SFR 2010-1
 

SERVICING AGREEMENT
 

by and between
 

ROUNDPOINT VENTURES I, LLC
 

and
 

ROUNDPOINT MORTGAGE SERVICING CORPORATION
 

Dated as of April 1, 2010
 

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Servicing Agreement
 

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TABLE OF CONTENTS
 

Page 

Article I DEFINITIONS AND CONSTRUCTION .........................................................1
 

Section 1.1 Definitions....................................................................................................1
 

Section 1.2 Construction .................................................................................................3
 

Article II SERVICING OBLIGATIONS OF THE SERVICER .......................................4
 

Section 2.9 Maintenance of Insurance Policies; Errors and Omissions and
 

Section 2.16 Compliance with Real Estate Settlement Procedures Act of 1974;
 

Section 2.1 Appointment and Acceptance as Servicer ...................................................4
 

Section 2.2 Limited Power of Attorney ..........................................................................4
 

Section 2.3 Servicing Fee ...............................................................................................4
 

Section 2.4 Servicing Standard .......................................................................................4
 

Section 2.5 Collection Account. .....................................................................................5
 

Section 2.6 Reserved.......................................................................................................5
 

Section 2.7 Escrow Accounts .........................................................................................5
 

Section 2.8 Other Accounts ............................................................................................6
 

Fidelity Coverage. ........................................................................................6
 

Section 2.10 Funding of Operating Expenses ...................................................................7
 

Section 2.11 Expenses ......................................................................................................7
 

Section 2.12 Insured or Guaranteed Mortgage Loans ......................................................8
 

Section 2.13 Loan Modification Program.........................................................................8
 

Section 2.14 HAMP Incentive Fees ..................................................................................8
 

Section 2.15 Registration with MERS ..............................................................................8
 

Compliance with Helping Families Save Their Homes Act of 2009...........9
 

Article III LOAN DEFAULTS; ACQUISITION OF COLLATERAL..............................9
 

Section 3.1 Delinquency Control ....................................................................................9
 

Section 3.2 Discretion of the Servicer in Responding to Defaults of Borrower .............9
 

Section 3.3 Acquisition of Acquired Property ..............................................................10
 

Section 3.4 Administration of REO Properties .............................................................11
 

Article IV SUBSERVICING ............................................................................................12
 

Section 4.1 Retention of Subservicer ............................................................................12
 

Section 4.2 Subservicing Agreement Requirements.....................................................12
 

Section 4.3 Servicer Liable for Subservicers ................................................................15
 

Section 4.4 Manager Approval Required......................................................................15
 

Section 4.5 Regulation AB Requirements ....................................................................16
 

Article V REPRESENTATIONS, WARRANTIES AND COVENANTS OF
 

THE SERVICER .............................................................................................16
 

Section 5.1 Representations and Warranties.................................................................16
 

Section 5.2 Reporting, Books and Records and Compliance Covenants .....................17
 

Section 5.3 Audits .........................................................................................................20
 

Section 5.4 No Liens .....................................................................................................21
 

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Section 5.5 Servicer’s Duty to Advise; Delivery of Certain Notices ...........................21
 

Section 5.6 Notice of Breach or Change of Control .....................................................21
 

Section 5.7 Copies of Documents .................................................................................21
 

Section 5.8 Financial Information.................................................................................22
 

Article VI MANAGER CONSENT ..................................................................................22
 

Section 6.1 Actions Requiring Manager Consent .........................................................22
 

Section 6.2 Amendments, Modification and Waivers ..................................................23
 

Article VII DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE........24
 

Section 7.1 Defaults ......................................................................................................24
 

Section 7.2 Termination with Cause. ............................................................................25
 

Section 7.3 Termination without Cause. .......................................................................26
 

Section 7.4 Effective Termination Date........................................................................26
 

Section 7.5 Accounting .................................................................................................27
 

Article VIII INDEPENDENCE OF PARTIES; INDEMNIFICATION..............................27
 

Section 8.1 Independence of Parties .............................................................................27
 

Section 8.2 Indemnification ..........................................................................................27
 

Section 8.3 Procedure for Indemnification ...................................................................28
 

Section 8.4 Pre-Effective Date Liabilities ....................................................................28
 

Article IX NOTICES.........................................................................................................28
 

Article X GOVERNING LAW; JURISDICTION ..........................................................30
 

Section 10.1 Governing Law ..........................................................................................30
 

Section 10.2 Jurisdiction; Venue and Service.................................................................30
 

Section 10.3 Waiver of Jury Trial ...................................................................................33
 

Article XI MISCELLANEOUS ........................................................................................33
 

Section 11.1 No Assignment by Servicer; No Transfer of Ownership Interests in
 

Servicing Rights. ........................................................................................33
 

Section 11.2 Legal Fees ..................................................................................................33
 

Section 11.3 Entire Agreement .......................................................................................33
 

Section 11.4 Counterparts; Facsimile Signatures ...........................................................33
 

Section 11.5 Headings ....................................................................................................34
 

Section 11.6 Compliance with Law ................................................................................34
 

Section 11.7 Severability ................................................................................................34
 

Section 11.8 Third Party Beneficiaries ...........................................................................34
 

Section 11.9 Protection of Confidential Information......................................................35
 

Section 11.10 Time of Essence .........................................................................................35
 

Section 11.11 No Presumption .........................................................................................35
 

Section 11.12 No Right of Setoff......................................................................................36
 

Section 11.13 Release of Initial Member and Others .......................................................36
 

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SCHEDULES AND EXHIBITS 

Exhibits 

Exhibit A Mortgage Loan Schedule 

Exhibit B Electronic Tracking Agreement 

Exhibit C Loan Modification Program 

Schedules 

Schedule 1 Fee Schedule 

Schedule 2 Servicing Obligations 

Schedule 3 Reimbursement of Servicer Advances 

Schedule 4 Form of Electronic Report on the Mortgage Loans and Underlying 

Collateral 

Schedule 5 Termination Without Cause 

Schedule 6 Business Plan 

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SERVICING AGREEMENT
 

THIS SERVICING AGREEMENT (as the same shall be amended or supplemented, this 

“Agreement”) is made and entered into as of the 1st day of April, 2010 (the “Effective Date”), 

by and between RoundPoint Ventures I, LLC, a Florida limited liability company (including its 

successors and assigns, the “Manager”), and RoundPoint Mortgage Servicing Corporation, a 

Florida corporation (including those of its successors and assigns as are expressly permitted 

pursuant to this Agreement, the “Servicer”). 

RECITALS 

WHEREAS, MULTIBANK 2010-1 SFR VENTURE, LLC, a Delaware limited liability 

company (the “Company”) owns the Mortgage Loans (as defined below) described on the 

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

WHEREAS, the Manager is the “Manager” of the Company with the authority and 

responsibility to service and manage the Mortgage Loans and related Underlying Collateral (as 

defined below) pursuant to that certain Amended and Restated Limited Liability Company 

Operating Agreement dated as of the Closing Date defined below (the “LLC Operating 

Agreement”), by and between the Company, the Manager, including in its separate capacity as a 

member of the Company (in such capacity as a member, together with its successors and assigns, 

the “Private Owner”), and the Federal Deposit Insurance Corporation (in any capacity, the 

“FDIC”), as receiver for the Failed Banks defined in the Agreement of Common Definitions (the 

FDIC, in its separate capacities as receiver with respect to each such receivership, the 

“Receiver”, and the Receiver as the Initial Member under such LLC Operating Agreement, 

including its successors and assigns, the “Initial Member”); and 

WHEREAS, the Manager and the Servicer desire that the Servicer service and administer 

the Mortgage Loans and Underlying Collateral on behalf of the Company and the Manager in a 

manner that is, at all times, consistent with the requirements of this Agreement. 

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 Manager and the Servicer hereby agree as 

follows: 

ARTICLE I
 

DEFINITIONS AND CONSTRUCTION
 

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

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

Common Definitions dated of even date herewith among the Initial Member, the Company and 

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

and definitions hereinafter respectively set forth. 

“Agreement” shall have the meaning given in the preamble. 

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“Business Plan Schedule” shall have the meaning given in Section 5.2(h). 

“Controlled Affiliate” with respect to the Servicer or any Subservicer, shall mean any 

Affiliate thereof that is Controlled by the Servicer or such Subservicer, as applicable, or by its 

Specified Parent (in the case of the Servicer). 

“Default” shall have the meaning given in Section 7.1. 

“Effective Date” shall have the meaning given in the preamble of this Agreement. 

“Electronic Report” shall have the meaning given in Section 5.2(e). 

“Fee Schedule” shall mean Schedule 1, as the same may be amended from time to time 

by the Manager and the Servicer without the consent of the Purchase Money Note Guarantor or 

the Initial Member. 

“ground lease” shall have the meaning given in Section 3.4(g). 

“Guidelines” shall mean (i) the Statement on Loss Mitigation Strategies for Servicers of 

Residential Mortgages (September 2007), issued by the federal financial institutions regulatory 

agencies and the Conference of State Bank Supervisors, (ii) the Statement on Working with 

Mortgage Borrowers (April 2007), issued by the federal financial institutions regulatory 

agencies, and (iii) any amendments, supplements or successors to either of the foregoing. 

“HAMP” shall mean the Home Affordable Mortgage Program promulgated by the 

United States Department of the Treasury, as in effect from time to time, as more fully described 

in Exhibit C. 

“Indemnified Parties” shall have the meaning given in Section 8.2. 

“Loan Modification Program” shall mean the loan modification program that meets the 

criteria described in Exhibit C, or any other or additional loan modification program (i) that may 

be required by the FDIC upon written notice to the Company or (ii) as proposed by the Company 

with respect to a group of Mortgage Loans with similar characteristics, if approved in writing by 

the FDIC. 

“Other Accounts” shall have the meaning given in Section 2.7. 

“Pre-Existing Liabilities” shall have the meaning given in Section 8.4. 

“Servicer Advances” shall mean advances made by or on behalf of the Servicer to fund 

Servicing Expenses. 

“Servicing Fee” shall have the meaning given in Section 2.3. 

“Servicing Obligations” shall have the meaning given in Section 2.4. 

“Servicing Standard” shall have the meaning given in Section 2.4. 

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“Site Assessment” shall have the meaning given in Section 3.3. 

“Specified Date” shall mean the 10th day of each month, or such other day as is agreed 

to by the Servicer and the Manager, provided, however, that, in any case, if such day is not a 

Business Day, the Specified Date shall be the immediately preceding Business Day. 

“Termination Notice” shall mean any written notice of termination required pursuant to 

Article VII. 

Section 1.2 Construction. This Agreement shall be construed and interpreted in 

accordance with the following: 

(a) References to “Affiliates” include, with respect to any specified Person, 

only such other Persons which 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 (including this 

Agreement) (a) shall be deemed to include all appendices, exhibits, schedules and other 

attachments thereto and all documents, instruments or agreements issued or executed in 

replacement thereof, and (b) shall mean such document, instrument or agreement, or 

replacement thereto, as amended, modified and supplemented from time to time in accordance 

with its terms and as the same is in effect at any given time. 

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

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

provision of this Agreement. 

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

limiting, and shall be construed to be followed by the words “without limitation,” whether or 

not they are in fact followed by such words. 

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

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

such period. 

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

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

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

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ARTICLE II 

SERVICING OBLIGATIONS OF THE SERVICER 

Section 2.1 Appointment and Acceptance as Servicer. Effective as of the date hereof 

(and, with respect to each Mortgage Loan or Group of Mortgage Loans, as of the applicable 

Servicing Transfer Date with respect thereto), the Manager appoints the Servicer to service, 

administer, manage and dispose of the Mortgage Loans and the Underlying Collateral on behalf 

of and as an agent of the Manager. 

Section 2.2 Limited Power of Attorney. The Manager hereby grants to the Servicer a 

limited power of attorney to execute all documents on its behalf (including as the “Manager” of 

the Company, in turn acting on behalf of the Company) in accordance with the Servicing 

Standard set forth below and as may be necessary to effectuate the Servicer’s obligations under 

this Agreement until such time as the Manager revokes said limited power of attorney. 

Revocation of the limited power of attorney shall take effect upon: (i) the receipt by the Servicer 

of written notice thereof from or on behalf of the Manager, or (ii) termination of this Agreement 

pursuant to Article VII. 

Section 2.3 Servicing Fee. As consideration for servicing the Mortgage Loans and the 

Underlying Collateral, the Manager shall pay the Servicer a servicing fee in the amount and at 

such times as are set forth on the Fee Schedule (the “Servicing Fee”). 

Section 2.4 Servicing Standard. The Servicer shall take such actions and perform such 

duties in connection with the servicing, administration, management and disposition of the 

Mortgage Loans and Underlying Collateral as are set forth on Schedule 2, as the same may be 

amended from time to time by the Manager and the Servicer (the “Servicing Obligations”). The 

Servicer shall perform its Servicing Obligations (i) in the best interests and for the benefit of the 

Company, (ii) in accordance with the terms of the Mortgage Loans (and related Mortgage Loan 

Documents), (iii) in accordance with the terms of this Agreement (including this Article II), (iv) 

in accordance with all applicable Law, including but not limited to, the Real Estate Settlement 

Procedures Act of 1974, as amended, and the Helping Families Save Their Homes Act of 2009, 

as amended, (v) subject to Section 5.7, in accordance with the requirements of the LLC 

Operating Agreement, the Custodial and Paying Agency Agreement and the other Ancillary 

Documents, (vi) with respect to all Mortgage Loans, in compliance with the Guidelines and the 

Loan Modification Program and (vii) to the extent consistent with the foregoing terms, in the 

same manner in which a prudent servicer would service and administer similar loans and in 

which a prudent servicer would manage and administer similar properties for its own portfolio or 

for other Persons, whichever standard is higher, but using no less care and diligence than would 

be customarily employed by a prudent servicer following customary and usual standards of 

practice of prudent mortgage lenders, loan servicers and asset managers servicing, managing and 

administering similar loans and properties on an arms’ length basis, provided that, with respect to 

each Mortgage Loan and related Underlying Collateral, in the absence of a customary and usual 

standard of practice, the Servicer shall comply with the applicable Fannie Mae Guidelines, if 

any, with respect to similar loans or properties in similar situations (the requirements in clauses 

(i) through (vii) collectively, the “Servicing Standard”). In addition, the Servicer shall perform 

its Servicing Obligations without regard to (a) any relationship that the Servicer, the Company, 

the Manager or any Subservicer or any of their respective Affiliates may have to any Borrower 

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or Obligor or any of their respective Affiliates, including any other banking or lending 

relationship and any other relationship described in Section 5.1(h), (b) the Company’s, the 

Manager’s, the Servicer’s or any Subservicer’s obligation to make disbursements and advances 

with respect to the Mortgage Loans and the Underlying Collateral, (c) any relationship that the 

Servicer or any Subservicer may have to each other or to the Company, the Manager or any of 

their respective Affiliates, or any relationship that any of their respective Affiliates may have to 

the Company, the Manager or any of their respective Affiliates (other than the contractual 

relationship evidenced by this Agreement or any Subservicing Agreement), and (d) the 

Servicer’s or any Subservicer’s right to receive compensation (including the Servicing Fee) for 

its services under this Agreement or any Subservicing Agreement. 

Section 2.5 Collection Account. 

(a) The Servicer shall deposit into the Collection Account all Mortgage Loan 

Proceeds on a daily basis (without deduction or setoff as provided in Section 11.2 hereof) 

within two Business Days after receipt thereof by the Servicer. The Servicer shall not cause 

funds from any other source (other than interest or earnings on the Mortgage Loan Proceeds 

and the proceeds of Excess Liquidity Advances and any other funds expressly permitted to be 

deposited into the Collection Account pursuant to the Custodial and Paying Agency 

Agreement) to be commingled in the Collection Account. 

(b) Except as otherwise directed by the Manager, any and all amounts on 

deposit in (or that are required to have been deposited into) the Collection Account (including 

interest and earnings thereon) shall be disbursed strictly in accordance with this Agreement and 

the Custodial and Paying Agency Agreement (including the additional terms and conditions set 

forth in the Servicing Obligations) for purposes of payment of applicable Operating Expenses 

(including the making of any applicable Funding Draws); provided, however, that if the 

Servicer or any Subservicer erroneously deposits any amounts into the Collection Account, it 

may withdraw such erroneously deposited amount. 

(c) Except as otherwise directed by the Manager, any and all amounts 

required to be remitted by the Servicer to the Collection Account under this Agreement shall be 

remitted by wire transfer, in immediately available funds. 

(d) The Collection Account (and all funds therein) will be subject to an
 

account control agreement among the Company, the Collateral Agent and the Paying Agent.
 

Section 2.6 Reserved. 

Section 2.7 Escrow Accounts. Except as otherwise directed by the Manager, the 

Servicer shall establish and maintain one or more Escrow Accounts. Except as otherwise 

directed by the Manager, the Servicer shall deposit into the applicable Escrow Account on a 

daily basis, within two (2) Business Days of receipt, all collections from the Borrowers for the 

payment of taxes, assessments, hazard insurance premiums, and comparable items for the 

account of the Borrowers, and all other amounts required to be deposited in such Escrow 

Account pursuant to the applicable Mortgage Loan Documents. The Servicer shall pay to the 

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Borrowers interest on funds in Escrow Accounts to the extent required by Law or the applicable 

Mortgage Loan Documents. 

Section 2.8 Other Accounts. At the direction of the Manager, the Servicer shall 

establish and maintain such other Eligible Accounts as may be directed by the Manager, each of 

which shall be held in trust for the benefit of the Company and the Collateral Agent, and shall be 

funded and disbursed only in accordance with such instructions as are provided by the Manager 

(“Other Accounts”). 

Section 2.9 Maintenance of Insurance Policies; Errors and Omissions and Fidelity 

Coverage. 

(a) The Servicer and each Subservicer shall cause insurance coverage to be 

maintained for the Underlying Collateral (including any Acquired Property) as required under 

the Reimbursement and Security Agreement and the LLC Operating Agreement, including, 

whether or not so required (but in all events subject to the requirements in the LLC Operating 

Agreement and, for so long as the same remain in effect the Reimbursement and Security 

Agreement), insurance from an insurer reasonably acceptable to the Manager for each 

Mortgage Loan with respect to which the Borrower has failed to maintain required insurance, 

fire, hurricane, flood and hazard insurance with extended coverage as is customary in the area 

in which the Underlying Collateral is located and in such amounts and with such deductibles as, 

from time to time, is directed by the Manager. 

(b) The Servicer and each Subservicer shall maintain each of the following 

types of insurance coverage having such limits as described below: 

(i) Errors & Omissions Liability with limits of not less than 

$10,000,000 per claim and $10,000,000 in the aggregate. The Servicer or 

Subservicer, as applicable, shall notify the Manager immediately upon the 

reduction of or potential reduction of 50% of the limits. The Manager may 

require that the Servicer and each Subservicer purchase additional coverage to 

provide full coverage to the required limits as stated above. “Potential reduction 

of 50%” shall mean any knowledge by the Servicer or Subservicer, as applicable, 

that a claim or the sum of all claims, current or initiated after the effective date of 

the policy would reduce the coverage limits by 50%. 

(ii) Directors & Officers Liability with limits of not less than 

$10,000,000 per claim and $10,000,000 in the aggregate. 

(iii) Crime Insurance or a Fidelity Bond in an amount of not less than 

$10,000,000 per claim and $10,000,000 in the aggregate, covering employee 

theft, forgery & alteration, wire/funds transfer, computer fraud, and client 

coverage. Such coverage shall insure all employees or any other persons 

authorized by the Servicer or the Subservicer to handle any funds, money, 

documents and papers relating to any Mortgage Loan, and shall protect the 

Servicer or Subservicer, as applicable, against losses arising out of theft, 

embezzlement, fraud, misplacement, and other similar causes. The Manager and 

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the Company shall each be named as a loss payee with respect to claims arising 

out of assets handled under this Agreement or any applicable Servicing 

Agreement or Subservicing Agreement. 

(iv) General Liability with limits of not less than $1,000,000 per 

occurrence and $2,000,000 in the aggregate, including coverage for 

products/completed operations, advertising and personal injury. The Manager 

and the Company shall each be named as additional insured. The policy shall 

include a waiver of subrogation in favor of the Manager and the Company. 

(v) Auto Liability with a combined single limit of not less than 

$1,000,000 to provide coverage for any owned, hired, or non-owned vehicles. 

(vi) Workers Compensation in such amount as required by the states in 

which the Servicer or Subservicer, as applicable, operates, including coverage for 

Employer’s Liability in an amount not less than $1,000,000. The policy shall 

include a waiver of subrogation in favor of the Manager and the Company. 

(vii) Umbrella Liability in an amount of not less than $10,000,000 per 

occurrence and in the aggregate. 

All such policies shall be written with carriers having a minimum insurer rating of A- VIII from 

A.M. Best and A from Standard & Poor’s. All such policies shall have a minimum notice of 

cancellation of thirty (30) days, except for non-payment of premium whereby a ten (10) day 

notice of cancellation is acceptable. Certificates shall show each of the Manager and the 

Company as certificate holder, or as otherwise designated by the language in clauses (i)-(vii) 

above. 

The Servicer shall provide (or shall cause each Subservicer to provide) the Purchase Money Note 

Guarantor, the Manager and the Initial Member with certificates evidencing all such policies on 

the Effective Date (and, with respect to each Mortgage Loan, the applicable Servicing Transfer 

Date with respect thereto) and each anniversary of the Closing Date thereafter, and otherwise 

upon request of the Manager, the Purchase Money Note Guarantor or the Initial Member. 

Copies of fidelity bonds and insurance policies required to be maintained pursuant to this Section 

2.9 shall be made available to the Manager, the Purchase Money Note Guarantor and the Initial 

Member or their respective representatives on the Effective Date (and, with respect to each 

Mortgage Loan, on the applicable Servicing Transfer Date with respect thereto), and shall 

otherwise be made available to any of the Manager, the Purchase Money Note Guarantor and the 

Initial Member and their respective representative upon request. 

Section 2.10 Funding of Operating Expenses . To the extent set forth in, and subject to 

the terms of, this Agreement (including the Servicing Obligations), the Servicer shall, on behalf 

of the Manager, in turn acting on behalf of the Company (and from Company funds made 

available by the Manager), pay Operating Expenses as directed by the Manager; provided that 

the making of the same is consistent with the applicable terms and conditions in the Custodial 

and Paying Agency Agreement and, subject to Section 5.7, the applicable terms and conditions 

in the LLC Operating Agreement and the other Ancillary Documents. 

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Section 2.11 Expenses. Except as otherwise directed by the Manager, the Servicer shall 

use its reasonable best efforts to recover from Borrowers and Obligors all amounts of Servicing 

Expenses that are advanced by the Servicer (as permitted or required pursuant to the Servicing 

Obligations) as Servicer Advances to the extent that the Borrowers and Obligors are responsible 

for such Servicing Expenses under the Mortgage Loan Documents. All such amounts not 

recovered from Borrowers or Obligors and all other Servicer Advances shall be reimbursed only 

in accordance with the terms set forth on Schedule 3, as the same may be amended from time to 

time by the Manager (without the consent of the Initial Member) and the Servicer. In no event 

may any Servicer Advances be deductible from or netted against any Mortgage Loan Proceeds. 

In the event the Servicer is reimbursed for any amount that does not qualify as a Servicing 

Expense, the Servicer shall be obligated to refund such amount to the Manager, or, if so directed 

by the Manager, directly to the Company (to the Collection Account) on the Specified Date 

immediately following the Servicer’s receipt of notice from the Manager requesting the same. 

No Servicer Advances shall bear interest chargeable in any way to the Company or deductible 

from any Mortgage Loan Proceeds. 

Section 2.12 Insured or Guaranteed Mortgage Loans. If any Mortgage Loans being 

serviced pursuant to this Agreement are insured or guaranteed by any Governmental Authority, 

the Servicer acknowledges and agrees that, if the Manager so directs pursuant to the Servicing 

Obligations with respect to such Mortgage Loans, it shall take any and all actions as may be 

necessary to insure that such insurance or guarantees remain in full force and effect. The 

Servicer acknowledges and agrees that, upon assumption of the Servicing Obligations with 

respect to the Mortgage Loans pursuant to this Agreement, it agrees to fulfill all of the 

Company’s obligations under the contracts of insurance or guaranty. 

Section 2.13 Loan Modification Program. The Servicer shall at its expense take any 

and all steps as may be necessary to qualify for, and to maintain its qualification for, the Loan 

Modification Program. 

Section 2.14 HAMP Incentive Fees. The Servicer shall be entitled to retain for its own 

account any servicer incentive fees paid to it pursuant to the HAMP, if applicable. 

Section 2.15 Registration with MERS. In the event that any of the Mortgage Loans are 

(or are required by the Servicing Obligations to be) registered on the MERS® System, the 

Servicer shall maintain (or register, as applicable) such Mortgage Loan on the MERS® System 

and execute and deliver on behalf of the Company (including, as applicable, on behalf of the 

Manager, in turn on behalf of the Company) any and all instruments of assignment and other 

comparable instruments with respect to such assignment or re-recording of a mortgage securing a 

Mortgage Loan in the name of MERS®, solely as nominee for the Company and its successors 

and assigns. With respect to each Mortgage Loan that is registered on the MERS® System, (A) 

the Servicer shall be designated as the “servicer” and the Company shall be designated as the 

“investor” with respect to such Mortgage Loan, and, if applicable, the Manager may cause or 

permit an applicable Subservicer to be designated as the “subservicer” with respect to such 

Mortgage Loan (provided, that, at the option of the Manager in accordance with the LLC 

Operating Agreement and so long as each applicable designee is and remains a MERS member 

in good standing, the Manager may be designated as the “servicer” with respect to any such 

Mortgage Loan, in which case the Servicer shall be designated as the “subservicer” with respect 

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thereto), and (B) no other Person shall be identified on the MERS® System as having any 

interest in such Mortgage Loan unless otherwise consented to by the Manager (or required 

pursuant to the Electronic Tracking Agreement). Except as otherwise directed by the Manager 

(in connection with a voluntary removal by the Manager of any Mortgage Loan from the 

MERS® System pursuant to Section 12.3(g) of the LLC Operating Agreement), all Mortgage 

Loans registered on the MERS® System shall remain registered on the MERS® System unless 

default, foreclosure or similar legal or MERS® requirements dictate otherwise. The Servicer 

shall provide the Manager and the Initial Member with such reports from the MERS® System as 

the Manager or the Initial Member, from time to time, may request, including to allow the 

Manager and the Initial Member to verify the Persons identified on the MERS® System as 

having any interest in any of the Mortgage Loans and to confirm that the Mortgage Loans 

required to be registered on the MERS® System are so registered. For so long as any Mortgage 

Loan remains registered with MERS, the same shall be subject to an Electronic Tracking 

Agreement in the form of Exhibit B, and, to the extent any such Mortgage Loan is so registered 

with MERS as of the Closing Date, the Servicer, together with the Manager, the Collateral Agent 

and the Initial Member, shall execute such Electronic Tracking Agreement on the Closing Date 

and deliver the same to MERS. Without limiting the foregoing, upon the request of the Manager 

or the Initial Member, the Servicer shall cause MERS to run a query with respect to any and all 

specified fields on the MERS® System with respect to any or all of the Mortgage Loans 

registered on the MERS® System and provide the results to the Manager and the Initial Member 

and, if requested by the Manager or the Initial Member (and subject to any applicable provisions 

of the Electronic Tracking Agreement), shall cause MERS to change the information in such 

fields, to the extent MERS will do so in accordance with its policies and procedures, to reflect its 

instructions. 

Section 2.16 Compliance with Real Estate Settlement Procedures Act of 1974; 

compliance with Helping Families Save Their Homes Act of 2009. For all Mortgage Loans, the 

Servicer shall comply with all requirements of the Real Estate Settlement Procedures Act of 

1974, as may be amended, supplemented or modified from time to time, including, but not 

limited to, providing “hello” letters to Borrowers notifying such Borrowers of the transfer of 

servicing of the applicable Mortgage Loan to the Servicer. For all Mortgage Loans, the Servicer 

shall comply with all requirements of the Helping Families Save Their Homes Act of 2009, as 

may be amended, supplemented or modified from time to time, including, but not limited to, 

providing notice to Borrowers on behalf of the Company notifying such Borrowers of the 

transfer of the Mortgage Loans to the Company. 

ARTICLE III 

LOAN DEFAULTS; ACQUISITION OF COLLATERAL 

Section 3.1 Delinquency Control. Except as otherwise directed by the Manager , the 

Servicer shall maintain a collection department that substantially complies with the Servicing 

Standard and protects the Company’s interests in the Mortgage Loans and the Underlying 

Collateral in accordance with the Servicing Standard. 

Section 3.2 Discretion of the Servicer in Responding to Defaults of Borrower. Upon 

the occurrence of an event of default under any of the Mortgage Loan Documents, but subject to 

the other terms and conditions of this Agreement, including the Servicing Obligations of the 

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Servicer and such direction as the Manager may otherwise provide that is consistent with the 

Servicer’s compliance with the Servicing Standard, the Servicer, with the consent of the 

Manager, shall cause to be determined the response to such default and course of action with 

respect to such default, including (a) the selection of attorneys to be used in connection with any 

action, whether judicial or otherwise, to protect the interests of the Company in the Mortgage 

Loan and the Underlying Collateral, (b) the declaration and recording of a notice of such default 

and the acceleration of the maturity of the Mortgage Loan, (c) the institution of proceedings to 

foreclose pursuant to the Mortgage Loan Documents, Underlying Collateral or Acquired 

Property securing the Mortgage Loan pursuant to the power of sale contained therein or through 

a judicial action, (d) the institution of proceedings against any Obligor, (e) the acceptance of a 

deed in lieu of foreclosure, (f) the purchase of the real property Underlying Collateral at a 

foreclosure sale or trustee’s sale or the purchase of the personal property Underlying Collateral at 

a Uniform Commercial Code sale, and (g) the institution or continuation of proceedings to obtain 

a deficiency judgment against such Borrower or any Obligor and the collection of such 

judgment. Notwithstanding anything to the contrary contained herein, but subject to Section 5.7, 

the Servicer shall not, in connection with any such default or otherwise, take (or refrain from 

taking) any action if the taking (or refraining from taking) of such action is inconsistent with the 

terms of the LLC Operating Agreement or any other Ancillary Documents without the prior 

written consent of the Manager. 

Section 3.3 Acquisition of Acquired Property. 

(a) Any acquisition of Underlying Collateral shall conform with the terms and 

conditions of this Agreement (including the Servicing Obligations of the Servicer). With 

respect to any Mortgage Loan as to which the Servicer has received actual notice of, or has 

actual knowledge of, any Environmental Hazard with respect to the related Underlying 

Collateral, the Servicer shall immediately provide written notice of same to the Manager. 

Except as otherwise directed by the Manager, the Servicer shall not acquire or otherwise cause 

the Company or any subsidiary or other entity in which the Company owns any interest to 

acquire all or any portion of any Underlying Collateral having any actual or threatened 

Environmental Hazard known to the Servicer by foreclosure, deed in lieu of foreclosure, power 

of sale or sale pursuant to the Uniform Commercial Code or otherwise. Prior to acquisition of 

title to any commercial REO Property (whether by foreclosure, deed in lieu of foreclosure, by 

power of sale or by sale pursuant to the Uniform Commercial Code, or otherwise), the Servicer 

shall, and prior to the acquisition of title to any residential REO Property (whether by 

foreclosure, deed in lieu of foreclosure, by power of sale or by sale pursuant to the Uniform 

Commercial Code, or otherwise), the Servicer may cause to be commissioned with respect to 

such REO Property either (i) a Transaction Screen Process consistent with ASTM Standard E 

1528-06, by an environmental professional or (ii) such other site inspections and assessments 

by a Person who regularly conducts environmental audits using customary industry standards as 

would customarily be undertaken or obtained by a prudent lender in order to ascertain whether 

there are any actual or threatened Environmental Hazards (a “Site Assessment”), and the cost 

of such Site Assessment shall be deemed to be a Servicing Expense as long as the costs for such 

Site Assessment were not paid to any Affiliate of the Manager, or any Affiliate of the Servicer 

or any Subservicer 

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(c) If title to any Underlying Collateral that constitutes real property is to be 

acquired by foreclosure, by deed in lieu of foreclosure, by power of sale or by sale pursuant to 

the Uniform Commercial Code, or otherwise, title to such Acquired Property shall be taken by 

and held in the name of an Ownership Entity; provided, however, that for any Underlying 

Collateral which becomes Acquired Property after the Servicing Transfer Date relating thereto 

and with respect to which there exists any Environmental Hazard, the Ownership Entity that 

holds such Underlying Collateral may hold title only to the relevant Underlying Collateral with 

respect to which the Environmental Hazard exists 

Section 3.4 Administration of REO Properties. In addition to any other terms and 

conditions set forth herein, in connection with any REO Properties, the Servicer shall, in each 

case subject to applicable instructions from the Manager and the Servicing Obligations, comply 

with the following terms and conditions: 

(a) The Servicer shall cause the applicable Ownership Entity to maintain
 

insurance in compliance with applicable requirements herein and in the LLC Operating
 

Agreement.
 

(b) The Servicer shall cause the applicable Ownership Entity to (i) perform 

the obligations that such Ownership Entity is required to perform under any leases to which it is 

a party in all material respects and (ii) enforce, in accordance with commercially reasonable 

practices for properties similar to the applicable REO Property, the material obligations to be 

performed by the tenants under such leases. 

(c) The Servicer shall not permit any Ownership Entity to initiate or consent 

to any zoning reclassification of any portion of the REO Property owned by such Ownership 

Entity, or use or permit the use of any portion of an REO Property in any manner that could 

result in such use (taking into account any applicable variance obtained in accordance with the 

Servicing Standard) becoming a non-conforming use under any zoning ordinance or any other 

applicable land use law, rule or regulation, without the prior written consent of the Manager, the 

Collateral Agent and the Initial Member. 

(d) The Servicer shall not permit any Ownership Entity to suffer, permit or 

initiate the joint assessment of REO Property (i) with any other real property constituting a tax 

lot separate from such REO Property, and (ii) with any portion of an REO Property which may 

be deemed to constitute personal property, or any other procedure whereby the lien of any taxes 

which may be levied against such personal property shall be assessed or levied or charged to 

such REO Property. 

(e) The Servicer shall cause the applicable Ownership Entity to maintain such 

REO Property in a good and safe condition and repair (subject to such alterations as the 

Manager may from time to time determine to be appropriate in accordance with the Servicing 

Standard and applicable requirements herein and in the Ancillary Documents) and in 

accordance with applicable Law. 

(f) All property managers with respect to any REO Property shall, in their 

respective property management agreements or by separate agreement, subordinate their rights 

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under such agreements (including their right to receive management fees) to the rights and 

interest of the Collateral Agent under the applicable REO Mortgage (as defined in the 

Reimbursement and Security Agreement). 

(g) With respect to any REO Property that is leased under a ground or other 

lease (in each case, a “ground lease”), the Servicer shall cause the applicable Ownership Entity 

to (i) pay all rents and other sums required to be paid by the tenant under and pursuant to the 

provisions of the applicable ground lease as and when such rent or other charge is payable, and 

(ii) diligently and timely perform and observe all of the terms, covenants and conditions 

binding on the tenant under the ground lease. The Servicer shall not permit the applicable 

Ownership Entity to subordinate or consent to the subordination of any ground lease to any 

mortgage, lease or other interest on or in the ground lessor’s interest in the applicable REO 

Property without the prior consent of the Manager and the Collateral Agent unless such 

subordination is required under the provisions of such ground lease. 

(h) In the event the Manager elects to fund the construction of the REO 

Property (pursuant to Funding Draws for such purpose), then the Servicer shall cause each 

Ownership Entity to pursue with diligence the construction of the REO Property owned by such 

Ownership Entity (i) in accordance with the construction, construction management (if any) and 

all other material contracts relating to such construction, and all requirements of Law, all 

restrictions, covenants and easements affecting such REO Property, and all applicable 

governmental approvals, (ii) in substantial compliance with the plans and specifications therefor 

as in existence on the Closing Date and as thereafter modified by the Manager (or the Servicer, 

to the extent permitted in the Servicing Obligations), (iii) in a good and workmanlike manner 

and free of defects, (iv) in a manner such that such REO Property remains free from any Liens, 

claims or assessments (actual or contingent) for any material, labor or other item furnished in 

connection therewith, and (v) in conformance with the requirements for Funding Draws. 

(i) Notwithstanding any other provision of this Section 3.4 to the contrary, (i) 

in operating, managing, leasing or disposing of any REO Property, the Servicer shall act in the 

best interests of the Company, and the members and creditors of the Company (including the 

FDIC in its various capacities) and in accordance with the Servicing Standard, and (ii) without 

relieving the Servicer of any obligation elsewhere in this Agreement, and subject to any 

applicable Servicing Obligations, the Servicer shall not be required to act in accordance with a 

specific provision of this Section 3.4 if such action is (A) not in the best interests of Company 

and the members and creditors of the Company (including the FDIC in its various capacities), 

as determined by the Servicer in the exercise of its reasonable discretion, or (B) not in 

accordance with the Servicing Standard. 

(j) The Servicer shall furnish to the Manager, the Collateral Agent and the 

Initial Member such reports regarding the construction, leasing and sales efforts of or relating to 

the REO Property as the Manager, the Collateral Agent or the Initial Member shall reasonably 

request. 

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ARTICLE IV
 

SUBSERVICING
 

Section 4.1 Retention of Subservicer. The Servicer may engage or retain one or more 

subservicers, including Affiliates of the Manager or of the Servicer (individually and 

collectively, “Subservicer”), to subservice all Mortgage Loans or any number of individual 

Mortgage Loan, as applicable, as it may deem necessary and appropriate, provided that any 

Subservicer meets the requirements set forth in the definition of Qualified Servicer. 

Section 4.2 Subservicing Agreement Requirements. Any subservicing agreement with 

any Subservicer (“Subservicing Agreement”) shall, among other things: 

(a) provide for the servicing of the Mortgage Loans and management of the
 

Underlying Collateral by the Subservicer in accordance with the Servicing Standard and the
 

other terms of this Agreement and the LLC Operating Agreement;
 

(b) be terminable upon no more than thirty (30) days prior notice in the event 

of any Event of Default (as defined in the LLC Operating Agreement), any Default under this 

Agreement or any default under the Subservicing Agreement as set forth in Section 4.2(m) 

below; 

(c) provide that the Servicer as well as the Manager and the Initial Member
 

shall each be entitled to exercise termination rights thereunder;
 

(d) provide that the Subservicer and the Servicer acknowledge that the 

Subservicing Agreement constitutes a personal services agreement between the Servicer and the 

Subservicer; 

(e) provide that each of the Initial Member and the Manager is a third party 

beneficiary under the Subservicing Agreement for all purposes and is entitled to enforce the 

Subservicing Agreement, and that each of the FDIC, the Purchase Money Note Guarantor and 

the Company is a third party beneficiary thereunder to the extent of any rights expressly granted 

to such Person under the Subservicing Agreement (and such Subservicing Agreement shall 

include rights in favor of the FDIC, the Purchase Money Note Guarantor and the Company that 

are equivalent to the rights granted to such Persons hereunder) and is entitled to enforce the 

Subservicing Agreement with respect to such rights; and further provide that in no event shall 

any amendment or waiver to any such Subservicing Agreement limit or affect any rights of any 

such third party beneficiary thereunder without the express written consent of such third party 

beneficiary; 

(f) provide that (i) upon removal of the Manager as the “Manager” pursuant 

to the LLC Operating Agreement and/or notice from the Initial Member or the Manager of the 

occurrence of any Event of Default (as defined in the LLC Operating Agreement) under the 

LLC Operating Agreement, the Initial Member (and any successor “Manager” under the LLC 

Operating Agreement) may exercise all of the rights of the Manager under this Agreement and 

further cause the termination or assignment to any other Person of this Agreement (and, in the 

event of any such termination or assignment of this Agreement, the termination or assignment 

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of any Subservicing Agreement), without penalty or payment of any fee, and (ii) upon the 

occurrence of any Default under this Agreement, each of the Manager (or applicable successor 

“Manager” under the LLC Operating Agreement) and the Initial Member may exercise all of 

the rights of (A) the Manager under this Agreement and cause the termination or assignment of 

this Agreement to any other Person, without penalty or payment of any fee, and (B) the Servicer 

under the Subservicing Agreement and cause the termination or assignment of the Subservicing 

Agreement to any other Person, without penalty or payment of any fee; 

(g) provide that the Initial Member, the Manager, the Purchase Money Note 

Guarantor and the Company (and each of their respective representatives) shall each have 

access to and the right to review, copy and audit the books and records of the Subservicer and 

that the Subservicer shall make available its officers, directors, employees, accountants and 

attorneys to answer the Initial Member’s, the Manager’s , the Purchase Money Note 

Guarantor’s and the Company’s (and each of their respective representatives’) questions or to 

discuss any matter relating to the Subservicer’s affairs, finances and accounts, as they relate to 

the Mortgage Loans, the Underlying Collateral, the Servicing Obligations, the Collection 

Account, the Escrow Accounts or any Other Accounts established or maintained pursuant to 

this Agreement or the Subservicing Agreement, accounts created under the Custodial and 

Paying Agency Agreement or any matters relating to this Agreement or the Subservicing 

Agreement or the rights or obligations thereunder; 

(h) provide that all Mortgage Loan Proceeds are to be deposited into the
 

Collection Account on a daily basis (without reduction or setoff as provided in Section 11.12
 

hereof) within two Business Days of receipt and that under no circumstances are any funds,
 

other than Mortgage Loan Proceeds and interest and earnings thereon and the proceeds of
 

Excess Liquidity Advances, to be commingled in the Collection Account;
 

(i) provide that the Subservicer shall not sell, transfer or assign its rights
 

under the Subservicing Agreement with the Servicer and that any prohibited sale, transfer or
 

assignment shall be void ab initio;
 

(j) provide that the Subservicer consents to the immediate termination of the 

Subservicer pursuant to Section 7.2 of this Agreement; 

(k) provide that there shall be no right of setoff on the part of the Subservicer 

against the Mortgage Loan Proceeds (or the Company); 

(l) provide for such other matters as are necessary or appropriate to ensure
 

that the Subservicer is obligated to comply with the Servicing Obligations of the Servicer
 

hereunder in the conduct of such matters as are delegated to the Subservicer;
 

(m) (i) contain default provisions that relate to the actions of the Subservicer 

that correspond to the provisions of Section 7.1(a), (b), (c), (d), (e), (f), (g), (h) and (i) of this 

Agreement, and (ii) provide that each of the Manager and the Initial Member has the right (x) to 

terminate the Subservicing Agreement by providing written notice upon the occurrence of any 

such default, without any cure period other than as may be provided for in such default 

provisions under such Subservicing Agreement (which cure periods shall be no longer than the 

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cure provisions in the corresponding provisions of Section 7.1 of this Agreement), and (y) 

otherwise to enforce the rights of the Servicer under the Subservicing Agreement; 

(n) provide that (i) the Subservicer consents to its immediate termination 

under the Subservicing Agreement upon the occurrence of any of (x) a Default under Section 

7.1(b) of this Agreement, or (y) an Insolvency Event with respect to the Subservicer or any of 

its Related Parties, and (ii) the occurrence of any Insolvency Event with respect to the 

Subservicer or any of its Related Parties constitutes a default under the Subservicing 

Agreement; 

(o) provide a full release and discharge of the Initial Member, the Company, 

the Existing Servicers, the FDIC, in relation to any particular Mortgage Loan, the relevant 

Failed Bank and any predecessor-in-interest thereof, any Ownership Entities existing as of the 

applicable Servicing Transfer Date, and all of their respective officers, directors, employees, 

agents, attorneys, contractors and representatives, and all of their respective successors, assigns 

and Affiliates (but excluding, in all cases, the Manager) (any such Person, a “Prior Servicer” 

and collectively, the “Prior Servicers”), from any and all claims (including any counterclaim 

or defensive claim), demands, causes of action, judgments or legal proceedings and remedies of 

whatever kind or nature that the Subservicer had, has or might have in the future, whether 

known or unknown, which are related in any manner whatsoever to the servicing of the 

Mortgage Loans by the Prior Servicers prior to the applicable Servicing Transfer Date (other 

than due to gross negligence, violation of law or willful misconduct of such Prior Servicer); 

(p) provide that, to the extent required under Section 2.15 hereof or Section
 

12.3(g) of the LLC Operating Agreement, all Mortgage Loans registered on the MERS®
 

System shall remain registered unless default, foreclosure or similar legal or MERS
 

requirements dictate otherwise;
 

(q) provide that the Subservicer shall immediately notify the Manager and the 

Initial Member upon becoming aware of any Subservicer or any Affiliate thereof at any time, (i) 

being or becoming a partner or joint venturer with any Borrower or Obligor, (ii) being or 

becoming an agent of any Borrower or Obligor, or allowing any Borrower or Obligor to be an 

agent of such Subservicer or of any Affiliate thereof, or (iii) having any interest whatsoever in 

any Borrower or Obligor; and 

(r) not conflict with the Servicing Standard or any other terms or provisions 

of this Agreement, the LLC Operating Agreement, the Custodial and Paying Agency 

Agreement or any of the other Ancillary Documents insofar as such other terms or provisions 

apply to the Subservicer or the Servicing Obligations. Nothing contained in any Subservicing 

Agreement shall alter any obligation of the Servicer under this Agreement or the Manager 

under the LLC Operating Agreement and, in the event of any inconsistency between the 

Subservicing Agreement and the terms of either this Agreement or the LLC Operating 

Agreement, the terms of this Agreement or the LLC Operating Agreement, as applicable, shall 

apply. 

Section 4.3 Servicer Liable for Subservicers. Notwithstanding anything to the 

contrary contained herein, the use of any Subservicer shall not release the Servicer from any of 

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its Servicing Obligations or other obligations under this Agreement, and the Servicer shall 

remain responsible and liable for all acts and omissions of each Subservicer as fully as if such 

acts and omissions were those of the Servicer. All actions of any Subservicer performed 

pursuant to the Subservicing Agreement with the Servicer shall be performed as an agent of the 

Servicer. No Subservicer shall be paid any fees or indemnified out of any Mortgage Loan 

Proceeds, it being understood that all fees and related costs and liabilities of retaining any 

Subservicers shall be the sole responsibility of the Servicer. 

Section 4.4 Manager Approval Required. Each Subservicing Agreement and all 

amendments and modifications thereto and the selection of the Subservicer, regardless of 

whether the Subservicer is an Affiliate of the Servicer, shall be subject to the prior written 

approval of the Manager (which approval shall not be unreasonably withheld, delayed or 

conditioned so long as the provisions required under Section 4.2 are not modified or deleted). A 

copy of all Subservicing Agreements, as executed and delivered and all amendments thereto, 

shall be provided to the Manager, and, upon request, to the Initial Member. 

Section 4.5 Regulation AB Requirements. The Servicer shall use commercially 

reasonable efforts to maintain in place, and to confirm, where applicable, that each Subservicer 

has in place, policies and procedures to comply with the relevant servicing criteria provisions of 

Section 1122(d)(1) of Regulation AB that are applicable and relate to the servicing being 

conducted under this Agreement, including for purposes of preparation and delivery of the 

annual reports (including the independent accountant report) required pursuant to Section 5.2(g) 

below; provided that the following Regulation AB criteria shall not be deemed relevant to the 

servicing being conducted under this Agreement: Section 1122(d)(1)(iii) regarding backup 

servicer requirements; Sections 1122(d)(3)(i-iv) regarding paying agent requirements; and 

Section 1122(d)(4)(xv) regarding external credit enhancement. 

ARTICLE V 

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER 

Section 5.1 Representations and Warranties. The Servicer hereby makes the following 

representations and warranties as of the date hereof: 

(a) The Servicer (i) is a corporation, duly organized, validly existing and in 

good standing under the laws of the State of Florida, (ii) has qualified or will qualify to transact 

business as a foreign entity and will remain so qualified, in the state or states and other 

jurisdictions where the Mortgage Loans or the nature of the Servicer’s activities under this 

Agreement makes such qualification necessary; (iii) has all licenses and other governmental 

approvals necessary to carry on its business as now being conducted and to perform its 

obligations hereunder; and (iv) has established and shall maintain its principal place of business 

in the United States. 

(b) The Servicer has all requisite power, authority and legal right to service 

each Mortgage Loan, and to execute, deliver and perform, and to enter into and consummate the 

transactions contemplated by, this Agreement, and this Agreement has been duly authorized by 

all requisite corporate action on the part of the Servicer. 

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(c) This Agreement and all agreements contemplated hereby to which the 

Servicer is or will be a party constitute the valid, legal, binding and enforceable obligations of 

the Servicer, except as such enforcement may be limited by bankruptcy, insolvency, 

reorganization or other similar laws affecting the enforcement of creditors’ rights generally, and 

by general principles of equity (regardless of whether such enforcement is considered in a 

proceeding in equity or at law); and all requisite corporate action has been taken by the Servicer 

to make this Agreement and all agreements contemplated hereby to which the Servicer is or 

will be a party valid and binding upon the Servicer in accordance with their terms and 

conditions. 

(d) The Persons executing this Agreement on behalf of the Servicer are duly 

authorized to do so. 

(e) The execution and delivery of this Agreement by the Servicer, the 

servicing of the Mortgage Loans and the Underlying Collateral under this Agreement, the 

consummation of any other of the transactions contemplated by this Agreement, and the 

fulfillment of or compliance with the terms hereof are in the ordinary course of business of the 

Servicer and will not (i) result in a breach of any term or provision of the articles or charter or 

bylaws or other organizational documents of the Servicer; (ii) conflict with, result in a breach, 

violation or acceleration of, or result in a default (or an event which, with notice or lapse of 

time, or both, would constitute a default) under the terms of any agreement or other instrument 

to which the Servicer is a party or by which it may be bound; or (iii) constitute a violation of 

any Law applicable to the Servicer, and the Servicer is not in breach or violation of any 

agreement or instrument, or in violation of any Law of any Governmental Authority having 

jurisdiction over it which breach or violation may impair the Servicer’s ability to perform or 

meet any of its obligations under this Agreement. 

(f) No litigation is pending or, to the Servicer’s knowledge, threatened, 

against the Servicer that would prohibit the Servicer from entering into this Agreement or is 

likely to materially and adversely affect either the ability of the Servicer to perform its 

obligations under this Agreement or the financial condition of the Servicer. 

(g) Any consent, approval, authorization or order of any Governmental 

Authority required for the execution, delivery and performance by the Servicer of or 

compliance by the Servicer with this Agreement or the consummation of the transactions 

contemplated by this Agreement has been obtained and is effective. 

(h) Neither the Servicer nor any Subservicer or their respective Controlled 

Affiliates shall, at any time, (i) be a partner or joint venturer with any Borrower or Obligor, (ii) 

be an agent of any Borrower or Obligor, or allow any Borrower or Obligor to be an agent of the 

Servicer or any Subservicer or any such Controlled Affiliate of either, or (iii) have any interest 

whatsoever in any Borrower or Obligor. 

(i) The Servicer is, and all times so long as this Agreement is in effect shall 

remain, a Qualified Servicer. 

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Section 5.2 Reporting, Books and Records and Compliance Covenants. The Servicer 

covenants to the Manager as follows: 

(a) The Servicer shall be responsible for submitting all Internal Revenue
 

Service information returns related to each Mortgage Loan for all applicable periods
 

commencing with the Servicing Transfer Date with respect thereto (or, if later, the Effective
 

Date). Information returns include reports on Forms 1098 and 1099 and any other reports
 

required by Law. The Servicer shall be responsible for submitting all information returns
 

required under applicable Law of any foreign Governmental Authority, to the extent such are
 

required to be filed by the Company under such Law, relating to the Mortgage Loans, for the
 

calendar or tax year in which the Effective Date falls and thereafter.
 

(b) The Servicer shall cause to be kept and maintained, at all times, at the 

Servicer’s principal place of business, a complete and accurate set of files, books and records 

(including records transferred by the Manager to the Servicer) regarding the Mortgage Loans 

and the Underlying Collateral, and the Company’s interests in the Mortgage Loans and the 

Underlying Collateral, including records relating to the Collection Account, the Liquidity 

Account, the Special Reserve Account, the Escrow Accounts and any Other Accounts 

maintained in connection with the Mortgage Loans, Servicer Advances, and Operating 

Expenses and collection and remittance of Mortgage Loan Proceeds. The books of account 

shall be maintained in a manner that provides sufficient assurance that: (a) transactions are 

executed in accordance with the general or specific authorization of the Manager consistent 

with the provisions of the LLC Operating Agreement; and (b) transactions of the Company are 

recorded in such form and manner as will: (i) permit preparation of federal, state and local 

income and franchise tax returns and information returns in accordance with the LLC Operating 

Agreement and as required by Law; (ii) permit preparation of the Company’s financial 

statements in accordance with GAAP and the LLC Operating Agreement and the provisions of 

the reports required to be provided thereunder; and (iii) maintain accountability for the 

Company’s assets. 

(c) The Servicer shall cause all such books and records to be maintained and 

retained until the date that is the later of ten (10) years after the Closing Date and three (3) years 

after the date on which the final Mortgage Loan Proceeds are distributed to the Company, 

which date shall be established by notice to the Servicer from the Manager. All such books and 

records shall be available during such period for inspection by the Manager, the FDIC, the 

Purchase Money Note Guarantor, and the Initial Member (and their respective representatives, 

including any applicable Governmental Authority) at all reasonable times during business hours 

on any Business Days (or, in the case of any such inspection after the term hereof, at such other 

location as is provided by notice to the Manager, the FDIC,the Purchase Money Note Guarantor 

and the Initial Member, as applicable), in each instance upon not less than two (2) Business 

Days’ prior notice to the Servicer. Upon request by the Manager, the Servicer, at the sole cost 

and expense of the Manager, shall promptly send copies (the number of copies of which shall 

be reasonable) of such books and records to the Manager. The Servicer shall provide the 

Manager with reasonable advance notice of the Servicer’s intention to destroy or dispose of any 

documents or files relating to the Mortgage Loans and, upon the request of the Manager, shall 

allow the Manager, at its own expense, to recover the same from the Servicer. The Servicer 

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shall also maintain complete and accurate records reflecting the status of taxes, ground rents 

and other recurring charges which could become a Lien on any Underlying Collateral. 

(d) The covenants set forth in Section 5.2(b) and (c) above to maintain a 

complete and accurate set of records shall encompass all files in the Servicer’s custody, 

possession or control pertaining to the Mortgage Loans and the Underlying Collateral, 

including (except as required to be held by the Custodian pursuant to the Custodial and Paying 

Agency Agreement) all original and other documentation pertaining to the Mortgage Loans and 

the Underlying Collateral, all documentation relating to items of income and expense pertaining 

to the Mortgage Loans and the Underlying Collateral, and all of the Servicer’s (and any 

Subservicer’s) internal memoranda pertaining to the Mortgage Loans and the Underlying 

Collateral. 

(e) The Servicer shall cause to be furnished to the Manager, each month on 

the Specified Date, commencing the first month following the Effective Date, a monthly 

Electronic Report on the Mortgage Loans and Underlying Collateral containing such 

information and substantially in the form set forth on Schedule 4 as the same may be amended 

from time to time by the Manager (without the consent of the Initial Member) and the Servicer 

(the “Electronic Report”). The Electronic Report shall include, but not be limited to, the 

information required for the Manager to prepare, in accordance with the LLC Operating 

Agreement, the “Distribution Date Report” and the “Monthly Report” (each as defined in the 

LLC Operating Agreement), and such other reports and information as the Manager shall 

reasonably require, to the extent such information is reasonably available to the Servicer. 

Notwithstanding the above, with respect to any period prior to the applicable Servicing Transfer 

Date, the applicable Electronic Reports may exclude certain of the information otherwise 

required to be included therein if and to the extent the Initial Member is obligated to provide 

such information (or other information that is a prerequisite to the Servicer being able to 

provide such information) to the Servicer and the Manager pursuant to the interim servicing and 

asset management support obligation set forth in Section 4.1 of the Contribution Agreement and 

the Initial Member fails to timely deliver such information to the Servicer and the Manager. 

(f) The Servicer shall deliver, and shall cause each Subservicer to deliver, to 

the Manager, on or before March 10th of each year, or such other day as the Manager and the 

Servicer may agree, commencing in the year 2011, an annual officer’s certificate stating, as to 

the signer thereof, that (i) a review of such party’s activities during the preceding calendar year 

(or other applicable period as set forth below in this Section 5.2(f)) and of its performance 

under this Agreement (or, as applicable, any Subservicing Agreement) has been made under 

such officer’s supervision, and (ii) to the best of such officer’s knowledge and belief, based on 

such review, such party has fulfilled all of its obligations under this Agreement (or, as 

applicable, any Subservicing Agreement) in all material respects throughout such year or 

portion thereof or, if there has been a failure to fulfill any such obligation in any material 

respect, specifying each such failure and the nature and status thereof. The first such officer’s 

certificate shall, with respect to any Mortgage Loan, shall cover the period commencing on the 

Servicing Transfer Date and continuing through the end of the 2010 calendar year. In the event 

any Subservicer was terminated, resigned or otherwise performed in such capacity for only part 

of a year (or other applicable period, as the case may be, with respect to the period 

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commencing, with respect to any Mortgage Loan, on the Servicing Transfer Date through the 

end of the 2010 calendar year), such party shall provide an officer’s certificate pursuant to this 

Section 5.2 with respect to such portion of the year (or other applicable period). 

(g) On or before March 10th of each year, or such other day as the Manager 

and the Servicer agree, commencing in the year 2011, the Servicer shall, or shall cause each 

applicable Subservicer to, provide to the Manager (and/or to such other Person as the Manager 

may direct) at the Servicer’s or such Subservicer’s expense the annual reports (including the 

independent accountant report) for the prior year (or other applicable period as set forth below) 

required under Section 1122 of Regulation AB (regardless of whether any such requirements 

apply, by their terms, only to companies registered or required to file reports with the Securities 

and Exchange Commission) with respect to the relevant servicing criteria provisions of Section 

1122(d)(1) of Regulation AB that are applicable to the servicing being conducted under this 

Agreement pursuant to Section 4.5 above. The first such reports shall cover the period 

commencing on the Effective Date (and for each Mortgage Loan, covering the period from the 

applicable Servicing Transfer Date) and continuing through the end of the 2010 calendar year. 

(h) In connection with the Manager’s obligations under the LLC Operating 

Agreement to prepare, review and periodically update the Business Plan, the Servicer shall 

prepare and deliver to the Manager, and thereafter periodically update, such Business Plan, or 

relevant portions thereof or information to be included therein, in each case to the extent set 

forth and required pursuant to Schedule 6 hereto as the same may be amended from time to 

time by the Manager and the Servicer without the consent of the Initial Member (the “Business 

Plan Schedule”). Upon reasonable notice by the Initial Member, the Purchase Money Note 

Guarantor or the Manager, the Servicer shall make its personnel who are familiar with the 

Business Plan (or relevant portions thereof) available during normal business hours for the 

purposes of discussing such Business Plan with representatives of the Initial Member, the 

Purchase Money Note Guarantor and/or the Manager and responding to questions therefrom. 

Section 5.3 Audits. Until the later of the date that is ten (10) years after the Closing 

Date and the date that is three (3) years after the date on which the final Mortgage Loan Proceeds 

are distributed to the Company, which date shall be established by notice to the Servicer from the 

Manager, the Servicer shall, and shall cause each Subservicer to, (a) provide the Manager, the 

Purchase Money Note Guarantor and the Initial Member and their respective representatives 

(including any Governmental Authority), during normal business hours and on reasonable notice, 

with access to and the right to review all of the books of account, reports and records relating to 

the Mortgage Loans or any Underlying Collateral, the Servicing Obligations, the Collection 

Account, the Escrow Accounts, any Other Accounts or any matters relating to this Agreement or 

the rights or obligations hereunder, (b) permit such representatives to make copies of and 

extracts from the same, (c) allow the Manager, the Purchase Money Note Guarantor and the 

Initial Member to cause such books to be audited by accountants selected by the Manager, the 

Purchase Money Note Guarantor or the Initial Member, as applicable, and (d) allow the 

Manager, the Purchase Money Note Guarantor and the Initial Member to discuss the Servicer’s 

and Subservicer’s affairs, finances and accounts, as they relate to the Mortgage Loans, the 

Underlying Collateral, the Servicing Obligations, the Collection Account, the Escrow Accounts, 

and any Other Accounts or any other matters relating to this Agreement or the rights or 

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obligations hereunder, with its officers, directors, employees, accountants (and by this provision 

the Servicer hereby authorizes such accountants to discuss such affairs, finances and accounts 

with such representatives), Subservicers, and attorneys. Any expense incurred by the Manager, 

the Purchase Money Note Guarantor or the Initial Member and any reasonable out-of-pocket 

expense incurred by the Servicer in connection with the exercise by the Manager, the Purchase 

Money Note Guarantor or the Initial Member of its rights in this Section 5.3 shall be borne by 

the Manager, the Purchase Money Note Guarantor or the Initial Member, as applicable (and in 

all events subject to any obligation of the Manager to bear such expenses of the Purchase Money 

Note Guarantor or the Initial Member pursuant to the LLC Operating Agreement); provided, 

however, that any expense incident to the exercise by Manager, the Purchase Money Note 

Guarantor or the Initial Member of their respective rights pursuant to this Section 5.3 as a result 

of or during the continuance of an Default by the Servicer hereunder shall in all cases be borne 

by the Servicer. 

Section 5.4 No Liens. The Servicer (i) shall not place or voluntarily permit any Lien 

to be placed on any of the Mortgage Loans, the Underlying Collateral, the Mortgage Loan 

Documents or the Mortgage Loan Proceeds, except, in the case of the Underlying Collateral, (x) 

as permitted under the Mortgage Loan Documents where the applicable Borrower is not in 

default thereunder and (y) as permitted by the terms of the Reimbursement and Security 

Agreement, and (ii) shall not take any action to interfere with the Collateral Agent’s rights as a 

secured party with respect to the Mortgage Loans, the Underlying Collateral and the Mortgage 

Loan Proceeds. 

Section 5.5 Servicer’s Duty to Advise; Delivery of Certain Notices. In addition to 

such other reports and access to records and reports as are required to be provided to the 

Manager, the Purchase Money Note Guarantor and the Initial Member hereunder, the Servicer 

shall cause to be delivered to the Manager such information relating to the Mortgage Loans, the 

Underlying Collateral, the Servicer and any Subservicer as the Manager may reasonably request 

from time to time and, in any case, shall ensure that the Manager is promptly advised, in writing, 

of any matter of which the Servicer or Subservicer becomes aware relating to the Mortgage 

Loans, any of the Underlying Collateral, the Collection Account, the Escrow Accounts, any 

accounts created under the Custodial and Paying Agency Agreement, any Other Accounts or any 

Borrower or Obligor that materially and adversely affects the interests of the Company, the 

Purchase Money Note Guarantor or the Initial Member. Without limiting the generality of the 

foregoing, the Servicer shall immediately notify the Manager of (i) any claim, threatened claim 

or litigation against the Servicer, the Company, the Manager or the Initial Member arising out of 

or with respect to any Mortgage Loan, (ii) any material notice from any Governmental Authority 

relating to any Underlying Collateral, or (iii) any other occurrence which would reasonably be 

expected to materially hamper, prevent or interfere with the effectuation of any then-applicable 

Business Plan. In addition, the Servicer shall cause to be delivered to the Manager information 

indicating any possible Environmental Hazard with respect to any Underlying Collateral. 

Further, the Servicer shall cause to be furnished to the Manager, each month on the Specified 

Date, commencing the first month following the Effective Date and together with the Electronic 

Report, a report with respect to each Mortgage Loan and Underlying Collateral (i) in the case of 

any Mortgage Loan, describing the remedial efforts or enforcement actions, if any, being 

undertaken by the Servicer with respect to the applicable Mortgage Loan, (ii) describing the 

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status of the activities contemplated by the Business Plan (which, among other things, identifies 

any facts or circumstances which are reasonably likely to hamper, interfere with, prevent or 

postpone effectuation of the Business Plan), and (iii) such other information as the Manager 

reasonably requests. 

Section 5.6 Notice of Breach or Change of Control. The Servicer shall immediately 

notify the Manager of (i) any failure or anticipated failure on its part to observe and perform any 

warranty, representation, covenant or agreement required to be observed and performed by it as 

the Servicer, and (ii) any Change of Control with respect to the Servicer. 

Section 5.7 Copies of Documents. Copies of the LLC Operating Agreement and the 

other Ancillary Documents (or portions thereof) as the Manager has determined to be necessary 

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

delivered to the Servicer by the Manager, and the Servicer acknowledges receipt thereof. The 

Manager may from time to time deliver to the Servicer such amendments, modifications or 

additional Ancillary Documents (or portions of any thereof) as the Manager may determine to be 

so necessary for the continued performance by the Servicer of its obligations hereunder. All 

references herein to the Servicer’s obligations with respect to such LLC Operating Agreement 

and other Ancillary Documents shall, as between the Manager and the Servicer (and without 

limitation of obligations of the Manager, or the rights of the Initial Member or the Purchase 

Money Note Guarantor, under this Agreement, the LLC Operating Agreement or the other 

Ancillary Documents), be deemed to refer to the LLC Operating Agreement and other Ancillary 

Documents (or portions thereof) as have been, or from time to time are, delivered to Servicer. 

Section 5.8 Financial Information. The Servicer will submit to the Company, with 

copies thereof to be delivered by the Servicer to the Purchase Money Note Guarantor and the 

Initial Member, (i) within forty-five (45) days after the end of each of its fiscal quarters, 

commencing on the Effective Date, and (ii) within ninety (90) days after the end of each of its 

fiscal years, commencing on the Effective Date, a letter certified by an officer of the Servicer 

that details certain agreed upon financial trends and ratios relating to the Servicer (and/or such 

other financial information as the Manager, the Purchase Money Note Guarantor or the Initial 

Member may reasonably request from time to time). 

ARTICLE VI 

MANAGER CONSENT 

Section 6.1 Actions Requiring Manager Consent. Notwithstanding anything to the 

contrary contained in this Agreement, the Servicer shall not cause or permit to be taken any of 

the following actions without the prior written consent of the Manager (which may require the 

Manager to obtain the written consent of the Initial Member and/or the Purchase Money Note 

Guarantor), which consent may be withheld or conditioned in the sole and absolute discretion of 

the Manager: 

(a) conducting a Bulk Sale except as expressly permitted in the Servicing
 

Obligations (and in all events subject to the limitations set forth in the LLC Operating
 

Agreement);
 

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(b) the payment of fees to, the sale or other transfer (including through 

foreclosure or by deed in lieu thereof) of any Mortgage Loan or Underlying Collateral or 

Acquired Property (or any portion thereof) to, or any other transaction with (whether or not at 

usual and customary rates), any Affiliate of the Company, the Manager, the Servicer, any 

Affiliate of the Servicer, any Subservicer, or any Affiliate of any Subservicer; 

(c) the financing of the sale or other transfer of any Mortgage Loans,
 

Underlying Collateral or Acquired Property (or any portion thereof);
 

(d) the sale of any Mortgage Loan or Underlying Collateral or Acquired 

Property (or any portion thereof) that provides for any recourse against the Company, the Initial 

Member or the FDIC in any capacity, or against any interest in the Company held by the Initial 

Member or any share of the Mortgage Loan Proceeds allocable to the Initial Member; 

(e) any disbursement of any funds in the Collection Account (including any 

such funds made available through Excess Liquidity Advances), the Liquidity Account, the 

accounts created under the Custodial and Paying Agency Agreement or any Other Accounts 

other than in accordance with the provisions of this Agreement, the LLC Operating Agreement, 

the Reimbursement and Security Agreement and the Custodial and Paying Agency Agreement, 

as applicable; 

(f) where applicable, the Servicer or any Subservicer ceases to be a member 

in good standing of MERS®; 

(g) advancing additional funds that would increase the Unpaid Principal 

Balance of any Mortgage Loan other than Servicing Expenses to the extent that capitalizing 

such Servicing Expenses is or would have been, prior to the conversion of the Mortgage Loan 

to Acquired Property, permitted under the applicable Mortgage Loan Documents; 

(h) in connection with its servicing and administration of any Mortgage Loan 

and management of the Underlying Collateral or Acquired Property, (i) approving any material 

modification or amendment to, or cancellation or termination of, any Mortgage Loan 

Documents; (ii) forgiving or reducing or forbearing from collecting any indebtedness; (iii) 

releasing any parties liable for the payment of the Mortgage Loan or the performance of any 

other obligation relating thereto; (iv) granting any consent under any Mortgage Loan 

Documents (including, without limitation, with respect to any proposed transfers of any 

Underlying Collateral or transfers, pledges or changes in management of any direct or indirect 

interests in any Borrower, proposed alterations, proposed settlements of insurance claims, 

condemnation claims or deficiencies or proposed applications of insurance proceeds or 

condemnation awards); (v) consenting to any agreement in any Insolvency Proceeding relating 

to any Mortgage Loan, any Borrower or any Obligor with respect to a Mortgage Loan, or any 

Underlying Collateral, including voting for a plan of reorganization; (vi) subordinating the liens 

of the Mortgage Loan Document; (vii) amending or waiving any provision of any intercreditor 

agreement or making any decisions with respect to the Mortgage Loans under any intercreditor 

agreement; or (viii) taking any other action regarding such Mortgage Loan, Underlying 

Collateral or Acquired Property that is prohibited under the LLC Operating Agreement or the 

other Ancillary Documents or otherwise inconsistent with the Servicing Standard; or 

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(i) reimbursement for any expense or cost incurred (or paid) to any Affiliate 

of the Company, any Affiliate of the Servicer or any Affiliate of any Subservicer. 

Section 6.2 Amendments, Modification and Waivers. No provision of this Agreement 

may be amended, modified or waived except in writing executed by the Manager and the 

Servicer, and each such amendment and modification shall be subject to the prior written consent 

of the Initial Member or the Purchase Money Note Guarantor, except for those provisions that 

may be amended by the express terms hereof without the Initial Member’s consent. In no event 

shall any such amendment or waiver limit or affect the rights of the FDIC or the Purchase Money 

Note Guarantor (as a third party beneficiary hereunder as specified in Section 11.8) without the 

express written consent of the FDIC and the Purchase Money Note Guarantor. 

ARTICLE VII 

DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE 

Section 7.1 Defaults. A default (“Default”) means the occurence of: 

(a) any failure by the Servicer to remit to the Company or deposit in the 

Collection Account, the Escrow Accounts, any accounts created under the Custodial and Paying 

Agency Agreement or any Other Accounts any amount required to be so remitted or deposited 

under the terms of (i) this Agreement, (ii) the Custodial and Paying Agency Agreement, or (iii) 

the LLC Operating Agreement; or 

(b) any Insolvency Event (without any cure period other than as may be 

provided for in the definition of Insolvency Event) (i) with respect to the Servicer or any of its 

Related Parties, or (ii) with respect to any Subservicer or any of its Related Parties; provided, 

that any such Insolvency Event under this clause (ii) (that is not otherwise an Insolvency Event 

under clause (i) hereof) shall not be an Event of Default hereunder (but shall in all events be a 

default under the applicable Subservicing Agreement) so long as the Servicer shall have fully 

replaced such affected Subservicer within thirty (30) days after the occurrence of such 

Insolvency Event; or 

(c) any failure by the Servicer to duly perform its obligations in (i) Section 

5.2(e), which failure continues unremedied for a period of five (5) days, or such other period as 

the Manager and the Servicer agree, after the date on which written notice of such failure, 

requiring the same to be remedied, shall have been given by the Manager to the Servicer, or (ii) 

Section 5.2(f) or Section 5.2(g), which failure continues unremedied for a period of twenty-five 

(25) days, or such other period as the Manager and the Servicer agree, after the date on which 

written notice of such failure, requiring the same to be remedied, shall have been given by the 

Manager to the Servicer; or 

(d) any failure by the Servicer at any time (i) to comply with its obligation to 

be a Qualified Servicer and to renew or maintain any permit or license necessary to carry out its 

responsibilities under this Agreement in compliance with Law, or (ii) to have an Acceptable 

Rating; provided, however, that this clause (d)(ii) shall not apply to RoundPoint Mortgage 

Servicing Corporation or (iii) to cause each Subservicer to meet the applicable characteristics of 

a Qualified Servicer as required under Section 4.1 and to renew or maintain any permit or 

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license necessary to carry out its responsibilities under any Subservicing Agreement, which, in 

the case of either (i), (ii) or (iii), continues unremedied for a period of thirty (30) days after the 

date on which written notice of such failure requiring the same to be remedied shall have been 

given by the Manager or the Initial Member to the Servicer; or 

(e) any failure by the Servicer to cause any Subservicer to comply with the 

terms of its Subservicing Agreement with the Servicer, the occurrence of a default or material 

breach by any Subservicer under its Subservicing Agreement or the failure by the Servicer to 

replace any Subservicer upon the occurrence of any such event in accordance with the terms 

governing material breach or default under the applicable Subservicing Agreement; or 

(f) any other failure (other than those specified in any of Section 7.1(a) 

through (e)) by the Servicer to duly observe or perform any other covenants or agreements on 

the part of the Servicer contained in this Agreement or to perform any Servicing Obligation in 

compliance with the Servicing Standard, and such failure continues unremedied for a period of 

thirty (30) days, or such other period as the Manager, with the consent of the Initial Member, 

and the Servicer agree, after the date on which written notice of such failure shall have been 

given by the Manager or the Initial Member to the Servicer; provided, however, that in the case 

of a failure that cannot be cured within thirty (30) days (or such other period as the Manager, 

with the consent of the Initial Member, and the Servicer agree) with the exercise of reasonable 

diligence, the cure period shall be extended for an additional thirty (30) days if the Servicer can 

demonstrate to the reasonable satisfaction of the Manager and the Initial Member that the 

Servicer is diligently pursuing remedial action; and provided, further, that, with respect to any 

such failure failure under this Section 7.1(f) that relates exclusively to obligations included in 

any applicable Schedule hereto that can be amended or otherwise modified without the consent 

of the Initial Member, then no such consent of the Initial Member shall be required with respect 

to an applicable cure period hereunder so long as such failure hereunder is not, or would not 

result in, a failure by the Manager to comply with its obligations under the LLC Operating 

Agreement and the other Ancillary Documents; or 

(g) the occurrence of any “Event of Default,” as defined in the LLC Operating 

Agreement; 

(h) receipt by the Manager or the Servicer of notice from the Purchase 

Money Note Guarantor that an “Event of Default” as defined in the Reimbursement and 

Security Agreement has occurred and is continuing; or 

(i) the occurrence of any Restricted Servicer Change of Control. 

Section 7.2 Termination with Cause. 

(a) Upon the occurrence of a Default pursuant to this Agreement, in each 

case, without any cure period other than as may be provided for in Section 7.1 above, the 

Manager (including, if applicable, any successor “Manager” pursuant to the LLC Operating 

Agreement) or the Initial Member, in addition to any other rights the Manager or the Initial 

Member may have at Law (including under the Uniform Commercial Code) or equity, 

including injunctive relief, specific performance or otherwise, may (i) terminate this Agreement 

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by providing a Termination Notice to the Servicer, (ii) terminate the Subservicing Agreements 

by providing a written termination notice to the Servicer and the Subservicers, and (iii) 

otherwise enforce this Agreement, in any case, without penalty or payment of any fee. 

(b) The Servicer hereby consents to its immediate and automatic termination 

under this Agreement upon a Default under Section 7.1(b) of this Agreement. 

(c) Upon a default or failure of the Manager to perform its obligations under 

this Agreement in a material manner, including but not limited to, the failure of the Manager to 

pay to the Servicer the Servicing Fee in a full and timely manner, the Servicer, in addition to 

any other rights it may have pursuant to this Agreement, at law or in equity, may terminate this 

Agreement by providing a Termination Notice to the Manager, with a copy to the Purchase 

Money Note Guarantor and the Initial Member. The Termination Notice shall set forth with 

specificity the nature of the default or failure to perform of the Manager and provide the 

Manager with no less than thirty (30) days to cure any such default or failure to perform. In the 

event that the default or failure to perform is not cured within thirty (30) days after the date of 

delivery of the Termination Notice, the Servicer shall provide a second Termination Notice to 

the Manager with a copy to the Purchase Money Note Guarantor and the Initial Member, which 

second Termination Notice shall be prominently labeled as the “Second Termination Notice”. 

Such Second Termination Notice shall confirm to the Manager that the Servicer shall continue 

to perform the Servicing Obligations under this Agreement until the earlier to occur of (i) 

ninety (90) days after the delivery of the Second Termination Notice to the Manager, the 

Purchase Money Note Guarantor and the Initial Member, and (ii) the transfer of the Servicing 

Obligations to a successor Servicer. The duty of the Servicer to continue to perform the 

Servicing Obligations as provided in the Second Termination Notice is contingent upon the 

timely and full payment of the Servicing Fee to the Servicer during such period. The Servicer 

shall cooperate fully and completely with the transition of the Servicing Obligations to a 

successor Servicer in order to assure an orderly transfer. 

Section 7.3 Termination without Cause. 

(a) The Manager may, without cause, terminate this Agreement, upon
 

providing a Termination Notice to the Servicer, but only as and in accordance with the
 

provisions set forth on Schedule 5 as the same may be amended from time to time by the
 

Manager (without the Initial Member’s consent) and the Servicer.
 

(b) The Servicer may, at any time after the first anniversary of the Effective 

Date and thereafter, without cause, terminate this Agreement. No termination of this 

Agreement by the Servicer shall be effective unless the Servicer delivers to the Manager, with a 

copy to the Purchase Money Note Guarantor and the Initial Member, a Termination Notice, 

which for the purpose of this Section 7.3(b) shall be a notice of the Servicer’s intent to 

terminate this Agreement. Such Termination Notice shall be provided at least sixty (60) days 

prior to any date specified by the Servicer as the date of termination of the Servicer’s 

Obligations under this Agreement. Notwithstanding the foregoing, such Termination Notice 

shall not be effective unless the Termination Notice contains confirmation of the intent and 

obligation of the Servicer to continue to perform its Servicing Obligations until the earlier of (i) 

ninety (90) days after the Termination Notice is given and (ii) such other date on which the 

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Servicing Obligations are transferred to a successor Servicer in an orderly manner. The 

Servicer shall cooperate fully and completely with the transition of the Servicing Obligations to 

a successor Servicer to be designated by the Manager, in order to assure an orderly transfer. 

The Servicer issuing the Termination Notice shall be liable for all costs associated with the 

transfer of Servicing Obligations to the successor Servicer, including but not limited to the costs 

of transporting the servicing files and the provision of any notices to Borrowers. 

Section 7.4 Effective Termination Date. Termination as specified in this Article VIII 

shall be effective at such time as is specified in the Termination Notice. In the event of such 

termination, all authority and power of the Servicer under this Agreement, whether with respect 

to the Mortgage Loans or otherwise, shall pass to and be vested in the Manager or the successor 

servicer designated by the Manager in the case of termination by the Manager or as designated 

solely by the Initial Member (or any successor “Manager” under the LLC Operating Agreement) 

in the case of termination by the Initial Member (or such successor “Manager” under the LLC 

Operating Agreement). The Servicer agrees to cooperate with the Manager, the Initial Member, 

any successor “Manager” under the Operating Agreement and any successor servicer with 

respect to the timely and orderly transition of its obligations under this Agreement. The Servicer 

shall be liable for all obligations of the Servicer that have accrued under this Agreement or at 

Law prior to such termination. 

Section 7.5 Accounting. Upon termination of this Agreement as set forth herein, the 

Servicer shall account for and turn over to the Manager or its designee (or, if applicable, pursuant 

to such instructions as may be provided by the Initial Member or any successor “Manager” 

pursuant to the LLC Operating Agreement) funds collected under the terms of this Agreement. 

The Servicer shall provide written notice in conformity with all applicable Law to the Borrowers 

to indicate that their Mortgage Loans will henceforth be serviced by the Manager (or applicable 

successor “Manager” under the LLC Operating Agreement) or any applicable successor Servicer 

designated by the Manager (or any successor “Manager” under the LLC Operating Agreement) 

or the Initial Member as the case may be, and transfer its duties as the Servicer to the Manager 

(or successor “Manager” under the LLC Operating Agreement) or such successor Servicer. 

ARTICLE VIII 

INDEPENDENCE OF PARTIES; INDEMNIFICATION 

Section 8.1 Independence of Parties. The Servicer shall have the status of, and act as, 

an independent contractor. Nothing herein contained shall be construed to create a partnership or 

joint venture or any similar relationship between the Manager and the Servicer. 

Section 8.2 Indemnification. The Servicer agrees to indemnify, defend and hold 

harmless the Company, the Manager, the Purchase Money Note Guarantor, the Initial Member 

and each of their respective Affiliates, directors, officers, employees and agents and each of their 

respective successors and assigns (the “Indemnified Parties”) from and against any and all 

claims, demands, suits, actions, proceedings, assessments, losses, costs, expenses (including 

attorneys’ fees), damages and liabilities of any kind or nature whatsoever directly or indirectly 

resulting from or arising out of or related to (i) any inaccuracy in any of the Servicer’s warranties 

or representations contained in this Agreement, (ii) any failure by the Servicer to observe or 

perform any or all of the Servicer’s covenants, agreements or warranties contained in this 

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Agreement, (iii) any act taken by the Servicer purportedly pursuant to a power of attorney 

granted by the Manager which act results in a claim related to the unlawful use of such power of 

attorney, or (iv) the failure by the Servicer or any Subservicer to discharge obligations on any 

Underlying Collateral relating to taxes, ground rents or other such recurring charges generally 

accepted by the mortgage servicing industry, which would become a Lien on the Underlying 

Collateral. The Servicer shall immediately notify the Indemnified Party if a claim is made with 

respect to this Agreement or any Mortgage Loans or Underlying Collateral, assume (with prior 

consent of the Indemnified Party) the defense of any such claim and pay all expenses in 

connection therewith, including attorneys’ fees, and promptly pay, discharge and satisfy any 

judgment or decree which may be entered against it or any Indemnified Party in respect of such 

claim. No expenses incurred by the Servicer or any Subservicer in connection with its 

obligations under this Section 8.2 shall constitute Servicing Expenses or otherwise be deducted 

from or reimbursed out of Mortgage Loan Proceeds. The Servicer shall follow any reasonable 

written instructions received from the Indemnified Party in connection with such claims, it being 

understood that the Indemnified Party shall have no duty to monitor or give instructions with 

respect to such claims. 

Section 8.3 Procedure for Indemnification. Promptly upon receipt of written notice of 

any claim in respect of which indemnity may be sought pursuant to the terms of this Agreement, 

the Indemnified Party will use its best efforts to notify the Servicer in writing thereof in 

sufficient time for the Servicer to respond to such claim. Except to the extent that the Servicer is 

prejudiced thereby, the failure of the Indemnified Party to promptly notify the Servicer of any 

such claim shall not relieve the Servicer from any liability which it may have to the Indemnified 

Party in connection therewith. If any claim shall be asserted or commenced against the 

Indemnified Party, the Servicer will be entitled to participate therein, and to the extent it may 

wish to assume the defense, conduct or settlement thereof, it shall be entitled to do so with 

counsel reasonably satisfactory to the Indemnified Party; provided, however, that in the event the 

Servicer fails, in the reasonable judgment of the Indemnified Party, vigorously to defend or 

pursue or attempt to settle such claim, the Manager shall have the right to assume the conduct, 

defense or settlement thereof, provided that the Manager shall obtain the prior written approval 

of the Indemnified Party before ceasing to defend against any claim or entering into any 

settlement, adjustment or compromise of such claim involving injunctive or similar equitable 

relief being imposed upon any Indemnified Party or any of its Affiliates. After notice from the 

Servicer to the Manager of its election to assume the defense, conduct or settlement thereof, the 

Servicer will not be liable to the Manager for any legal or other expenses consequently incurred 

by the Manager in connection with the defense, conduct or settlement thereof. 

Section 8.4 Pre-Effective Date Liabilities. Notwithstanding anything to the contrary 

herein, but without limitation of the release set forth in Section 11.13, it is understood and agreed 

that the Servicer shall not be liable to the Manager or the Company for any liabilities or 

obligations attributable to an act, omission or circumstances of the Initial Member, the FDIC, the 

Failed Banks and the Company that occurred or existed prior to the Effective Date or, with 

respect to any particular Mortgage Loan, the Servicing Transfer Date applicable thereto (the 

“Pre-Existing Liabilities”). In the event there is asserted against the Company, the Manager, 

the Servicer or any Subservicer any claim or action with respect to any such Pre-Existing 

Liabilities, the Servicer or Subservicer, as applicable, shall notify the Manager and the Initial 

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28
 
Member of such claim or action in accordance with Article IX. Except as provided otherwise in 

Section 8.2 and 8.3 above (in the event that such claim or action is subject to the indemnification 

obligations of the Servicer pursuant to Section 8.1 above), the Manager shall have the right to 

control and assume the defense of the Company, the Manager, the Servicer and the Subservicer 

with respect to such claim or action at the Manager’s expense. The Servicer shall be reimbursed 

by the Manager in connection with the foregoing only to the extent of and in accordance with the 

terms set forth on Schedule 3, as the same may be amended from time to time by the Manager 

(without the consent of the Initial Member) and the Servicer. 

ARTICLE IX 

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 given by certified or registered mail, postage prepaid, by delivery by hand or by 

nationally recognized courier service, or by electronic mail (followed up by a hard copy 

delivered through an alternate manner permitted under this Article IX), in each case mailed or 

delivered to the applicable address or electronic mail address specified in, or in the manner 

provided, in this Article IX below. All such notices, requests, demands and other 

communications shall be deemed to be given or made upon the earlier to occur of (i) actual 

receipt (or refusal thereof) by the relevant party hereto and (ii) (A) if delivered by hand or by 

nationally recognized courier service, when signed for (or refused) by or on behalf of the 

relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, 

postage prepaid; and (C) if delivered by electronic mail (which form of delivery is subject to the 

provisions of this paragraph), when delivered and capable of being accessed from the recipient’s 

office computer, provided that any notice , request, demand or other communication that is 

received other than during regular business hours of the recipient shall be deemed to have been 

given at the opening of business on the next business day of the recipient. In no event shall a 

voice mail message be effective as a notice, communication or confirmation hereunder. From 

time to time, any party may designate a new address for purposes of notice to it hereunder by 

notice to such effect to the other parties hereto in the manner set forth in this Article IX. 

If to the Manager:	 RoundPoint Ventures I, LLC 

9350 Conroy Windermere Rd. 

Windermere, FL 34786 

Attention: Michael I. Wood, President 

Email: MWood@Tavistock.com 

Facsimile No.: 407-909-9955 

with a copy to:	 RoundPoint Mortgage Servicing Corporation 

5032 Parkway Plaza Blvd. 

Charlotte, NC 28217 

Attention: Peter Schancupp 

Email: Peter.Schancupp@RoundPointMortgage.com 

Facsimile No.: 704-426-8808 

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If to the Initial Member or the 

Purchase Money Note Guarantor: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email: 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 

Email: DGearin@fdic.gov 

If to the Servicer:	 RoundPoint Mortgage Servicing Corporation 

5032 Parkway Plaza Blvd. 

Charlotte, NC 28217 

Attention: Vickie Lester, President 

Email: Vickie.Lester@RoundPointMortgage.com 

Telephone No.: 704-426-8820 

Facsimile No.: 888-364-2226 

with a copy to:	 RoundPoint Mortgage Servicing Corporation 

5032 Parkway Plaza Blvd. 

Charlotte, NC 28217 

Attention: Peter Schancupp 

Email: Peter.Schancupp@RoundPointMortgage.com 

Facsimile No.: 704-426-8808 

ARTICLE X 

GOVERNING LAW; JURISDICTION 

Section 10.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY 

AND CONSTRUED IN ACCORDANCE WITH FEDERAL LAW, BUT IF FEDERAL LAW 

DOES NOT PROVIDE A RULE OF DECISION, IT SHALL BE GOVERNED BY AND 

CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK 

EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER 

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW 

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OF ANOTHER JURISDICTION. Nothing in this Agreement shall require any unlawful action 

or inaction by any party hereto. 

Section 10.2 Jurisdiction; Venue and Service. Each of the parties hereto, for itself and 

each of its Affiliates, hereby irrevocably and unconditionally: 

(a) (i) agrees that any suit, action or proceeding instituted against it by any
 

other party with respect to this Agreement may be instituted, and that any suit, action or
 

proceeding instituted by it against any other party with respect to this Agreement shall be
 

instituted, only in the Supreme Court of the State of New York, County of New York, or the
 

U.S. District Court for the Southern District of New York, as the party instituting such suit,
 

action or proceeding may choose (and appellate courts from any of the foregoing),
 

(ii) consents and submits, for itself and its property, to the jurisdiction of such 

courts for the purpose of any such suit, action or proceeding instituted against it by any other 

party and 

(iii) agrees that a final judgment in any such suit, action or proceeding shall be 

conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other 

manner provided by Law; 

(b) agrees that service of all writs, process and summonses in any suit, action 

or proceeding pursuant to Section 10.2(a) 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 Article IX 

(with copies to such other Persons as specified therein); provided, however, that nothing 

contained in this Section 10.2(b) shall affect the ability of any party to be served process in any 

other manner permitted by Law; 

(c) (i) waives any objection that it may now or hereafter have to the laying of 

venue of any suit, action or proceeding arising out of or relating to this Agreement brought in 

any court specified in Section 10.2(a), (ii) waives any claim that any such suit, action or 

proceeding brought in any such court has been brought in an inconvenient forum and (iii) 

agrees not to plead or claim either of the foregoing; and 

(d) agrees that nothing contained in this Section 10.2 shall be binding upon or 

construed to constitute consent to jurisdiction by any Failed Bank or the FDIC, in any capacity, 

or constitute a limitation on any removal rights the FDIC, in any capacity, may have. 

Notwithstanding the above, if at any time the Initial Member shall replace the Manager 

hereunder pursuant to the terms of the LLC Operating Agreement, the terms of this Section 10.2 

shall be restated as follows: 

“The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and 

unconditionally: 

(a) (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 

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the District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

commenced by the FDIC, in any capacity, arising out of, relating to, or in connection with this 

Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the FDIC, in any capacity, files 

the action, suit or proceeding without the consent of the FDIC; 

(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, County of New York, for any suit, action or proceeding against it or any of its 

Affiliates commenced by the FDIC, in any capacity, arising out of, relating to, or in connection 

with this 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 FDIC; 

(B) assert that venue is improper in the Supreme Court of the 

State of New York, County of New York; or 

(C) assert that the Supreme Court of the State of New York, 

County of New York is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding against the FDIC, in 

any capacity, arising out of, relating to, or in connection with this Agreement, the LLC Operating 

Agreement or any Ancillary Document in only either the United States District Court for the 

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

and waives any right to remove or transfer such suit, action or proceeding to any other court or 

dispute-resolution forum without the consent of the FDIC, 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 FDIC; 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 10.2(a)(iii), to bring that 

suit, action or proceeding in only the Supreme Court of the State of New York, County 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 FDIC. 

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(b) The Servicer, 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 10.2(a) may be enforced in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 10.2(d), the Servicer, on behalf of 

itself and its Affiliates, and the FDIC hereby irrevocably and unconditionally agrees that service 

of all writs, process and summonses in any suit, action or proceeding pursuant to Section 10.2(a) 

or Section 10.2(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 Article IX (with copies to such 

other Persons as specified therein); provided, however, that nothing contained in this Section 

10.2(c) shall affect the right of any party to serve process in any other manner permitted by law. 

(d) Nothing in this Section 10.2 shall constitute consent to jurisdiction in any 

court by the FDIC, other than as expressly provided in Section 10.2(a)(iii) and Section 

10.2(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 10.3 Waiver of Jury Trial. EACH OF THE PARTIES HERETO, FOR ITSELF 

AND EACH OF ITS AFFILIATES, 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. 

ARTICLE XI 

MISCELLANEOUS 

Section 11.1 No Assignment by Servicer; No Transfer of Ownership Interests in 

Servicing Rights. 

(a) The Servicer hereby acknowledges that this Agreement constitutes a 

personal services agreement between the Manager and the Servicer. Any of the following shall 

constitute an assignment for all purposes of this Agreement: (a) any merger, consolidation or 

dissolution involving the Servicer or (b) any transfer of all or substantially all of the assets of 

the Servicer, notwithstanding whether any of the foregoing transactions occur at one time or in 

the aggregate over a period of time. The Servicer shall not assign any rights or delegate any 

obligations hereunder to any other Person other than as is expressly provided in this Agreement. 

Any purported sale, sub-participation or assignment or delegation in violation of this Section 

11.1(a) shall be void ab initio and of no force or effect whatsoever. 

(b) Under no circumstances shall the Servicer (i) transfer to any Subservicer 

or any other Person any ownership interest in the servicing of the Mortgage Loans or any right 

to transfer or sell the servicing of the Mortgage Loans (other than in connection with the sale of 

any Mortgage Loan), or (ii) assign, pledge or otherwise transfer or purport to assign, pledge or 

otherwise transfer any interest to any Subservicer or other Person in the servicing of the 

Mortgage Loans (other than in connection with the sale of any Mortgage Loan). Any purported 

assignment, pledge, delegation or other transfer in violation of this Section 11.1(b) shall be void 

ab initio and of no force or effect whatsoever. 

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Section 11.2 Legal Fees. No party to this Agreement shall be responsible for the 

payment of the legal fees or expenses incurred by the other party hereto in connection with the 

negotiation and execution of this Agreement or any subsequent modifications or supplements 

hereto 

Section 11.3 Entire Agreement. This Agreement contains the entire agreement between 

the Manager and the Servicer and supersedes any and all other prior agreements, whether oral or 

written, with respect to the subject matter hereof. 

Section 11.4 Counterparts; Facsimile Signatures. This Agreement may be executed in 

two (2) or more counterparts, each of which shall be deemed an original but all of which together 

shall constitute but one and the same agreement. This Agreement and any amendments hereto, 

to the extent signed and delivered by facsimile or other electronic means, shall be treated in all 

manner and respects as an original agreement and shall be considered to have the same binding 

legal effect as if it were the original signed version thereof delivered in person. No signatory to 

this Agreement shall raise the use of a facsimile machine or other electronic means to deliver a 

signature or the fact that any signature or agreement was transmitted or communicated through 

the use of a facsimile machine or other electronic means as a defense to the formation or 

enforceability of a contract and each such Person forever waives any such defense. 

Section 11.5 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. 

Section 11.6 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 11.7 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 without limitation, 

to the extent applicable, by limiting the duration or scope of such provision and/or the Persons 

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34
 
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 

11.7 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 

10.1. 

Section 11.8 Third Party Beneficiaries. The Initial Member shall be and is hereby 

designated as a third party beneficiary under this Agreement, and, as such, the Initial Member is 

entitled to enforce this Agreement as if the Initial Member were a party hereto. The Company, 

the Purchase Money Note Guarantor, and the FDIC shall be and are hereby designated as third 

party beneficiaries under this Agreement with respect to those provisions of this Agreement 

which expressly grant rights to such Persons, and, as such, each is entitled to enforce such 

provisions of this Agreement as if such Person were a party hereto. Notwithstanding the 

foregoing, none of the Purchase Money Note Guarantor, the FDIC, the Company and the Initial 

Member shall have any obligation to undertake any of the duties of the Manager hereunder or 

have any liability whatsoever to the Servicer, any Subservicer or any other party related to this 

Agreement. There shall be no other third party beneficiaries. The rights of the Purchase Money 

Note Guarantor as a third party beneficiary hereunder shall terminate at such time as the 

Purchase Money Note Guarantor notifies the Servicer that the reimbursement obligations in 

favor of the Purchase Money Note Guarantor under the Reimbursement and Security Agreement 

have been paid in full, but shall be reinstated in the event that the Purchase Money Note 

Guarantor party notifies the Servicer that such obligations have been reinstated in accordance 

with its terms. 

Section 11.9 Protection of Confidential Information. The Servicer shall keep 

confidential and shall not divulge to any party, without the Manager’s prior written consent, any 

information pertaining to the LLC Operating Agreement, the Mortgage Loans or any Borrower 

or Obligor or the Underlying Collateral thereunder, except as required pursuant to this 

Agreement and except to the extent that it is necessary and appropriate for the Servicer to do so 

in working with legal counsel, auditors, taxing authorities, regulatory authorities or any other 

Governmental Authority or in accordance with the Servicing Standard; provided, that, to the 

extent that disclosure should be required by law, rule, regulation (including any securities listing 

requirements or the requirements of any self-regulatory organization), subpoena, or in 

connection with any legal or regulatory proceeding (including in connection with or pursuant to 

any action, suit, subpoena, arbitration or other dispute resolution process or other legal 

proceedings, whether civil or criminal, and including before any court or administrative or 

legislative body), the Servicer will use all reasonable efforts to maintain confidentiality and will 

(unless otherwise prohibited by law) notify the Manager and the Initial Member and the Purchase 

Money Note Guarantor within one (1) Business Day after its knowledge of such legally required 

disclosure so that the Manager, the Initial Member and/or the Purchase Money Note Guarantor 

may seek an appropriate protective order and/or direct the Manager to waiver the Servicer’s 

compliance with this Agreement. Notice shall be by telephone, by email and in writing. In the 

absence of a protective order or waiver, the Servicer may make such required disclosure if, in the 

written opinion of its outside counsel (which opinion shall be provided to the Manager, the Initial 

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35
 
Member and the Purchase Money Note Guarantor prior to disclosure pursuant to this Section 

11.9), failure to make such disclosure would subject the Servicer to liability for contempt, 

censure or other legal penalty or liability. 

Section 11.10 Time of Essence. Time is hereby declared to be of the essence of this 

Agreement and of every part hereof. 

Section 11.11 No Presumption. This Agreement shall be construed fairly as to each 

party hereto and if at any time any such term or condition is desired or required to be interpreted 

or construed, no consideration shall be given to the issue of who actually prepared, drafted or 

requested any term or condition of this Agreement or any agreement or instrument subject 

hereto. 

Section 11.12 No Right of Setoff. The Servicer hereby waives any and all rights it may 

otherwise have (whether by contract or operation of Law or otherwise) to any setoff, offset, 

counterclaim or deduction (or to assert any claim for any setoff, offset counterclaim or 

deduction) against the Mortgage Loan Proceeds (or the Company). 

Section 11.13 Release of Initial Member and Others. The Servicer hereby releases and 

discharges each Prior Servicer from any and all claims (including any counterclaim or defensive 

claim), demands, causes of action, judgments or legal proceedings and remedies of whatever 

kind or nature that the Servicer had, has or might have in the future, whether known or unknown, 

which are related in any manner whatsoever to the servicing of the Mortgage Loans or 

Underlying Collateral prior to the applicable Servicing Transfer Date by the Prior Servicers, in 

each case other than for acts or omissions constituting gross negligence, violation of law or 

willful misconduct of such Prior Servicer. 

[Remainder of Page Intentionally Left Blank] 

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IN WITNESS WHEREOF, the parties hereto have c~used this Agreement to be executed 

as of the day and year first above written. 

ROUNDPOINT VENTURES I, LLC, as 

Manager 

By· 

Name: Shaun Ahmad 


T~e: Vice President 


ROUNDPOINT MORTGAGE SERVICING 

CORPORATION, as Scrvicer 

By:________________ 

Name: 

Title: 

FDIC SFR 20Hl-1 

Servicing Agreement 

Pool Nos. 24020 and 24021 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

as of the day and year first above written. 

ROUNDPOINT VENTURES I, LLC, as 

Manager 

By:______________ 

Name: 

Title: 

ROUNDPOINT MORTGAGE SERVICING 

CORPORATION, as Servicer 

By: 

Title: President 

FDIC SFR 2010..1 

Servicing Agreement 

Pool Nos. 24020 and 24021