South CRE Venture 2010-2 

CUSTODIAL AND PAYING AGENCY AGREEMENT 


by and among 


SOUTH CRE VENTURE 2010-2, 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 I hereto, as Collateral Agent, 


FEDERAL DEPOSIT INSURANCE CORPORATION 


in its capacity as Receiver for various failed financial institutions 


listed on Schedule I hereto, as Initial Member, 


HRC SVC SOUTH 2010 LLC, as Private Owner, 


and 


WELLS FARGO BANK, NATIONAL ASSOCIATION 


Dated as of December 2, 2010 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
TABLE OF CONTENTS 


Page 

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


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


Section 1.2 Rules of Construction ..................................................................................5 


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


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


Section 2.2 Delivery of Documentation..........................................................................6 


Section 2.3 Duties ...........................................................................................................7 


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


Section 2.5 Authorized Amount; Denominations; Prepayment ......................................8 


Section 2.6 Execution, Delivery and Dating ...................................................................9 


Section 2.7 Registration, Registration ofTransfer and Exchange ..................................9 


Section 2.8 Reissuance of Purchase Money Notes ....................................................... 17 


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


Notes .......................................................................................................... 18 


Section 2.1 0 Payments with Respect to the Purchase Money Notes .............................. 19 


Section 2.11 Mandatory Exchange .................................................................................20 


Section 2.12 Notes Beneficially Owned by Persons Not Qualified Institutional 


Buyers or Qualified Purchasers ................................................................ .20 


Section 2.13 Withholding ...............................................................................................21 


Section 2.14 Persons Deemed Owners ...........................................................................21 


Section 2.15 Noteholder Voting .....................................................................................22 


Section 2.16 Cancellation ...............................................................................................22 


Section 2.17 Section 3(c)(7) Procedures ........................................................................ .22 


Section 2.18 Transfer of Purchase Money Notes by Receiver .......................................23 


ARTICLE III ACCOUNTS ........................................................................................................24 


Section 3.1 Collection Account ....................................................................................24 


Section 3.2 Distribution Account. .................................................................................25 


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


Section 3.4 Working Capital Reserve Account ............................................................28 


Section 3.5 Excess Working Capital Advances ............................................................30 


Section 3.6 Discretionary Funding Advances ................................................................30 


Section 3.7 Private Owner Pledged Account.. .............................................................. 31 


ARTICLE IV ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS ...............31 


Section 4.1 Investment of Funds in Accounts ..............................................................31 


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 ofDefault....................................35 


ARTICLE VI CUSTODIAL DOCUMENTS ............................................................................36 


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


South CRE Venture 2010-2 


Custodial and Paying Agency Agreement 
 -1­

EXECUTION VERSION 
TABLE OF CONTENTS 

(continued) 

Page 

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


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


ARTICLE VII CUSTODIAN .....................................................................................................40 


Section 7.1 Appointment ofthe Custodian ..................................... ~ ............................ .40 


Section 7.2 Obligations ofthe Custodian .................................................................... .40 


ARTICLE VIII FEES AND EXPENSES ..................................................................................42 


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


ARTICLE IX REMOVAL OR RESIGNATION......................................................................43 


Section 9.1 Removal or Resignation of Custodian and Paying Agent .........................43 


ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS ........................44 


Section 10.1 Representations, Warranties and Covenants ............................................. .44 


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 ..........................................................50 


Section 14.1 Reliance of Custodian and Paying Agent ..................................................50 


ARTICLE XV TAXES ................................................................................................................51 


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


Section 15.2 Stamp and Other Similar Taxes ................................................................. 5! 


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


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


ARTICLE XVI TERM ..................................................................................................................52 


Section 16.1 Term ...........................................................................................................52 


ARTICLE XVII AUTHORIZED REPRESENTATIVES ..................................................... ,.52 


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


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.. ................................................................................. 55 


Section 19.3 Jurisdiction; Venue and Service .................................................................55 


South CRE Venture 2010-2 


Custodial and Paying Agency Agreement 
 -nEXECUTION VERSION 
TABLE OF CONTENTS 

(continued) 

Page 

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


Section 19.5 Severability ..................................................... , .......................................... 57 


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 ............................ ., ................................................................58 


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


Schedule I 

Exhibit A 

Exhibit B-1 

Exhibit B-2 

Exhibit C-1 

Exhibit C-2 

Exhibit C-3 

Exhibit C-4 

Exhibit D 

Exhibit E 

Exhibit F 

Exhibit G 

Exhibit H 

Exhibit I 

Exhibit J 

Exhibit K 

Exhibit L 

Exhibit M 

Exhibit N 

Exhibit 0 

Exhibit P 

Schedule and Exhibits 

List of Various Failed Financial Institutions 

Asset Schedule 

Form of Certificated Note 

Form of Global Note 

Form of Qualified Institutional Buyer and Qualified Purchaser Certification 

Form of Certificate for the Acquisition of RegulationS Certificated Notes 

Form of Certificate for the Acquisition ofRule 144A Certificated Notes 

Form of Certificate for Transfer or Exchange of Certificated Notes to Rule 144A 

Global Notes 

Form of DTC Notice to Investors 

Form of Collateral Certificate 

Review Procedures 

Form of Supplemental Delivery Certificate 

Request for Release and Receipt of Custodial Documents 

Request for Release and Receipt of Debt Documents 

Fees and Expenses of Custodian and Paying Agent 

Custodian and Paying Agent Report 

Form of Lost Instrument Affidavit 

Authorized Representatives 

Form of Account Control Agreement 

Form oflnvestor Certification for Website Access 

Form of Private Owner Account Control Agreement 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement -lllEXECUTION VERSION 
CUSTODIAL AND PAYING AGENCY AGREEMENT 

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

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

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

Notes Guarantor, the Receiver as the Collateral Agent, the Initial Member, and the Banlc 

RECITALS 

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

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

Schedule; and 

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

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

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

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

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

Noteholder, two classes of Purchase Money Notes with an aggregate principal face amount of 

$9,482,533.00; 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; and 

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

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

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

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

possession of the Custodial Documents (as such term is defined below), in accordance with the 

terms and conditions hereof; and 

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

Operating Agreement; 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 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 1 

EXECUTION VERSION 
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; and 

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

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

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

ARTICLE I 


DEFINITIONS AND CONSTRUCTION 


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

Agreement shall have the meaning and definitions set forth in that certain South CRE 2010-2 

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

the Company, the Purchase Money Notes Guarantor, the Collateral Agent, the Bank and others. 

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

definitions hereinafter respectively set forth. 

"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 

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: (i)(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 (B) 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; (ii) 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 (i)(A) above, or 

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

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

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

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

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 2 

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

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

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

Property; and (iv) for any Acquired Property that is subject to a lease, (p) 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 (q) 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 related Servicer certifying that such 

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

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

Agencies. 

"Agreement" has the meaning given in the preamble. 

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

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

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

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

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

Documents were released by the Custodian. 

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

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

designated, in writing as required by Section 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. 

"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 Asset that has been released by the 

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

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

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

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

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

Reimbursement, Security and Guaranty Agreement and the Acco~nt Control Agreement. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 3 

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

respective successors. 

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

"Noteholder Percentage" means, with respect to each Noteholder and each Class of 

Purchase Money Notes 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 Noteholder 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 Class of Purchase Money Notes at such time. 

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

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

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

information. 

"Net Loss on Investments" means as of any Purchase Money Notes 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) pursuant to Section 5.1(b)(vi), (ii) by the 

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

the Guaranty Agreement, (iii) by the Company made as proceeds of any Reissued Purchase 

Money Note, and (iv) 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 (A) the 

balance then in the Defeasance Account, (B) amounts previously disbursed from the account to 

pay principal on the Purchase Money Notes, and (C) amounts deposited as Net Loss on 

Investments pursuant to Section 3.3(e); provided, however, that if on any Purchase Money Notes 

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 Purchase 

Money Notes 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 Purchase Money Notes Maturity Date (or 

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

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

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

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

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

Money Notes. 

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

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

"Office" has the meaning given in Section 6.1. 

Venture 2010-2 

Custodial and Paying Agency Agreement 4 

EXECUTION VERSION 
"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 Asset (if such Asset is not Acquired 

Property) or in which the Acquired Property is located. 

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


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


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


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


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


"Temporary RegulationS Global Note" has the meaning given in Section 2.4(b). 


"Termination" has the meaning given in Section 8.1. 


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


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


in accordance with the following: 

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

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

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

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

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

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

replacement to such Law. 

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

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

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

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

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

given time. 

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

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

provision ofthis Agreement. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 5 

EXECUTION VERSION 
(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. 

ARTICLE II 


PAYING AGENT AND PURCHASE MONEY NOTES 


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

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

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

accepts such appointment. 

Section 2.2 Delivery of Documentation. 

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

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

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

and delivered by it, or executed by the Purchase Money 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, the Agreement of 

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

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

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

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

Agreement has been delivered to the Paying Agent, and the Paying Agent acknowledges receipt 

thereof. 

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

Pledged Account Control Agreement 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 

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

accordance with Section 9 .1. 

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

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

Representative of the FDIC, the Paying Agent shall deliver the Debt Agreements and/or the 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 6 

EXECUTION VERSION 
Private Owner Pledged Account Control Agreement to the FDIC m 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 DebtAgreement or any related agreement to which it is a party. The Paying 

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

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

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

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

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

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

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

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

occurred. 

Section 2.4 Forms of Purchase Money Notes. 

(a) Forms Generally. 

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

Company as of the Closing Date has issued to the Receiver, as a Noteholder, two Classes of 

Purchase Money Notes with the designations of (1) the Class A-1 Purchase Money Note in the 

principal face amount of $4,741,266.00 (inclusive of the Purchase Money Notes 

Issuance/Guaranty Fee) and (2) the Class A-2 Purchase Money Note in the principal face amount 

of$4,741,267.00 (inclusive ofthe Purchase Money Notes Issuance/Guaranty Fee). 

· (ii) 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 7 

EXECUTION VERSION 
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 "RegulationS Certificated Note"). The Paying Agent 

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

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

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

Agent and counsel to the Company. 

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

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

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

purposes shall bear a legend in substantially the following form: 

FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF 

THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, 

THIS PURCHASE MONEY NOTE IS BEING ISSUED WITH 

ORIGINAL ISSUE DISCOUNT. YOU MAY CONTACT THE 

FEDERAL DEPOSIT INSURANCE CORPORATION AT 

550 17TH STREET, N.W., ROOM 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. $9,482,533 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 ofU.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 Required Consenting Parties (but shall be subject to 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 8 

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

such Purchase Money Notes following the occurrence of an Event of Default). 

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 on 

the Closing Date shall be dated as of the Closing Date. All other Purchase Money Notes that are 

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

be dated the date of their execution. 

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

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

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

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

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

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

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

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

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

Notes. 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 ofTransfer 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 the 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 9 

EXECUTION VERSION 
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 

Noteholders 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 

Noteholders as reflected in the Purchase Money Notes Register. 

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

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

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

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

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

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

Registrar. 

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

for two or more Purchase Money Notes of like terms, in any Authorized Denominations and of 

like aggregate principal or face amount upon surrender of the Purchase Money Note to be 

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

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

prepare, and the Company shall execute and deliver the Purchase Money Notes that the 

Noteholder making the exchange is entitled to receive, and shall deliver a copy of such executed 

Purchase Money Note to the Purchase Money Notes Registrar. 

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

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

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

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

transfer or exchange. 

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

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

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

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

(g) No service charge shall be made to a Noteholder 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) or a taxable 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 10 

EXECUTION VERSION 
mortgage pool (as such term is defined in Section 7701(i) 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. 

G) 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 

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, however, that the Paying Agent 

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

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

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

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

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

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

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

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

Rule 144A Global Note wishes at any time to transfer its interestin 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 11 

EXECUTION VERSION 
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 ofthe 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 Noteholder 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 Noteholder may transfer or 

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

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

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

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

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

Noteholder 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 Noteholder of such Certificated Note and stating that, in the 

case of an exchange, the Noteholder is a Qualified Institutional Buyer and is also a Qualified 

Purchaser or, in the case of a transfer, such Noteholder 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 12 

EXECUTION VERSION 
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 Noteholder of a 

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

Noteholder may transfer, or cause the transfer of, such Certificated Note as provided below. 

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

properly endorsed for assignment to the transferee and (B) a certificate in the form of Exhibit C2. hereto, in the case oftransfer of RegulationS 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 Noteholder 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 Noteholder 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 

Noteholder 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 Noteholder's Certificated Notes properly endorsed for such exchange and 

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

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

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

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

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

2.7(a) and, upon execution by the Company, deliver one or more Certificated Notes endorsed for 

exchange, registered in the same name as the Certificated Notes surrendered by such Noteholder, 

in different outstanding principal amounts designated by such Noteholder and in Authorized 

Denominations. 

If a Noteholder 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 Noteholder 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 Noteholder 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 Noteholder's Certificated Notes properly endorsed 

for such exchange, (B) written instructions from such Noteholder 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 ofRegulation S 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 13 

EXECUTION VERSION 
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 Noteholder, in different outstanding principal amounts 

designated by such Noteholder 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, and after due execution by the Company, shall 

deliver the 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 Noteholder 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 

on the exemption from registration provided by Rule 144A; and 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 RegulationS; it is not, and will not be, a 

U.S. Person; it is a Qualified Purchaser; it is aware that in connection with a transfer of any 

Purchase Money 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 14 

EXECUTION VERSION 
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 $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 

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 Noteholder 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 

Noteholder 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 thirty (30) days thereof, the Company may sell the Note Owner's or Noteholder's 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 15 

EXECUTION VERSION 
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 ofthe 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) ofthe 

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. 

(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. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 16 

EXECUTION VERSION 
(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, however, that 

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

the Paying Agent by a Noteholder 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") guaranteed pursuant to the Guaranty Agreement, the Company, at the direction of 

the Purchase Money Notes Guarantor, shall reissue such Purchase Money Note (such reissued 

Purchase Money Note, a "Reissued Purchase Money Note") to the Receiver with terms and 

conditions as are directed by the Receiver and substantially similar to the terms and conditions of 

the related Maturing Purchase Money Note (including not accruing interest) and a new maturity 

date satisfactory to the Purchase Money Notes Guarantor; provided that (x) (i) the maturity date 

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

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

the time of its issuance shall equal (A) the outstanding principal amount of the related Maturing 

Purchase Money Note minus (B) the 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 Guaranty Agreement), plus (C) the applicable Purchase Money Note Reissuance Fee with 

respect to such Reissued Purchase Money Note, and (y) no modification contained in such 

Reissued Purchase Money Note (other than the increase to principal described in Section 

2.8(a)(ii)(C)) shall adversely affect (i) the amount or timing of distributions to the Initial Member 

or Private Owner pursuant to the Priority of Payments or (ii) any other rights or obligations of 

the Manager, the Private Owner, the Paying Agent or the Initial Member pursuant to this 

Agreement or any Transaction Document (other than the Purchase Money Notes). 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 17 

EXECUTION VERSION 
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 Noteholders 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 into 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 ofthis 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"). 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 the 

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

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

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

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

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

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

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

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

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

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

Money Note and bearing a number not contemporaneously outstanding. 

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

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

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

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

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

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

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

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

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

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 Noteholder thereof of a sum sufficient to 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 18 

EXECUTION VERSION 
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 Noteholder or its designee with respect to a 

Certificated Note, by wire transfer, as directed by such Clearing Agency or Noteholder, 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 Noteholder or its designee with 

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

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

before the related Record Date; and (ii) if appropriate instructions for any such wire transfer are 

not received at least fifteen (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 Noteholder 

specified in the Purchase Money Notes Register. Upon final payment due on the maturity of a 

Purchase Money Note, the Noteholder thereof shall present and surrender such Purchase Money 

Note at the office of the Paying Agent on or prior to such maturity; provided, however, that, if 

the Paying Agent and the Company shall have been furnished such security or indemnity as may 

be required by them to save each of them harmless and an undertaking thereafter to surrender 

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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 19 

EXECUTION VERSION 
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 Noteholders. 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 

ninety (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 

Noteholder 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 Noteholder 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 promptly shall make available to the Paying Agent a reasonable 

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

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

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

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

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

Authorized Denominations. 

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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 20 

EXECUTION VERSION 
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 Noteholder of a Rule 144A Certificated Note or (ii)(A) any U.S. Person or (B) nonU.S. Person that is not a Qualified Purchaser, shall become a Noteholder of a Regulation S 

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

Paying Agent acting on behalf of the Company, and promptly after discovery that such Person is 

a Non-Permitted Noteholder by the Company or the Paying Agent (and notice by the Paying 

Agent to the Company), shall send notice to such Non-Permitted Noteholder demanding that 

such Non-Permitted Noteholder transfer its interest to a Person that is not a Non-Permitted 

Noteholder within thirty (30) days of the date of such notice. If such Non-Permitted Noteholder 

fails to so transfer its interest, the Company shall have the right, without further notice to the 

Non-Permitted Noteholder, to sell such interest to a purchaser selected by the Company that is 

not a Non-Permitted Noteholder 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 

Noteholder of each Purchase Money Note, the Non-Permitted Noteholder and each other Person 

in the chain of title from the Noteholder to the Non-Permitted Noteholder, 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 Noteholder. 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 

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 Noteholder 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 21 

EXECUTION VERSION 
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 Noteholder Voting. In any case in which consent of the "Noteholders" is 

required hereunder, such consent requirement shall be satisfied if the Noteholders 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 Noteholder 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 Noteholder 

individually in comparison to any other Noteholder; (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 Guaranty Agreement. 

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 

cancelled 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. 

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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 22 

EXECUTION VERSION 
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; RegS/Certificated"; 

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

(iii) "Security Description" page 3 states: "RESTRICTIONS: These 

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

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

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

purchasers" within the meaning of Section 3(c )(7) ofthe U.S. Investment Company Act." 

Notwithstanding the foregoing, in the event that Bloomberg is not able to include the 

language contained in subsections (b )(i) and (b )(ii) above, the purchaser will ensure as of the 

Closing Date that "Security Description" page 3 states: "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. 

Section 2.18 Transfer of Purchase Money Notes by Receiver. Subject to the 

requirements and restrictions for the transfer of the Purchase Money Notes pursuant to this 

Agreement, the Receiver shall be permitted, without restriction, to assign, sell, transfer, 

participate, pledge, or otherwise hypothecate the Purchase Money Notes in whole or in part, to 

one or more subsequent purchasers. The Private Owner agrees to cooperate with and assist, and 

to cause the Company to so cooperate and assist, the Receiver in any such actual or proposed 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 23 

EXECUTION VERSION 
assignment, sale, transfer, participation, pledge, syndication, or hypothecation as requested by 

the Receiver, including by providing information required by securities disclosure Laws and as 

would otherwise be provided customarily in connection with the issuance and sale of similar 

debt, and entering into a fiscal and paying agent agreement and other agreements with respect to 

the Purchase Money Notes or the assignment, sale, transfer, participation, pledge, syndication or 

hypothecation thereof. The Private Owner agrees to cooperate with, and to cause the Company 

to cooperate with, the Receiver as initial Noteholder of the Purchase Money Notes, to make any 

amendments to the Purchase Money Notes and other Transaction Documents, and issue any 

applicable legal opinions of Company counsel, to effect any such assignment, sale, transfer, 

participation, pledge, syndication or hypothecation; provided that no such amendment will 

adversely affect in any material respect (i) the amount or timing of distributions to the Private 

Owner or the Initial Member pursuant to the Priority of Payments or (ii) any other rights or 

obligations of the Paying Agent, the Private Owner or the Initial Member pursuant to the 

Transaction Documents), in each case unless such adversely affected Paying Agent, Private 

Owner or Initial Member, as applicable, shall have consented to the applicable provisions 

resulting in such adverse effect. The reasonable legal fees of outside counsel for the Company 

(excluding any legal fees of outside counsel performing services for the Private Owner or the 

Initial Member) in connection with the preparation and review of any such documents and 

issuance of such legal opinions shall be deemed a Servicing Expense and paid by the Company. 

ARTICLE III 


ACCOUNTS 


Section 3.1 Collection Account. 

(a) On the Closing Date, the Company established the Collection Account 

with the Paying Agent, which shall be at all times an Eligible Account. For all Asset Proceeds 

with respect to any Group of Assets received by the Receiver during the Interim Servicing Period 

for which the Servicing Transfer Date has not occurred, the Receiver shall transfer any such 

Asset Proceeds, net of any Servicing Expenses and Pre-Approved Charges then due and payable, 

no later than two (2) Business Days prior to the applicable Distribution Date to the Paying Agent 

for deposit into the Collection Account. For all Asset Proceeds with respect to any Group of 

Assets received after the Interim Servicing Period and for which the Servicing Transfer Date has 

occurred, the Company shall transfer, or cause the Servicer or any Subservicer to transfer, all 

Asset Proceeds within two (2) Business Days of receipt of such funds to the Paying Agent for 

deposit into the Collection Account; provided, that all amounts received from Borrowers which 

are required to be deposited to the Escrow Account under the Asset Documents will not be 

applied to the Collection Account as Asset Proceeds. No funds from any other source (other 

than Asset Proceeds, interest or earnings on the Asset Proceeds, funds transferred from the 

Working Capital Reserve Account pursuant to Section 3.4, funds advanced by the Manager as 

Excess Working Capital Advances pursuant to the LLC Operating Agreement and Section 3.5, 

and funds advanced by the Manager as Discretionary Funding Advances pursuant to the LLC 

Operating Agreement and Section 3.6) 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 24 

EXECUTION VERSION 
Asset together with accrued and unpaid interest on such Discretionary Funding Advance, but 

only to the extent of Asset Proceeds from the Asset 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 required pursuant to any 

Asset 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 

Asset to which such Discretionary Funding Advances relate. 

(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 Interim 

Servicing Expenses, Pre-Approved Charges and Funding Draws. The Manager is authorized 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 is authorized to request the withdrawal of such amount and instruct the 

Paying Agent to pay such amount to the Receiver, the Company, the Servicer or any Subservicer, 

as applicable. The Manager shall provide such requests to the Paying Agent in accordance with 

Section 18.1. 

(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 the Closing Date, the Company established the Distribution Account 

with the Paying Agent, which shall be at all times an Eligible Account. The Paying Agent shall 

transfer from the Collection Account to the Distribution Account, for application pursuant to 

Section 5.1, not later than 12:00 p.m. New York time on the Business Day immediately 

preceding each Distribution Date, the amount specified in the Distribution Date instructions 

delivered pursuant to Section 11.4 for such Distribution Date as determined as of the close of 

business on the Determination Date with respect to the applicable Due Period. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 25 

EXECUTION VERSION 
(b) No funds from any other source shall be commingled in the Distribution 

Account other than interest or earnings on the funds held in the Distribution Account and 

funding from the Collection Account as described in this Section. Amounts on deposit in (or that 

are required to have been deposited into) the Distribution Account (including interest and 

earnings thereon) shall be allocated and may be withdrawn and disbursed only in accordance 

with the provisions of Section 5 .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. 

(a) On the Closing Date, 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 Guaranty Agreement, shall deposit any amounts payable under the Guaranty Agreement in 

respect ofthe Guaranteed Obligations (as defined in the Guaranty Agreement) in the Defeasance 

Account by 12:00 p.m. New York time on the date that is one (1) 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 Purchase Money Notes Maturity Date, by 12:00 p.m. New York 

time on the date that is one (1) Business Day prior to such Purchase Money Notes Maturity Date, 

in each case, for further distribution by the Paying Agent to the applicable Noteholders; provided 

that the Purchase Money Notes Guarantor has received written demand therefor from the 

applicable Noteholders or from the Paying Agent on such Noteholders' behalf pursuant to 

Section 17(a) ofthe Guaranty Agreement no later than 5:00p.m. New York time on the date that 

is four ( 4) Business Days prior to such Distribution Date or, in connection with the final payment 

of such Purchase Money Notes on the applicable Purchase Money Notes Maturity Date, such 

Purchase Money Notes Maturity Date. 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 Noteholders of the applicable Purchase Money 

Notes on the date the principal is paid to the Noteholders. Any overdue principal on the 

Purchase Money Notes and interest thereon may be paid to the Noteholders 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 Purchase Money Notes 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 Guaranty Agreement, the Paying Agent shall deposit such 

amounts into the Defeasance Account for further distribution by the Paying Agent to the 

applicable Noteholders. To the extent the Paying Agent otherwise receives amounts from the 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 26 

EXECUTION VERSION 
Purchase Mon~y Notes Guarantor paid under Section 17(b) of the Guaranty Agreement, the 

Paying Agent shall deposit such amounts into the Defeasance Account for further distribution by 

the Paying Agent to the applicable Noteholders. Any amounts deposited into the Defeasance 

Account under Section 17(b) of the Guaranty Agreement shall not be included when calculating 

the balance in the account. 

(c) No funds from any other source (other than interest or earnings on 

amounts described in Section 3.3(d) and (i) amounts deposited pursuant to this Section 3.3, 

(ii) deposits made by the Purchase Money 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. 

(d) The Paying Agent shall invest the amounts on deposit in the Defeasance 

Account in Permitted Investments in accordance with investment directions from the Initial 

Member; provided, however, upon the delivery of a copy of the Guaranty Notice to the Paying 

Agent, the Purchase Money Notes Guarantor shall thereafter be the Person to provide the 

investment directions pursuant to this Section 3.3(d) and the Paying Agent shall be entitled to 

rely upon such Guaranty Notice for purposes of this Agreement. Income or gain from such 

investments will be available to be applied with other amounts in accordance with Sections 

U.(g} and ffi. 

(e) If, on the Maturity Date 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 Noteholders 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 Noteholders 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 3.5, the 

Manager shall direct the Paying Agent to deposit such Excess Working Capital Advances into 

the Defeasance Account. In addition, upon the repurchase of an Asset pursuant to Section 6.3 of 

the Contribution Agreement, the portion of the Repurchase Price constituting the Purchase 

Money Note Asset Value shall be deposited into the Defeasance Account. 

(g) On the 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 Noteholders 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 (including any interest earnings from investments) to the 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 27 

EXECUTION VERSION 
Noteholders of the Class A-1 Purchase Money Note in accordance with their Noteholder 

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 Noteholders 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 

(including any interest earnings from investments) to the Noteholders of the Class A-2 Purchase 

Money Note in accordance with their Noteholder Percentages. For the avoidance of doubt, any 

amounts distributed from the Defeasance Account pursuant to this Section 3.3 shall be 

distributed to the Noteholders of each applicable Class of Purchase Money Notes on a pro rata 

basis. 

(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 

Noteholders 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 Noteholders of 

such last Maturing Purchase Money Note, the Paying Agent shall liquidate the Defeasance 

Account and pay any and all proceeds of such liquidation to the Initial Member; provided, 

however, if the Paying Agent has received a copy of the Guaranty Notice, the Paying Agent shall 

be authorized to, and shall deliver, any and all proceeds of such liquidation to the Purchase 

Money Notes Guarantor. 

G) 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 Working Capital Reserve Account. 

(a) On the Closing Date, the Company established the Working Capital 

Reserve Account for the purpose of (i) paying the Working Capital Expenses to the extent there 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 28 

EXECUTION VERSION 
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 

required pursuant to the applicable Asset 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. 

(b) The Working Capital Reserve Account shall be held in trust by the Paying 

Agent for the benefit of the Company and shall be established and maintained for the sole 

purpose of holding and distributing the funds in the Working Capital Reserve Account. 

(c) Funds in the Working Capital Reserve Account were contributed 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) ofthis Agreement. 

(d) The Company shall maintain in the Working Capital Reserve Account an 

amount which is the greater of (i) $1,000,000 (the "Working Capital Reserve Floor") and (ii) 

$2,500,000 (the "Working Capital Reserve Cap"); provided, however, the Working Capital 

Reserve Cap is subject to reduction on any Determination Date if and when three percent (3%) of 

the Unpaid Principal Balance of the Assets on such Determination Date is less than the sum set 

forth in subsection (d)(ii) above. Upon such event, the Working Capital Reserve Cap shall be 

reduced to the adjusted amount, subject to the Working Capital Reserve Floor. In the event that 

the funds held in the Working Capital Reserve Account exceed the Working Capital Reserve 

Cap, as adjusted, the Manager must 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 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. 

Notwithstanding the foregoing, the Manager, in the exercise of its reasonable discretion, may 

determine to release funds from the Working Capital Reserve Account and reduce such Account 

to an amount below the Working Capital Reserve Floor if such funds are required to pay 

Working Capital Expenses then due and payable, and Asset Proceeds are not otherwise available 

for such purposes, so long as the balance of the Working Capital Reserve Account is restored to 

the Working Capital Reserve Cap as soon as practicable thereafter. 

(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. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 29 

EXECUTION VERSION 
(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 Account had been established, the Manager, with the approval of each Required 

Consenting Party, 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 3.4. 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 

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

Reimbursement, Security and Guaranty Agreement and the Account Control Agreement. 

Section 3.5 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 from its own funds to the Paying Agent 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 Account 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 3.6 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 Account with which to fund any Funding Draw permitted pursuant to 

any Asset Documents, which Discretionary Funding Advances are to be designated as applicable 

only to the Asset 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. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 30 

EXECUTION VERSION 
Section 3.7 Private Owner Pledged Account. 

(a) On the date hereof, the Private Owner shall establish the Private Owner 

Pledged Account with the Paying Agent for the exclusive purpose of holding Qualifying Cash 

Collateral, whether such Qualifying Cash Collateral is delivered on the date hereof or subsequent 

to the date hereof in full and complete substitution for a Qualifying Letter of Credit pursuant to 

the LLC Operating Agreement or upon the liquidation or drawing down of a Qualifying Letter of 

Credit pursuant to the LLC Operating Agreement. The Private Owner Pledged Account (and all 

funds therein) shall be subject to the security interest granted for the benefit of the Initial 

Member pursuant to the LLC Operating Agreement, this Agreement and the Private Owner 

Account Control Agreement. In no event shall the Private Owner have any right or authority to 

withdraw any funds from the Private Owner Pledged Account except as expressly provided in 

Section 3.7(b) below. The Paying Agent shall invest the amounts on deposit in the Private 

Owner Pledged Account in Permitted Investments in accordance with investment directions from 

the Private Owner but with maturities that allow for their transfer in accordance with this Section 

3.7. 

(b) From time to time, at the request of the Private Owner, the Paying Agent 

may release funds from the Private Owner Pledged Account to the Private Owner only to the 

extent that, after such release, the remaining balance of the Qualifying Cash Collateral on deposit 

in the Private Owner Pledged Account is not less than the Private Owner Pledged Amount. Any 

such release shall be pursuant to applicable instructions and documentation satisfactory to, and 

executed by (or with the written consent of), both of the Initial Member and the Private Owner 

(and prepared at the sole cost and expense of the Private Owner). 

(c) Unless otherwise provided in 3.7(b) above, the Paying Agent shall 

withdraw funds from the Private Owner Pledged Account only upon (i) receipt of a written 

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

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

(notice of which shall be provided by the Initial Member to the Paying Agent), for delivery to the 

Private Owner. 

(d) At the time ofthe Final Distribution, the Paying Agent shall distribute all 

remaining funds held in the Private Owner Pledged Account to the Private Owner. 

ARTICLE IV 

ADDITIONAL PROVISIONS RELATED TO THE ACCOUNTS 

Section 4.1 Investment of Funds in Accounts. 

(a) (i) The Company shall at all times direct the Paying Agent to, and, 

upon receipt of such investment direction, the Paying Agent shall invest amounts on deposit and 

retained in the Collection Account, the Working Capital Reserve Account or the Distribution 

Account, as so directed in Permitted Investments. If the Purchase Money Notes Guarantor or the 

Company, as applicable, does not provide the Paying Agent with investment directions pursuant 

to Sections 3.1 - 3.5 or :LL 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 31 

EXECUTION VERSION 
Paying Agent with investment directions, the balance standing to the credit of the Collection 

Account, the Working Capital Reserve Account or the Defeasance Account, as applicable, will 

remain uninvested with no liability for interest thereon. 

(ii) The Private Owner may direct the Paying Agent to, and, upon 

receipt of such investment direction, the Paying Agent shall, invest amounts received and 

retained in the Private Owner Pledged Account, as so directed in Permitted Investments. If the 

Private Owner shall not have given any such investment directions, the Paying Agent shall seek 

investment directions from the Private Owner. 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 3.7 (c), 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 

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, the Initial Member, or the Private Owner, pursuant to this 

Agreement. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 32 

EXECUTION VERSION 
(d) All references in this Agreement to the Accounts and to cash, moneys or 

funds therein or balances thereof shall include the investments in which such moneys are 

invested. 

(e) The Paying Agent may execute any investment directions provided to it in 

respect of the Permitted Investments through its Affiliates, and neither the Paying Agent nor its 

Affiliates shall have a duty to monitor the investment rating of any such Permitted Investments. 

The Paying Agent will have no obligation to invest or reinvest any funds if all or a portion of 

such funds are deposited with the Paying Agent after 11 :00 a.m. New York time on the day of 

deposit. Directions to invest or reinvest that are received after 11 :00 a.m. New York time will be 

treated as if received on the following Business Day in New York. Subject to Section 4.1 (b) 

above, the Paying Agent will have the power to sell or liquidate Permitted Investments whenever 

the Paying Agent will be required to make a transfer pursuant to the terms hereof. The Paying 

Agent will have no responsibility for any investment losses resulting from the investment, 

reinvestment or liquidation of any funds in accordance with the terms of this Agreement. 

Section 4.2 Interest. Any interest or other earnings accrued on any balances in any 

Account (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 

herewith shall be paid by the Paying Agent from amounts on deposit in such account on the 

related Distribution Date or on the Purchase Money Notes 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 app)icable, and this Agreement. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 33 

EXECUTION VERSION 
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.l(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.l(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 Assets, to pay to (1) the Initial Member, with respect to 

each Asset for which the Initial Member provides interim servicing, the Interim Servicing Fee, 

together with any unpaid portion of the Interim Servicing Fee for any prior Due Period and (2) 

the Manager, the Interim Management Fee, together with any unpaid portion of the Interim 

Management Fee, for any prior Due Period, and (B) for each Due Period following the Interim 

Servicing Period, with respect to such Group of Assets, with respect to each Asset for which it 

provides servicing, to pay to the Manager an amount equal to the Management Fee, together with 

any unpaid portion of the Management Fee for any prior Due Period; 

(iii) third, to repay the Excess Working Capital Advances made by the 

Manager pursuant to Section 5.4 of the LLC Operating Agreement and Section 3.5 above; 

(iv) fourth, subject to the provisions of Section 3.4 above, to replenish 

the Working Capital Reserve Account until the amount of funds held in the Working Capital 

Reserve Account is equal to the Working Capital Reserve Cap; 

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

accrued interest thereon at the Reimbursement Interest Rate due and payable as of the 

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

pursuant to the Reimbursement, Security and Guaranty Agreement for previous payments made 

by it under the Guaranty Agreement; 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 34 

EXECUTION VERSION 
(vi) sixth, as long as any Purchase Money Note remains outstanding, 

such sums remaining until the Defeasance Account equals the outstanding principal balance of 

the Purchase Money Notes to the Defeasance Account; and 

(vii) any amount then remaining to the Initial Member and the Private 

Owner, pro rata, based on their respect Percentage Interests. 

(c) Any Repurchase Price proceeds shall be distributed as follows: the amount 

of the Purchase Money Note Asset Value shall be deposited in the Defeasance Account as 

provided in Section 5.1 (b) above and the amount of the Equity Asset Value shall be paid to the 

Initial Member and the Private Owner in accordance with Section 6.6 of the LLC Operating 

Agreement and as provided in Section 5.1 (b) above. 

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 Purchase Money Notes 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 Purchase Money Notes 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 Purchase Money Notes 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 last sentence of 

Section 5.2(a). 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 Noteholders of the occurrence of such 

Event of Default. 

(c) If the Paying Agent receives notice from the Noteholders 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 Guaranty 

Agreement (based on the related Distribution Date Report) and shall make a demand therefor no 

later than four (4) Business Days prior to such Distribution Date to the Purchase Money Notes 

Guarantor on behalf of the applicable Noteholders in accordance with Section 17(a) of the 

Guaranty Agreement. 

(d) If the Paying Agent receives any such notice from the Noteholders 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 Guaranty 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 35 

EXECUTION VERSION 
Agreement (based on the Distribution Date Report for the immediately succeeding Distribution 

Date) and shall make a demand therefor no later than four ( 4) Business Days prior to the 

immediately next succeeding Distribution Date to the Purchase Money Notes Guarantor on 

behalf of the applicable Noteholders in accordance with Section 17(a) of the Guaranty 

Agreement. 

ARTICLE VI 


CUSTODIAL DOCUMENTS 


Section 6.1 Delivery of Custodial Documents. 

(a) Delivery. As soon as practical after the date hereof, the Company shall 

deliver or cause to be delivered the Custodial Documents to the Custodian at the office of the 

Custodian at Wells Fargo Document and Custody, 1055 lOth Avenue, S.E., 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 an Asset Schedule and Exception List ("Collateral Certificate"). In reviewing 

the documents provided with respect to an Asset, the Custodian shall examine the same in 

accordance with the procedures set forth on Exhibit F hereto and determine, with respect to each 

such document, whether it (i) appears regular on its face (i.e., is not mutilated, damaged, tom, 

defaced or otherwise physically altered), (ii) relates to such Asset, (iii) has been executed by the 

named parties thereon, (iv) where applicable, purports to be recorded, and (v) appears to be what 

it purports to be. 

(c) Custodial Documents. For each Asset and Acquired Property, to the 

extent applicable and available, the "Custodial Documents" shall include the following: 

(i) the original Note bearing all intervening endorsements and 

endorsed "Pay to the order of South CRE Venture 2010-2, LLC, without recourse" and signed in 

the name of the Federal Deposit Insurance Corporation as Receiver, and an allonge providing for 

the endorsement of the Note and endorsed "Pay to the order of , without 

recourse" and signed by the Company as the last endorsee; and in the event that the original Note 

is not available, a fully executed Assignment and Lost Instrument Affidavit in the form of 

Exhibit L hereto; 

(ii) the original Mortgage with evidence of recording thereon, or a 

copy thereof from the applicable Recording Office, or a copy thereof together with an officer's 

South Venture 

Custodial and Paying Agency Agreement 36 

EXECUTION VERSION 
certificate of the related Borrower, title company, escrow agent or closing attorney certifying that 

such represents a true and correct copy of the original and that such original has been submitted 

for recordation in the applicable Recording Office; 

(iii) the originals or copies of all assumption, modification, 

consolidation or extension agreements (if any) with evidence of recording thereon, or copies 

thereof from the applicable Recording Office, or 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 or a copy of the attorney's opinion oftitle 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 Asset, if available; 

(x) Uniform Commercial Code financing statements with recording 

information thereon from the Recording Offices if necessary to perfect the security interest of the 

Asset under the Uniform Commercial Code; 

(xi) if the equity interests of any Ownership Entity are certificated, the 

certificate representing such equity interest and the stock power executed in blank; and if the 

equity interests of any Ownership Entity are not certificated, an Assignment of LLC Interest; 

(xii) any bailee letters regarding any Notes or other Custodial 

Documents held by the bailee; 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 37 

EXECUTION VERSION 
(xiii) solely with respect to each MERS Designated Asset, a MERS 

Report; and 

(xiv) the REO Collateral Documents (as defined in the Reimbursement, 

Security and Guaranty Agreement). 

(d) Supplemental Deliveries. The Company agrees that it shall deliver or 

cause to be delivered to the Custodian (i) any and all additional Custodial Documents with 

respect to an Asset that is not Acquired Property within ten ( 1 0) days following the execution 

and delivery of any such instrument and (ii) any and all Custodial Documents with respect to any 

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 Asset. In the event the Custodian determines that 

the Supplemental Delivery Certificate is inaccurate, the Custodian shall so notify the Company 

in writing no later than the first Business Day following its receipt of the Supplemental Delivery 

Certificate. Within seven (7) Business Days after the receipt of the additional Custodial 

Documents by the Custodian, the Custodian shall provide the Company (with a copy to the 

Purchase Money 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 Asset Schedule and Exception List. 

(e) Asset Schedules; Exception Lists; Review Procedures. Each Asset 

Schedule and Exception List shall list all Exceptions using such codes as shall be in form and 

substance agreed to by the Custodian and the Company. Each Asset Schedule and Exception 

List delivered by the Custodian to the Company shall supersede and cancel the Asset Schedule 

and Exception List previously delivered by the Custodian to the Company hereunder, and shall 

replace the then existing Asset Schedule and Exception List to be attached to the Collateral 

Certificate. Notwithstanding anything to the contrary set forth herein, in the event that the Asset 

Schedule and Exception List attached to the Collateral Certificate is different from the most 

recently delivered Asset Schedule and Exception List, then the most recently delivered Asset 

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

of each Asset Schedule and Exception List to the Company shall constitute the Custodian's 

representation that, other than the Exceptions listed as part of the last delivered Asset Schedule 

and Exception List: (i) all documents required to be delivered in respect of a Loan or Acquired 

Property pursuant to Section 6.l(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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 38 

EXECUTION VERSION 
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 Asset (except in the case of a MERS Designated Loan) or 

Acquired Property identified on such Asset Schedule and Exception List is being held by the 

Custodian as the bailee for the Company and (iv) subject to the provisions ofSection 7.2(b), each 

MERS Designated Loan is being held by MERS® as the nominee for the Company. In 

connection with the Asset Schedule and Exception List delivered hereunder by the Custodian, 

the Custodian shall make no representations as to and shall not be responsible for verifying, 

except as set forth in Section 6.1(b) of this Agreement, (A) the validity, legality, enforceability, 

due authorization, recordability, sufficiency or genuineness of any of the Custodial Documents 

or (B) the collectability, insurability, effectiveness or suitability of any such 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 ofthe 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. 

Venture 2010-2 

Custodial and Paying Agency Agreement 39 

EXECUTION VERSION 
ARTICLE VII 


CUSTODIAN 


Section 7.1 Appointment of the Custodian. Subject to the terms and conditions of this 

Agreement, the Company hereby appoints the Bank to perform the duties of the Custodian, and 

the Bank hereby accepts such appointment as Custodian, to act as the Company's agent, 

custodian and bailee to hold and maintain custody of the Custodial Documents. 

Section 7.2 Obligations ofthe Custodian. 

(a) Maintenance of Custody. Subject to the provisions of Section 7.2(b), the 

Custodian shall (i) hold and maintain continuous custody of all Custodial Documents received by 

it in trust for and for the benefit of the Company in secure and fire resistant facilities, (ii) act with 

the same degree of care and skill that the Custodian exercises with respect to any loan files 

relating to similar loans owned, serviced or held as custodian by the Custodian and, in any event, 

in accordance with customary standards for such custody, (iii) reflect in its records the interest of 

the Company therein, (iv) make disposition of the Custodial Documents only in accordance with 

the provisions of this Agreement, and (v) subject to the provisions of Section 7.2(b), hold all 

Custodial Documents received by it for the exclusive use and benefit of the Company, and make 

disposition thereof only in accordance with written instructions furnished by the Company. 

(b) Pledge of Assets to the Collateral Agent. Pursuant to the terms and 

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

all of its rights, title and interest in and to the Assets, 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 Guaranty Agreement. 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 as bailee for the Collateral Agent, and the Custodian shall mark its 

records to reflect the pledge of the Assets, the Acquired Property and the Custodial Documents 

by the Company to the Collateral Agent. The Custodian's records shall reflect the pledge of the 

Assets, 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 Assets 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 Assets, the Acquired Property and the Custodial Documents and 

that the Custodian is holding the Assets, 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. With respect to all Collateral Documents that are 

removed from the Custodian's possession, the Custodian shall use commercially reasonable 

efforts to obtain the return of such removed Custodial Documents until such time as the 

Custodial Documents are returned and provide on a monthly basis to the Collateral Agent and 

South CRE Venture 20 I 0-2 

Custodial and Paying Agency Agreement 40 

EXECUTION VERSION 
the Company a report identifying the released (and unreturned) Custodial Documents are 

returned to the Custodian's possession within the time provided by the applicable Uniform 

Commercial Code to maintain the Collateral Agent's perfection. 

(c) Qualification to Conduct Business. Nothing contained in this Agreement 

shall be construed to require the Custodian to qualify to do business in any jurisdiction other than 

(i) any jurisdiction in which any Custodial Document is or may be held by the Custodian from 

time to time under this Agreement or (ii) any jurisdiction in which the ownership of its property 

or the conduct of its business requires such qualification and in which the failure to qualify could 

have a material adverse effect on the Custodian or its property or business or on the ability of the 

Custodian to perform its duties and obligations under this Agreement. 

(d) Events of Default under the Reimbursement, Security and Guaranty 

Agreement. Upon the Custodian's receipt from the Collateral Agent or the Purchase Money 

Notes Guarantor of written notice at its Office that an Event of Default under the 

Reimbursement, Security and Guaranty Agreement 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 ( 1) of the following events has occurred: 

(i) If the Custodian has resigned or has been removed in accordance 

with the provisions of Section 9.1, the Custodian shall deliver the Custodial Documents to the 

successor Custodian in accordance with Section 9 .1. 

(ii) If the Custodian has received a notice in the form of Exhibit H 

from an Authorized Representative of the Company stating that the Company has received all 

amounts due under a Asset, or a discounted payoff as payment in full of such Asset, the 

Custodian shall release the related Custodial Documents to the Company or to the Manager in 

accordance with the instructions provided in such notice. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 41 

EXECUTION VERSION 
(iii) If the Custodian has received notice in the form of Exhibit H from 

an Authorized Representative of the Company that the Company or the Private Owner needs the 

Custodial Documents in order to foreclose on a Mortgaged Property, accept a deed in lieu thereof 

or modify or restructure the terms thereof, the Custodian shall release the related Custodial 

Documents to the Company or to the Manager in accordance with the instructions provided in 

such notice. 

(iv) If the Custodian has received notice in the form of Exhibit H from 

an Authorized Representative of the Company that the Company has agreed to sell an Asset or 

the Collateral, the Custodian shall deliver the related Custodial Documents to the Company or to 

the Manager in accordance with the instructions provided in such notice. 

(g) No Other Duties. The Custodian shall have no duties or responsibilities as 

Custodian except those that are specifically set forth herein and shall not be liable except for the 

performance of such duties and obligations. No implied covenants or obligations shall be read 

into this Agreement. 

(h) No Investigation. The Custodian shall be under no obligation to make any 

investigation into the facts or matters stated in any resolution, certificate, statement, 

acknowledgement, consent, order or other document that is included in the Custodial 

Documents. 

(i) Cooperation. The Company shall cooperate and use commercially 

reasonable efforts to provide any additional documentation or information reasonably requested 

by the Custodian in performing its duties and obligations hereunder. 

G) 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 ofthe 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. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 42 

EXECUTION VERSION 
ARTICLE IX 


REMOVAL OR RESIGNATION 


Section 9.1 Removal or Resignation of Custodian and Paying Agent. 

(a) Resignation. No resignation or removal of the Person serving as 

Custodian and Paying Agent pursuant to Section 9.1(a) or (b) shall be effective prior to the 

appointment of a successor Custodian and Paying Agent, the acceptance of such appointment by 

such successor Custodian and Paying Agent and the execution and delivery by such successor 

Custodian and Paying Agent of an Account Control Agreement in the form of Exhibit N to this 

Agreement or otherwise satisfactory to the Collateral Agent. Subject to the provisions of Section 

2J_{£), the Bank may at any time resign and terminate its obligations as Custodian and Paying 

Agent under this Agreement upon at least sixty (60) days' prior written notice to the Company, 

the Initial Member, the Private Owner, the Purchase Money Notes Guarantor and the Collateral 

Agent. In the event the Bank resigns it must resign as both Custodian and Paying Agent. 

Promptly after receipt of notice of the Bank's resignation as Custodian and Paying Agent, 

subject to the provisions of the LLC Operating Agreement and the Reimbursement, Security and 

Guaranty Agreement as they relate to the Company, the Company shall appoint, by written 

instrument, a successor Custodian and Paying Agent. In the event that no successor shall have 

been appointed as Custodian and Paying Agent within such sixty (60) day period, the Bank may 

petition any court of competent jurisdiction to appoint a successor Custodian and Paying Agent. 

(b) Removal. Subject to the provisions of Section 9.1(c), the Company, the 

Collateral Agent or the Purchase Money Notes Guarantor may remove and discharge the Bank as 

Custodian and Paying Agent (or any successor custodian and paying agent thereafter appointed) 

without cause from the performance of its obligations under this Agreement upon at least thirty 

(30) days' prior written notice to the Bank. Promptly after the giving of notice ofremoval to the 

Bank as the Custodian and Paying Agent, subject to the provisions of the LLC Operating 

Agreement and the Reimbursement, Security and Guaranty Agreement as they relate to the 

Company, the Company shall appoint, by written instrument, a successor Custodian and Paying 

Agent. 

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

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

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

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

Agent shall become effective and the successor Custodian and Paying Agent, without any further 

act, deed or conveyance, shall become fully vested with all rights, powers, duties and obligations 

of the Custodian and the Paying Agent 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 promptly shall transfer to the successor Custodian and 

Paying Agent, as directed, all Custodial Documents and funds deposited in the Accounts, and the 

Company and the Bank shall execute and deliver such instruments and do such other things as 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 43 

EXECUTION VERSION 
may reasonably be required for more fully and certainly vesting and confirming in the successor 

Custodian and Paying Agent all rights, powers, duties and obligations of the Bank as the 

Custodian and Paying Agent under this Agreement. 

(e) Costs. The Company shall be responsible for payment to the successor 

Custodian and Paying Agent of all fees and expenses of the successor Custodian and Paying 

Agent and any fees and expenses for transferring Custodial Documents and funds deposited in 

the Accounts to the successor Custodian and Paying Agent except with respect to the Private 

Owner Pledged Account, the fees and expenses with respect to which are to be paid by the 

Private Owner. 

ARTICLE X 

REPRESENTATIONS, WARRANTIES AND COVENANTS 

Section 10.1 Representations, Warranties and Covenants. 

(a) The Bank as the Custodian and Paying Agent 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 is a Qualified Custodian and 

Paying Agent. 

Section 10.2 Insurance. At its own expense, the Custodian and Paying Agent shall 

maintain at all times and keep in full force and effect (a) fire and other casualty insurance, 

(b) fidelity insurance, (c) theft of documents insurance, (d) forgery insurance, and (e) errors and 

omissions insurance. All such insurance shall be in amounts, with standard coverage and subject 

to deductibles, as are customary for insurance typically maintained by financial institutions 

which act as paying agent and as custodian of collateral substantially similar to the Custodial 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 44 

EXECUTION VERSION 
Documents. Upon written request, the Company shall be entitled to receive a certificate of the 

respective insurer that such insurance is in full force and effect. 

ARTICLE XI 


REPORTS 


Section 11.1 Custodian and Paying Agent Report. 

(a) The Custodian and Paying Agent shall cause to be furnished to the Private 

Owner, the Receiver, the Purchase Money Notes Guarantor and the Collateral Agent, no later 

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

Period (the "Custodian and Paying Agent Report") with respect to the Assets 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 Asset 

Proceeds or the Management Fee from such Accounts, including the date on which made, since 

the date of the previous report) held by the Custodian and Paying Agent pursuant to this 

Agreement and on such other information as may otherwise be agreed by the parties with respect 

to such Due Period, all as set forth on Exhibit K. The Custodian and Paying Agent shall follow 

the procedures and perform the calculations and reconciliations required to prepare the Custodian 

and Paying Agent Report, in each case as set forth on Exhibit K. The Custodian and Paying 

Agent shall also make such Custodian and Paying Agent Reports available to Note Owners each 

month in accordance with Section 2.7(k) via the Paying Agent's internet website. Access to all 

information on the Paying Agent's internet website will be restricted to Note Owners who 

provide the Paying Agent with a separate investor certification substantially in the form of 

Exhibit 0 attached 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 Custodian and Paying Agent, included in (i) the Manager's Monthly Report for the 

applicable Due Period and certified by an Authorized Representative of the Manager, (ii) the 

Distribution Date Report for the applicable Due Period, and (iii) such other information as may 

be agreed upon by the parties, all as set forth in Exhibit K. 

Section 11.2 Additional Reports. 

(a) Within two (2) Business Days after receipt of a written request of the 

Company, the Collateral Agent or the Purchase Money Notes Guarantor for a Custodial Report 

or an updated Asset Schedule and Exception List, the Custodian and Paying Agent shall provide 

the requesting party with the Custodial Report or the updated Asset Schedule and Exception List, 

as applicable. 

(b) The Custodian and Paying Agent shall provide any additional information 

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

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 45 

EXECUTION VERSION 
time by the Company, the Collateral Agent or the Purchase Money Notes Guarantor in the case 

of any Account. 

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

Period no later than 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 Asset Proceeds as of the close of business on 

such Determination Date, after giving effect to Asset Proceeds received with respect to the 

applicable Due Period; 

(b) the amount of Asset Proceeds received during the applicable Due Period; 

(c) [Intentionally Omitted] 

(d) for the Collection Account: 

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

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

applicable Due Period plus (B) funds transferred from the Working Capital Reserve Account 

plus (C) any amount of Excess Working Capital Advances paid by the Manager into the 

Collection Account during the applicable Due Period plus (D) any Discretionary Funding 

Advances deposited in the Collection Account less (E) the total amount of funds withdrawn from 

the Collection Account as permitted pursuant to Section 3.1 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, 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 46 

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

Working Capital Advances, 

(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 Guaranty Agreement 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, 

(H) the amount of Recategorized Proceeds, and 

(I) the balance in the Private Owner Pledged Account as of the 

commencement of the Due Period. 

(e) any other amounts or calculations as required by Section 5.1 of this 

Agreement. 

With respect to the Distribution Date immediately preceding the Purchase Money Notes 

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 Purchase Money Notes 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 ll of this Agreement, including with respect to any distributions to be made 

to the applicable Noteholders 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 record properly all transactions carried out by it with 

respect to the Accounts, including the disbursement of all Asset Proceeds. The Paying Agent 

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

and the Collateral. This obligation to maintain a complete and accurate set of records shall 

encompass all files in the Custodian and Paying Agent's custody, possession or control 

pertaining to the Assets and the Collateral, including all Custodial Documents. The Paying 

Agent shall permit the Company, the Purchase Money Notes Guarantor and the Collateral Agent 

to examine such accounts, books and records that relate to any Company Account, and shall 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 47 

EXECUTION VERSION 
permit the Initial Member and the Private Owner to examine such accounts, books and records 

that relate to the Private Owner Pledged Account, provided, however, that any such examination 

shall occur upon reasonable prior notice and during normal business hours. 

ARTICLE XII 


NO ADVERSE INTERESTS 


Section 12.1 No Adverse Interests. By execution of this Agreement, the Bank 

represents and warrants that no Responsible Officer of the Bank has any actual knowledge of any 

adverse interest, by way of security or otherwise, in any Asset. The Bank shall not pledge, 

encumber, hypothecate, transfer, dispose of, or otherwise grant any third party interest in, any of 

the Assets pursuant to this Agreement. For the purposes of this Section 12.1, a Responsible 

Officer of the Bank means any managing director, director, associate, principal, vice president, 

assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of 

the Bank customarily performing functions similar to those performed by any of the above 

designated officers and directly responsible for the administration of this Agreement and also 

means, with respect to a particular corporate trust matter, any other officer to whom such matter 

is referred because of his or her knowledge of and familiarity with the particular subject. 

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 attorney's fees and litigation costs, that may be imposed on, 

incurred by, or asserted against it or them in any way relating to or arising out of this Agreement 

or any action taken or not taken by it or them hereunder unless such liabilities, obligations, 

losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements were 

imposed on, incurred by or asserted against the Custodian and Paying Agent because of the 

breach by the Custodian and Paying Agent of its obligations hereunder, which breach was caused 

by negligence, lack of good faith or willful misconduct on the part of the Custodian and Paying 

Agent or any directors, officers, agents or employees of the Custodian and Paying Agent. The 

foregoing indemnification shall survive any resignation or removal of the Custodian and Paying 

Agent or the termination or assignment of this Agreement. 

(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 attorney's fees and 

litigation costs, that may be imposed on, incurred by, or asserted against it or them in any way 

relating to or arising out of this Agreement with respect to the Private Owner Pledged Account or 

the Qualifying Cash Collateral on deposit in such Account or any action taken or not taken by it 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 48 

EXECUTION VERSION 
hereunder with respect to the Private Owner Pledged Account or the Qualifying Cash Collateral 

on deposit in such Account unless such liabilities, obligations, losses, damages, penalties, 

actions, judgments, suits, costs, expenses or disbursements were imposed on, incurred by or 

asserted against the Paying Agent because of the breach by the Paying Agent of its obligations 

hereunder with respect to the Private Owner Pledged Account or the Qualifying Cash Collateral 

on deposit in such Account, which breach was caused by negligence, lack of good faith or willful 

misconduct on the part of the Paying Agent or any directors, officers, agents or employees of the 

Paying Agent. The foregoing indemnification shall survive any resignation or removal of the 

Paying Agent or the termination or assignment ofthis 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 Asset Schedule and Exception List 

within two (2) Business Days after required or requested by the Company, and such Custodial 

Document is not outstanding pursuant to a Request for Release and Receipt of the Custodial 

Documents in the form attached as Exhibit H (a "Custodial Delivery Failure"), then (i) with 

respect to any missing Note with respect to which a Custodial Delivery Failure has occurred and 

has continued in excess of three (3) Business Days, the Custodian promptly shall deliver to the 

Company upon request a Lost Instrument Affidavit in the form attached as Exhibit L (unless the 

original Note shall have been delivered prior to such time) and (ii) with respect to any missing 

document related to such Asset, including a missing Note, (A) the Custodian shall indemnify the 

Company, the Purchase Money 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 Asset 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. 

South CRE Venture 

Custodial and Paying Agency Agreement 49 

EXECUTION VERSION 
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 Asset Document that the 

Custodian and Paying Agent believes in good faith (i) to have been signed or presented by an 

Authorized Representative and (ii) conforms in form to the requirements of this Agreement; 

provided, however, that in the case of any request, instruction, certificate, direction, receipt, 

demand, consent, resolution, statement, instrument, opinion, report, notice or other document or 

communication which by any provision hereof is specifically required to be furnished to the 

Custodian and Paying Agent, the Custodian and Paying Agent shall be under a duty to examine 

the same in accordance with the requirements of this Agreement and any Asset Document. 

(b) Requested Instructions. Subject to the provisions of Section 7.2(d), in 

which case the Custodian and Paying Agent shall take instructions only from the Collateral 

Agent, if the Custodian and Paying Agent requests instructions from the Company, the Initial 

Member or the Private Owner, as applicable, with respect to any act, action or failure to act in 

connection with this Agreement, the Custodian and Paying Agent shall be entitled (without 

incurring any liability therefor to the Company, the Collateral Agent, the Purchase Money 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 50 

EXECUTION VERSION 
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 ofthe Custodian 

and Paying Agent, except for any such Person who is or, upon consummation of such 

transaction, will be an Affiliate of the Company or any Servicer, shall be the successor of the 

Custodian and Paying Agent hereunder without the execution or filing of any paper with any 

party hereto or any further act on the part of any of the parties hereto except where an instrument 

of transfer or assignment is required by law to effect such succession, anything herein to the 

contrary notwithstanding; provided that any such successor shall satisfy the representations, 

warranties and covenants set forth in Section 10.1 of this Agreement. The Custodian and Paying 

Agent or successor Custodian and Paying Agent shall provide the Company with written notice 

prior to or within ten (1 0) days after the consummation of any such transaction. At no time shall 

an Affiliate of the Company or any Servicer be the Custodian and Paying Agent 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 Noteholder 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 Noteholder 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. 

South CRE Venture 20I0-2 

Custodial and Paying Agency Agreement 51 

EXECUTION VERSION 
ARTICLE XVI 


TERM 


Section 16.1 Term. This Agreement shall terminate upon (a) the first to occur of (i) the 

final payment or other liquidation of all of the Assets and (ii) disposition of all Collateral 

(including any Acquired Property), and (b) the release and delivery to the Company of all 

Custodial Documents held by or in the possession of the Custodian in accordance with the terms 

of this Agreement. Notwithstanding anything to the contrary herein, this Agreement may be 

terminated without cause upon at least thirty (30) days' prior written notice to the Custodian and 

Paying Agent, by any of the Company, the Purchase Money Notes Guarantor and the Collateral 

Agent. 

ARTICLE XVII 


AUTHORIZED REPRESENTATIVES 


Section 17.1 Authorized Representatives. Each individual designated as an Authorized 

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

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

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

hereunder, is set forth on Exhibit M. From time to time, any Person may, by delivering to the 

other parties hereto a revised copy of Exhibit M 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) ofthe LLC Operating Agreement will have the right to designate replacement 

Authorized Representatives ofthe 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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 52 

EXECUTION VERSION 
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 the Purchase Money Notes: 

Wells Fargo National Association 


9062 Old Annapolis Road 


Columbia, Maryland 21045 


Attention: Client Services Manager 


Reference: South CRE Venture 2010-2 

For purposes of cancellation and presentment of the Purchase Money Notes: 

Wells Fargo Bank, National Association 

6th Street & Marquette A venue 

Minneapolis, Minnesota 55479 

Attention: Corporate Trust Services Bondholder Communications 

Reference: South CRE Venture 2010-2 LLC 

E-Mail Addresses: 

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

Wells Fargo Bank, National Association 

6th Street & Marquette A venue 

Minneapolis, Minnesota 55479 

Attention: Corporate Trust Services Bondholder Communications 

Reference: South CRE Venture 201 LLC 

E-Mail Addresses: 

Ifto the Company: 

South CRE Venture 2010-2, LLC 

c/o Hudson Realty Capital LLC 

250 Park A venue South, Third Floor 

New York, NY 10003 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 53 

EXECUTION VERSION 
Attention: Renee Lewis 

Attention: Andrew J. Bloom 


Direct & General Counsel 


Email Address: 


with a copy to: 

Hudson Realty Capital LLC 


250 Park A venue South, Third Floor 


New York, NY 10003 


Email Address: 

If to the Purchase Money Notes Guarantor, the Collateral Agent or the Initial 

Member: 

Assistant Director, Structured Transactions - Resolutions and Receiverships 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email Address: RMalami@fdic.gov 

with a copy to: 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

E-Mail Address: DGearin@fdic.gov 

ARTICLE XIX 


MISCELLANEOUS 


Section 19.1 Governing Law. EACH PARTY TO THIS AGREEMENT AGREES 

AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL 

OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS TO BE 

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE 

OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT 

MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT 

TO THE LAW OF ANOTHER JURISDICTION AND EACH PARTY TO THIS 

AGREEMENT UNCONDITIONALLY AND IRREVOCABLY W AlVES ANY CLAIM TO 

ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY UNLAWFUL 

ACTION OR INACTION BY ANY PARTY TO THIS AGREEMENT. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 54 

EXECUTION VERSION 
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 Transaction Document, and waives any 

right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the Purchase Money Notes 

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

consent of the Purchase Money Notes Guarantor or the Collateral Agent, as applicable; 

(B) assert that venue is improper in either the United States 

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

District of Columbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum. 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

New York for any suit, action or proceeding against it or any of its Affiliates commenced by the 

Purchase Money Notes Guarantor or the Collateral Agent arising out of, relating to, or in 

connection with this Agreement or any Transaction Document (other than the LLC Operating 

Agreement), and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the Purchase Money Notes 

Guarantor or the Collateral Agent, as applicable; 

(B) assert that venue is improper in the Supreme Court of the 

State ofNew York; or 

(C) assert that the Supreme Court ofthe State ofNew York is an 

inconvenient forum. 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 55 

EXECUTION VERSION 
(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 ofNew York or the United 

States District Court for the District of Columbia, and waives any right to remove or transfer 

such suit, action or proceeding to any other court or dispute-resolution forum without the consent 

of the Initial Member, the Purchase Money Notes Guarantor or the Collateral Agent, as 

applicable, and agrees to consent thereafter to transfer of the suit, action or proceeding to either 

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

District Court for the District of Columbia at the option of the Initial Member, the Purchase 

Money Notes Guarantor or the Collateral Agent, as applicable; and 

(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. 

(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 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 56 

EXECUTION VERSION 
facsimile machine or other electronic means as a defense to the formation or enforceability of a 

contract and each such Person forever waives any such defense. 

Section 19.5 Severability. Any provision of this Agreement which is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (i) if such provision is prohibited or unenforceable in such jurisdiction only as to a 

particular Person or Persons and/or under any particular circumstance or circumstances, such 

provision shall be ineffective, but only in such jurisdiction and only with respect to such 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

effect of any favorable ruling on appeal or (2) the intended effect of Section 19 .1. 

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

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

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

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. 

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 ofthe Custodian and 

Paying Agent, the Initial Member, the Private Owner, the Purchase Money Notes Guarantor, the 

South CRE Venture 20 I 0-2 

Custodial and Paying Agency Agreement 57 

EXECUTION VERSION 
Collateral Agent and the Company under this Agreement shall be in addition to all rights, powers 

and remedies given to the Custodian and Paying Agent, the Initial Member, the Private Owner, 

the Purchase Money Notes Guarantor, the Collateral Agent and the Company by virtue of any 

statute or rule of law, or any other agreement, all of which rights, powers and remedies shall be 

cumulative and may be exercised successively or concurrently. 

Section 19.10 Amendments. Subject to the requirements of the LLC Operating 

Agreement as they relate to the Company, this Agreement may be amended from time to time by 

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

Agent and the Custodian and Paying Agent or, if such written agreement relates to the Private 

Owner Pledged Account or the Qualifying Cash Collateral on deposit in such Account, the Initial 

Member, the Private Owner and the Paying Agent. 

Section 19.11 Headings. Paragraph titles or captions contained in this Agreement are 

inserted only as a matter of convenience and for reference and in no way define, limit, extend or 

describe the scope of this Agreement or the intent of any provisions hereof. All section and 

paragraph references contained herein shall refer to sections and paragraphs in this Agreement 

unless otherwise specified. 

[Remainder of Page Intentionally Left Blank] 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 58 

EXECUTION VERSION 
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. 

SOUTH CRE VENTURE 2010-2, LLC, as the 

Company 

HRC SVC SOUTH 2010 LLC, its Manager 

Renee Lewis 

Authorized Signatory 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Notes Guarantor 

By: ___________ 

Name: Heidi Silverberg 

Title: Attorney~in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its capacity as Receiver for 

Various Failed Financial Institutions Listed on 

Schedule I hereto, as Collateral Agent 

By:____________ 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its capacity as Receiver for 

Various Failed Financial Institutions Listed on 

Schedule I hereto, as Initial Member 

By: ____________ 

Name: Heidi Silverberg 

Title: Attorney-in-Fact 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
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. 

SOUTH CRE VENTURE 2010-2, LLC, as the 

Company 

By:__________, its Manager 

By: ____________ 

Name: 

Title: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its corporate capacity, as 

Purchase Money Notes Guarantor 

By: 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its capacity as Receiver for 

Various Failed Financial Institutions Listed on 

Schedule I hereto, as Collateral Agent 

By: 

Title: Attorney-in-Fact 

FEDERAL DEPOSIT INSURANCE 

CORPORATION, in its capacity as Receiver for 

Various Failed Financial Institutions Listed on 

Schedule I hereto, as Initial Member 

By: 

Name: 

Title: Attorney-in-Fact 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
HRC SVC SOUTH 2010 LLC, as Private Owner 

WELLS FARGO BANK, NATIONAL 

ASSOCIATION 

By: _______________________ 

Name: Amy Doyle 

Title: Vice President, Business Development 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION 
HRC SVC SOUTH 2010 LLC, as Private Owner 

By: ____________________________ 

Name:_______________ 

Title: _________________ 

South CRE Venture 2010-2 


Custodial and Paying Agency Agreement 


EXECUTION VERSION 

SCHEDULE I 

List of Various Failed Financial Institutions 

Multibank Structured Transaction South CRE Venture 2010-2 

Bank Name City State Fund Closinl! Date 

Irwin Union Bank & Trust Company Columbus IN 10120 9/18/2009 

Hillcrest Bank of Florida Naples FL 10131 10/23/2009 

Republic Federal Bank, N.A. Miami FL 10158 12/11/2009 

Rockbridge Commercial Bank Atlanta GA 10164 12/18/2009 

Florida Community Bank Immokalee FL 10181 1/29/2010 

Broadway Bank Chicago IL 10219 4/23/2010 

The Bank of Bonifay Bonifay FL 10234 5/07/2010 

South CRE Venture 2010-2 

Custodial and Paying Agency Agreement 

EXECUTION VERSION