Exhibit 10.16


 


CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 


Composite Version as amended

through Amendment No. 3


 


SERVICING AGREEMENT


 


Dated as of August 25, 2016


 


by and between


 


GREENSKY, LLC


 


and


 


FIFTH THIRD BANK



    	 



    	



    
CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

SERVICING AGREEMENT


 


THIS
SERVICING AGREEMENT (the “Servicing Agreement”) dated as of August 25, 2016 (the “Effective Date”),
by and between GREENSKY, LLC, a Georgia limited liability company (including its direct and indirect subsidiaries, “Servicer”),
and FIFTH THIRD BANK, an Ohio-chartered, FDIC-insured bank (“Lender”), as amended August 25, 2016; July 1, 2017;
December 19, 2017; and February 15, 2018. As used herein, “Party” shall mean Servicer or Lender, as applicable,
and “Parties” shall mean both Servicer and Lender.


 


W I T N E S S E T H:


 


WHEREAS, Servicer is
in the business of providing clerical, ministerial, and administrative services and a technology platform to lenders in connection
with lenders originating consumer loans, primarily through a network of Program Merchants and Sponsors (as defined in the Loan
Origination Agreement) (the “GreenSky® Program”);


 


WHEREAS, the GreenSky®
Program is a lending program administered by Servicer on behalf of federally-insured, federal and state chartered lenders participating
in the GreenSky® Program;


 


WHEREAS, Servicer and
Lender have entered into a Loan Origination Agreement (as hereinafter amended, the “Loan Origination Agreement”)
pursuant to which Lender will fund loans through the GreenSky® Program;


 


WHEREAS, Lender desires
that that Servicer perform certain servicing for Lender with respect to the loans made by Lender under the GreenSky®
Program and pursuant to the Loan Origination Agreement, and Servicer is willing to perform that servicing; and


 


WHEREAS, Servicer will
act as a first-party servicer in the name of the GreenSky® Program or Lender when performing that servicing.


 


NOW, THEREFORE, in consideration
of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Servicer and Lender agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


Section
1.01 Definitions. Capitalized terms used herein or in any certificate or document made or delivered pursuant hereto
shall have the following meanings:


 


“2017 Acquired
Loans” shall mean the “Loans” as defined in that certain Purchase and Sale Agreement between Lender, Servicer
and [*****] dated as of December 19, 2017, which were acquired by Lender pursuant thereto.



    	 



    	



    
CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

“ACH Account”
shall mean the deposit account established by Servicer for the benefit of the lenders in the GreenSky® Program at Fifth Third
Bank or such other financial institution customarily utilized by Servicer with respect to other lenders and approved by Lender
(which approval will not unreasonably be withheld or delayed), to which the Borrowers are instructed to remit ACH payments on the
Loans.


 


“Affiliate”
means with respect to any person or entity, any of the following: (i) any person or entity who, directly or indirectly through
one or more intermediaries, controls, is controlled by, or is under common control with, another person or entity; (ii) any person
or entity owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interest of another
person or entity; (iii) any person or entity who is an officer, director, general partner or trustee of such person or entity,
or anyone acting in a substantially similar capacity to such person or entity; and (iv) any person or entity who is an officer,
director, general partner, trustee or holder of ten percent (10%) or more of the voting securities or beneficial interest of any
of the foregoing.


 


“Bank Margin”
shall have the meaning set forth in Section 3.02.


 


“[*****].


 


“Base Rate”
shall have the meaning set forth in Section 3.02.


 


“Business Day”
shall mean a day that Lender is open for business and excluding Saturdays, Sundays and legal holidays.


 


“Charged-Off
2017 Acquired Loans” shall mean the 2017 Acquired Loans that were identified to Lender as a “Charged-Off Loan”
in Appendix B to that certain Purchase and Sale Agreement between Lender, Servicer and [*****] dated as of December 19, 2017.


 


“Collections”
shall mean all cash, checks, notes, instruments and other items of payment.


 


“Confidential
Information” shall mean (a) all non-public personal information, (b) all documents, materials, data, and/or
information in whatever form or format (including without limitation electronic media) that relates to the performance of
servicing or Loans originated under the Loan Origination Agreement or that relates to the business systems, practices,
know-how, documents, reports, plans, proposals, forecasts, personnel, policies, training materials, complaints, or business
continuity plans of the disclosing party and that is not generally known to the public, and (c) information that the
disclosing party designates in writing as confidential or proprietary information or that the receiving party has reasons to
know is confidential or proprietary information. Notwithstanding the foregoing, the following shall not constitute
Confidential Information: (i) information that the receiving party is required by Law or Governmental Authority to disclose,
provided that such disclosure is limited to disclosing only the reasonably required information in the manner required, (ii)
information that otherwise becomes public other than as a result of action by the receiving party, and (iii) information that
the receiving party can demonstrate that it developed without reference to the information received from the disclosing
party.



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CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 


“[*****].


 


“[*****].


 


“Governmental
Requirements” means, collectively, all federal and state statutes, codes, ordinances, laws, and regulations that may
apply to Servicer or Lender either now or in the future relating to the Servicing of the Loans, including, but not limited to,
applicable federal, state and local consumer protection laws, the federal Truth in Lending Act (Regulation Z), the Equal Credit
Opportunity Act (Regulation B), the federal Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001,
the Telephone Consumer Protection Act, and the Fair and Accurate Credit Transactions Act of 2003, the Bank Service Company Act,
the Bank Secrecy Act, the Gramm-Leach-Bliley Act (Regulation P), and privacy and anti-money laundering laws, and all regulations,
rules, orders, guidance, directives, interpretations and decrees of any Governmental Authority related thereto.


 


“Indemnified
Parties” shall have the meaning set forth in Section 7.14.


 


“Indemnifying
Party” shall have the meaning set forth in Section 7.14.


 


“Index
Rate” shall mean [*****].


 


“Interest”
shall mean all interest potentially payable by the Borrower in respect of a Loan including interest that will, by the terms of
the Loan, be forgiven if the Loan is timely paid as a result of promotional offerings.


 


“Lender’s
Designated Account” shall mean the blocked account designated by Lender to which Servicer transfers amounts from Loans
originated by Lender received in the Lockbox or ACH Account.


 


“Loan”
shall mean a loan originated pursuant the Loan Origination Agreement, together with any amounts, including interest, fees and other
charges, generated with respect thereto.


 


“Loan Origination
Agreement” shall have the meaning set forth in the Recitals.


 


“Lockbox”
shall mean the lockbox established by Servicer for the benefit of the lenders in the GreenSky® Program at Wells
Fargo or such other financial institution customarily utilized by Servicer with respect to other lenders and approved by Lender
(which approval will not unreasonably be withheld or delayed), to which the Borrowers are instructed to remit check payments on
the Loans.


 


“Monthly Accounting”
shall have the meaning set forth in Section 3.01(b).



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CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

“Outstanding
Balance” shall mean, as of any specified date, the original principal amount of a Loan plus
any additional Loan draws, if any, plus the amount of any Interest, fees or other amounts due under or with respect to such
Loan minus any payments, credits, or other amounts credited against such Loan, all as contemplated by this Servicing Agreement.


 


“Payment Date”
shall mean the sixth calendar day of a month, but if such calendar day is not a Business Day, then the first Business Day after
the sixth calendar day of the month.


 


“Performance
Fee” shall have the meaning set forth in Section 3.01(c).


 


“Portfolio
Credit Losses” shall mean, for each calendar month, an amount equal to (a) the Outstanding Balance of all Loans that
become past due by 90 or more days during such month or for which Servicer became aware during such month that the sole Borrower
or all Co-Borrowers (as applicable) are the subject of a bankruptcy or similar proceeding or have died, plus (b) to the
extent Lender is not otherwise compensated therefor, the portions of the Outstanding Balance of all
Loans that have been waived, forgiven, compromised or settled during such month (other than for Loans that were previously
included in Portfolio Credit Losses pursuant to clause (a)). For the avoidance of doubt, in no event shall the Portfolio Credit
Losses for a particular month include any amounts that were previously included in Portfolio Credit Losses for a prior month or
for which Lender was otherwise compensated.


 


“[*****].


 


“[*****].


 


“Reset Date”
shall have the meaning set forth in Section 3.02.


 


“Servicer Default”
shall have the meaning set forth in Section 4.01.


 


“Service Transfer”
shall have the meaning set forth in Section 4.02(b).


 


“Servicing”
shall have the meaning set forth in Section 2.01(b).


 


“Servicing
Fee” shall have the meaning set forth in Section 3.01(b).


 


“Successor Servicer” shall
have the meaning set forth in Section 4.02(a).


 


“Termination
Notice” shall have the meaning set forth in Section 4.01.


 


“[*****].


 


Section 1.02 Other Definitional Provisions.



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CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

(a) All terms defined
in this Servicing Agreement shall have the defined meanings when used in any notice or other document made or delivered pursuant
hereto unless otherwise defined therein.


 


(b) All capitalized
terms used here herein and not otherwise defined herein shall have meanings ascribed to them in the Loan Origination Agreement.


 


(c) The words “hereof,”
“herein” and “hereunder” and any words of similar import when used in this Servicing Agreement shall refer
to this Servicing Agreement as a whole and not to any particular provision of this Servicing Agreement; and section and schedule
references contained in this Servicing Agreement are references to sections and schedules in or to this Servicing Agreement unless
otherwise specified.


 


ARTICLE II


 


ADMINISTRATION AND SERVICING OF LOANS


 


Section 2.01 Servicing.


 


(a)
Lender hereby appoints Servicer to service the Loans in accordance with the common servicing standards established for the
GreenSky® Program as provided herein.


 


(b)
Servicer agrees to service the Loans for Lender in accordance with the customary industry servicing practices of prudent
lending institutions that service loans of the same type as the Loans, which shall include, but not
be limited to, account opening, transaction processing, customer service, statement generation, reporting, billing, repayment disbursements,
management, administration, collection, and customer service, in accordance, where applicable, with the criteria established and
adopted by Lender and set forth in this Servicing Agreement including Schedule A (“Servicing”).


 


(c) Servicer agrees
to deliver to Lender by no later than the fourth Business Day of each month the Servicer reports with respect to the Loans as are
set forth on Schedule B. These reports will include a file, in an electronic format agreed upon by the parties, identifying
all Loans (along with all supporting details, including relevant Borrower data and payment history) and individual loan level data
including the account number, plan number and month of funding. The Servicer reports set forth on Schedule B will also include
such information separately designated for all Loans constituting Portfolio Credit Losses for the month just ended and a listing
of all recoveries of Portfolio Credit Losses for the month just ended.


 


(d)
On behalf of Lender, Servicer shall have full power and authority to do any and all things on behalf of Lender in connection with
such Servicing that are customary for loan servicers in accordance with all applicable Laws, consistent with regulatory guidance
obtained or derived by Lender in good faith from a Governmental Authority with jurisdiction over financial institutions
and reasonably necessary or desirable for the benefit of Lender, provided that except as provided herein,
until a Loan is 90 or more days past due, and thereafter if Servicer has not compensated



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CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

Lender for the full amount
of the related Portfolio Credit Loss, Servicer shall not, without the prior approval of Lender, (i) modify the terms of the Loans,
including, but not limited to, interest rate and maturity date, or (ii) waive Borrower payment delinquencies.


 


(i)
Notwithstanding the generality of the foregoing, as reasonably necessary or desirable for the benefit of Lender, Lender authorizes
Servicer to settle all Borrower complaints and disputes on behalf of, and in the name of, Lender, provided that any such settlement
may involve a total amount (principal, finance charges, and fees) of no more than $20,000.00 individually for any Loan and may
not cause the aggregate amount waived in any calendar year to exceed $500,000.00 (other than with respect to Loans where Lender
has been compensated in full for the related Portfolio Credit Losses). Such authority includes, without limitation, filing chargebacks
with the applicable payment card network, enforcing contractual rights to reimbursement or refunds from Program Merchants
and Sponsors, crediting Borrower(s) accounts, and executing settlement and release agreements adopted
by Lender substantially in the form attached hereto as Schedule D. In the event that any settlement amount would exceed
$20,000.00 individually or cause the above annual threshold to be exceeded in the aggregate (other than with respect to Loans where
Lender has been compensated in full for the related Portfolio Credit Losses), Servicer will consult with Lender for final settlement
authority.


 


(ii) The modification
of the terms of a Loan, waiver of Borrower payment delinquencies, or other settlement shall have no effect upon the treatment of
the Outstanding Balance of such Loan as a Portfolio Credit Loss.


 


(iii)
[*****].


 


(e) Without limiting
the generality of the foregoing, Servicer for Lender, agrees to: (i) timely invoice each Borrower for all payments required to
be paid by such Borrower, which invoice may be electronic, (ii) direct each Borrower to remit such payments directly to the Lockbox,
the ACH Account, or otherwise as instructed by Lender, (iii) forward to the Lockbox or arrange disbursement in accordance with
the terms hereof of any amounts that should have been deposited into the Lockbox, but were not so deposited, within 2 Business
Days of receiving funds from a Borrower (including any amounts that were Portfolio Credit Losses for which Lender has not been
compensated pursuant to the terms of this Agreement), or, if such amounts are not accompanied by a payment coupon or otherwise
are unidentifiable, as soon thereafter as practicable after they are identified as being attributable to a Loan, and promptly thereafter
instruct the bank maintaining the Lockbox to transfer such amounts to the Lender’s Designated Account, (iv) issue payment
instructions to the bank maintaining the ACH Account to allocate to Lender any amounts received in the ACH Account from a Borrower
and transfer such amounts to the Lender’s Designated Account within 2 Business Days of receiving funds from a Borrower or,
if such funds cannot be identified as being attributable to a particular Loan, as soon thereafter as practicable after they are
identified as being attributable to a Loan, and (v) maintain with respect to each Loan, complete and accurate records in accordance
with customary industry practices.


 


(f) Lender shall own
and have reasonable access to all Borrower records including, but not limited to, Loan documents, at
such time and in such commercially reasonable manner as shall 



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IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

be requested by Lender. Lender may utilize such records for
the purposes of marketing Lender’s products and services to Borrowers as permitted by Law and the terms of the GreenSky®
Program but subject to any limitations imposed by the Program Agreement(s). Notwithstanding anything herein to the contrary, since
the Loans are at all times the sole property of Lender, Lender shall have the unconditional right, at any time and from time to
time, to take possession of the original Loan documents or other original evidence of the debt owed by any Borrower as well as
all of the electronic files and other data relating to the servicing of such Loans, and Servicer shall promptly deliver the same
to Lender on Lender’s request.


 


(g) Servicer shall not
institute collection litigation with respect to a Loan without the prior express written consent of Lender, and Servicer shall
not be obligated to institute collection litigation unless it concludes that it is commercially reasonable.


 


(h) Servicer shall pay all of its expenses
incurred in connection with the Servicing of the Loans, which for the avoidance of doubt shall not include state documentary taxes.


 


Section 2.02 Compliance.


 


(a) Lender will use
commercially reasonable efforts to adopt, and Servicer will administer, policies and procedures for the GreenSky®
Program reasonably designed to ensure compliance with Governmental Requirements.


 


(b) Servicer agrees
to observe and comply with all Governmental Requirements applicable to the Servicing of the Loans, and shall make available its
facilities, personnel and records for examination or audit when reasonably requested by Lender or its regulators to enable Lender
or its regulators to determine Servicer’s compliance with the Governmental Requirements and the provisions of this Servicing
Agreement. Without limiting the foregoing, (i) Servicer will share with Lender the results of any material, external regulatory
compliance audit of any operations or functions involved in Servicer’s performance under this Agreement that is conducted
by a third party (other than by or on behalf of another funding participant of Servicer) at the request of Servicer (subject to
applicable disclosure restrictions with respect to such review and, if required, Lender’s execution of non-reliance letters,
and subject to such results not being privileged), and (ii) Servicer will notify Lender within 30 days of Servicer’s receipt
of any material written correspondence from any Governmental Authority relating to requests for Servicer to obtain any licenses
or permits, the absence of which would have a material impact on Servicer’s performance of its obligations under this Agreement,
the validity or enforceability of the Loans, or could otherwise result in liability to Lender, and Servicer will provide to Lender
copies of any such correspondence upon Lender’s request (subject to applicable Law).


 


ARTICLE III


 


PERFORMANCE FEE AND SERVICING FEE; PRE-FUNDED
BALANCE


 


Section 3.01 Servicing
Fee and Performance Fee.



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CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

(a)
On each Payment Date, Lender will pay Servicer a “Servicing Fee” equal to [*****].


 


(b)
No later than the fourth Business Day of each month during the term of this Servicing Agreement, Servicer shall provide
to Lender a “Monthly Accounting” with respect to the prior month calculated as follows:


 


[*****]


 


Section 3.02 Certain Definitions Related
to Performance Fee.


 


[*****]


 


Section
3.03 Pre-Funded Balance for Loans.


 


[*****]


 


ARTICLE IV


 


SERVICER DEFAULTS


 


Section 4.01 Servicer
Defaults. If any one of the following events (a “Servicer Default”) shall occur and be continuing:


 


(a) any failure
by Servicer to make any payment, transfer or deposit or to give instructions to bank holding the Lockbox or ACH Account to make
such payment, transfer or deposit on or before the date occurring 3 Business Days after the date such payment, transfer or deposit
or such instruction or notice is required to be made or given, as the case may be, under the terms of this Servicing Agreement,
provided however, that where such failure is due to oversight, error or any other reason not including bad faith on the part of
the Servicer, such 3 Business Day period shall commence upon notice to Servicer from Lender;


 


(b) failure
on the part of Servicer to duly observe or perform in any material respect any other covenants or agreements of Servicer set forth
in this Servicing Agreement or in the Loan Origination Agreement and which continues unremedied for a period of 30 days after the
date on which notice of such failure, requiring the same to be remedied, shall have been given to Servicer by Lender;


 


(c) any representation,
warranty or certification made by Servicer in this Servicing Agreement or in any certificate delivered pursuant to this Servicing
Agreement shall prove to have been materially incorrect when made, which has a materially adverse effect on the Loans (taken as
a whole) and which materially adverse effect continues for a period of 30 days after the date on which notice thereof, requiring
the same to be remedied, shall have been given to Servicer by Lender; or



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IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 


(d) Servicer
shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding
or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer
or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up
or liquidation of its affairs, shall have been commenced against Servicer and such action shall have remained undischarged or unstayed
for a period of 60 days or an order or decree providing for such relief shall have been entered; or Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency
or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;


 


then, Lender, by notice given to Servicer
(a “Termination Notice”), may terminate all, but not less than all, of the rights and obligations of Servicer
as servicer under this Servicing Agreement and appoint a Successor Servicer, subject to Section 4.02.


 


Notwithstanding the
foregoing, a delay in or failure of performance shall not constitute a Servicer Default (i) under paragraph (a) above for a period
of 10 Business Days after the applicable grace period or (ii) under paragraph (b) or (c) above for a period of 15 Business Days
after the applicable grace period, if such delay or failure was caused by an act of God or the public enemy, acts of declared or
undeclared war, public disorder, rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, earthquakes,
floods or similar causes. The preceding sentence shall not relieve Servicer from using all commercially reasonable efforts to perform
its obligations in a timely manner in accordance with the terms of this Servicing Agreement, and Servicer shall provide Lender
with prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.


 


Section 4.02 Appointment
of Successor.


 


(a) On and after
the receipt by Servicer of a Termination Notice pursuant to Section 4.01, Servicer shall continue to perform all servicing
functions under this Servicing Agreement until the date specified in the Termination Notice or otherwise specified by Lender
(provided, with respect to an event specified in Section 4.01(b) or (c), such date shall not be less than 60 days after
Servicer’s receipt of the initial notice from Lender identifying the occurrence of such event) or until a date mutually
agreed upon by Servicer and Lender. Lender shall, as promptly as possible after the giving of a Termination Notice, appoint
on commercially reasonable terms a third party servicing entity selected by Lender in its sole discretion, or itself on
commercially reasonable terms, as the successor servicer (the “Successor Servicer”), and such Successor
Servicer, if a third party, shall accept its appointment by a written assumption in a form acceptable to Lender. In the event
that a Successor Servicer has not been appointed or has not accepted its appointment at the 



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IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

time when Servicer ceases to act
as Servicer, Lender, without further action, shall automatically be appointed on commercially reasonably terms the Successor
Servicer.


 


(b) After a Successor
Servicer is appointed by Lender and is performing the servicing duties, all authority and power of Servicer under this Servicing
Agreement, except for the right to receive payment under Section 4.02(d), shall pass to and be vested in the Successor Servicer
(a “Service Transfer”) and, without limitation, Lender is hereby authorized and empowered (upon the failure
of Servicer to cooperate) to execute and deliver, on behalf of Servicer, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of Servicer to execute or deliver such documents or instruments, and to do and accomplish all other
acts or things necessary or appropriate to effect the purposes of such Service Transfer. Servicer agrees to cooperate with Lender
and such Successor Servicer in effecting the termination of the responsibilities and rights of Servicer to conduct servicing hereunder,
including the transfer to such Successor Servicer of all authority of Servicer to service the Loans provided for under this Servicing
Agreement, including all authority over all Collections that shall on the date of transfer be held by Servicer for deposit, or
which have been deposited in the Lockbox or ACH Account, or which thereafter shall be received with respect to the Loans, and in
assisting the Successor Servicer. Servicer shall also complete such transfer of its rights under the Program Agreements as may
be necessary for the Successor Servicer to adequately perform its duties and obligations under this Servicing Agreement. At least
120 days prior to the Service Transfer, and then again on the end of the Business Day prior to the Service Transfer, Servicer shall
transfer its electronic records relating to the Loans to the Successor Servicer in such electronic form as the Successor Servicer
and Lender may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents
necessary for the continued servicing and enforcement of the Loans in the manner and at such times as the Successor Servicer and
Lender shall reasonably request. The Servicer shall be responsible for all expenses incurred in transferring the records and servicing
duties to the Successor Servicer. To the extent that compliance with this Section shall require Servicer to disclose to the Successor
Servicer information of any kind which Servicer deems to be confidential, the Successor Servicer shall be required to enter into
such customary confidentiality agreements as Servicer shall deem reasonably necessary to protect its interests.


 


(c) Upon its appointment,
the Successor Servicer shall be the successor in all respects to Servicer with respect to servicing functions and collection of
any payments under this Servicing Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto
placed on Servicer by the terms and provisions hereof, and all references in this Servicing Agreement to Servicer shall be deemed
to refer to the Successor Servicer, other than the right of Servicer to receive the amounts provided for in Section 4.02(d).


 


(d)
From and after the termination of the servicing by Servicer, the Servicing Fee due to Servicer under Section 3.01(a) shall be reduced
by the commercially reasonable servicing fee in accordance with Section 4.02(b) paid by Lender to the Successor Servicer, but (i)
the remainder of the Servicing Fee, (ii) the Performance Fee, and (iii) the balance of the [*****] shall
be paid to Servicer as contemplated by Article III. In the event that Lender serves as a Successor Servicer, the Servicing Fee
due to Servicer under Article III shall be reduced by the reasonable amount that Lender would have had to pay to an independent
Successor Servicer in an arms’ length transaction.



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CERTAIN CONFIDENTIAL MATERIAL APPEARING
IN THIS DOCUMENT, MARKED BY [*****] HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED


 

ARTICLE V


 


REPRESENTATIONS AND WARRANTIES


 


Section 5.01 Representations
and Warranties of Servicer. Servicer represents and warrants to Lender as follows:


 


(a) Servicer is a limited
liability company duly organized, validly existing and in good standing under the laws of the State of Georgia. Servicer shall
be entitled, however, to convert into a Georgia or Delaware corporation.


 


(b) Servicer has all
necessary company power and authority to enter into this Servicing Agreement and to perform all of the obligations to be performed
by it under this Servicing Agreement. This Servicing Agreement and the consummation by Servicer of the transactions contemplated
hereby have been duly authorized by all necessary company action on the part of Servicer, and this Servicing Agreement has been
duly executed and delivered by Servicer and constitutes the valid and binding obligation of Servicer, enforceable against Servicer
in accordance with its terms (except as such enforcement may be limited by bankruptcy and other laws affecting the rights of creditors
generally and by general equity principles).


 


(c) All of the representations
and warranties made by Servicer under Section 4.01 of the Loan Origination Agreement are hereby incorporated by reference and restated
as representations and warranties made as of the date hereof.


 


Section 5.02 Representations
and Warranties of Lender. Lender represents and warrants to Servicer as follows:


 


(a) Lender is a state-chartered,
FDIC-insured bank duly organized, validly existing and in good standing under the laws of the State of Ohio.


 


(b) Lender has
all necessary corporate power and authority to enter into this Servicing Agreement and to perform all of the obligations to
be performed by it under this Servicing Agreement. This Servicing Agreement and the consummation by Lender of the
transactions contemplated hereby have been duly authorized by all corporate action of Lender, and this Servicing Agreement
has been duly executed and delivered by Lender and constitutes the valid and binding obligation of Lender, enforceable
against Lender in accordance with its terms (except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship and other laws relating to or affecting creditors’ rights
generally and by general equity principles).


 


(c) All of the representations
and warranties made by Lender under Sections 4.02 of the Loan Origination Agreement are hereby incorporated by reference and restated
as representations and warranties under this Servicing Agreement.



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ARTICLE VI


 


TERM AND TERMINATION


 


Section 6.01 Term.
This Servicing Agreement shall begin on the Effective Date and end on the date that all Loans funded by Lender under the Loan Origination
Agreement have been repaid. For the avoidance of doubt, Lender shall have the right to terminate Servicer’s Servicing under
this Servicing Agreement as follows:


 


(a) under the circumstances
set forth in Article IV;


 


(b) immediately, as
a result of any Governmental Requirement or as a result of any significantly increased burden on Lender (relative to other similar
lending programs by Lender) to Satisfy a Government Requirement; or


 


(c) [*****];


 


provided, that, for the avoidance of doubt,
Service shall remain entitled to receive the amounts set forth in Section 4.02(d)(i), (ii) and (iii).


 


In the event of any
termination pursuant to (b) or (c) above, Servicer and Lender shall comply with the provisions of Section 4.02 for the appointment
and transition of a Successor Servicer, except that in such events, Lender will pay the reasonable cost and expenses associated
with the transfer of records and Service Transfer to the Successor Servicer.


 


ARTICLE VII



MISCELLANEOUS PROVISIONS


 


Section 7.01 Amendment.
This Servicing Agreement may not be modified or amended except by a writing executed by both Parties hereto.


 


Section 7.02 Governing
Law. THIS SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.


 


Section
7.03 Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly
given when actually delivered by a nationally recognized overnight courier or, if rejected by the addressee, when so rejected,
or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed
to the address shown as follows:



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	If to Servicer:	GreenSky, LLC
	 	5565 Glenridge Connector, Suite 700
	 	Atlanta, Georgia 30342
	 	Attention: President
	 	 
	With copy to:	GreenSky, LLC
	 	5565 Glenridge Connector, Suite 700
	 	Atlanta, Georgia 30342
	 	Attention: General Counsel
	 	 
	If to Lender:	Fifth Third Bank
	 	38 Fountain Square Plaza, MD 1090G7
	 	Cincinnati, Ohio 45263
	 	Attention: Mark Erhardt
	 	 
	 	Cc:
	 	Vanessa Indriolo Vreeland
	 	38 Fountain Square Plaza, MD 10904F
	 	Cincinnati, Ohio 45263
	 	 
	 	Cc:
	 	Anthony Sperelakis
	 	5050 Kingsley Dr.
	 	Cincinnati, Ohio 45227
	 	 
	 	Sara Willingham
	 	38 Fountain Square Plaza
	 	Cincinnati, Ohio 45263


 


Either Party shall have the right to change its notice address
to another address within the continental United States of America upon providing notice to the other Party.


 


Section 7.04 Severability
of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Servicing Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining
covenants, agreements, provisions, and terms of this Servicing Agreement and shall in no way affect the validity or enforceability
of the other provisions of this Servicing Agreement.


 


Section 7.05 Assignment.
This Servicing Agreement is binding upon the Parties and their successors and assigns. Either Party may assign this Servicing Agreement
or delegate part or all of its rights or obligations hereunder to a financially responsible Affiliate. In addition, Lender may
sell, assign, convey or grant a security interest in all or part of the Loans made by it to any Person without limitation or restriction
provided that any Person that acquires any interest therein agrees to be bound by the terms of this Servicing Agreement, and either
Party may assign its interest hereunder as part of the sale of all or substantially all of its assets or business. 



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Otherwise, neither
Party can assign this Servicing Agreement or any of its rights or obligations hereunder without the prior written consent of the
other Party, which may be withheld. Any purported assignment to a Person, without such prior written consent shall be void.


 


Section 7.06 Further
Assurances. Servicer and Lender agree to do and perform, from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the other Party more fully to effect the purposes of this Servicing Agreement,
including, without limitation, the authorization or execution of any financing statements or amendments thereto or equivalent documents
relating to the Loans for filing under the provisions of the UCC or other law of any applicable jurisdiction and to provide prompt
notification to the other Party of any change in the name or the type or jurisdiction of organization of such Party.


 


Section 7.07 No Waiver;
Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of Servicer or Lender, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.


 


Section 7.08 Counterparts.
This Servicing Agreement may be executed in two or more counterparts (and by different Parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute one and the same instrument.


 


Section
7.09 Binding; Third-Party Beneficiaries. This Servicing Agreement will inure to the benefit of and is binding upon the Parties
hereto and their respective successors and permitted assigns. There are no intended third-party beneficiaries of this Servicing
Agreement.


 


Section 7.10 Merger
and Integration. Except as specifically stated otherwise herein, this Servicing Agreement and the schedules hereto set forth
the entire understanding of the Parties relating to the subject matter hereof, and all prior understandings, written or oral, are
superseded by this Servicing Agreement.


 


Section 7.11 Headings.
The headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.


 


Section
7.12 Survival. All representations, warranties and agreements contained in this Servicing Agreement shall remain operative
and in full force and effect and shall survive until the termination of this Servicing Agreement. In addition, the termination
or expiration of this Servicing Agreement shall not affect the rights of either Party to recover for breaches occurring prior thereto
or with respect to provisions of this Servicing Agreement that by their terms continue after termination.


 


Section 7.13 Damages. Subject to Section
7.15, each Party shall be entitled to all monetary and equitable relief awarded to them by an arbitrator or, if applicable, a court,
for a 



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breach by the other Party of its representations, warranties, covenants or other agreements contained in this Servicing Agreement.


 


Section 7.14 Indemnification.
To the fullest extent permitted by law, each Party hereby agrees to indemnify, defend and hold harmless the other Party, its Affiliates,
officers, directors, managers, employees and agents (collectively, the “indemnified parties”) from and against
any and all losses, liabilities, claims, demands, damages, penalties, fines costs and expenses (including actual, reasonable attorneys’
fees and disbursements) of every, kind, nature and description (collectively, “Damages”) sustained or incurred
by the indemnified parties, or any of them, that arise out of or relate to: (i) any material breach by the indemnifying party of
any representation, warranty covenant or agreement contained in this Servicing Agreement; or (ii) the gross negligence, willful
misconduct or bad faith by the indemnifying party, its agents or subcontractors in connection with this Servicing Agreement or
the transactions contemplated herein. Without limiting the foregoing, Servicer hereby agrees to indemnify, defend and hold harmless
Lender and its indemnified parties from and against any Damages that arise out of or relate to the failure of Servicer, its agents
or subcontractors to obtain and maintain any licenses or permits required by any Governmental Authority pursuant to any Governmental
Requirements to be obtained or maintained by Servicer, its agents or subcontractors in connection with the performance of the services
contemplated by this Agreement.


 


Section 7.15 Types
of Damages. Notwithstanding the foregoing, or any breach of contract or other remedies provided for under applicable Law, in
no event shall either Party, or any of their respective Affiliates, officers, directors, managers, employees, or agents be liable
for any indirect, incidental, special, punitive, exemplary or consequential damages of any type whatsoever, including without limitation
lost profits (even if advised of the possibility thereof) arising in any way from the transactions contemplated hereunder, except
insofar as (a) the Performance Fee and Servicing Fee may be deemed to embody these types of damages, or (b) such damages have been
determined by a court of competent jurisdiction to be owed to an unrelated third party.


 


Section
7.16  Arbitration; Jury Trial. If there shall be any dispute arising out of or in any way relating to this
Servicing Agreement, the contemplated transactions, any document referred to or incorporated herein by reference or centrally related
to the subject matter hereof, or the subject matter of any of the same, the Parties covenant and agree as follows:


 


(a) The Parties shall
first use their reasonable best efforts to resolve such dispute among themselves, with or without mediation.


 


(b) If the Parties are
unable to resolve such dispute among themselves, such dispute shall be submitted to mandatory binding arbitration in Atlanta, Georgia
under the auspices of, and pursuant to the rules of, the American Arbitration Association’s Commercial Arbitration Rules
as then in effect, or such other procedures as the Parties may agree to at the time, before three arbitrators, one of whom shall
be selected by Lender, one of whom shall be selected by Servicer and one of whom shall be selected upon the agreement of the arbitrators
selected by Lender and Servicer. Any award issued as a result of such arbitration shall be final and binding between the Parties.
After the Parties have complied with the mandatory arbitration provisions in this Section 



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7.16, the Parties agree that all subsequent
actions or proceedings arising in connection with or related to this Servicing Agreement, including the enforcement of any arbitration
award or decision hereunder, shall be tried and determined only in the state or federal courts located in Atlanta, Georgia. Each
Party acknowledges that it has voluntarily and knowingly entered into an agreement to arbitration under this Section 7.16 by executing
this Servicing Agreement. The Parties agree to abide by and perform any award or decision rendered by the arbitrators. The Parties
covenant and agree to act as expeditiously as practicable in order to resolve all disputes by arbitration. Notwithstanding anything
in this Section 7.16 to the contrary, no Party shall be precluded from seeking court action if the action sought is either injunctive
action, a restraining order or other equitable relief.


 


(c) TO THE MAXIMUM EXTENT
PERMITTED BY LAW, EACH OF THE PARTIES WAIVES ANY RIGHTS THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY AGAINST THE OTHER ARISING OUT OF THIS SERVICING AGREEMENT. Each Party acknowledges that it has been represented
by legal counsel of its own choosing and has been advised of the intent, scope and effect of this Section 7.16 and has voluntarily
entered into this Servicing Agreement and this Section 7.16.


 


Section 7.17 Confidential
Information. Each Party agrees to maintain the confidentiality of the Confidential Information that it receives from the other
party, provided that nothing herein shall limit the ability of a Party to disclose such information to a subsidiary, parent, investor,
or subcontractor, provided such recipient is subject to the foregoing confidentiality obligation. In additional, notwithstanding
the foregoing, Lender shall at all times be entitled to disclose Confidential Information to Governmental Authorities, Servicer
shall at all times be entitled to disclose aggregated performance data and other information that does not by its nature identify
an individual Borrower or identify groups of Loans as funded by Lender, and both Parties shall be entitled to disclose Confidential
Information to their auditors, attorneys and other professionals who are under a general duty of confidentiality.


 


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IN WITNESS WHEREOF,
Servicer and Lender have caused this Servicing Agreement to be duly executed by their respective officers as of the day and year
first above written.


 


	 	GREENSKY, LLC
	 	 	 
	 	By:	/s/ Timothy D. Kaliban  
	 	Name:	Timothy D. Kaliban
	 	Title:	President
	 	 	 
	 	FIFTH THIRD BANK
	 	 	 
	 	By:	/s/ Ben Hoffman
	 	Name:	Ben Hoffman
	 	Title:	SVP
	 	 	 
	 	By:	/s/ Tom Carpenter
	 	Name:	Tom Carpenter
	 	Title:	VP