Persons

that are both Qualified Institutional Buyers and Qualified Purchasers.

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

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

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

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

contain the “3c7” indicator and a related user manual for participants, which shall contain a

description of the relevant restrictions.

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

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

with the offering of the Rule 144A Global Notes.

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

Section 3(c)(7) issuer and shall request the Depository to include the Rule 144A Global Notes in

the Depository’s “Reference Directory” of Section 3(c)(7) offerings.

(v) The Company from time to time shall (upon the request of the

Paying Agent or the Purchase Money Notes Registrar) request the Depository to deliver to the

Company a list of all Depository participants holding an interest in the Rule 144A Global Notes.

(b) Bloomberg Screens, Etc. The Company from time to time shall request all

third-party vendors to include on screens maintained by such vendors appropriate legends

regarding Rule 144A and Section 3(c)(7) restrictions on the Rule 144A Global Notes. Without

limiting the foregoing, the Company shall request Bloomberg, L.P. to include the following on

each Bloomberg screen containing information about the Rule 144A Global Notes:

(i) “Security Description” page 1 describing the security states:

“144A/3c7 “ok”; Reg S/3c7 “ok”; 144A/DTC Book Entry; Reg S/Certificated”;

(ii) “Security Description” page 1 states: “See Page 3 for Comments”

(iii) “Security Description” page 3 states: “RESTRICTIONS: These

securities are being offered under the Securities Act only (a) in book-entry and certificated form

to “qualified institutional buyers” under Rule 144A and (b) in certificated form to non-U.S.

Persons in offshore transactions under Regulation S, where (a) and (b) are also “qualified

purchasers” within the meaning of Section 3(c)(7) of the 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

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Closing Date that “Security Description” page 3 states: “144A/3c7 “ok”; Reg S/3c7 “ok”;

144A/DTC Book Entry; Reg S/Certificated” in addition to the language in subsection (b)(iii)

above.

(c) CUSIP. The Company shall cause each “CUSIP” number obtained for the

Rule 144A Global Notes to have an attached “fixed field” that contains “3c7” and “144A”

indicators.

ARTICLE III
 

ACCOUNTS
 

Section 3.1 Collection Account.

(a) On July 2, 2010, the Company established the Collection Account with the

Paying Agent. For all Loan Proceeds with respect to any Group of Loans received by the

Receiver during the Interim Servicing Period for which the Servicing Transfer Date has not

occurred, the Receiver shall transfer any such Loan Proceeds, net of any Servicing Expenses and

Pre-Approved Charges then due and payable, no later than two (2) Business Days prior to the

applicable Distribution Date to the Paying Agent for deposit into the Collection Account. For all

Loan Proceeds with respect to any Group of Loans received after the Interim Servicing Period

and for which the Servicing Transfer Date has occurred, the Company shall transfer, or cause the

Servicer or any Subservicer to transfer, all Loan Proceeds within two (2) Business Days of

receipt of such funds to the Paying Agent for deposit into the Collection Account; provided, that

all amounts received from Borrowers which are required to be deposited to the Escrow Account

under the Loan Documents will not be applied to the Collection Account as Loan Proceeds. No

funds from any other source (other than Loan Proceeds, interest or earnings on the Loan

Proceeds, funds transferred from the Working Capital Reserve Account pursuant to Section 3.6,

funds advanced by the Manager as Excess Working Capital Advances pursuant to the LLC

Operating Agreement and Section 3.7, and funds advanced by the Manager as Discretionary

Funding Advances pursuant to the LLC Operating Agreement and Section 3.8) shall be

commingled in the Collection Account.

(b) Amounts on deposit in (or that are required to have been deposited into)

the Collection Account (including interest and earnings thereon) shall be applied (i) first, to the

repayment of any Discretionary Funding Advance that the Manager has made with respect to any

Loan together with accrued and unpaid interest on each Discretionary Funding Advance, but

only to the extent of Loan Proceeds from the Loan with respect to which the Discretionary

Funding Advance was made; (ii) second, to the payment of the 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 advance any Funding Draws permitted pursuant to any

Loan Documents; and (iv) fourth, the balance, if any, to be transferred to the Distribution

Account in accordance with Section 3.2; provided, however, that any Discretionary Funding

Advances shall not be transferred and may be used to fund Funding Draws with respect to the

Loan to which such Discretionary Funding Advances relate.

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(c) At any time during the Interim Servicing Period, the Initial Member is

authorized to request the withdrawal of funds from the Collection Account to pay Servicing

Expenses, Pre-Approved Charges and Funding Draws. The Manager will have authority to

request the withdrawal of funds from the Collection Account at any time to pay Servicing

Expenses and Pre-Approved Charges and to fund any Funding Draws, all in accordance with the

terms of this Agreement and the Related Agreements, and if the Receiver, the Company, the

Servicer or any Subservicer at any time erroneously deposits any amount into the Collection

Account, the Manager will have authority to request the withdrawal of such amount and instruct

the Paying Agent to pay such amount to the Receiver, the Company, the Servicer or any

Subservicer, as applicable. The Manager shall provide such requests to the Paying Agent in

accordance with Section 18.1.

(d) 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.

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

withdraw funds from the Collection Account only to pay the Servicing Expenses and

Pre-Approved Charges, to fund any Funding Draws, to transfer funds to the Distribution Account

pursuant to Section 3.2 and as otherwise set forth in this Agreement and not for any other

purpose. The Collection Account (and all funds therein) shall be subject to the security interest

granted to the Collateral Agent under the Reimbursement, Security and Guaranty Agreement and

to the Account Control Agreement in substantially the form attached hereto as Exhibit N.

Section 3.2 Distribution Account.

(a) On July 2, 2010, the Company established the Distribution Account with

the Paying Agent. The Paying Agent shall transfer from the Collection Account to the

Distribution Account, for application pursuant to Section 5.1, not later than 12:00 p.m.

New York time on the Business Day immediately preceding each Distribution Date, the amount

specified in the Distribution Date instructions delivered pursuant to Section 11.4 for such

Distribution Date.

(b) No funds from any other source shall be commingled in the Distribution

Account. Amounts on deposit in (or that are required to have been deposited into) the

Distribution Account (including interest and earnings thereon) shall be allocated and may be

withdrawn and disbursed only in accordance with the provisions of Section 5.1.

(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.

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(a) On July 2, 2010, the Company 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 Notes Guarantor, in accordance with Section 17.1 of

the Purchase Money Notes Guaranty, shall deposit any amounts payable under the Purchase

Money Notes Guaranty in respect of the Guaranteed Obligations (as defined in the Purchase

Money Notes Guaranty) 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 Class of Purchase Money Notes is due and payable or, in connection with the final

payment of a Class of Purchase Money Notes on the applicable Maturity Date, by 12:00 p.m.

New York time on the date that is one (1) Business Day prior to such Maturity Date, in each

case, for further distribution by the Paying Agent to the applicable Holders; provided that the

Purchase Money Notes Guarantor has received written demand therefor from the applicable

Holders or from the Paying Agent on such Holders’ behalf pursuant to Section 17(a) of the

Purchase Money Notes Guaranty no later than 5:00 p.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

such Purchase Money Notes on the applicable Maturity Date, such Maturity Date. In addition,

the Company may deposit any Company Principal Prepayment Amount in the Defeasance

Account, provided that such amount is deposited in the Defeasance Account at least one

Business Day prior to the related Distribution Date, to be applied by the Paying Agent as a

principal prepayment (or a portion thereof) on such Distribution Date in accordance with the

related Distribution Date Report or the Maturity Date Report. To the extent the Paying Agent

receives amounts from the Purchase Money Notes Guarantor to be used to pay interest on

overdue principal of any Purchase Money Notes, the Paying Agent shall deposit such amounts

into the Defeasance Account and shall distribute such amounts to the Holders of the applicable

Purchase Money Notes on the date the principal is paid to the Holders. Any overdue principal on

the Purchase Money Notes and interest thereon may be paid to the Holders 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 any Class of Purchase Money Notes is due and payable

or on the Maturity Date with respect to any Class of Purchase Money Notes, a payment is due

from the Purchase Money Notes 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 Purchase Money Notes Guaranty, the Paying Agent shall deposit such

amounts into the Defeasance Account for further distribution by the Paying Agent to the

applicable Holders. To the extent the Paying Agent otherwise receives amounts from the

Purchase Money Notes Guarantor paid under Section 17(b) of the Purchase Money Notes

Guaranty, the Paying Agent shall deposit such amounts into the Defeasance Account for further

distribution by the Paying Agent to the applicable Holders. Any amounts deposited into the

Defeasance Account under Section 17(b) of the Purchase Money Notes Guaranty 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 Notes Guarantor as described in this Section 3.3 or

(iii) deposits made by the Manager pursuant to Section 5.4(y) of the LLC Operating Agreement)

shall be commingled in the Defeasance Account.

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(d) The Paying Agent shall invest the amounts on deposit in the Defeasance

Account in Permitted Investments in accordance with investment directions from the Purchase

Money Notes Guarantor. Income or gain from such investments will be available to be applied

with other amounts in accordance with Sections 3.3(g) and (i).

(e) If, on the Maturity Date of any Purchase Money Note (or any Distribution

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

Purchase Money Notes) 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 Holders of the Purchase Money Notes on such 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 Notes Guarantor shall deposit into the

Defeasance Account the lesser of (x) the amount of such Net Loss on Investments and (y) the

portion of such Net Loss on Investments which is required to increase the amount in the

Defeasance Account to the amount owing to the Holders of the Purchase Money Notes on such

Maturity Date or Distribution Date.

(f) If the Manager in its discretion elects to provide Excess Working Capital

Advances to cure a Purchase Money Notes Trigger Event as described in Section 3.7, the

Manager shall direct the Paying Agent to deposit such Excess Working Capital Advances into

the Defeasance Account.

(g) On the Class A-1 Note Maturity Date and on any Distribution Date on

which an acceleration payment or prepayment of principal with respect to the Class A-1

Purchase Money Notes 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 Holders of the Class A-1 Purchase Money

Note on the Class A-1 Note Maturity Date or such Distribution Date, as applicable, and pay all

proceeds of such liquidation to the Holders of the Class A-1 Purchase Money Note in accordance

with their Holder Percentages. On the Class A-2 Note Maturity Date and on any Distribution

Date on which an acceleration payment or prepayment of principal with respect to the Class A-2

Purchase Money Notes 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 Holders of the Class A-2 Purchase Money

Note on the Class A-2 Note Maturity Date or such Distribution Date, as applicable, and pay all

proceeds of such liquidation to the Holders of the Class A-2 Purchase Money Note in accordance

with their Holder Percentages. On the Class A-3 Note Maturity Date and on any Distribution

Date on which an acceleration payment or prepayment of principal with respect to the Class A-3

Purchase Money Notes 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 Holders of the Class A-3 Purchase Money

Note on the Class A-3 Note Maturity Date or such Distribution Date, as applicable, and pay all

proceeds of such liquidation to the Holders of the Class A-3 Purchase Money Note in accordance

with their Holder Percentages. For the avoidance of doubt, any amounts distributed from the

Defeasance Account pursuant to this Section 3.3 shall be distributed to the Holders of each

applicable Class of Purchase Money Notes on a pro rata basis.

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(h) If, pursuant to Section 2.8, a Reissued Purchase Money Note is issued

upon the maturity of the related Maturing Purchase Money Note, the proceeds from such

Reissued Purchase Money Note shall be deposited in the Defeasance Account to pay the related

Maturing Purchase Money Note. This Section 3.3 shall apply to such Reissued Purchase Money

Note following the full or partial liquidation of the Defeasance Account and payment of the

Holders of the related Maturing Purchase Money Note and the issuance of such Reissued

Purchase Money Note.

(i) Following the maturity date of the last maturing Purchase Money Note

(including any Reissued Purchase Money Note) and the payment in full of the Holders of such

Purchase Money Note, the Paying Agent shall liquidate the Defeasance Account and pay any and

all proceeds of such liquidation to the Purchase Money Notes Guarantor.

(j) The Paying Agent shall be authorized and directed to withdraw funds from

the Defeasance Account only to make disbursements in accordance with this Agreement and not

for any other purpose. The Defeasance Account (and all funds therein) shall be subject to the

security interest granted to the Collateral Agent under the Reimbursement, Security and

Guaranty Agreement and to the Account Control Agreement.

(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)(vi), the actual deposit made into such

account exceeds the amount which 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 [Intentionally Omitted]

Section 3.5 [Intentionally Omitted]

Section 3.6 Working Capital Reserve Account.

(a) On July 2, 2010, the Company established the Working Capital Reserve

(the “Working Capital Reserve”) for the purpose of (i) paying the Working Capital Expenses to

the extent there are insufficient funds in the Collection Account with which to pay the

outstanding amount of the Working Capital Expenses then due and payable, in which case the

Company, shall instruct the Paying Agent to release some or all of the funds from the Working

Capital Reserve Account (in an amount that the Manager determines in the exercise of its

reasonable discretion) and allocate and distribute such released funds to the Collection Account

from which the funds will be available to pay such Working Capital Expenses, and (ii) advancing

all Funding Draws as permitted pursuant to the applicable Loan Documents, in which case the

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

some or all of the funds from the Working Capital Reserve Account and allocate and distribute

such released funds to the Company for the funding of such Funding Draws.

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(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 Working Capital Reserve funds.

(c) The Working Capital Reserve Account was funded initially in accordance

with Section 12.11 of the LLC Operating Agreement and thereafter shall be replenished through

deposits made into the Working Capital Reserve Account in accordance with Section 5.1(b)(iv)

of this Agreement.

(d) At all times prior to the Purchase Money Notes Defeasance Date, the

Manager, in the exercise of its reasonable discretion, shall determine the amount of funds to be

on deposit in the Working Capital Reserve Account, which amount shall be equal to or greater

than the Working Capital Reserve Floor but less than the Working Capital Reserve

Replenishment Cap; provided, however, that the Manager, in the exercise of its reasonable

discretion, may determine to release funds from the Working Capital Reserve Account and

reduce the Working Capital Reserve to an amount below the Working Capital Reserve Floor if

such funds are required to pay Working Capital Expenses then due and payable so long as the

balance of the Working Capital Reserve Account is restored to the Working Capital Reserve

Floor as soon thereafter as is practicable.

(e) 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.

(f) In addition, if the Manager determines in the exercise of its reasonable

discretion that the funds held in the Working Capital Reserve Account in excess of the Working

Capital Reserve Floor no longer are necessary to satisfy the purposes for which the Working

Capital Reserve has been established, the Manager may instruct the Paying Agent to release such

excess funds from the Working Capital Reserve Account, and thereafter the Paying Agent shall

allocate and distribute such excess funds to the Collection Account from which account the funds

will be transferred to the Distribution Account and made available for distribution in accordance

with the Priority of Payments pursuant to Section 5.1 of this Agreement and the LLC Operating

Agreement.

(g) The Paying Agent shall invest the amounts on deposit in the Working

Capital Reserve Account in Permitted Investments in accordance with investment directions

from the Company but with a maturity that allows for their transfer in accordance with this

Section 3.6. No funds from any other source (other than interest or earnings on the funds held in

the Working Capital Reserve Account and funding from the Initial Member as described in this

Section) shall be commingled in the Working Capital Reserve Account.

(h) The Paying Agent shall be authorized and directed to withdraw funds from

the Working Capital Reserve Account only to make disbursements in accordance with this

Agreement and not for any other purpose. The Working Capital Reserve Account (and all funds

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

Reimbursement, Security and Guaranty Agreement and to the Account Control Agreement.

Section 3.7 Excess Working Capital Advances. The Manager shall, except as

otherwise provided in Section 12.6 of the LLC Operating Agreement, make Excess Working

Capital Advances to the Paying Agent from its own funds in accordance with the terms described

in Section 5.4 of the LLC Operating Agreement and to the extent that there are insufficient funds

(a) in the Collection Account and the Working Capital Reserve with which to pay Working

Capital Expenses (other than Funding Draws) in full or (b) in the Distribution Account to fund

the Defeasance Account by such amount as might be required to cure a Purchase Money Notes

Trigger Event. The Manager shall direct the Paying Agent to deposit any Excess Working

Capital Advances to pay Working Capital Expenses into the Collection Account (from which the

funds will be available to pay such Working Capital Expenses) and shall direct the Paying Agent

to deposit any Excess Working Capital Advances as might be required to cure a Purchase Money

Notes Trigger Event into the Defeasance Account.

Section 3.8 Discretionary Funding Advances. Pursuant to Section 5.3 of the LLC

Operating Agreement, the Manager may make, at its discretion, Discretionary Funding Advances

from its own funds to the extent there are insufficient funds in the Collection Account and the

Working Capital Reserve with which to fund any Funding Draw permitted pursuant to any Loan

Documents, which Discretionary Funding Advances are to be designated as applicable only to

the Loan for which any Funding Draw is funded. Any Discretionary Funding Advances are to be

deposited into the Collection Account from which the funds will be available to fund such

Funding Draw.

Section 3.9 Private Owner Pledged Account.

(a) On the date hereof, the Private Owner shall establish the Private Owner

Pledged Account with the Paying Agent for the exclusive purpose of holding Qualifying Cash

Collateral, whether such Qualifying Cash Collateral is delivered on the date hereof or

subsequent to the date hereof in full and complete substitution for a Qualifying Letter of Credit

pursuant to the LLC Operating Agreement or upon the liquidation or drawing down of a

Qualifying Letter of Credit or Satisfactory Equity Commitment Letter pursuant to the LLC

Operating Agreement. The Private Owner Pledged Account (and all funds therein) shall be

subject to the security interest granted for the benefit of the Initial Member pursuant to the LLC

Operating Agreement, this Agreement and the Private Owner Account Control Agreement. In

no event shall the Private Owner have any right or authority to withdraw any funds from the

Private Owner Pledged Account except as expressly provided in Section 3.9(b) below.

(b) From time to time, at the request of the Private Owner, the Paying Agent

may release funds from the Private Owner Pledged Account to the Private Owner only to the

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 Seven Million Five Hundred

Thousand Dollars ($7,500,000). Any such release shall be pursuant to applicable instructions

and documentation satisfactory to, and executed by (or with the written consent of), both of the

Initial Member and the Private Owner (and prepared at the sole cost and expense of the Private

Owner).

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ARTICLE IV
 

ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS
 

Section 4.1 Investment of Funds in Accounts.

(a) (i) The Company or the Purchase Money Notes Guarantor, as

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

direction, the Paying Agent shall, invest, pending deposit into the Collection Account, the

Working Capital Reserve Account or the Defeasance Account, as applicable, amounts received

and retained in such Accounts, as so directed in Permitted Investments. If the Company or the

Purchase Money Notes Guarantor, as applicable, shall not have given any such investment

directions, the Paying Agent shall seek investment directions from such Person. If the Company

or the Purchase Money Notes Guarantor, as applicable, does not provide the Paying Agent with

investment directions pursuant to Sections 3.1, 3.3, 3.6 or 4.1, the balance standing to the credit

of the Collection Account, the Working Capital Reserve Account or the Defeasance Account, as

applicable, will remain uninvested with no liability for interest thereon. It is agreed and

understood that the Paying Agent may earn fees associated with Permitted Investments.

(ii) The Private Owner may direct the Paying Agent to, and, upon

receipt of such investment direction, the Paying Agent shall, invest amounts received and

retained in the Private Owner Pledged Account, as so directed in Permitted Investments. If the

Private Owner shall not have given any such investment directions, the Paying Agent shall seek

investment directions from the Private Owner. If the Private Owner does not provide the Paying

Agent with investment directions pursuant to this Section 4.1(a)(ii), the balance standing to the

credit of the Private Owner Pledged Account will remain uninvested with no liability for interest

thereon. Except for the distributions permitted under Section 3.9(b), all such Permitted

Investments must remain in the Private Owner Pledged Account as Qualifying Cash Collateral.

(iii) It is agreed and understood that the Paying Agent may earn fees

associated with Permitted Investments.

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

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

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

“Company Accounts”), after application of all other available funds, the Paying Agent shall

allocate to the Account to which such funds are to be transferred a portion of any Permitted

Investment that would otherwise have to be liquidated to accomplish such transfer in an amount

corresponding to the amount to be so transferred. Whenever the Paying Agent is directed or

authorized in accordance with the terms hereof to make a transfer of funds from the Company

Accounts (unless such transfer is between the Company Accounts), if, after application of all

other available funds, liquidation of a Permitted Investment is necessary to make any such

transfer, the Paying Agent is authorized to liquidate such Permitted Investment. If any Permitted

Investment so liquidated is then allocated to more than one Company Account, and it is not

possible to liquidate only the portion of such Permitted Investment allocated to the Company

Account from which such transfer is to be made, then the entire Permitted Investment shall be

liquidated, and the proceeds of such liquidation shall be allocated to the Company Accounts

involved in the same proportion as the allocation of such Permitted Investment, except that the

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net costs and expenses, if any, of such liquidation (including any loss of principal) shall be

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

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

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

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

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

this Section 4.1.

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

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

Purchase Money Notes Guarantor or the Private Owner, pursuant to this Agreement.

(d) All references in this Agreement to the Accounts and to cash, moneys or

funds therein or balances thereof shall include the investments in which such moneys are

invested.

(e) The Paying Agent may execute any investment directions provided to it in

respect of the Permitted Investments through its Affiliates, and neither the Paying Agent nor its

Affiliates shall have a duty to monitor the investment rating of any such Permitted Investments.

The Paying Agent will have no obligation to invest or reinvest any funds if all or a portion of

such funds are deposited with the Paying Agent after 4:00 p.m. New York time on the day of

deposit. Directions to invest or reinvest that are received after 4:00 p.m. New York time will be

treated as if received on the following Business Day in New York. Subject to Section 4.1(b)

above, the Paying Agent will have the power to sell or liquidate Permitted Investments whenever

the Paying Agent will be required to make a transfer pursuant to the terms hereof. The Paying

Agent will have no responsibility for any investment losses resulting from the investment,

reinvestment or liquidation of any funds in accordance with the terms of this Agreement.

Section 4.2 Interest. Any interest or other earnings accrued on any balances in any

Account (other than the Defeasance Account subject to Section 3.3(i)), 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 Notes 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 Notes

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 Notes Guarantor and the Collateral Agent).

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

by the Paying Agent from the Distribution Account or the Defeasance Account in accordance

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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) Notwithstanding any other provision in this Agreement, before each

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

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

Agent in accordance with the priorities set forth in Section 5.1(b) below (the “Priority of

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

Reports delivered pursuant to Section 11.4. Notwithstanding any provisions in this Agreement

to the contrary, however, the Paying Agent shall take disbursement instructions from the Initial

Member with respect to the distributions payable to the Private Owner pursuant to Section

5.1(b)(vii) below upon the delivery of written notice from the Initial Member to the Paying

Agent providing that such distributions instead should be paid to the Initial Member pursuant to

the terms of the LLC Operating Agreement. Absent delivery of such written notice, the Paying

Agent shall pay in accordance with Section 5.1(b)(vii) below.

(b) On each Distribution Date, all funds in the Distribution Account will be

distributed in the following order of priority:

(i) first, to pay the fees and expenses of the Custodian and Paying

Agent, including any indemnification payments owing to the Custodian and Paying Agent

pursuant to Section 13.1, in accordance with the terms of this Agreement;

(ii) second, (A) for each Due Period during the Interim Servicing

Period, with respect to each Group of Loans, to pay to (1) the Initial Member the Interim

Servicing Fee, together with any unpaid portion of the Interim Servicing Fee for any prior Due

Period and (2) the Manager, an amount equal to the Interim Servicing Fee (the “Interim

Management Fee”), together with any unpaid portion of the Interim Management Fee for any

prior Due Period, and (B) for each Due Period following the Interim Servicing Period, with

respect to each Group of Loans, to pay to the Manager an amount equal to the Management Fee,

together with any unpaid portion of the Management Fee for any prior Due Period;

(iii) third, to repay the Excess Working Capital Advances made by the

Manager pursuant to Section 5.4 of the LLC Operating Agreement and Section 3.7 above;

(iv) fourth, subject to the provisions of Section 3.6 above, (i) to

replenish the Working Capital Reserve until the amount of funds held in the Working Capital

Reserve Account is equal to or greater than the Working Capital Reserve Floor, (ii) if the

Working Capital Reserve Threshold Amount has not yet been met, to pay an amount sufficient to

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meet the Working Capital Reserve Threshold Amount and (iii) to pay any additional amounts

identified for deposit herein at the discretion of the Manager, subject to the Working Capital

Reserve Cap;

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

accrued interest thereon, due and payable as of the Determination Date for the applicable Due

Period to the Purchase Money Notes Guarantor pursuant to the Reimbursement, Security and

Guaranty Agreement for previous payments made by it under the Purchase Money Notes

Guaranty;

(vi) sixth, an amount equal to the Defeasance Account Required

Deposit Amount shall be deposited into the Defeasance Account; and

(vii) finally, all remaining amounts shall be paid to the Initial Member

and the Private Owner in accordance with Section 6.6 of the LLC Operating Agreement.

Section 5.2 Notices of Payment Failure and Events of Default.

(a) The Paying Agent shall deliver prompt written notice to the Company, the

Purchase Money Notes Guarantor and the Collateral Agent in the event that it fails to receive in

full 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 Notes Guarantor and the Collateral

Agent as soon as practicable in accordance with the previous sentence. Upon the Paying Agent’s

receipt from the Collateral Agent or the Purchase Money Notes Guarantor of written notice at its

Office that an Event of Default under the Reimbursement, Security and Guaranty Agreement

(and as defined therein) has occurred, the Paying Agent shall deliver prompt written notice to the

Holders of the occurrence of such Event of Default.

(c) If the Paying Agent receives notice from the Holders of any Class of

Purchase Money Notes that such Class of Purchase Money Notes has been declared immediately

due and payable in accordance with the terms of such Class of Purchase Money Notes no later

than noon (EST) on the fourth (4th) Business Day prior to a Distribution Date, the Paying Agent

shall determine the amount payable by the Purchase Money Notes Guarantor under the Purchase

Money Notes Guaranty (based on the related Distribution Date Report) and shall make a demand

therefor no later than four Business Days prior to such Distribution Date to the Purchase Money

Notes Guarantor on behalf of the applicable Holders in accordance with Section 17(a) of the

Purchase Money Notes Guaranty.

(d) If the Paying Agent receives any such notice from the Holders later than

noon (EST) on the fourth (4th) Business Day prior to a Distribution Date, the Paying Agent shall

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determine the amount payable by the Purchase Money Notes Guarantor under the Purchase

Money Notes Guaranty (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 Notes Guarantor on behalf

of the applicable Holders in accordance with Section 17(a) of the Purchase Money Notes

Guaranty.

ARTICLE VI
 

CUSTODIAL DOCUMENTS
 

Section 6.1 Delivery of Custodial Documents.

(a) Delivery. As soon as practical after the date hereof, the Company shall

deliver or cause to be delivered the Custodial Documents to the Custodian at the office of the

Custodian at Wells Fargo Document and Custody, 1055 10th Avenue, SE, Minneapolis,

Minnesota 55414, Attention: Kathy Marshall (the “Office”).

(b) Collateral Certificate; Exceptions. The Custodian shall make available

during normal business hours, and at such other hours as might be reasonable in the

circumstances, to the Company (and representatives of the Company and, if the Company so

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

six (6) people to review the Custodial Documents with representatives of the Custodian for a

period of not more than ten (10) days prior to the delivery of possession of the same to the

Custodian. Within forty-five (45) days after delivery of the Custodial Documents to the

Custodian, the Custodian shall execute and deliver to the Company, the Purchase Money Notes

Guarantor and the Collateral Agent a certificate, substantially in the form annexed hereto as

Exhibit E, to the effect that the Custodian has received and reviewed the Custodial Documents

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

documents provided with respect to a Loan, the Custodian shall examine the same in accordance

with the procedures set forth on Exhibit F hereto and determine, with respect to each such

document, whether it (i) appears regular on its face (i.e., is not mutilated, damaged, torn, defaced

or otherwise physically altered), (ii) relates to such Loan, (iii) has been executed by the named

parties thereon, (iv) where applicable, purports to be recorded, and (v) appears to be what it

purports to be.

(c) Custodial Documents. For each Loan and Acquired Property, to the extent

applicable and available, the “Custodial Documents” shall include the following:

(i) the original Note bearing all intervening endorsements and

endorsed “Pay to the order of 2010-1 CRE Venture, LLC, without recourse” and signed in the

name of the Federal Deposit Insurance Corporation as Receiver, and an allonge providing for the

endorsement of the Note and endorsed “Pay to the order of ________________, without

recourse” and signed by the Company as the last endorsee; and in the event that the original Note

is not available, a fully executed Assignment and Lost Instrument Affidavit in the form of

Exhibit L hereto;

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(ii) the original 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 of all assumption, modification, consolidation or

extension agreements (if any) with evidence of recording thereon, or copies thereof from the

applicable Recording Office, or copies thereof together with a certification by or other similar

evidence from the applicable Recording Office or an officer’s certificate of the related Borrower,

title company, escrow agent or closing attorney certifying that such represents a true and correct

copy of the original and that such original has been submitted for recordation in the applicable

Recording Office;

(iv) Acquired Property Files;

(v) except in the case of any MERS Designated Loan, the original

Mortgage Assignment in blank for each Loan, in form and substance acceptable for recording

and signed in the name of the Federal Deposit Insurance Corporation as Receiver for various

failed financial institutions to the Company;

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

Mortgage Assignment in blank for each Loan, in form and substance acceptable for recording

and signed in the name of the Company to the Collateral Agent;

(vii) except in the case of any MERS Designated Loan, the originals of

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

thereof from the applicable Recording Office, or copies thereof together with an officer’s

certificate of the related Borrower, title company, escrow agent or closing attorney certifying that

such represents a true and correct copy of the original and that such original has been submitted

for recordation in the applicable Recording Office;

(viii) the original attorney’s opinion of title and abstract of title or the

original mortgage title insurance policy or, if the original mortgage title insurance policy has not

been issued, the irrevocable commitment to issue the same, or a true and correct copy of the title

policy from the issuing title company;

(ix) the originals of all Collateral Documents executed in connection

with the Loan, if available;

(x) Uniform Commercial Code financing statements with recording

information thereon from the Recording Offices if necessary to perfect the security interest of the

Loan under the Uniform Commercial Code;

(xi) if the equity interests of any Ownership Entity are certificated, the

certificate representing such equity interest;

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(xii) any bailee letters regarding any Notes or other Custodial

Documents held by the bailee; and

(xiii) solely with respect to each MERS Designated Loan, a MERS

Report.

(d) Supplemental Deliveries. The Company agrees that it shall deliver or

cause to be delivered to the Custodian (i) any and all additional Custodial Documents with

respect to a Loan that is not Acquired Property within ten (10) days following the execution and

delivery of any such instrument and (ii) any and all Custodial Documents with respect to any

Acquired Property within ten (10) days following receipt of any such instrument. All such

deliveries of Custodial Documents pursuant to this Section 6.1(d) shall be accompanied by a

certificate in the form of Exhibit G (a “Supplemental Delivery Certificate”), prepared by an

Authorized Representative of the Company, itemizing the Custodial Documents being delivered

to the Custodian in such delivery and identifying the Loan or Acquired Property with respect to

which each such Custodial Document relates. After the receipt thereof, the Custodian shall

(A) examine the additional Custodial Documents provided with respect to a Loan or Acquired

Property in accordance with the review procedures set forth on Exhibit F (the “Review

Procedures”) and, determine, with respect to each such document, whether it (i) appears regular

on its face (i.e., is not mutilated, damaged, torn, defaced or otherwise physically altered),

(ii) relates to such Loan or Acquired Property, (iii) has been executed by the named parties

thereon, (iv) where applicable, purports to be recorded, and (v) appears to be what it purports to

be, and (B) ensure that all such Custodial Documents with respect to a Loan or Acquired

Property are placed in the file for the related Loan. In the event the Custodian determines that

the Supplemental Delivery Certificate is inaccurate, the Custodian shall so notify the Company

in writing no later than the first Business Day following its receipt of the Supplemental Delivery

Certificate. Within seven (7) Business Days after the receipt of the additional Custodial

Documents by the Custodian, the Custodian shall provide the Company (with a copy to the

Purchase Money Notes Guarantor and the Collateral Agent) with a Collateral Certificate, to the

effect that the Custodian has received and reviewed the additional Collateral Documents, and

include a revised Loan Schedule and Exception List.

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

Schedule and Exception List shall list all Exceptions using such codes as shall be in form and

substance agreed to by the Custodian and the Company. Each Loan Schedule and Exception List

delivered by the Custodian to the Company shall supersede and cancel the Loan Schedule and

Exception List previously delivered by the Custodian to the Company hereunder, and shall

replace the then existing Loan Schedule and Exception List to be attached to the Collateral

Certificate. Notwithstanding anything to the contrary set forth herein, in the event that the Loan

Schedule and Exception List attached to the Collateral Certificate is different from the most

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

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

of each Loan Schedule and Exception List to the Company shall constitute the Custodian’s

representation that, other than the Exceptions listed as part of the last delivered Loan Schedule

and Exception List: (i) all documents required to be delivered in respect of a Loan or Acquired

Property pursuant to Section 6.1(c) of this Agreement have been delivered and are in the

possession of the Custodian as part of the Custodial Documents, (ii) all such documents have

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been reviewed and examined by the Custodian in accordance with the review procedures

specified on Exhibit F and in this Agreement and appear on their face to be regular and to relate

to such Loan or Acquired Property and to satisfy (except in the case of a MERS Designated

Loan) the requirements set forth in Section 6.1(c) of this Agreement, (iii) subject to the

provisions of Section 7.2(b), each Loan (except in the case of a MERS Designated Loan) or

Acquired Property identified on such Loan Schedule and Exception List is being held by the

Custodian as the bailee for the Company and (iv) subject to the provisions of Section 7.2(b), each

MERS Designated Loan is being held by MERS® as the nominee for the Company. In

connection with a Loan Schedule and Exception List delivered hereunder by the Custodian, the

Custodian shall make no representations as to and shall not be responsible for verifying, except

as set forth in Section 6.1(b) of this Agreement, (A) the validity, legality, enforceability, due

authorization, recordability, sufficiency or genuineness of any of the Custodial Documents or

(B) the collectability, insurability, effectiveness or suitability of any such Loan or Acquired

Property.

Section 6.2 Examination of Custodian Files; Copies.

(a) Upon reasonable prior written notice to the Custodian, the Company, the

Collateral Agent and the Purchase Money Notes Guarantor and their respective agents,

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

Collateral Agent or the Purchase Money Notes Guarantor, as applicable, in writing as authorized

to access and review the Custodial Documents, shall be permitted during normal business hours

to examine the Custodial Documents.

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

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

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

shall reimburse the Custodian for the actual, reasonable and customary costs incurred in

providing copies of such Custodial Documents.

Section 6.3 Shipment of Custodial Documents. Prior to any shipment of any

Custodial Documents hereunder, the Company shall deliver to the Custodian written instructions

as to the method of shipment and the shipper that the Custodian is to utilize in connection with

the transmission of such Custodial Documents. The Company shall arrange for the provision of

such services at its sole cost and expense (or, at the Custodian’s option, reimburse the Custodian

for all costs and expenses incurred by the Custodian consistent with such instructions) and will

maintain such insurance against loss or damage to the Custodial Documents as the Company

may deem appropriate. It is expressly agreed that in no event shall the Custodian have any

liability for any losses or damages to any Person, including the Company, arising out of actions

of the Custodian pursuant to this Section 6.3 consistent with the instructions of the Company. In

the event that the Custodian does not receive such written instructions, the Custodian shall be

authorized and shall be indemnified as provided herein to utilize a nationally recognized courier

service.

ARTICLE VII
 

CUSTODIAN
 

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Section 7.1 Appointment of the Custodian. Subject to the terms and conditions of this

Agreement, the Company hereby appoints the Bank to perform the duties of the Custodian, and

the Bank hereby accepts such appointment as Custodian, to act as the Company’s agent,

custodian and bailee to hold and maintain custody of the Custodial Documents.

Section 7.2 Obligations of the Custodian.

(a) Maintenance of Custody. Subject to the provisions of Section 7.2(b), the

Custodian shall (i) hold and maintain continuous custody of all Custodial Documents received by

it in trust for and for the benefit of the Company in secure and fire resistant facilities, (ii) act with

the same degree of care and skill that the Custodian exercises with respect to any loan files

relating to similar loans owned, serviced or held as custodian by the Custodian and, in any event,

in accordance with customary standards for such custody, (iii) reflect in its records the interest of

the Company therein, (iv) make disposition of the Custodial Documents only in accordance with

the provisions of this Agreement, and (v) subject to the provisions of Section 7.2(b), hold all

Custodial Documents received by it for the exclusive use and benefit of the Company, and make

disposition thereof only in accordance with written instructions furnished by the Company.

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

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

all of its rights, title and interest in and to the Loans, the Acquired Property and the Custodial

Documents to the Collateral Agent for the benefit of the Purchase Money Notes Guarantor and

the other Secured Parties (as defined in the Reimbursement, Security and Guaranty Agreement)

as security for certain obligations of the Company under the Purchase Money Notes Guaranty.

Accordingly, notwithstanding anything to the contrary contained in this Agreement, the

Custodian acknowledges and agrees that it holds possession of the Notes and the other Custodial

Documents for the Collateral Agent’s benefit pursuant to Section 9-313(c) of the Uniform

Commercial Code, and the Custodian shall mark its records to reflect the pledge of the Loans,

the Acquired Property and the Custodial Documents by the Company to the Collateral Agent.

The Custodian’s records shall reflect the pledge of the Loans, the Acquired Property and the

Custodial Documents by the Company to the Collateral Agent until such time as the Custodian

receives written instructions in the form of Exhibit H from the Company, including a

certification that it is entitled pursuant to the Reimbursement, Security and Guaranty Agreement

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

and the Acquired Property are no longer pledged by the Company to the Collateral Agent, at

which time the Custodian shall change its records to reflect the release of the pledge of the

Loans, the Acquired Property and the Custodial Documents and that the Custodian is holding the

Loans, the Acquired Property and the Custodial Documents as custodian for, and for the benefit

of, the Company; provided, however, that, subject to the provisions of Section 7.2(d), such

pledge shall not affect the right of the Custodian to rely on instructions from the Company

hereunder. The Custodian shall ensure that all Collateral Documents that are removed from the

Custodian’s possession are returned to the Custodian’s possession within the time provided by

the applicable Uniform Commercial Code to maintain the Collateral Agent’s perfection.

(c) Qualification To Conduct Business. Nothing contained in this Agreement

shall be construed to require the Custodian to qualify to do business in any jurisdiction other than

(i) any jurisdiction in which any Custodial Document is or may be held by the Custodian from

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time to time under this Agreement or (ii) any jurisdiction in which the ownership of its property

or the conduct of its business requires such qualification and in which the failure to qualify could

have a material adverse effect on the Custodian or its property or business or on the ability of the

Custodian to perform its duties and obligations under this Agreement.

(d) Events of Default Under the Reimbursement, Security and Guaranty

Agreement. Upon the Custodian’s receipt from the Collateral Agent or the Purchase Money

Notes Guarantor of written notice at its Office that an Event of Default under the

Reimbursement, Security and Guaranty Agreement (and as defined therein) has occurred and is

continuing, or to the extent it has actual knowledge of the occurrence of such an Event of

Default, the Custodian promptly shall notify the Collateral Agent in writing and seek instructions

from (and take instructions only from) the Collateral Agent as to any action to be taken by the

Custodian hereunder.

(e) Third Party Demands. In the event that (i) the Company or the Custodian

shall be served by a third party with any type of levy, attachment, writ or court order with respect

to any Custodial Document or (ii) a third party shall institute any court proceeding by which any

Custodial Document shall be required to be delivered otherwise than in accordance with the

provisions of this Agreement, the party receiving such service shall promptly deliver or cause to

be delivered to the other parties to this Agreement copies of all court papers, orders, documents

and other materials concerning such proceedings. The Custodian shall, to the extent permitted

by law, continue to hold and maintain all of the Custodial Documents that are the subject of such

proceedings pending a final, nonappealable order of a court of competent jurisdiction permitting

or directing disposition thereof. Upon final determination of such court, the Custodian shall

release such Custodial Documents as directed by the Company, which shall give a direction

consistent with such court determination.

(f) Release of Custodial Documents. Subject to the provisions of Section

7.2(e), the Custodian shall retain the Custodial Documents in its possession and custody at all

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

(i) If the Custodian has resigned or has been removed in accordance

with the provisions of Section 9.1, the Custodian shall deliver the Custodial Documents to the

successor Custodian in accordance with Section 9.1.

(ii) If the Custodian has received a notice in the form of Exhibit H

from an Authorized Representative of the Company stating that the Company has received all

amounts due under a Loan, or a discounted payoff as payment in full of such Loan, the

Custodian shall release the related Custodial Documents to the Company or to the Manager in

accordance with the instructions provided in such notice.

(iii) If the Custodian has received notice in the form of Exhibit H from

an Authorized Representative of the Company that the Company or the Private Owner needs the

Custodial Documents in order to foreclose on a Mortgaged Property, accept a deed in lieu thereof

or modify or restructure the terms thereof, the Custodian shall release the related Custodial

Documents to the Company or to the Manager in accordance with the instructions provided in

such notice.

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(iv) If the Custodian has received notice in the form of Exhibit H from

an Authorized Representative of the Company that the Company has agreed to sell a Loan or the

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 under this Agreement as are set forth on Exhibit J, which

fees and expenses must be reasonable and customary and which fees and expenses should 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 shall also terminate as of the date of Termination; provided,

however, the Bank will be entitled to receive fees and expenses accruing prior to the date of

Termination. Nothing in this Section 8.1 shall be construed to limit in any way the right of the

Bank, in its respective capacities of 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 of Custodian and Paying Agent.

(a) Resignation. Subject to the provisions of Section 9.1(c), the Bank may at

any time resign and terminate its obligations as Custodian and Paying Agent under this

Agreement upon at least sixty (60) days’ prior written notice to the Company, the Initial

Member, the Private Owner, the Purchase Money Notes Guarantor and the Collateral Agent. In

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the event the Bank resigns it must resign as both Custodian and Paying Agent. Promptly after

receipt of notice of the Bank’s resignation as Custodian and Paying Agent, subject to the

provisions of the LLC Operating Agreement and the Reimbursement, Security and Guaranty

Agreement as they relate to the Company, the Company shall appoint, by written instrument, a

successor Custodian and Paying Agent. In the event that no successor shall have been appointed

as Custodian and Paying Agent within such sixty (60) day period, the Bank may petition any

court of competent jurisdiction to appoint a successor Custodian and Paying Agent.

(b) Removal. Subject to the provisions of Section 9.1(c), the Company, the

Collateral Agent or the Purchase Money Notes Guarantor may remove and discharge the Bank as

Custodian and Paying Agent (or any successor custodian and paying agent thereafter appointed)

without cause from the performance of its obligations under this Agreement upon at least thirty

(30) days’ prior written notice to the Bank. Promptly after the giving of notice of removal to the

Bank as Custodian and Paying Agent, subject to the provisions of the LLC Operating Agreement

and the Reimbursement, Security and Guaranty Agreement as they relate to the Company, the

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

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

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

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

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

Agent shall become effective and the successor Custodian and Paying Agent, without any further

act, deed or conveyance, shall become fully vested with all rights, powers, duties and obligations

of the Custodian and the Paying Agent under this Agreement, as if originally named Custodian

and Paying Agent hereunder. One original counterpart of such instrument shall be delivered to

each of the Company, the Initial Member, the Private Owner, the predecessor Custodian and

Paying Agent and the successor Custodian and Paying Agent.

(d) Transfer of Documents. In the event of any removal or resignation as

Custodian and Paying Agent, the Bank shall promptly transfer to the successor Custodian and

Paying Agent, as directed, all Custodial Documents and funds deposited in the Accounts, and the

Company and the Bank shall execute and deliver such instruments and do such other things as

may reasonably be required for more fully and certainly vesting and confirming in the successor

Custodian and Paying Agent all rights, powers, duties and obligations of the Bank as Custodian

and Paying Agent under this Agreement.

(e) Costs. The Company shall be responsible for payment to the successor

Custodian and Paying Agent of all fees and expenses of the successor Custodian and Paying

Agent and any fees and expenses for transferring Custodial Documents and funds deposited in

the Accounts to the successor Custodian and Paying Agent except with respect to the Private

Owner Pledged Account, the fees and expenses with respect to which are to be paid by the

Private Owner.

ARTICLE X

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 10.1 Representations, Warranties and Covenants.

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(a) The Bank as Custodian and Paying Agent and the Company, the Initial

Member and the Private Owner, as applicable, represent and warrant to each other as follows:

(i) it has the requisite power and authority and the legal right to

execute and deliver, and to perform its obligations under, this Agreement, and has taken all

necessary corporate or other action to authorize its execution, delivery and performance of this

Agreement;

(ii) no consent or authorization of, filing with, or other act by or in

respect of, any United States or non-United States national, federal, state, local or provincial or

international government or any political subdivision of any governmental, regulatory or

administrative authority, agency or commission, or judicial or arbitral body, and no consent of

any other Person (including any stockholder or creditor) is required in connection with the

execution, delivery, performance, validity or enforceability of this Agreement by it;

(iii) this Agreement has been duly executed and delivered on behalf of

it and constitutes a legal, valid and binding obligation of it enforceable in accordance with its

terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization,

moratorium or similar laws affecting the enforcement of creditors’ rights generally and by

general principles of equity (whether enforcement is sought in a proceeding in equity or at law);

and

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

Company, the Initial Member and the Private Owner, that the Bank (i) is a bank, trust company

or title insurance company subject to supervision and examination by any federal or state

regulatory authority, (ii) is experienced in providing services of the type required to be

performed by the Bank as the Custodian and Paying Agent under this Agreement, (iii) is

qualified and licensed to do business in each jurisdiction in which the Custodial Documents will

be held to the extent required unless and to the extent the failure to be so qualified or licensed

will not have a material adverse effect on the Custodian or its ability to perform its obligations

hereunder, (iv) is not prohibited from exercising custodial powers in any jurisdiction in which

the Custodial Documents are or will be held, (v) has combined capital and surplus of at least

$50,000,000 as reported in its most recent report of condition, (vi) has the facilities to safeguard

the funds deposited in the Accounts, the Loan Documents and other Custodial Documents and

(vii) is not an Affiliate of the Company, the Initial Member, the Private Owner or any of the

initial Servicers.

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 Receiver, the Purchase Money Notes Guarantor and the Collateral Agent, no later

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

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

(including the Accounts setting forth in reasonable detail the balances of and any investments in

such Accounts as of such date and all deposits to and disbursements, including of all Loan

Proceeds or the Management Fee from such Accounts, including the date on which made, since

the date of the previous report) held by the Custodian and Paying Agent pursuant to this

Agreement and on such other information as may otherwise be agreed by the parties with respect

to such Due Period, all as set forth on Exhibit K. The Custodian and Paying Agent shall follow

the procedures and perform the calculations and reconciliations required to prepare the Custodian

and Paying Agent Report, in each case as set forth on Exhibit K. 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 O attached hereto. 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 Custodial and Paying Agent, included in (i) the Manager’s Monthly Report for the

applicable Due Period and certified by an Authorized Representative of the Manager, (ii) the

Distribution Date Report for the applicable Due Period, and (iii) such other information as may

be agreed upon by the parties, all as set forth in Exhibit K.

Section 11.2 Additional Reports.

(a) Within two (2) Business Days after receipt of a written request of the

Company, the Collateral Agent or the Purchase Money Notes Guarantor for a Custodial Report

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

the requesting party with the Custodial Report or the updated Loan Schedule and Exception List,

as applicable.

(b) The Custodian and Paying Agent shall provide any additional information

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

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

of any Account.

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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 Notes Guarantor a report which shall specify the amounts and

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

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

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

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

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

Paying Agent and the Purchase Money Notes Guarantor the Distribution Date Report for all Due

Periods ending on 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 Notes Guarantor in accordance with the LLC Operating Agreement. The Distribution

Date Report shall contain the following information:

(a) the aggregate amount of Loan Proceeds as of the close of business on such

Determination Date, after giving effect to Loan Proceeds received with respect to the applicable

Due Period;

(b) the amount of Loan Proceeds received during the applicable Due Period;

(c) [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 Loan Proceeds received in the

applicable Due Period plus (B) funds transferred from the Working Capital Reserve Account

plus (C) any amount of Excess Working Capital Advances paid by the Manager 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 for the

applicable Due Period; and

(ii) the amounts payable from the Collection Account (through a

transfer to the Distribution Account) pursuant to the Priority of Payments, specifically including:

(A) The amount of fees and expenses, including any

indemnification payments, payable to the Custodian and Paying Agent,

(B) For any Due Period during the Interim Servicing Period, the

amount of the Interim 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,

(C) The amount of Excess Working Capital Advances payable to

the Manager,

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(D) The amount to be deposited into the Working Capital

Reserve Account,

(E) The amount to be deposited in the Defeasance Account,

(F) The reimbursement amounts and any accrued interest

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

the Purchase Money Notes Guaranty together with any interest accrued after a Purchase Money

Notes Trigger Event,

(G) The amount payable as distributions to the Initial Member

and to the Private Owner, and

(H) With respect to the election by the Company to prepay any

Class of Purchase Money Notes in full or in part in accordance with the terms of such Class of

Purchase Money Notes, the related Company Principal Prepayment Amount.

(e) any other amounts or calculations as required by Section 5.1 of this

Agreement.

With respect to the Distribution Date immediately preceding the Maturity Date for each

Class of Purchase Money Notes, the Company shall prepare and deliver or cause the Manager to

prepare and deliver to the Paying Agent, the Initial Member and the Purchase Money Notes

Guarantor an additional report (the “Maturity Date Report”), which report shall include the

amount on deposit in the Defeasance Account to pay such Class of Purchase Money Notes 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 applicable Holders following an acceleration of any Class of Purchase Money Notes 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 properly record all transactions carried out by it with

respect to the Accounts, including the disbursement of all Loan Proceeds. The Paying Agent

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

and the Collateral. This obligation to maintain a complete and accurate set of records shall

encompass all files in the Custodian and Paying Agent’s custody, possession or control

pertaining to the Loans and the Collateral, including all Custodial Documents. The Paying

Agent shall permit the Company, the Purchase Money Notes Guarantor and the Collateral Agent

to examine such accounts, books and records that relate to any Company Account, and shall

permit the Initial Member and the Private Owner to examine such accounts, books and records

that relate to the Private Owner Pledged Account, provided that any such examination shall

occur upon reasonable prior notice and during normal business hours.

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ARTICLE XII
 

NO ADVERSE INTERESTS
 

Section 12.1 No Adverse Interests. By execution of this Agreement, the Bank

represents and warrants that it currently holds, and during the term of this Agreement shall hold,

no adverse interest, by way of security or otherwise, in any Loan, and hereby waives and releases

any such interest which it may have in any Loan as of the date hereof. The Loans shall not be

subject to any security interest, lien or right to set-off by the Bank or any third party claiming

through the Bank, and the Bank shall not pledge, encumber, hypothecate, transfer, dispose of, or

otherwise grant any third party interest in, any of the Loans.

ARTICLE XIII
 

LIABILITY AND INDEMNIFICATION
 

Section 13.1 Liability; Indemnification.

(a) (i) 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 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 this Agreement

or any action taken or not taken by it or them hereunder unless such liabilities, obligations,

losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements were

imposed on, incurred by or asserted against the Custodian and Paying Agent because of the

breach by the Custodian and Paying Agent of its obligations hereunder, which breach was caused

by negligence, lack of good faith or willful misconduct on the part of the Custodian and Paying

Agent or any directors, officers, agents or employees of the Custodian and Paying Agent. The

foregoing indemnification shall survive any resignation or removal of the Custodian and Paying

Agent or the termination or assignment of this Agreement.

(ii) The Private Owner shall indemnify and hold harmless the Paying Agent

and the directors, officers, agents and employees of the Paying Agent against any and all

liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or

disbursements of any kind or nature whatsoever, including reasonable 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 this Agreement with respect to the Private Owner Pledged Account or

the Qualifying Cash Collateral on deposit in such Account or any action taken or not taken by it

hereunder with respect to the Private Owner Pledged Account or the Qualifying Cash Collateral

on deposit in such Account unless such liabilities, obligations, losses, damages, penalties,

actions, judgments, suits, costs, expenses or disbursements were imposed on, incurred by or

asserted against the Paying Agent because of the breach by the Paying Agent of its obligations

hereunder with respect to the Private Owner Pledged Account or the Qualifying Cash Collateral

on deposit in such Account, which breach was caused by negligence, lack of good faith or willful

misconduct on the part of the Paying Agent or any directors, officers, agents or employees of the

Paying Agent. The foregoing indemnification shall survive any resignation or removal of the

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Paying Agent or the termination or assignment of this Agreement.

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

was not identified as an Exception in the then controlling Loan Schedule and Exception List

within two (2) Business Days after required or requested by the Company, and such Custodial

Document is not outstanding pursuant to a Request for Release and Receipt of the Custodial

Documents in the form attached as Exhibit H (a “Custodial Delivery Failure”), then (i) with

respect to any missing Note with respect to which a Custodial Delivery Failure has occurred and

has continued in excess of three (3) Business Days, the Custodian promptly shall deliver to the

Company upon request a Lost Instrument Affidavit in the form attached as Exhibit L (unless the

original Note shall have been delivered prior to such time) and (ii) with respect to any missing

document related to such Loan, including a missing Note, (A) the Custodian shall indemnify the

Company, the Purchase Money Notes Guarantor and the Collateral Agent in accordance with

Section 13.1(c) and (B) at the Company’s option, at any time the long term obligations of the

Custodian are rated below the second highest rating category of Moody’s Investors Service, Inc.

or Standard and Poor’s Ratings Group, a division of McGraw-Hill, Inc., the Custodian shall

obtain and maintain an insurance bond naming the Company, the Purchase Money Notes

Guarantor and the Collateral Agent, and their successors in interest and assigns as loss payees,

insuring against any losses associated with the loss of such document, in an amount equal to the

then outstanding principal balance of the related Loan or such lesser amount requested by the

Company in the Company’s sole discretion.

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

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

respective directors, officers, employees, agents and designees, against any and all liabilities,

obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or

disbursements of any kind or nature whatsoever, including reasonable attorneys’ fees and

litigation costs, that may be imposed on, incurred by, or asserted against it or them in any way

relating to or arising out of a Custodial Delivery Failure or the Custodian and Paying Agent’s

negligence, lack of good faith or willful misconduct or any breach of any of the conditions,

representations, warranties or obligations of the Custodian and Paying Agent contained herein;

provided that in no event shall the Custodian and Paying Agent or any directors, officers, agents

or employees of the Custodian and Paying Agent have any liability with respect to any special,

indirect, punitive or consequential damages suffered by the Company. The foregoing

indemnification shall survive any termination or assignment of this Agreement.

ARTICLE XIV
 

CUSTODIAN AND PAYING AGENT
 

Section 14.1 Reliance of Custodian and Paying Agent.

(a) Documents; Communications. The Custodian and Paying Agent may rely

conclusively on any request, instruction, certificate, direction, receipt, demand, consent,

resolution, statement, instrument, opinion, report, notice or other document or communication

furnished to the Custodian and Paying Agent hereunder or under any Loan Document that the

Custodian and Paying Agent believes in good faith (i) to have been signed or presented by an

Authorized Representative and (ii) conforms in form to the requirements of this Agreement;

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provided, however, that in the case of any request, instruction, certificate, direction, receipt,

demand, consent, resolution, statement, instrument, opinion, report, notice or other document or

communication which by any provision hereof is specifically required to be furnished to the

Custodian and Paying Agent, the Custodian and Paying Agent shall be under a duty to examine

the same in accordance with the requirements of this Agreement and any Loan Document.

(b) Requested Instructions. Subject to the provisions of Section 7.2(d), in

which case the Custodian and Paying Agent shall take instructions only from the Collateral

Agent, if the Custodian and Paying Agent requests instructions from the Company, the Initial

Member or the Private Owner, as applicable, with respect to any act, action or failure to act in

connection with this Agreement, the Custodian and Paying Agent shall be entitled (without

incurring any liability therefor to the Company, the Collateral Agent, the Purchase Money Notes

Guarantor or any other Person) to refrain from taking such action and continue to refrain from

acting unless and until the Custodian and Paying Agent shall have received written instructions

from the Company, the Initial Member or the Private Owner, as applicable (or the Collateral

Agent, as the case may be).

(c) Certificates. Whenever the Custodian and Paying Agent shall deem it

necessary or desirable that a matter be proved or established in connection with taking or

omitting any action by it hereunder, such matter (unless other evidence in respect thereof be

herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on

the part of the Custodian and Paying Agent, be deemed to be conclusively proved or established

by a certificate of an Authorized Representative of the relevant Party delivered to the Custodian

and Paying Agent.

(d) Reliance on Experts. The Custodian and Paying Agent may consult with

and obtain advice from reputable and experienced outside counsel, certified public accountants

that are nationally recognized, or other experts and the advice or any opinion of such counsel,

accountants or other experts shall be full and complete authorization and protection in respect of

any action taken or omitted by it hereunder in good faith and in accordance with such advice or

opinion of counsel, accountants or other experts.

(e) Limited Risk. None of the provisions of this Agreement shall require the

Custodian and Paying Agent to expend or risk its own funds or otherwise to incur any liability,

financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any

of its rights or powers, if it shall have reasonable grounds for believing that repayment of such

funds or indemnity satisfactory to it against such risk or liability is not assured to it.

(f) Merger or Consolidation. Any corporation into which the Custodian and

Paying Agent may be merged or converted or with which it may be consolidated, or any

corporation resulting from any merger, conversion or consolidation to which the Custodian and

the Paying Agent shall be a party, or any corporation succeeding to the business of the Custodian

and Paying Agent, except for any such Person who is or, upon consummation of such

transaction, will be an Affiliate of the Company or any Servicer, shall be the successor of the

Custodian and Paying Agent hereunder without the execution or filing of any paper with any

party hereto or any further act on the part of any of the parties hereto except where an instrument

of transfer or assignment is required by law to effect such succession, anything herein to the

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contrary notwithstanding; provided that any such successor shall satisfy the representations,

warranties and covenants set forth in Section 10.1 of this Agreement. The Custodian and Paying

Agent or successor Custodian and Paying Agent shall provide the Company with written notice

prior to or within ten (10) days after the consummation of any such transaction. At no time shall

an Affiliate of the Company or any Servicer be the Custodian and Paying Agent under this

Agreement.

ARTICLE XV
 

TAXES
 

Section 15.1 Tax Reports. The Custodian and Paying Agent shall not be responsible

for the preparation or filing of any reports or returns relating to federal, state or local income

taxes with respect to this Agreement, other than in respect of the Custodian and Paying Agent’s

compensation or for reimbursement of expenses.

Section 15.2 Stamp and Other Similar Taxes. The Company agrees to indemnify and

hold harmless the Custodian and Paying Agent from, and shall reimburse the Custodian and

Paying Agent for, any present or future claim for liability for any stamp or other similar tax and

any penalties or interest with respect thereto, which may be assessed, levied or collected by any

jurisdiction in connection with this Agreement. The obligations of the Company under this

Section 15.2 shall survive the termination of the other provisions of this Agreement.

Section 15.3 Tax Characterization. Each Holder and Note Owner of a Purchase Money

Note, by acceptance of such Purchase Money Note or its interest in such Purchase Money Note,

shall be deemed to have agreed to treat, and shall treat, such 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 such Note or its interest in such Purchase Money Note, shall be

deemed to understand and acknowledge that failure to provide the Company, 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 U.S. Person or an appropriate Internal Revenue Service Form W-8 (or successor applicable

form) in the case of a person that is not a U.S. Person) may result in U.S. federal back-up

withholding from payments in respect of such 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 Loans 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 Notes Guarantor and the Collateral

Agent.

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ARTICLE XVII
 

AUTHORIZED REPRESENTATIVES
 

Section 17.1 Authorized Representatives. Each individual designated as an Authorized

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

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

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

hereunder, is set forth on Exhibit M. From time to time, any Person may, by delivering to the

other parties hereto a revised copy of Exhibit M 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, 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, 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 of Default by the Private Owner pursuant to the

LLC Operating Agreement and the removal of the Private Owner as the Manager pursuant to the

LLC Operating Agreement, the Initial Member or the replacement Manager appointed pursuant

to Section 3.13(v) of the LLC Operating Agreement will have the right to designate replacement

Authorized Representatives of the Company.

ARTICLE XVIII
 

NOTICES
 

Section 18.1 Notices. All notices, requests, demands, and other communications

required or permitted to be given or delivered under or by reason of the provisions of this

Agreement shall be in writing and shall be mailed or delivered to the applicable address or

electronic mail address of the parties specified below for such Person or to such other address,

electronic mail address or telephone number as shall be designated by such party in a notice to

the other parties. All such notices and other communications shall be deemed to be given or

made upon the earlier to occur of (i) actual receipt (or refusal thereof) by the relevant party

hereto and (ii) (A) if delivered by hand or by nationally recognized courier service, when signed

for (or refused) by or on behalf of the relevant party hereto; (B) if delivered by mail,

four (4) Business Days after deposit in the mails, postage prepaid; and (C) if delivered by

electronic mail, when delivered. In no event shall a voice mail message be effective as a notice,

communication or confirmation hereunder. From time to time, any Person may designate a new

address for purposes of notice hereunder by notice to such effect to the other Persons identified

below.

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

exchange of Purchase Money Notes:

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Wells Fargo Bank, N.A.
 

9062 Old Annapolis Road
 

Columbia, Maryland 21045
 

Attention: Client Services Manager
 

Reference: 2010-1 CRE Venture, LLC
 

For purposes of cancellation and presentment of Purchase Money Notes:

Wells Fargo Bank, N.A.

6th Street & Marquette Avenue

Minneapolis, Minnesota 55479

Attention: Corporate Trust Services Bondholder Communications

Reference: 2010-1 CRE Venture, LLC

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

Wells Fargo Bank, N.A.

6th Street & Marquette Avenue

Minneapolis, Minnesota 55479

Attention: Corporate Trust Services Transfer Agent Department

Reference: 2010-1 CRE Venture, LLC

If to the Company:

2010-1 CRE Venture, LLC
 

2450 Broadway, 6th Floor
 

Santa Monica, CA 90404
 

Attention: Paul Fuhrman
 

Email Address:

with a copy to:

Colony Capital, LLC
 

660 Madison Avenue
 

New York, NY 10065
 

Attention: Ron Sanders
 

Email Address:
 

If to the Purchase Money Notes Guarantor, the Collateral Agent or the Initial

Member:

Manager, Capital Markets & Resolutions
 

c/o Federal Deposit Insurance Corporation
 

550 17th Street, NW (Room F-7014)
 

Washington, D.C. 20429-0002
 

Attention: Ralph Malami
 

Email Address: RMalami@fdic.gov
 

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with a copy to:

Senior Counsel

FDIC Legal Division

Litigation and Resolutions Branch, Receivership Section

Special Issues Unit

3501 Fairfax Drive (Room E-7056)

Arlington, Virginia 22226

Attention: David Gearin

E-Mail Address: DGearin@fdic.gov

ARTICLE XIX
 

MISCELLANEOUS
 

Section 19.1 Governing Law. This Agreement shall be governed by and construed in

accordance with the law of the State of New York, excluding any conflict of laws rule or

principle that might refer the governance or the construction of this Agreement to the law of

another jurisdiction. Nothing in this Agreement shall require any unlawful action or inaction by

any party to this Agreement.

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

MEMBER, THE PRIVATE OWNER, THE PURCHASE MONEY NOTES GUARANTOR,

THE COLLATERAL AGENT AND THE BANK HEREBY IRREVOCABLY AND

UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF

ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES

THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT

A JURY.

Section 19.3 Jurisdiction; Venue and Service.

(a) Each of the Company 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 Notes Guarantor or the Collateral Agent arising out of,

relating to, or in connection with this Agreement or any Ancillary Document, and waives any

right to:

(A) remove or transfer such suit, action or proceeding to any

court or dispute-resolution forum other than the court in which the Purchase Money Notes

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

consent of the Purchase Money Notes Guarantor or the Collateral Agent, as applicable;

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(B) assert that venue is improper in either the United States

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

District of Columbia; or

(C) assert that the United States District Court for the Southern

District of New York or the United States District Court for the District of Columbia is an

inconvenient forum.

(ii) consents to the jurisdiction of the Supreme Court of the State of

New York for any suit, action or proceeding against it or any of its Affiliates commenced by the

Purchase Money Notes Guarantor or the Collateral Agent arising out of, relating to, or in

connection with this Agreement or any Ancillary Document (other than the LLC Operating

Agreement), and waives any right to:

(A) remove or transfer such suit, action or proceeding to any

other court or dispute-resolution forum without the consent of the Purchase Money Notes

Guarantor or the Collateral Agent, as applicable;

State of New York; or

(B) assert that venue is improper in the Supreme Court of the

inconvenient forum.

(C) assert that the Supreme Court of the State of New York is an

(iii) agrees to bring any suit, action or proceeding by the Company, the

Bank, or its Affiliate against the Purchase Money Notes Guarantor or the Collateral Agent in

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

States District Court for the District of Columbia, and waives any right to remove or transfer

such suit, action or proceeding to any other court or dispute-resolution forum without the consent

of the Initial Member, the Purchase Money Notes Guarantor or the Collateral Agent, as

applicable, and agrees to consent thereafter to transfer of the suit, action or proceeding to either

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

District Court for the District of Columbia at the option of the Initial Member, the Purchase

Money Notes Guarantor or the Collateral Agent, as applicable;

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

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

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

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

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

forum without the consent of the Purchase Money Notes Guarantor or the Collateral Agent, as

applicable; and

(v) 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.

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(b) Each of the Company and the Bank, on behalf of itself and its Affiliates,

hereby irrevocably and unconditionally agrees that any final judgment entered against it in any

suit, action or proceeding falling within Section 19.3(a) may be enforced in any court of

competent jurisdiction.

(c) Subject to the provisions of Section 19.3(d), each of the Company and the

Bank, on behalf of itself and its Affiliates, and each of the Initial Member, the Private Owner, the

Purchase Money Notes Guarantor and the Collateral Agent hereby irrevocably and

unconditionally agrees that service of all writs, process and summonses in any suit, action or

proceeding pursuant to Section 19.3(a) or Section 19.3(b) may be effected by the mailing of

copies thereof by registered or certified mail, postage prepaid, to it at its address for notices

pursuant to Section 18.1 (with copies to such other Persons as specified therein); provided,

however, that nothing contained in this Section 19.3(c) shall affect the right of any party to serve

process in any other manner permitted by Law.

(d) Nothing in this Section 19.3 shall constitute consent to jurisdiction in any

court by the FDIC, other than as expressly provided in Section 19.3(a)(iii) and

Section 19.3(a)(iv), or in any way limit the FDIC’s right to remove, transfer, seek to dismiss, or

otherwise respond to any suit, action, or proceeding against it in any forum.

Section 19.4 Counterparts. This Agreement may be executed in two (2) or more

counterparts, each of which shall be deemed an original but all of which together shall constitute

but one and the same agreement. This Agreement and any amendments hereto, to the extent

signed and delivered by facsimile or other electronic means, shall be treated in all manner and

respects as an original agreement and shall be considered to have the same binding legal effect as

if it were the original signed version thereof delivered in person. No signatory to this Agreement

shall raise the use of a facsimile machine or other electronic means to deliver a signature or the

fact that any signature or agreement was transmitted or communicated through the use of a

facsimile machine or other electronic means as a defense to the formation or enforceability of a

contract and each such Person forever waives any such defense.

Section 19.5 Severability. Any provision of this Agreement which is prohibited or

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as

follows: (i) if such provision is prohibited or unenforceable in such jurisdiction only as to a

particular Person or Persons and/or under any particular circumstance or circumstances, such

provision shall be ineffective, but only in such jurisdiction and only with respect to such

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

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

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

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

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

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

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

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

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

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

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

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

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

the Company, the Initial Member, the Private Owner, the Purchase Money Notes Guarantor, the

Collateral Agent and the Bank with respect to the subject matter hereof and supersedes any and

all other prior agreements, whether oral or written. Notwithstanding the foregoing, however, the

parties acknowledge that the Initial Member and the Private Owner are parties to this Agreement

solely with respect to the Private Owner Pledged Account and the Qualifying Cash Collateral on

deposit in such Account and that the Initial Member and the Private Owner have no rights,

benefits, obligations or liabilities pursuant to this Agreement except with respect to the Private

Owner Pledged Account, the Qualifying Cash Collateral on deposit in such account and the

Bank’s performance of its duties as Paying Agent with respect to the Private Owner Pledged

Account.

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

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

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

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

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

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

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

reason of this Agreement.

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

Paying Agent, the Initial Member, the Private Owner, the Purchase Money Notes Guarantor, the

Collateral Agent and the Company under this Agreement shall be in addition to all rights, powers

and remedies given to the Custodian and Paying Agent, the Initial Member, the Private Owner,

the Purchase Money Notes Guarantor, the Collateral Agent and the Company by virtue of any

statute or rule of law, or any other agreement, all of which rights, powers and remedies shall be

cumulative and may be exercised successively or concurrently.

Section 19.10 Amendments. Subject to the requirements of the LLC Operating

Agreement as they relate to the Company, this Agreement may be amended from time to time by

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

Agent and the Custodian and Paying Agent or, if such written agreement relates to the Private

Owner Pledged Account or the Qualifying Cash Collateral on deposit in such Account, the Initial

Member, the Private Owner and the Paying Agent.

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Section 19.11 Headings. Paragraph titles or captions contained in this Agreement are

inserted only as a matter of convenience and for reference and in no way define, limit, extend or

describe the scope of this Agreement or the intent of any provisions hereof. All section and

paragraph references contained herein shall refer to sections and paragraphs in this Agreement

unless otherwise specified.

[Remainder of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the Bank, the Purchase Money Notes 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. 

2010-1 CRE VENTURE, LLC, as the Company 

By: ColFin Axle Funding, LLC, its Manager 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Notes Guarantor 

By:____________ 

Name: Ralph Malami 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its capacity as Receiver for 

Various Failed Financial Institutions Listed on 

Schedule 1Hereto, as Collateral Agent 

By:	_____________ 

Name: Ralph Malami 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its capacity as Receiver for 

Various Failed Financial Institutions Listed on 

Schedule 1Hereto, as Initial Member 

By:	____________ 

Name: Ralph Malami 

Title: Attorney-in-Fact 

Multibank Structured Transaction 20I 0-l CRE 

Custodial and Paying Agency Agreement 
IN WITNESS WHEREOF, the Bank, the Purchase Money Notes Guarantor, the 

Collateral Agent, the Initial Member, the Private Owner and the Company have each caused this 

Agreement to be executed as ofthe date first written above. 

2010-1 CRE VENTURE, LLC, as the Company 

By: ColFin Axle Funding, LLC, its Manager 

By: ____________ 

Name: Mark M. Hedstrom 

Title: Vice President 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Notes Guarantor 

By: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its capacity as Receiver for 

Various Failed Financial Institutions Listed on 

Schedule 1 Hereto, as Collateral Agent 

By: 

Name: 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its capacity as Receiver for 

Various Failed Financial Institutions Listed on 

Schedule 1 Hereto, as Initial Member 

Multibank Structured Transaction 2010-1 CRE 

Custodial and Paying Agency Agreement 
WELLS FARGO BANK, N.A. 

By: 	__________________________ 

Nam e : 

T itle: 

Multibank Structured Transaction 2010-1CRE 

Custodial and Paying Agency Agreement 
COLFIN AXLE FUNDING, LLC, as Private Owner 

By: ___________ _ 

Name: Mark M. Hedstrom 

Title: Vice President 

Multibank Structured Transaction 2010-1 CRE 

Custodial and Paying Agency Agreement