Multibank RADC/CADC Loan and REO Structured Transaction

 EXECUTION COPY 

SERVICING AGREEMENT
 

by and between
 

MREC FUNDING, LLC
 

and
 

CFC TRANSACTIONS, LLC
 

Dated as of August 26, 2010
 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 2.10 Maintenance of Insurance Policies; Errors and Omissions and 

Section 2.11 Funding of Working Capital Expenses; Permitted Vertical 

Completion Expenses; Permitted Horizontal Development 

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 Working Capital Reserve Account. ............................................................. 6
	

Section 2.7 Company Development Account ................................................................ 6
	

Section 2.8 Escrow Accounts ......................................................................................... 6
	

Section 2.9 Other Accounts ............................................................................................ 7
	

Fidelity Coverage. ....................................................................................... 7
	

Expenses ...................................................................................................... 8
	

Section 2.12 Expenses ...................................................................................................... 9
	

Section 2.13 Insured or Guaranteed Assets...................................................................... 9
	

Section 2.14 Registration with MERS.............................................................................. 9
	

ARTICLE III LOAN DEFAULTS; ACQUISITION OF COLLATERAL ...........................11
	

Section 3.1 Delinquency Control ................................................................................. 11
	

Section 3.2 Discretion of the Servicer in Responding to Defaults of Borrower ..........11
	

Section 3.3 Acquisition of Acquired Property.............................................................. 11
	

Section 3.4 Administration of Acquired REO Properties ............................................ 12
	

ARTICLE IV SUBSERVICING ............................................................................................ 14
	

Section 4.1 Retention of Subservicer ........................................................................... 14
	

Section 4.2 Subservicing Agreement Requirements .................................................... 14
	

Section 4.3 Servicer Liable for Subservicers................................................................ 16
	

Section 4.4 Manager Approval Required ..................................................................... 17
	

Section 4.5 Regulation AB Requirements.................................................................... 17
	

ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF 

THE SERVICER ............................................................................................. 17
	

Section 5.1 Representations and Warranties ................................................................ 17
	

Section 5.2 Reporting, Books and Records and Compliance Covenants .....................18
	

Section 5.3 Audits ........................................................................................................ 21
	

i
	 Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
Section 5.4 No Liens .................................................................................................... 22
	

Section 5.5 Servicer’s Duty to Advise; Delivery of Certain Notices ...........................22
	

Section 5.6 Notice of Breach or Change of Control..................................................... 23
	

Section 5.7 Copies of Documents ................................................................................ 23
	

Section 5.8 Financial Information ................................................................................ 23
	

ARTICLE VI MANAGER CONSENT ................................................................................. 24
	

Section 6.1 Actions Requiring Manager Consent ........................................................ 24
	

Section 6.2 Amendments, Modification and Waivers.................................................. 25
	

ARTICLE VII DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE .......25
	

Section 7.1 Defaults...................................................................................................... 25
	

Section 7.2 Termination with Cause. ........................................................................... 27
	

Section 7.3 Termination without Cause. ...................................................................... 28
	

Section 7.4 Effective Termination Date ....................................................................... 28
	

Section 7.5 Accounting ................................................................................................ 29
	

ARTICLE VIII INDEPENDENCE OF PARTIES; INDEMNIFICATION .............................29
	

Section 8.1 Independence of Parties ............................................................................. 29
	

Section 8.2 Indemnification.......................................................................................... 29
	

Section 8.3 Procedure for Indemnification................................................................... 30
	

Section 8.4 Pre-Effective Date Liabilities .................................................................... 30
	

ARTICLE IX NOTICES ........................................................................................................ 30
	

ARTICLE X GOVERNING LAW; JURISDICTION .......................................................... 33
	

Section 10.1 Governing Law .......................................................................................... 33
	

Section 10.2 Jurisdiction; Venue and Service ................................................................ 33
	

Section 10.3 Waiver of Jury Trial .................................................................................. 35
	

ARTICLE XI MISCELLANEOUS ........................................................................................ 35
	

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

Servicing Rights. ....................................................................................... 35
	

Section 11.2 Legal Fees.................................................................................................. 36
	

Section 11.3 Entire Agreement....................................................................................... 36
	

Section 11.4 Counterparts; Facsimile Signatures ........................................................... 36
	

Section 11.5 Headings .................................................................................................... 36
	

Section 11.6 Compliance with Law................................................................................ 36
	

Section 11.7 Severability................................................................................................ 36
	

Section 11.8 Third Party Beneficiaries ........................................................................... 37
	

Section 11.9 Protection of Confidential Information ..................................................... 38
	

Section 11.10 Time of Essence......................................................................................... 38
	

Section 11.11 No Presumption ......................................................................................... 38
	

Section 11.12 No Right of Setoff ..................................................................................... 38
	

Section 11.13 Release of Initial Member and Others ....................................................... 38
	

ii
	 Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
SCHEDULES AND EXHIBITS
	

Exhibits 

Exhibit A Asset Schedule 

Exhibit B Electronic Tracking Agreement 

Schedules 

Schedule I List of Failed Financial Institutions 

Schedule 1 Fee Schedule 

Schedule 2 Servicing Obligations 

Schedule 3 Reimbursement of Servicer Advances 

Schedule 4 Form of Electronic Report on the Assets and Collateral 

Schedule 5 Termination Without Cause 

Schedule 6 Asset Level Business Plans and Consolidated Business Plans 

iii 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
SERVICING AGREEMENT 

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

“Agreement”) is made and entered into as of the 26th day of August 2010 (the “Effective 

Date”), by and between MREC Funding, a Delaware limited liability company (including its 

successors and assigns, the “Manager”), and CFC Transactions, LLC, an Illinois limited liability 

company (including those of its successors and assigns as are expressly permitted pursuant to 

this Agreement, the “Servicer”). 

RECITALS 

WHEREAS, 2010-1 RADC/CADC Venture, LLC (the “Company”) owns the Assets 

(as defined more particularly in the Agreement of Common Definitions) described on the Asset 

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

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

responsibility to service and manage the Assets and related Collateral pursuant to that certain 

LLC Operating Agreement dated as of the Closing Date, 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 each of the various 

failed financial institutions listed on Schedule I hereto (collectively, the “Failed Banks” and 

each individually, a “Failed Bank”) (the FDIC, in such capacity, 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 Assets and 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, (a) terms used herein, to the 

extent the same are defined in the Agreement of Common Definitions and not otherwise defined 

herein, shall have the respective meanings and definitions given in such Agreement of Common 

Definitions, and (b) the following terms shall have the meanings and definitions hereinafter 

respectively set forth. 

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

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
“Agreement of Common Definitions” shall mean the Agreement of Common 

Definitions – 2010-1 RADC/CADC Venture, LLC Structured Transaction, dated as of the date 

hereof, by and among the Initial Member, the Company, the Private Owner, the Purchase Money 

Notes Guarantor, the NGPMN Agent, the Collateral Agent, the Advance Lender, the 

Custodian/Paying Agent and the Servicer. 

“Asset Schedule” shall have the meaning given in the recitals of this Agreement. 

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

“Company” shall have the meaning given in the recitals of this Agreement. 

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

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

“Eligible Account” shall mean one or more segregated trust or custodial account or 

accounts established and maintained with an Eligible Institution, each of which shall be entitled 

for the benefit of the Company and the Collateral Agent as required by ARTICLE II. 

“Eligible Institution” shall mean a Person that is not an Affiliate of the Private Owner 

(or the Manager) and that is a federally insured depository institution that is well capitalized; 

provided that an Affiliate of the Private Owner (or the Manager) may be deemed to be an 

Eligible Institution if the Required Consenting Parties provides a written consent (which may be 

withheld in each such Person’s sole and absolute discretion), which consent may be withdrawn 

upon written notification to the Manager, in which case such Affiliate of the Private Owner (or 

of the Manager) shall no longer constitute an Eligible Institution as of the receipt of such notice 

and any accounts maintained pursuant to this Agreement at such institution shall be moved to an 

Eligible Institution within three (3) Business Days after the receipt of such notice. 

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

“Electronic Tracking Agreement” shall mean an agreement substantially in the form of 

Exhibit B. 

“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 Required Consenting Parties. 

“FDIC” shall mean the Federal Deposit Insurance Corporation, in any capacity. 

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

“Initial Member” shall have the meaning given in the recitals of this Agreement. 

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

“Other Accounts” shall have the meaning given in Section 2.9. 

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

2 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
“Private Owner” shall have the meaning given in the recitals of this Agreement. 

“Receiver” shall have the meaning given in the recitals of this Agreement. 

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

“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. 

“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. 

3 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
(f) The words “include” and “including” and words of similar import are not 

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

they are in fact followed by such words. 

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

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

such period. 

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

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

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

ARTICLE II 

SERVICING OBLIGATIONS OF THE SERVICER 

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

(and, with respect to each Asset or Group of Assets, as of the applicable Servicing Transfer Date 

with respect thereto), the Manager appoints the Servicer to service, administer, manage and 

dispose of the Assets and the 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 Assets and the 

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 

Assets and 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 Assets (and related Asset Documents), (iii) in accordance 

with the terms of this Agreement (including this ARTICLE II), (iv) in accordance with all 

applicable Law, (v) subject to Section 5.7, in accordance with the requirements of the LLC 

Operating Agreement, the Custodial and Paying Agency Agreement, the Advance Facility 

Agreement and the other Transaction Documents, and (vi) 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 

4 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
servicing, managing and administering similar loans and properties on an arms’ length basis, 

provided that, with respect to each Loan and related 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 (vi) 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, 

Obligor or other 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 Assets and the 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 Asset Proceeds 

on a daily basis (without deduction or setoff as provided in Section 11.12 hereof) within two (2) 

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 Asset Proceeds, the proceeds of Excess 

Working Capital Advances and Discretionary Funding Advances and other funds expressly 

permitted to be deposited into the Collection Account pursuant to the Custodial and Paying 

Agency Agreement, including without limitation proceeds from any Advance Loan made by the 

Advance Lender pursuant to the Advance Facility Documents) 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 

(including the additional terms and conditions set forth in the Servicing Obligations) for 

purposes of payment of applicable Working Capital Expenses (including the making of 

applicable Required 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. 

5 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
Section 2.6 Working Capital Reserve Account. 

(a) Pursuant to the LLC Operating Agreement and the Custodial and Paying 

Agency Agreement, the Company has established the Working Capital Reserve Account to be 

maintained with the Paying Agent, and the Initial Member and the Private Owner have funded 

the Working Capital Reserve into the Working Capital Reserve Account in an initial amount of 

the WCR Account Deposit for purposes of funding Working Capital Expenses and Permitted 

Vertical Completion Expenses of the Company in accordance with the LLC Operating 

Agreement and the Custodial and Paying Agency Agreement. Except as otherwise directed by 

the Manager, the Servicer shall not cause funds from any other source (other than interest or 

earnings on the Working Capital Reserve and the proceeds of Advance Loans used to replenish 

the Working Capital Reserve Account as permitted pursuant the Advance Facility Agreement) to 

be commingled in the Working Capital Reserve Account (it being understood that deposits into 

such Working Capital Reserve Account shall be made only pursuant to the Custodial and Paying 

Agency Agreement, the LLC Operating Agreement and the Advance Facility Agreement). 

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

deposit in the Working Capital Reserve Account (including interest and earnings thereon) shall 

be disbursed strictly in accordance with this Agreement (including the additional terms and 

conditions set forth in the Servicing Obligations). 

(c) The Working Capital Reserve Account (and all funds therein) will be 

subject to an account control agreement among the Company, the Collateral Agent and the 

Paying Agent. 

Section 2.7 Company Development Account. Pursuant to the LLC Operating 

Agreement and the Custodial and Paying Agency Agreement, the Company has established the 

Company Development Account to be maintained with the Paying Agent, and upon the Initial 

Member’s approval of an Asset Development Plan, the Initial Member and the Private Owner 

will fund their respective Development Contributions for such Asset Development Plan for 

purposes of funding Permitted Horizontal Development. Except as otherwise directed by the 

Manager, the Servicer shall not cause funds from any other source (other than interest or 

earnings on the amount held therein) to be commingled in the Company Development Account 

(it being understood that deposits into such Company Development Account shall be made only 

pursuant to the Custodial and Paying Agency Agreement and the LLC Operating Agreement). 

The Company Development Account (and all funds therein) will be subject to an account control 

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

Section 2.8 Escrow Accounts. Except as otherwise directed by the Manager, the 

Servicer shall establish and maintain one or more Escrow Accounts, each of which shall be held 

in trust for the benefit of the Company and the Collateral Agent for amounts deposited or 

required to be deposited therein by the applicable Borrower. 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 Asset Documents. The Servicer shall pay to the Borrowers interest on funds in 

Escrow Accounts to the extent required by Law or the applicable Asset Documents. 

6 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
Section 2.9 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 2.10 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 Collateral (including any Acquired Property) as required under the 

Reimbursement, Security and Guaranty Agreement, the Advance Facility Agreement and the 

LLC Operating Agreement, including, whether or not so required (but in all events subject to the 

requirements in LLC Operating Agreement and, for so long as the same remains in effect, the 

Reimbursement, Security and Guaranty Agreement), insurance from an insurer reasonably 

acceptable to the Manager for each Asset 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 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 Manager shall be 

notified 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 limits to provide back 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 which would reduce the limits by 50%. 

(ii) Directors & officers liability with limits of not less than 

$10,000,000 each 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, client coverage. 

Such coverage shall insure all employees or any other persons authorized by 

Servicer or Subservicer to handle any funds, money, documents and papers 

relating to any Asset, 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 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 each 

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

7 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 each 

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) each Required 

Consenting Party and the Manager with certificates evidencing all such policies on the Effective 

Date (and, with respect to each Asset, the applicable Servicing Transfer Date with respect 

thereto) and each anniversary of the Closing Date thereafter, and otherwise upon request of such 

Required Consenting Party or the Manager. Copies of fidelity bonds and insurance policies 

required to be maintained pursuant to this Section 2.10 shall be made available to the Manager, 

the Required Consenting Parties or their respective representatives on the Effective Date (and, 

with respect to each Asset, on or before the applicable Servicing Transfer Date with respect 

thereto), and shall otherwise be made available to the Manager, any of the Required Consenting 

Parties and their respective representatives upon request. 

Section 2.11 Funding of Working Capital Expenses; Permitted Vertical Completion 

Expenses; Permitted Horizontal Development 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 applicable Working Capital Expenses and Permitted Vertical 

Completion Expenses (including making applicable Required Funding Draws and Permitted 

Vertical Development Funding Draws, it being understood that the Servicing Obligations may 

set forth rights and limitations of the Servicer with respect to applicable decisions and rights of 

the Manager in connection with the making of Required Funding Draws and Permitted Vertical 

Development Funding Draws) and Permitted Horizontal Development Expenses; provided that 

the payment 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 Transaction Documents. Servicer acknowledges 

that (a) subject to the Custodial and Paying Agency Agreement (and any permitted transfer or 

release as funds as provided therein), the Working Capital Reserve shall be used exclusively for 

8 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
funding of Working Capital Expenses (including the making of Required Funding Draws with 

respect to specified Loans) and Permitted Vertical Completion Expenses (including the making 

of Permitted Vertical Development Funding Draws with respect to specified Loans); (b) 

proceeds of Discretionary Funding Advances shall be used exclusively for paying Permitted 

Vertical Completion Expenses with respect to specified Assets (and in no event may 

Discretionary Funding Advances be used for payment of any Working Capital Expenses), to the 

extent funds are not otherwise available in the Collection Account, or from Advance Loans, and 

the Working Capital Reserve Account balance is less than the Working Capital Reserve Floor; 

(c) proceeds of Excess Working Capital Advances shall be used exclusively for (i) payment of 

Working Capital Expenses to the extent that funds are not otherwise available in the Collection 

Account or from Advance Loans, and the Working Capital Reserve Account balance is less than 

the Working Capital Reserve Floor, and (ii) funding the Defeasance Account by such amount as 

may be required to cure a Purchase Money Notes Trigger Event to the extent funds are not 

otherwise available in the Collection Account (and in no event may Excess Working Capital 

Advances be used for funding Permitted Vertical Completion Expenses and for such other 

purposes as may be expressly prohibitted pursuant to the LLC Operating Agreement); and (d) in 

accordance with the LLC Operating Agreement, funds contributed to the Company Development 

Account shall be used exclusively for funding Permitted Horizontal Development approved by 

the Initial Member pursuant to the LLC Operating Agreement. 

Section 2.12 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 Asset 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 Asset 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 Asset 

Proceeds. 

Section 2.13 Insured or Guaranteed Assets. If any Assets 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 Assets, 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 Assets pursuant to 

this Agreement, it agrees to fulfill all of the Company’s obligations under the contracts of 

insurance or guaranty. 

Section 2.14 Registration with MERS. In the event that any of the Assets are (or are 

required by the Servicing Obligations to be) registered on the MERS® System, the Servicer shall 

9 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
maintain (or register, as applicable) such Asset 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 Loan in the name of 

MERS®, solely as nominee for the Company and its successors and assigns. With respect to 

each Asset that is registered on the MERS® System, (A) the Servicer shall be designated as the 

“servicer” and the “investor” with respect to such Asset, and, if applicable, the Manager may 

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

such Asset (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, (1) the Company may be designated as the “investor” with respect to any such Asset, 

and (2) the Manager may be designated as the “servicer” with respect to any such Asset, in 

which case the Servicer shall be designated as the “subservicer” with respect thereto), and (B) no 

other Person shall be identified on the MERS® System as having any interest in such Asset 

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 Asset from the MERS® System pursuant to Section 12.3(g) of 

the LLC Operating Agreement), all Assets 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 Assets and to confirm that 

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

Assets remain 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 Assets are 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 Assets 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 2.15 Retained Obligations. As used herein, the “Retained Obligations” shall 

mean, collectively, the obligations of the Servicer described in Article III hereof and those 

obligations set forth on Schedule 3 attached hereto that are identified with an “x” as an obligation 

to be performed by the Manager. Notwithstanding anything to the contrary set forth in this 

Agreement, the Servicer shall not be required to perform and/or satisfy the Retained Obligations 

and the Manager shall retain all responsibility for the performance and/or satisfaction of the 

same. When used in connection with the Retained Obligations all references to the Servicer shall, 

mutatis mutandis, be deemed a reference to the Manager. 

10 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 Assets and the 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 Asset Documents, but subject to the other 

terms and conditions of this Agreement, including the Servicing Obligations of the 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 Asset and the Collateral, (b) 

the declaration and recording of a notice of such default and the acceleration of the maturity of 

the Loan, (c) the institution of proceedings to foreclose the Asset Documents, Collateral or 

Acquired Property securing the 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 Collateral at a foreclosure sale or 

trustee’s sale or the purchase of the personal property 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, the Advance Facility Agreement or any other Transaction Documents 

without the prior written consent of the Manager. 

Section 3.3 Acquisition of Acquired Property. Any acquisition of Collateral shall 

conform with the terms and conditions of this Agreement (including the Servicing Obligations of 

the Servicer). With respect to any Asset as to which the Servicer has received actual notice of, or 

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

Servicer shall immediately provide written notice of same to the Manager. In addition, if the 

Manager so directs, prior to the acquisition of title to any Collateral, the Servicer shall cause to 

be commissioned with respect to such Collateral (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. Except as is otherwise directed by the Manager, 

the Servicer or any Subservicer 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 Collateral having any actual or threatened Environmental Hazard by foreclosure, deed in 

11 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
lieu of foreclosure, power of sale or sale pursuant to the Uniform Commercial Code or 

otherwise. If title to any 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 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 Collateral may hold title only to the 

relevant Collateral with respect to which the Environmental Hazard exists. 

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

terms and conditions set forth herein, in connection with any Acquired 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 the 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 Acquired 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 Acquired REO Property owned by such 

Ownership Entity, or use or permit the use of any portion of an Acquired 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 consent of 

the Manager and the Required Consenting Party. 

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

initiate the joint assessment of Acquired REO Property (i) with any other real property 

constituting a Tax lot separate from such Acquired REO Property, and (ii) with any portion of an 

Acquired 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 Acquired REO Property. 

(e) From and after the completion of any buildings or other improvements at 

an Acquired REO Property, the Servicer shall cause the applicable Ownership Entity to maintain 

such Acquired 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 other Transaction Documents) 

and in accordance with applicable Law. 

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

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

12 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
rights under such agreements (including their right to receive management fees) to the rights and 

interest of the Collateral Agent under the applicable REO Mortgage. 

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

or other 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 Acquired 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 cause the Company to fund any 

permitted construction with respect to Acquired REO Property, then the Servicer shall cause 

each Ownership Entity to pursue with diligence the construction of the Acquired 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 Acquired REO 

Property, and all applicable governmental approvals, (ii) in the case of any Substantially 

Complete Vertical Development, in substantial compliance with the plans and specifications 

therefor as in existence on the Closing Date and as thereafter modified by the Manager in its 

business judgment exercised in accordance with the LLC Operating Agreement and the other 

Transaction Documents, and, in the case of any Permitted Horizontal Development, in 

accordance with the applicable approved Asset Development Plan, (iii) in a good and 

workmanlike manner and free of defects, (iv) in a manner such that such Acquired 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 all other 

applicable requirements set forth herein and in the other Transaction Documents. 

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

in operating, managing, leasing or disposing of any Acquired 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, the 

Advance Lender and the Initial Member such reports regarding the construction, leasing and 

sales efforts of or relating to the Acquired REO Property as the Manager, the Collateral Agent, 

the Advance Lender or the Initial Member shall reasonably request. 

13 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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, 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 shall, among other things: 

(a) provide for the servicing of the Assets and management of the 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 Notes Guarantor, the 

NGPMN Agent, the Advance Lender 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 

Notes Guarantor, the NGPMN Agent, the Advance Lender 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 

such Subservicing 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 of any Subservicing Agreement), without penalty or 

payment of any fee, and (ii) upon the occurrence of any Default under this Agreement or an 

14 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
event described in clauses (ii), (iii) or (iv) of Section 7.2(a) hereof, 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 Notes 

Guarantor, the NGPMN Agent, the Advance Lender 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 Notes Guarantor’s, the NGPMN Agent’s, the Advance Lender’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 Assets, the 

Collateral, the Servicing Obligations, the Collection Account, the Escrow Accounts, any Other 

Accounts established or maintained pursuant to this Agreement or the Subservicing Agreement, 

accounts established or maintained pursuant to the Custodial and Paying Agency Agreement or 

the Advance Facility Documents, or any matters relating to this Agreement or the Subservicing 

Agreement or the rights or obligations thereunder; 

(h) provide that all Asset 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 (2) Business Days of receipt and that under no circumstances are any funds, other than Asset 

Proceeds and interest and earnings thereon and the proceeds of Advance Loans, Excess Working 

Capital Advances and Discretionary Funding Advances, to be commingled into 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 and Section 7.3 of this Agreement; 

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

against the Asset 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) and (f) 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 or 

an event described in clauses (ii), (iii) or (iv) of Section 7.2(a) hereof, without any cure period 

other than as may be provided for in such default provisions under such Subservicing Agreement 

15 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
(which cure periods shall be no longer than the 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 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 Assets 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 2.14 hereof (or Section 

12.3(g) of the LLC Operating Agreement), all Assets registered on the MERS® System shall 

remain registered unless default, foreclosure or similar legal or MERS requirements dictate 

otherwise; 

(q) provide that no Subservicer, nor any Affiliate thereof may at any time, 

without the prior written approval of the Manager and the Initial Member, (i) be or become an 

Affiliate of or a partner or joint venturer with any Borrower or Obligor, (ii) be or become an 

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

Subservicer or of any Affiliate thereof, or (iii) have any interest whatsoever in any Borrower or 

Obligor or other obligor with respect to any Asset or any of the Collateral; 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, 

the Advance Facility Agreement or any of the other Transaction 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 

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 Asset Proceeds, it 

16 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 

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 of any Required Consenting Party, to such Required Consenting 

Party. 

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 limited liability company, duly organized, validly 

existing and in good standing under the laws of the State of Illinois, (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 Assets 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 Asset, 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 limited liability action on the part of the Servicer. 

(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 

17 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
proceeding in equity or at law); and all requisite limited liability company 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 Assets and the 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) None of the Servicer, any Subservicer or their respective Affiliates shall, 

at any time, without the prior written approval of the Manager and the Initial Member, (i) be an 

Affiliate of or 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 Affiliate of either, or (iii) have any interest whatsoever in any Borrower 

or Obligor or other obligor with respect to any Asset or any of the Collateral. 

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

remain, a Qualified Servicer. 

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 Asset 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 

18 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 Assets, 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 Assets and the 

Collateral, and the Company’s and the relevant secured parties’ interests in the Assets and the 

Collateral, including records relating to the Collection Account, the Working Capital Reserve 

Account, the Company Development Account, the Escrow Accounts, any Other Accounts 

maintained in connection with the Assets and any accounts(s) created under the Advance 

Facility, Servicer Advances and collection and remittance of Asset Proceeds. The books of 

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

of the Company are executed in accordance with the general or specific authorization of the 

Manager consistent with the provisions of the LLC Operating Agreement; and (ii) transactions of 

the Company are recorded in such form and manner as will: (A) 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; (B) 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 (C) 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 Distribution is made, which date shall be notified to the Servicer 

by the Manager. All such books and records shall be available during such period for inspection 

by the Manager, the FDIC, the Purchase Money Notes Guarantor, the NGPMN Agent, the 

Advance Lender 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 Notes Guarantor, the 

NGPMN Agent, the Advance Lender 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 Assets and, upon the 

request of the Manager, shall allow the Manager, at its own expense, to recover the same from 

the Servicer. The Servicer 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 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 Assets and the 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 Assets and the Collateral, all documentation relating to 

19 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
items of income and expense pertaining to the Assets and the Collateral, and all of the Servicer’s 

(and any Subservicer’s) internal memoranda pertaining to the Assets and the Collateral. 

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

the Specified Date, commencing with September 10, 2010 (or such other date as may be set forth 

in the Servicing Obligations), a monthly electronic report on the Assets and 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, 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 3.3 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 and each Required Consenting Party, on or before March 1 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 Fiscal 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 other applicable period as set forth below in this Section 5.2(f)), 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 Asset, shall cover the period commencing on the Servicing Transfer Date and continuing 

through the end of the 2010 Fiscal Year. In the event the Servicer or any Subservicer has been 

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 commencing, with respect to 

any Asset, on the Servicing Transfer Date through the end of the 2010 Fiscal 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 31 of each year, or such other day as the Manager and 

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

applicable Subservicer to, provide to the Manager and each Required Consenting Party (and/or to 

such other Person as the Manager may direct) the annual reports (including the independent 

accountant report) for the prior Fiscal Year (or other applicable period as set forth below) 

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

20 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 Asset, covering the period from the applicable 

Servicing Transfer Date) and continuing through the end of the 2010 Fiscal Year. 

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

Agreement to prepare, review and periodically update Asset Level Business Plans and 

Consolidated Business Plans, the Servicer shall prepare and deliver to the Manager, and 

thereafter periodically update, such Asset Level Business Plans and Consolidated Business 

Plans, 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 any Required Consenting Party or the 

Manager, the Servicer shall make its personnel who are familiar with the Asset Level Business 

Plans and Consolidated Business Plans (or relevant portions thereof) available during normal 

business hours for the purposes of discussing such Asset Level Business Plans and Consolidated 

Business Plans with representatives of such Required Consenting Party 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 Final Distribution, which date shall be notified 

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

provide the Manager, the Purchase Money Notes Guarantor, the NGPMN Agent, the Advance 

Lender 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 Assets or any Collateral, 

the Servicing Obligations, the Collection Account, the Escrow Accounts, the Working Capital 

Reserve Account, the Company Development Account, any Other Accounts, the Advance 

Facility Documents or accounts created thereunder, disbursements under the Custodial and 

Paying Agency Agreement, distributions under the LLC Operating Agreement or any matters 

relating to this Agreement or the rights or obligations hereunder or under the other Transaction 

Documents, in each case to the extent such books of account, reports or records are maintained 

or required to be maintained by the Servicer under the Transaction Documents, (b) permit such 

representatives to make copies of and extracts from the same, (c) allow the Manager, the 

Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender and the Initial 

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

Money Notes Guarantor, the NGPMN Agent, the Advance Lender or the Initial Member, as 

applicable, and (d) allow the representatives of the Manager, the Purchase Money Notes 

Guarantor, the NGPMN Agent, the Advance Lender and the Initial Member to discuss any 

Servicer’s and any Subservicer’s affairs, finances and accounts, as they relate to the Assets, the 

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

Capital Reserve Account, the Company Development Account, any accounts created under the 

Advance Facility, and any Other Accounts or any other matters relating to this Agreement, the 

other Transaction Documents, or the rights or obligations hereunder and thereunder, with any 

such Servicer’s and any such Subservicer’s officers, directors, employees, attorneys and 

21 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
accountants (and by this provision the Servicer hereby authorizes such accountants to discuss 

such affairs, finances and accounts with such representatives). Any expense incurred by the 

Manager, the Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender 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 Notes Guarantor, the NGPMN Agent, the 

Advance Lender or the Initial Member of its rights in this Section 5.3 shall be borne by the 

Manager, the Purchase Money Notes Guarantor, the NGPMN Agent, the Advance Lender or the 

Initial Member, as applicable (and in all events subject to any obligation of the Manager to bear 

such expenses of the Advance Lender, the Purchase Money Notes Guarantor, the NGPMN Agent 

or the Initial Member pursuant to the LLC Operating Agreement); provided, however, that any 

expense incident to the exercise by the Manager, the Purchase Money Notes Guarantor, the 

NGPMN Agent, the Advance Lender or the Initial Member of their respective rights pursuant to 

this Section 5.3 as a result of or during the continuance of a 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 Assets, the Collateral, the Asset Documents or the Asset Proceeds, 

except, in the case of the Collateral, (x) as permitted under the Asset Documents where the 

applicable Borrower is not in default thereunder and (y) as permitted by the terms of the 

Reimbursement, Security and Guaranty Agreement or the Advance Facility Agreement, and (ii) 

shall not take any action to interfere with the Collateral Agent’s rights as a secured party with 

respect to the Assets, the Collateral and the Asset 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 or any Required Consenting Party hereunder, the Servicer shall cause to be delivered to 

the Manager such information relating to the Assets, the 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 Assets, any of the Collateral, the Collection Account, 

the Escrow Accounts, the Working Capital Reserve Account, the Company Development 

Account, any accounts created under the Custodial and Paying Agency Agreement or Advance 

Facility Agreement, any Other Accounts, or any Borrower or Obligor that materially and 

adversely affects the interests of the Company or any Required Consenting Party. 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 Asset, (ii) any material notice from any 

Governmental Authority relating to any Collateral, (iii) any occurrence which could reasonably 

be expected to result in cost overruns with respect to any Loan or Acquired Property for which 

Required Funding Draws or Permitted Vertical Development Funding Draws have been, or are 

contemplated to be, made, or (iv) any other occurrence which would reasonably be expected to 

materially hamper, prevent or interfere with the effectuation of any then-applicable Asset Level 

Business Plans or Consolidated Business Plans. In addition, the Servicer shall cause to be 

delivered to the Manager information indicating any possible Environmental Hazard with respect 

to any 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 Asset and Collateral (A) containing a 

22 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
summary of the progress made, to the extent applicable, in the construction, marketing and 

leasing of the applicable project since the last such report, (B) in the case of any Asset, 

describing the remedial efforts or enforcement actions, if any, being undertaken by the Servicer 

with respect to the applicable Asset, (C) describing the status of the activities contemplated by 

the Asset Level Business Plans and the Consolidated Business Plans (which, among other things, 

identifies any facts or circumstances which are reasonably likely to hamper, interfere with, 

prevent or postpone effectuation of the applicable Business Plans), (D) to the extent applicable, 

containing an itemized statement of costs and expenses remaining to be paid in order to complete 

construction of the applicable project (including capitalized interest, real estate taxes and other 

soft costs), (E) to the extent requested by the Manager, any materials delivered by the Borrower 

to the Company or the Servicer pursuant to the applicable Asset Documents not theretofore 

delivered to the Manager (including, without limitation, copies of all plans and specifications, 

construction budgets and construction schedules, construction contracts, architect’s agreements, 

leasing and brokerage agreements, management agreements (and modifications to each of the 

foregoing) and materials delivered by the applicable Borrower in connection with each request 

for an advance under the related Loan and (F) 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, the 

Advance Facility Agreement and the other Transaction Documents (or portions thereof) as 

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 

Modifications or additional Transaction Documents (or portions of any thereof) as Manager may 

determine to be so necessary for the continued performance by Servicer of its obligations 

hereunder. All references herein to the Servicer’s obligations with respect to such LLC 

Operating Agreement and other Transaction Documents shall, as between the Manager and the 

Servicer (and without limitation of obligations of the Manager, or the rights of the Initial 

Member, the Purchase Money Notes Guarantor, the NGPMN Agent or the Advance Lender 

under this Agreement, the LLC Operating Agreement or the other Transaction Documents), be 

deemed to refer to the LLC Operating Agreement and other Transaction 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 each Required Consenting Party, (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 or such Required Consenting Party may reasonably request from time to time). 

23 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 Required Consenting Parties), which consent may 

be withheld or conditioned in the sole and absolute discretion of the Manager: 

(a) conducting Bulk Sales except as expressly permitted in the Servicing 

Obligations (and in all events subject to the limitations set forth in the LLC Operating 

Agreement); 

(b) the payment of fees to, the sale or other transfer (including through 

foreclosure or by deed in lieu thereof) of any Asset or 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 Assets, Collateral or 

Acquired Property (or any portion thereof); 

(d) the sale of any Asset or 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 Asset Proceeds allocable to the Initial Member; 

(e) any disbursement of any funds in the Collection Account (including any 

such funds made available through Discretionary Funding Advances, Advance Loans or Excess 

Working Capital Advances), the Company Development Account, the Working Capital Reserve 

Account, the accounts created under the Advance Facility Agreement or 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, Security and Guaranty 

Agreement, the Advance Facility Agreement and the Custodial and Paying Agency Agreement; 

(f) advancing additional funds that would increase the Unpaid Principal 

Balance of any Asset other than (i) Required Funding Draws, (ii) Permitted Vertical Completion 

Expenses, (iii) Permitted Horizontal Development Expenses with respect to Acquired REO 

Property, or (iv) Servicing Expenses to the extent that capitalizing such Servicing Expenses is or 

would have been, prior to the conversion of the Loan to Acquired Property, permitted under the 

applicable Asset Documents; 

(g) in connection with its servicing and administration of any Loan and 

management of the Collateral or Acquired Property, (i) approving (x) any material modification 

or amendment to, or cancellation or termination of, any Asset Documents, or (y) plans and 

specifications, construction budgets or construction schedules with respect to the projects which 

are the subject of such Asset (or material modifications to any of such items, including any 

change orders); (ii) waiving or forbearing from exercising any of the lender’s rights under, or any 

24 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
conditions precedent to the funding of any advances under, such Loan; (iii) forgiving or reducing 

or forbearing from collecting any indebtedness; (iv) releasing any parties liable for the payment 

of the Asset or the performance of any other obligation relating thereto; (v) granting any consent 

under any Asset Documents (including, without limitation, with respect to any proposed transfers 

of any 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); (vi) consenting to any agreement in any Insolvency Proceeding relating 

to any Asset, any Borrower or any Obligor with respect to a Loan, or any Collateral, including 

voting for a plan of reorganization; (vii) subordinating the liens of the Asset Document; (viii) 

amending or waiving any provision of any intercreditor agreement or making any decisions with 

respect to the Assets under any intercreditor agreement; or (ix) taking any other action regarding 

such Asset, Collateral or Acquired Property that is prohibited under the LLC Operating 

Agreement, the Advance Facility Agreement or the other Transaction Documents or otherwise 

inconsistent with the Servicing Standard; or 

(h) 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, 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 (as a third party beneficiary hereunder as specified in 

Section 11.8) without the express written consent of the FDIC. 

ARTICLE VII 

DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE 

Section 7.1 Defaults. A default (“Default”) means the occurrence of: 

(a) any failure by the Servicer to remit to the Company or deposit in the 

Collection Account, the Escrow Accounts, the Working Capital Reserve Account, the Company 

Development Account, any accounts created under the Custodial and Paying Agency Agreement 

or Advance Facility 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, (iii) the Advance Facility Agreement or (iv) 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 a 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 

25 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
(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 be a Qualified Servicer or to 

renew or maintain any permit or license necessary to carry out its responsibilities under this 

Agreement in compliance with Law, (ii) to have an Acceptable Rating or otherwise be approved 

by the Initial Member 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 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 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 Transaction Documents; or 

(g) [reserved]; 

(h) [reserved]; or 

26 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
(i) the occurrence of any Restricted Servicer Change of Control. 

Section 7.2 Termination with Cause. 

(a) Upon (i) 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, (ii) the 

occurrence of any “Event of Default,” as defined in the LLC Operating Agreement, (iii) the 

receipt by the Manager or the Servicer of notice from the Collateral Agent that an “Event of 

Default” as defined in the Reimbursement, Security and Guaranty Agreement has occurred and is 

continuing or (iv) the receipt by the Manager or the Servicer of notice from the Advance Lender 

that an “Event of Default” as defined in the Advance Facility Agreement has occurred and is 

continuing, the Manager (including, if applicable, any successor “Manager” pursuant to the LLC 

Operating Agreement), the Initial Member, the Purchase Money Notes Guarantor or the NGPMN 

Agent, in addition to any other rights the Manager, the Initial Member, the Purchase Money 

Notes Guarantor or the NGPMN Agent, may have at law (including under the Uniform 

Commercial Code) or equity, including injunctive relief, specific performance or otherwise, may 

(A) terminate this Agreement by providing a Termination Notice to the Servicer, (B) terminate 

the Subservicing Agreements by providing a written termination notice to the Servicer and the 

applicable Subservicers, and (C) otherwise enforce this Agreement, in any case, without penalty 

or payment of any fee. 

(b) In addition to the rights set forth above in Section 7.2(a), (i) upon the 

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 (or any successor “Manager” to the 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 of this Agreement from the Manager to any other Person, without penalty or 

payment of any fee, and (ii) upon the occurrence of any Default under this Agreement or an 

event described in clauses (ii), (iii) or (iv) of Section 7.2(a) hereof, each of the Manager (or 

applicable successor “Manager” to the 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. 

(c) The Servicer hereby consents to its immediate and automatic termination 

under this Agreement upon a Default under Section 7.1(b) of this Agreement. 

(d) 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 each Required 

Consenting Party. 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 

27 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 each 

Required Consenting Party, 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 and each Required Consenting Party, 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, 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 each 

Required Consenting Party, 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 Servicing Obligations are transferred to a successor Servicer in an 

orderly manner. 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 

any Borrowers. 

Section 7.4 Effective Termination Date. Termination as specified in this ARTICLE 

VII 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 Assets 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 by 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 

28 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 conformance with all applicable Law to the 

Borrowers to indicate that their Assets 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 Notes Guarantor, the NGPMN Agent 

the Advance Lender and 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 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) any failure by the Servicer 

or any Subservicer to discharge obligations on any 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 Collateral. The Servicer shall immediately notify the Indemnified Party if 

a claim is made in connection with the Servicer’s responsibilities under this Agreement 

(including the Servicer’s responsibilities in connection with the Loans and Collateral under this 

Agreement), 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 Asset 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. 

29 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 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 

Asset, 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 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 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 

30 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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. 

31 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
If to the Manager:		 MREC Funding, LLC 

4200 W. 115th Street, Suite 100, 

Leawood, Kansas 66211 

Attention: Ryan Anderson and Kirk Lambright 

E-mail Addresses: 

with a copy to: Greenberg Traurig, LLP 

1750 Tysons Boulevard, Suite 1200 

McLean, Virginia 22102 

Email: 

If to the Initial Member, the Purchase 

Money Notes Guarantor, the 

NGPMN Agent, the Collateral Agent 

or the Advance Lender: 

Assistant Director, Structured Deals 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email address: RMalami@fdic.gov 

with a copy to: Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership 

Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

Email address: DGearin@fdic.gov 

If to the Servicer: CFC Transactions, LLC 

7300 W. 110th Street, Suite 560 

Overland Park, Kansas 66210 

Attention: Dean Wheeler 

Attention: Thomas Galli, Shareholder 

Email: 

with a copy to:		 Greenberg Traurig, LLP 

1750 Tysons Boulevard, Suite 1200 

McLean, Virginia 22102 

Attention: Thomas Galli, Shareholder 

Email: 

32 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
ARTICLE X
	

GOVERNING LAW; JURISDICTION
	

Section 10.1 Governing Law. EACH PARTY TO THIS AGREEMENT AGREES 

AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL 

OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS TO BE 

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE 

OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT 

MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT 

TO THE LAW OF ANOTHER JURISDICTION, AND EACH PARTY TO THIS 

AGREEMENT UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO 

ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. Nothing in this Agreement shall require any unlawful action or inaction by any 

party 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 

33 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
(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 

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 other Transaction Document in only either the United States District Court for 

the Southern District of New York or the United States District Court for the District of 

Columbia, and waives any right to remove or transfer such suit, action or proceeding to any other 

34 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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. 

(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 or 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 obligations 

35 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
hereunder to any other Person other than as is expressly provided in this Agreement. In 

connection with the Sale of a Loan, the Servicer shall, at the direction of the Manager, transfer, 

sell or assign its rights hereunder to service such Loan. 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 Assets or any right to transfer 

or sell the servicing to the Assets (other than in connection with the sale of any Asset), 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 Assets (other than in connection with 

the sale of any Asset). 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. 

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 

36 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
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 

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 Notes Guarantor, the NGPMN Agent, the Advance Lender 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; provided, that, with respect to each Person (other than the Initial Member) that is 

Required Consenting Party, at such time when such Person ceases to be a Required Consenting 

Party (and subject to any rights of such Required Consenting Party that, by their terms or nature, 

survive such date), such Person shall cease to have any of the specified rights set forth herein 

with respect to consents/approvals, the exercise of remedies following a Default or an event 

described in clauses (ii), (iii) or (iv) of Section 7.1(a) hereof and receipt of reports and other 

information with respect to the continued operation of the Business, in each case (i) to the extent 

relating exclusively to the period following such date on which such Person so ceases to be a 

Required Consenting Party, and (ii) with respect to the Purchase Money Notes Guarantor and the 

NGPMN Agent, except as to any rights or remedies relating to (or the exercise or non-exercise of 

which rights or remedies would affect) the Defeasance Account or the repayment of any 

Guaranteed Purchase Money Notes (in the case of the Purchase Money Notes Guarantor) or the 

Non-Guaranteed Purchase Money Notes (in the case of the NGPMN Agent) in accordance with 

the terms hereof and of the other Transaction Documents, as determined by the NGPMN Agent 

and, if applicable, the Purchase Money Notes Guarantor, in each case in its sole discretion. 

Notwithstanding the foregoing, none of the Purchase Money Notes Guarantor, the NGPMN 

Agent, the Advance Lender, the FDIC, the Company and the Initial Member shall have any 

obligation to undertake any of the duties of the Manager hereunder and or have any liability 

37 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
whatsoever to the Servicer, any Subservicer or any other party related to this Agreement. There 

shall be no other third party beneficiaries. 

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 Assets or any Borrower or Obligor 

or the 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, the Initial Member, the Purchase Money Notes Guarantor, the NGPMN 

Agent and the Advance Lender within one (1) Business Day after its knowledge of such legally 

required disclosure so that the Manager, the Initial Member, the Purchase Money Notes 

Guarantor, the NGPMN Agent and/or the Advance Lender 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 Member, the Purchase 

Money Notes Guarantor, the NGPMN Agent and the Advance Lender 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 Asset 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 Assets or Collateral prior to 

the applicable Servicing Transfer Date by the Prior Servicers, in each case other than for acts or 

38 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 
omissions constituting gross negligence, violation of law or willful misconduct of such Prior 

Servicer. 

[Remainder of Page Intentionally Left Blank] 

39 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4 


SCHEDULE I
 

LIST OF FAILED FINANCIAL INSTITUTIONS
 

Bank Name City State Fund Closing Date 

IndyMac Bank, FSB Pasadena CA 10007 July 11, 2008 

First Georgia Community Bank Jackson GA 10025 December 5, 2008 

Haven Trust Bank Duluth GA 10027 December 12, 2008 

Bank of Clark County Vancouver WA 10029 January 16, 2009 

First City Bank Stockbridge GA 10047 March 20, 2009 

New Frontier Bank Greeley CO 10050 April 10, 2009 

American Southern Bank Kennesaw GA 10053 April 24, 2009 

First Bank of Beverly Hills Calabasas CA 10054 April 24, 2009 

First Bank of Idaho Ketchum ID 10055 April 24, 2009 

Michigan Heritage Bank Farmington 

Hills 

MI 10056 April 24, 2009 

America West Bank Layton UT 10057 May 1, 2009 

Citizens Community Bank Ridgewood NJ 10058 May 1, 2009 

Silverton Bank Atlanta GA 10059 May 1, 2009 

Westsound Bank Bremerton WA 10060 May 8, 2009 

Bank of Lincolnwood Lincolnwood IL 10064 June 5, 2009 

Community Bank of West 

Georgia 

Villa Rica GA 10068 June 26, 2009 

First State Bank of Altus Altus OK 10093 July 31,2009 

Integrity Bank Jupiter FL 10095 July 31, 2009 

Community Bank of Nevada Las Vegas NV 10100 August 14, 2009 

Union Bank Chandler AZ 10102 August 14, 2009 

Multibank RADC/CADC Loan and REO Structured Transaction 

Servicing Agreement 

OHS East:160754753.4