PARTICIPATION AND SERVICING AGREEMENT 

By and Between 

FNBN I, LLC 

and 

FEDERAL DEPOSIT INSURANCE CORPORATION 

as RECEIVER for 

FIRST NATIONAL BANK OF NEVADA 

Dated as of December 29, 2008 

FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
TABLE OF CONTENTS 

Page 

ARTICLE I 

Section 1.01 

Section 1.02 

ARTICLE II 

Section 2.01 

Section 2.02 

Section 2.03 

Section 2.04 

Section 2.05 

Section 2.06 

ARTICLE III 

Section 3.01 

Section 3.02 

Section 3.03 

ARTICLE IV 

Section 4.01 

Section 4.02 

Section 4.03 

ARTICLE V 

Section 5.01 

Section 5.02 

Section 5.03 

Section 5.04 

Section 5.05 

Section 5.06 

Section 5.07 

Section 5.08 

Section 5.09 

Section 5.10 

ARTICLE VI 

Section 6.01 

Section 6.02 

DEFINITIONS AND CONSTRUCTION ...................................................1
 

Definitions....................................................................................................1 

Construction...............................................................................................13 

PARTICIPATION INTERESTS ...............................................................14
 

Acquisition and Sale ..................................................................................14 

Participant’s Share .....................................................................................14 

Participation Certificates............................................................................15 

Nature of Participation...............................................................................15 

Company as Lender of Record; Third Parties............................................15 

Security Interest .........................................................................................16 

DISBURSEMENTS; REIMBURSEMENTS ............................................17
 

Advances To Be Company Obligation ......................................................17 

Advances....................................................................................................17 

Reimbursements.........................................................................................17 

ALLOCATIONS; ACCOUNTS ................................................................18
 

Allocations and Distributions. ...................................................................18 

Collection Account. ...................................................................................19 

Liquidity and Litigation Reserves..............................................................19 

SERVICING OBLIGATIONS OF THE COMPANY .............................21
 

Appointment and Acceptance as Servicer .................................................21 

Servicing Standard.....................................................................................21 

Retention of Servicer .................................................................................22 

Fidelity Bond; E&O Insurance ..................................................................25 

Books and Records; Reports; Certifications; Audits. ................................25 

Recovery of Expenses; Interest; Working Capital Advances. ...................27 

Company’s Duty To Advise Participant; Delivery of Certain 

Notices .......................................................................................................27 

Releases of Collateral ................................................................................27 

Certain Servicing and Loan Administration Decisions .............................27 

Management and Disposition of Collateral ...............................................29 

LOAN DEFAULTS; ACQUISITION OF COLLATERAL....................31
 

Discretion of the Company in Responding to Defaults of Borrower.........31 

Acquisition of Collateral............................................................................31 

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ARTICLE VII PARTICIPANT CONSENT; LIMITS ON LIABILITY .........................32
 

Section 7.01 Actions Requiring Participant Consent......................................................32 

Section 7.02 Limitation of Liability................................................................................32 

ARTICLE VIII ADDITIONAL COMPANY COVENANTS; 

INDEMNIFICATION.................................................................................33
 

Section 8.01 Covenants...................................................................................................33 

Section 8.02 Indemnification. .........................................................................................35 

ARTICLE IX CLEAN-UP CALL ......................................................................................37
 

Section 9.01 Clean-Up Call Rights.................................................................................37 

Section 9.02 Exercise of Clean-Up Call Rights..............................................................37 

Section 9.03 Company To Proceed Expeditiously .........................................................38 

ARTICLE X EVENTS OF DEFAULT OF THE COMPANY ......................................38
 

Section 10.01 Events of Default .......................................................................................38 

Section 10.02 Remedies Upon Events Of Defaults. .........................................................40 

ARTICLE XI RELATIONSHIP BETWEEN PARTICIPANT AND THE 

COMPANY..................................................................................................42
 

ARTICLE XII ASSIGNMENT............................................................................................43
 

Section 12.01 No Assignment by Company.....................................................................43 

Section 12.02 Assignments by Participant........................................................................43 

ARTICLE XIII LENDERS’ TITLE INSURANCE; RIGHTS TO PAYMENTS ............44
 

Section 13.01 Title Policies ..............................................................................................44 

Section 13.02 Sharing of Payments ..................................................................................44 

ARTICLE XIV TERMINATION .........................................................................................44
 

ARTICLE XV NOTICES.....................................................................................................45
 

ARTICLE XVI GOVERNING LAW; JURISDICTION....................................................46
 

Section 16.01 Governing Law ..........................................................................................46 

Section 16.02 Jurisdiction; Venue and Service.................................................................46 

Section 16.03 Waiver of Jury Trial...................................................................................47 

ARTICLE XVII RIGHT TO SPECIFIC PERFORMANCE ..............................................47
 

ARTICLE XVIII WITHHOLDING ........................................................................................47
 

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ARTICLE XIX MISCELLANEOUS....................................................................................48
 

Section 19.01 Entire Agreement. ......................................................................................48 

Section 19.02 Counterparts; Facsimile Signatures ...........................................................48 

Section 19.03 Headings ....................................................................................................48 

Section 19.04 Compliance with Law ................................................................................48 

Section 19.05 Severability ................................................................................................48 

Section 19.06 No Third Party Beneficiaries .....................................................................49 

Section 19.07 Legal Fees ..................................................................................................49 

Section 19.08 Time of Essence .........................................................................................49 

Section 19.09 No Presumption .........................................................................................49 

Section 19.10 Amendments and Waivers .........................................................................49 

Exhibits 

Exhibit A: Loan Schedule 

Exhibit B-1: Form of Custodial Agreement 

Exhibit B-2: Form of Servicing Agreement 

Exhibit C: Form of Electronic Tracking Agreement 

Exhibit D: Form of Participation Certificate 

Exhibit E: Loan Modification Program
 

Exhibit F: Form of Monthly Report 

Exhibit G: Form of Transfer Supplement 

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PARTICIPATION AND SERVICING AGREEMENT 

THIS PARTICIPATION AND SERVICING AGREEMENT (as the same shall be 

amended or supplemented, this “Agreement”) is made and entered into as of the 29th day of 

December, 2008, by and between FNBN I, LLC, a Delaware limited liability company (the 

“Company”), and the FEDERAL DEPOSIT INSURANCE CORPORATION (“FDIC”) AS 

RECEIVER FOR FIRST NATIONAL BANK OF NEVADA (including its successors and 

assigns, “Participant”). 

RECITALS 

WHEREAS, on July 25, 2008, the FDIC was appointed receiver (“Receiver”) for First 

National Bank of Nevada (“Failed Bank”); and 

WHEREAS, the Receiver owns a number of Loans (hereinafter defined) as described on 

the Loan Schedule attached hereto as Exhibit A (the “Loan Schedule”), which it desires to 

liquidate; and 

WHEREAS, the Receiver has formed the Company and holds the sole membership 

interest in the Company (the “LLC Interest”); and 

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

Assignment Agreement dated of even date hereof (the “Contribution Agreement”), pursuant to 

which the Receiver has agreed to make a capital contribution of and transfer and convey all of 

the Receiver’s right, title and interest in and to the Loans to the Company, and the Company has 

agreed to transfer and convey to the Receiver a participation interest in the Loans (evidenced by 

a participation certificate), as more fully set forth herein; and 

WHEREAS, pursuant to the Limited Liability Company Interest Sale and Assignment 

Agreement dated of even date hereof (the “LLC Interest Sale Agreement”), the Receiver has 

agreed to sell and transfer the LLC Interest to PNMAC Mortgage Co. (FI), LLC, (the completion 

of such sale, the “Closing”); and 

WHEREAS, Participant and the Company desire to memorialize their agreement relating 

to such participation interest and certain other matters as set forth in this Agreement; 

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

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

sufficiency of which are hereby acknowledged, Participant and the Company hereby agree as 

follows: 

ARTICLE I 

DEFINITIONS AND CONSTRUCTION 

Section 1.01 Definitions. For purposes of this Agreement, the following terms shall 

have the meanings and definitions hereinafter respectively set forth: 

FDIC - FNBN I Final Res Part & Serv Ag 

12317974.3 
“Acceptable Rating” shall mean any of the top three rating categories that may be 

assigned to any security, obligation or entity by the Rating Agencies. 

“Acquired Collateral” shall mean Collateral to which title is acquired by or on behalf of 

the Company or any Ownership Entity by foreclosure, by deed in lieu of foreclosure, by power 

of sale or by sale pursuant to the Uniform Commercial Code, in any such case in accordance 

with the Loan Documents and in connection with performance by the Company of its obligations 

and duties under this Agreement. 

“Advances” shall have the meaning given in the Contribution Agreement. 

“Affiliate” shall mean, with respect to any specified Person, (i) any other Person directly 

or indirectly controlling or controlled by or under common control with such specified Person, 

(ii) any Person owning or controlling ten percent (10%) or more of the outstanding voting 

securities, voting equity interests, or beneficial interests of the Person specified, (iii) any officer, 

director, partner, member, trustee, employee or promoter of the Person specified or any 

Immediate Family Member of such officer, director, partner, member, trustee, employee or 

promoter, (iv) any corporation, partnership, limited liability company or trust for which any 

Person referred to in clause (ii) or (iii) acts in that capacity, or (v) any Person who is an officer, 

director, general partner, managing member, trustee or holder of 10% or more of outstanding 

voting securities, voting equity interests or beneficial interests of any Person described in clauses 

(i) through (iv); provided, however, that for purposes of this Agreement Participant shall not be 

deemed to be an Affiliate of either the Company or of any Affiliate of the Company. For the 

purposes of this definition, the term “control” (including the phrases “controlled by” and “under 

common control with”) when used with respect to any specified Person means the possession, 

direct or indirect, of the power to direct or cause the direction of the management and policies of 

such Person, whether through the ownership of voting securities or interests, by contract or 

otherwise. 

“Agreement” shall have the meaning given in the preamble, and shall include all exhibits 

and schedules hereto. 

“Ancillary Documents” shall mean the Contribution Agreement, the LLC Interest Sale 

Agreement and the Guaranty required to be delivered thereby, the Company Operating 

Agreement, the Servicing Agreement and the Custodial Agreement (which are exhibits hereto) 

and the Electronic Tracking Agreement (which is an exhibit to the Custodial Agreement), in each 

case once executed and delivered, and any and all other agreements and instruments executed 

and delivered contemporaneously in connection with the Closing. 

“Borrower” shall mean the borrower with respect to a Loan. 

“Borrower Reimbursable Costs” shall mean, collectively, (i) any and all out-of-pocket 

fees, costs, expenses and indemnified amounts which a Borrower is obligated to pay to any 

Person or to reimburse to the lender pursuant to the applicable Note or any other Loan 

Documents, including Escrow Advances, and (ii) any and all reasonable out-of-pocket expenses 

necessary to protect or preserve the value of the Collateral securing a Loan or the priority of the 

Liens and security interests created by the Loan Documents relating thereto, including taxes, 

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FNBN I Final Part&Serv Ag.DOC 

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insurance premiums (including forced place insurance premiums), payment of ground rent, the 

costs of prevention of waste, repairs and maintenance, foreclosure expenses and legal fees and 

expenses relating to foreclosure or other litigation with respect to the Loans; provided, however, 

that Borrower Reimbursable Costs shall not include (x) overhead or administrative costs incurred 

by the Company or any other Person (including costs and expenses incurred by the Company to 

comply with reporting, recordkeeping, licensing and similar requirements imposed on the 

Company under the Company Operating Agreement or under the provisions of this Agreement, 

including Sections 5.05 and 8.01(a) and (l) of this Agreement), or (y) servicing, management or 

similar fees paid to any Servicer or any other Person. 

“Business Day” shall mean any day except a Saturday, Sunday or other day on which 

commercial banks in Washington, D.C. or United States federal government offices are required 

or authorized by Law to close. 

“Clean-Up Call” shall have the meaning given in Article IX. 

“Closing” shall have the meaning given in the fifth recital. 

“Collateral” shall mean any and all real or personal property, whether tangible or 

intangible, securing or pledged to secure a Loan, including any account, equipment, Guarantee or 

contract right, or other interest that is the subject of any Collateral Document and, as the context 

requires, includes Acquired Collateral. 

“Collateral Document” shall mean all pledge agreements, security agreements, personal 

or corporate guaranties, deeds of trust, mortgages, contracts for the sale of real property, 

assignments, collateral agreements or other agreements or documents of any kind, whether 

originals or copies, whether similar to or different from those enumerated, securing in any 

manner the performance or payment by any Borrower of its obligations or the obligations of any 

other Borrower under any of the Loans or Notes evidencing the Loans. 

“Collection Account” shall mean a segregated trust account established and maintained 

with an Eligible Institution for the sole purpose of holding and distributing Loan Proceeds. 

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

“Company Advances” shall mean (a) advances made by or on behalf of the Company to 

fund Borrower Reimbursable Costs or Post-Acquisition Costs, but shall not include, without the 

prior written consent of Participant (in Participant’s sole and absolute discretion), any such 

advances for fees, costs, expenses or indemnified amounts (i) that are not incurred in accordance 

with the Fannie Mae Guidelines governing such types of expenditures (including compliance 

with timelines provided for therein), if applicable, or if the Fannie Mae Guidelines are not 

applicable, are not otherwise reasonable and customary fees and expenses standard in the 

industry with respect to the type of loan with respect to which such were incurred, or (ii) except 

as is otherwise expressly permitted pursuant to this Agreement, that are paid to any Affiliate of 

the Company, or any Affiliate of either the Servicer or any Subservicer, or (iii) that are incurred 

to pay fees or other compensation to or expenses of financial advisers; (b) Advances (regardless 

of whether such advances meet the requirements of clause (a)) that are reimbursed by the 

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Company to the Receiver; (c) Pre-Approved Charges; (d) fees and expenses of a Qualified 

Custodian retained pursuant to the Custodial Agreement; (e) the Management Fee; and (f) to the 

extent not covered by any of clauses (a) through (e), legal fees and expenses (including 

judgments, settlements and reasonable attorneys fees) incurred by the Company in its defense of 

claims asserted against it that relate to one or more Loans, and (x)arise out of the acts or 

omissions of the Failed Bank or the Receiver in connection with the origination or servicing of 

such Loans prior to the Servicing Transfer Date, or (y) allege, as the basis for such claims, any 

act or omission of the Company (or its Servicer) and such claims are decided (and there are final 

non-appealable orders) in favor of the Company (or its Servicer). 

“Company Operating Agreement” shall mean the Limited Liability Company 

Operating Agreement of the Company in effect as of the Effective Date, as amended pursuant to 

the terms thereof. 

“Company’s Share” shall have the meaning given in Section 4.01. 

“Contribution Agreement” shall have the meaning given in the fourth recital. 

“Custodial Agreement” shall mean an agreement in the form of Exhibit B-1. 

“Custodial Documents” shall have the meaning given in the Custodial Agreement. 

“Cut-Off Date” shall mean as of the close of business on November 30, 2008. 

“Debt” of any Person shall mean (i) all indebtedness of such Person for borrowed money, 

(ii) all obligations of such Person for deferred purchase price of property or services (excluding 

trade payables arising in the ordinary course of business), (iii) all obligations of such Person 

evidenced by notes, bonds, debentures or other similar instruments, (iv) all indebtedness created 

or arising under any conditional sale or other title retention agreement with respect to property 

acquired by such Person (even though the rights and remedies of the seller or lender under such 

agreement in the event of default are limited to repossession or sale of such property), (v) all 

obligations of such Person as lessee under leases that have been or should be, in accordance with 

GAAP, recorded as capital leases, or (vi) all indebtedness or obligations of others of the kinds 

referred to in clauses (i) through (v) above in respect of which such Person has entered into or 

issued any Guarantee. 

“Deemed Effective Date” shall have the meaning given in Section 12.02(b). 

“Default Rate” shall mean the default interest rate prescribed in a Note. 

“Document Custodian” shall have the meaning given in Section 8.01(c). 

“Effective Date” shall mean the date first set forth above. 

“Electronic Tracking Agreement” shall mean an agreement in the form of Exhibit C. 

“Eligible Institution” shall mean a Person that is not an Affiliate of the Company and 

that is a federally insured depository institution that is well capitalized; provided that an Affiliate 

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of the Company may be deemed to be an Eligible Institution if Participant provides a written 

consent (which may be withheld in Participant’s sole and absolute discretion), which consent 

may be withdrawn by Participant upon written notification to the Company, in which case such 

Affiliate of the Company 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. 

“Enforcement Action” shall mean the commencement of the exercise of any of the 

following remedies against any Borrower, any Guarantor or any other Person: (a) acceleration of 

the maturity of any liability or obligation of any Borrower or any Guarantor; (b) commencement 

of any litigation or proceeding, including the commencement of any foreclosure proceeding, the 

exercise of any power of sale, the sale by advertisement, obtaining of a receiver or taking of any 

other remedial action with respect to, or the enforcement of any remedy against, any Collateral 

or any of the property or assets of any Borrower or any Guarantor; (c) filing or joining in the 

filing of any petition against any Borrower or any Guarantor of any Insolvency Proceeding or 

any other commencement of an Insolvency Proceeding; (d) entering upon, taking possession of, 

exercising control over or taking title (legal or equitable) to any Collateral or taking of a deed or 

assignment in lieu of foreclosure; or (e) any legal action or proceeding pursuant to any 

intercreditor agreement. 

“Entitlement” shall mean any final zoning, platting, site plan or other applicable 

development approval or permit from any governmental agency or instrumentality having 

jurisdiction relating to the development, construction, ownership or operation of any Collateral 

property, including a conditional use permit or a building permit. 

“Environmental Hazards” shall mean the presence at, in or under any real property 

constituting part of the Collateral (whether held in fee simple estate or subject to a ground lease, 

or otherwise, and including any improvements whether by buildings or facilities, and any 

personal property, fixtures, leases and other property or rights pertaining thereto) of any 

“hazardous substance,” as defined in Section 101(14) of the Comprehensive Environmental 

Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601(14), or any petroleum 

(including crude oil or any fraction thereof that is liquid at standard conditions of temperature 

and pressure), at a level or in an amount that requires remediation or abatement under applicable 

environmental Law. 

“Escrow Advance” shall mean any advance made to pay taxes or insurance premiums or 

any other cost or expense that, but for a shortfall in the Borrower’s escrow account, is payable 

using funds in the Borrower’s escrow account. 

“Event of Default” shall have the meaning given in Section 10.01. 

“Failed Bank” shall have the meaning given in the first recital. 

“Fannie Mae” shall mean Federal National Mortgage Association of the United States, 

or any successor thereto. 

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EXECUTION VERSION 
“Fannie Mae Guidelines” shall mean those guidelines governing reimbursement of costs 

and expenses by Fannie Mae with respect to residential loans owned or securitized by Fannie 

Mae, as in effect on the date on which an expense or cost is incurred. 

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

“Final Distribution” shall mean the distribution of all remaining Loan Proceeds in 

accordance with the terms of this Agreement after liquidation of all of the Loans and related 

Collateral. 

“GAAP” shall mean United States generally accepted accounting principles as in effect 

from time to time. 

“Governmental Authority” shall mean any United States or non-United States national, 

federal, state, local, municipal or provincial or international government or any political 

subdivision of any governmental, regulatory or administrative authority, agency or commission, 

or judicial or arbitral body. 

“Guarantee” shall mean, with respect to any particular indebtedness or other obligation, 

(i) any direct or indirect guarantee thereof by a Person other than the obligor with respect to such 

indebtedness or other obligation or any transaction or arrangement intended to have the effect of 

directly or indirectly guaranteeing such indebtedness or other obligation, including without 

limitation any agreement by a Person other than the obligor with respect to such indebtedness or 

other obligation (A) to pay or purchase such indebtedness or other obligation or to advance or 

supply funds for the payment or purchase of such indebtedness or other obligation, (B) to 

purchase, sell or lease (as lessee or lessor) property of, to purchase or sell services from or to, to 

supply funds to or in any other manner invest in, the obligor with respect to such indebtedness or 

other obligation (including any agreement to pay for property or services of the obligor 

irrespective of whether such property is received or such services are rendered), primarily for the 

purpose of enabling the obligor to make payment of such indebtedness or other obligation or to 

assure the holder or other obligee of such indebtedness or other obligation against loss, or 

(C) otherwise to assure the obligee of such indebtedness or other obligation against loss with 

respect thereto, or (ii) any grant (or agreement in favor of the obligee of such indebtedness or 

other obligation to grant such obligee, under any circumstances) by a Person other than the 

obligor with respect to such indebtedness or other obligation of a security interest in, or other 

Lien on, any property or other interest of such Person, whether or not such other Person has not 

assumed or become liable for the payment of such indebtedness or other obligation. 

“Guarantors” shall mean, collectively, the guarantors of all or any portion of any Loan 

or all or any of any Borrower’s obligations set forth and described in the Loan Documents. 

“Guidelines” shall have the meaning given in Section 5.02. 

“Immediate Family Member” shall mean, with respect to any individual, his or her 

spouse, parents, parents-in-law, descendents, nephews, nieces, brothers, sisters, brothers-in-law, 

sisters-in-law, children (whether natural or adopted), children-in-law, grandchildren and 

grandchildren-in-law. 

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“Indemnified Parties” shall have the meaning given in Section 8.02(a). 

“Insolvency Event” shall mean, with respect to any specified Person, the occurrence of 

any of the following events: 

(1) the specified Person makes an assignment for the benefit of creditors; 

(2) the specified Person files a voluntary petition for relief in any Insolvency 

Proceeding; 

(3) the specified Person is adjudged bankrupt or insolvent or there is entered 

against the specified Person an order for relief in any Insolvency Proceeding; 

(4) the specified Person files a petition or answer seeking for the specified 

Person any reorganization, arrangement, composition, readjustment, liquidation, 

dissolution, or similar relief under any Law; 

(5) the specified Person seeks, consents to, or acquiesces in the appointment 

of a trustee, receiver or liquidator of the specified Person or of all or any substantial part 

of the specified Person’s properties; 

(6) the specified Person files an answer or other pleading admitting or failing 

to contest the material allegations of a petition filed against the specified Person in any 

proceeding described in clauses (1) through (5); 

(7) the specified Person becomes unable to pay its obligations as they become 

due, or the sum of such specified Person’s debts is greater than all of such Person's 

property, at a fair valuation; or 

(8) within 90 days of any proceeding against the specified Person seeking 

reorganization, arrangement, composition, readjustment, liquidation, dissolution or 

similar relief under any Law if the proceeding has not been dismissed, or within 90 days 

after the appointment of a trustee, receiver or liquidator for the specified Person or all or 

any substantial part of the specified Person’s properties without the specified Person’s 

agreement or acquiescence, which appointment is not vacated or stayed, or if the 

appointment is stayed, for 90 days after the expiration of the stay if the appointment is 

not vacated. 

“Insolvency Proceeding” shall mean any proceeding under Title 11 of the United States 

Code (11 U.S.C. §§101, et seq.) or any proceeding under the Law of any jurisdiction involving 

any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar 

relief. 

“Interest Rate” shall mean the rate at which the outstanding principal balance of a Loan 

bears interest, as more particularly set forth in a Note, including, without limitation, the Default 

Rate if applicable. 

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“Law” shall mean any applicable statute, law, ordinance, regulation, rule, code, 

injunction, judgment, decree or order (including any executive order) of any Governmental 

Authority. 

“Lien” shall mean any pledges, security interests, charges, restrictions on or conditions to 

transfer, voting or exercise or enjoyment of any right or beneficial interest, options, rights of first 

refusal and other liens, claims or encumbrances of any nature whatsoever. 

“Liquidity Reserve” shall have the meaning given in Section 4.03(a). 

“Liquidity Reserve Account” shall mean a segregated trust account established and 

maintained with an Eligible Institution for the sole purpose of holding and distributing funds in 

the Liquidity Reserve. 

“Litigation Reserve” shall have the meaning given in Section 4.03(b). 

“Litigation Reserve Account” shall mean a segregated trust account established and 

maintained with an Eligible Institution for the sole purpose of holding and distributing funds in 

the Litigation Reserve. 

“LLC Interest” shall have the meaning given in the third recital. 

“LLC Interest Sale Agreement” shall have the meaning given in the fifth recital. 

“Loan” shall mean any loan or Loan Participation listed on the Loan Schedule and any 

loan into which any listed loan or Loan Participation is refinanced, and includes with respect to 

each such loan or Loan Participation: (i) any obligation evidenced by a Note; (ii) all rights, 

powers or Liens of the Receiver in or under the Collateral Documents; (iii) any contract for deed 

or installment land contract and the real property which is subject to any such contract for deed 

or installment land contract; and (iv) any lease and the related leased property. 

“Loan Documents” shall mean all documents, agreements, certificates, instruments and 

other writings (including all Collateral Documents) now or hereafter executed by or delivered or 

caused to be delivered by any Borrower, any Guarantor or any other obligor evidencing, 

creating, guaranteeing or securing, or otherwise executed or delivered in respect of, all or any 

part of a Loan or evidencing any transaction contemplated thereby, and all Modifications thereto. 

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

criteria described in Exhibit E, as the same may be modified either (i) by the FDIC upon written 

notice to the Company of such modification, or (ii) as proposed by the Company with respect to 

a group of Loans with similar characteristics, if approved in writing by the FDIC. 

“Loan Participation” shall mean any asset subject to a shared credit, participation or 

similar inter-creditor agreement under which the Failed Bank or the Receiver was the lead or 

agent financial depository institution or otherwise managed or held a shared credit or sold 

participations, or under which the Failed Bank or the Receiver was a participating financial 

depository institution or purchased participations in a credit managed by another Person. 

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“Loan Proceeds” shall mean (i) any and all proceeds (net of such proceeds as are 

payable to others under any Loan Participation agreement) with respect to any or all of the Loans 

and any or all of the Collateral that is received at any time after the Cut-Off Date, including 

principal, interest, interest at the Default Rate, prepayment fees, premiums and charges, 

extension and exit fees, late fees, assumption fees, other fees and charges, insurance proceeds 

and condemnation payments (or any portion thereof) that are not used and disbursed to repair, 

replace or restore the related Collateral in accordance with the terms of the Loan Documents, 

proceeds from sales or other dispositions of any or all of the Loans or the Collateral, any 

proceeds from making a draw under any letter of credit or certificate of deposit held with respect 

to any Loan, provided that such draw is permitted by the terms of the Loan Documents, and any 

recoveries of Receiver Advances or other recoveries from Borrowers or Guarantors of any kind 

or nature with respect to the Loans, and (ii) any interest or other earnings accrued and paid on 

any of the foregoing while held in the Collection Account or any other account. 

“Loan Schedule” shall have the meaning given in the second recital. 

“Losses” shall have the meaning given in Section 8.02(a). 

“Management Fee” shall mean a fee, payable monthly to the Company on the 15th day 

of each month through (and including) the month in which the Final Distribution occurs, equal to 

one-twelfth (1/12th) of one-half of one percent (0.50%) of the Unpaid Principal Balance as of the 

last day of the immediately preceding month. 

“MERS” shall mean Mortgage Electronic Registration Systems, Incorporated. 

“Modification” shall mean any extension, renewal, substitution, replacement, 

supplement, amendment or modification of any agreement, certificate, document, instrument or 

other writing, whether or not contemplated in the original agreement, document or instrument. 

“Note” shall mean each note or promissory note, lost instrument affidavit, loan 

agreement, shared credit or Loan Participation agreement, intercreditor agreement, 

reimbursement agreement, any other evidence of indebtedness of any kind, or any other 

agreement, document or instrument evidencing a Loan, and all Modifications to the foregoing. 

“Ownership Entity” shall have the meaning given in Section 6.02. 

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

“Participant’s Share” shall have the meaning given in Section 2.02. 

“Participation” or “Participation Interest” shall mean an undivided ownership interest 

and participation, effective as of the Cut-Off Date, in, to and under (i) the Loans, including all 

future advances made with respect thereto, (ii) the Loan Documents, (iii) all amounts payable to 

the Company under the Loan Documents and all obligations owed to the Company in connection 

with the Loans and the Loan Documents, (iv) all Collateral (including Acquired Collateral) 

relating to the Loans, (v) all claims, suits, causes of action and any other right of the Company, 

whether known or unknown, against a Borrower, any Guarantor or other obligor or any of their 

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respective Affiliates, agents, representatives, contractors, advisors or any other Person arising 

under or in connection with the Loans or the Loan Documents or that is in any way based on or 

related to any of the foregoing, including contract claims, tort claims, malpractice claims, 

statutory claims and all other claims at law or in equity arising under or in connection with the 

Loan Documents or the transactions related thereto or contemplated thereby, (vi) all cash, 

securities and other property received or applied by or for the account of the Company under the 

Loans, including all distributions received through redemption, consummation of a plan of 

reorganization, restructuring, liquidation or otherwise of a Borrower, Guarantor or other obligor 

under or with respect to the Loans, and any securities, interest, dividends or other property that 

may be distributed or collected with respect to any of the foregoing, and (vii) all proceeds of the 

foregoing. 

“Participation Certificate” shall have the meaning given in Section 2.03(a). 

“Participation Share” means, with respect to Participant, Participant’s Share and, with 

respect to the Company, the Company’s Share. 

“Permitted Investments” shall mean any one or more of the following obligations or 

securities having at the time of purchase, or at such other time as may be specified, the required 

ratings, if any, provided for in this definition: 

(1) direct obligations of, or guaranteed as to timely payment of principal and 

interest by, the United States of America or any agency or instrumentality of the United 

States of America, the obligations of which are backed by the full faith and credit of the 

United States of America; 

(2) demand and time deposits in or certificates of deposit of, or bankers’ 

acceptances issued by, any bank or trust company, savings and loan association or 

savings bank, provided that, in the case of obligations that are not fully FDIC-insured 

deposits, the commercial paper and/or long-term unsecured debt obligations of such 

depository institution or trust company (or in the case of the principal depository 

institution in a holding company system, the commercial paper or long-term unsecured 

debt obligations of such holding company) have an Acceptable Rating; 

(3) general obligations of or obligations guaranteed by any state of the United 

States or the District of Columbia receiving ratings of not less than the highest rating of 

each Rating Agency rating such obligations; 

(4) mutual funds in which investments are limited to the obligations referred 

to in clauses (1), (2) or (3) of this definition; and 

(5) with the prior written consent of Participant, any other demand, money 

market or time deposit or other obligation, security or investment. 

“Person” shall mean any individual, corporation, partnership (general or limited), limited 

liability company, limited liability partnership, firm, joint venture, association, joint-stock 

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company, trust, estate, unincorporated organization, governmental or regulatory body or other 

entity. 

“Post-Acquisition Costs” shall mean, collectively, any and all reasonable out-of-pocket 

fees, costs, expenses and indemnified amounts incurred from and after acquisition of Acquired 

Collateral, including any and all direct expenses related to the preservation, operation, 

demolition, management and sale of the Acquired Collateral; provided, however, that PostAcquisition Costs shall not include (x) overhead or administrative costs incurred by the 

Company or any other Person (including costs and expenses incurred by the Company to comply 

with reporting, recordkeeping, licensing and similar requirements imposed on the Company 

under the Company Operating Agreement or under the provisions of this Agreement, including 

Sections 5.05 and 8.01(a) and (l) of this Agreement), or (y) servicing, management or similar 

fees paid to any Servicer or any other Person. 

“Pre-Approved Charges” shall have the meaning given in the Contribution Agreement. 

“Qualified Custodian” shall mean any Person that (i) is a bank, trust company or title 

insurance company subject to supervision and examination by any federal or state regulatory 

authority, (ii) is experienced in providing services of the type required to be performed by the 

Document Custodian under the Custodial Agreement, (iii) is not prohibited from exercising 

custodial powers in any jurisdiction in which the Custodial Documents (as defined in the 

Custodial Agreement) are or will be held, and is qualified and licensed to do business in each 

such jurisdiction to the extent required unless and to the extent the failure to be so qualified or 

licensed will not have a material adverse effect on the Document Custodian or the ability of the 

Document Custodian to perform its obligations under the Custodial Agreement, (iv) has 

combined capital and surplus of at least $50,000,000 as reported in its most recent report of 

condition, (v) is acceptable to and approved by Participant (such approval not to be unreasonably 

withheld, delayed or conditioned), (vi) has the facilities to safeguard the Loan Documents as 

required by the Custodial Agreement, and (vii) is not an Affiliate of either the Company or the 

Servicer. 

“Qualified Servicer” shall mean any Person that (i) is properly licensed and qualified to 

conduct business in each jurisdiction in which such licenses and qualifications to conduct 

business are necessary for the servicing of the Loans and management of the Collateral, (ii) is a 

member of MERS, (iii) has the management capacity and experience to service loans of the type 

held by the Company, especially loans secured by residential properties, including the number 

and types of loans serviced, and the ability to track, process and post payments, and to furnish 

tax reports to borrowers, (iv) either (x) has an Acceptable Rating as a mortgage loan servicer or 

special servicer or (y) is an FDIC-insured depository institution or an Affiliate of an FDICinsured depository institution, and (v) in the case of any mortgage loan servicer that does not 

have an Acceptable Rating, is acceptable to and approved by Participant (such approval not to be 

unreasonably withheld, delayed or conditioned). 

“Rating Agencies” shall mean each of Moody’s Investors Service, Inc., Standard & 

Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., Fitch IBCA, Inc. and 

such other rating agencies as are nationally recognized. 

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“Receiver” shall have the meaning given in the first recital. 

“Receiver Advances” shall mean (i) any and all out-of-pocket fees, costs, expenses and 

indemnified amounts incurred by or on behalf of the Receiver (or the Failed Bank or any other 

assignor that conveyed the Loans to the Failed Bank or the Receiver) on or prior to the Cut-Off 

Date, which a Borrower is obligated to pay or to reimburse pursuant to the applicable Note or 

any other Loan Documents, including Escrow Advances made by or on behalf of the Receiver 

(or the Failed Bank or any other assignor that assigned the Loans to the Failed Bank or the 

Receiver) on or prior to the Cut-Off Date, and (ii) any advance made by or on behalf of the 

Receiver (or the Failed Bank any other assignor that assigned the Loans to the Failed Bank or the 

Receiver) on or prior to the Cut-Off Date in order to cover any and all expenses necessary to 

protect or preserve the value of the Collateral securing a Loan or the priority of the Liens and 

security interests created by the Loan Documents relating thereto, including taxes, insurance 

premiums, payment of ground rent, the costs of prevention of waste, repairs and maintenance, 

and foreclosure expenses and other legal fees and expenses relating to the Loans. 

“Recovery Threshold Amount” shall mean $160,000,000. 

“Regulation AB” shall mean the regulations at 17 C.F.R. §§229.1100, et seq., as the 

same may be amended from time to time. 

“Servicer” shall have the meaning given in Section 5.03. 

“Servicing Agreement” shall mean an agreement in the form of Exhibit B-2 with such 

supplements and amendments thereto as are permitted thereby. 

“Servicing Obligations” shall have the meaning given in Section 5.02. 

“Servicing Standard” shall have the meaning given in Section 5.02. 

“Servicing Transfer Date” shall be no later than February 1, 2009, or such other date as 

is agreed to by the Company and Participant. 

“Single Purpose Entity” shall mean a corporation or limited liability company that (i) is 

organized under the laws of any state of the United States or the District of Columbia, (ii) has no 

material assets other than the Loans and any Acquired Collateral, its right, title and interest in, to 

and under this Agreement and the other instruments contemplated by this Agreement, (iii) is not 

engaged in any significant business operations except its ownership of the Loans and any 

Acquired Collateral and the conduct of its business pursuant to this Agreement, (iv) does or 

causes to be done all things necessary to preserve and keep in full force and effect its existence, 

rights (charter and statutory) and franchises, (v) at all times holds itself out to the public as a 

legal entity separate from any other Person (including any Affiliate), (vi) except as expressly 

contemplated hereby or by the Ancillary Documents, does not commingle its assets with assets 

of any other Person, (vii) conducts its business in its own name and strictly complies with all 

organizational formalities to maintain its separate existence, (viii) maintains an arm’s length 

relationship with any Affiliate upon terms that are commercially reasonable and on terms no less 

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EXECUTION VERSION 
favorable to it than could be obtained in a comparable arm’s length transaction with an unrelated 

Person, and (ix) has no Debt. 

“Site Assessment” shall have the meaning given in Section 6.02. 

“Subservicer” shall have the meaning given in Section 5.03. 

“Subservicing Agreement” shall have the meaning given in Section 5.03. 

“Third Party Claim” shall have the meaning given in Section 8.02(a). 

“Transfer Supplement” shall have the meaning given in Section 12.02(a). 

“Uniform Commercial Code” shall mean, with respect to each discrete element or 

category of the personal property Collateral, the Uniform Commercial Code in effect in the 

applicable jurisdiction, as the same may be amended from time to time. 

“Unpaid Principal Balance” shall mean, at any time, an amount equal to the then 

aggregate outstanding principal balance of the Loans and, for each Loan with respect to which 

some or all of the related Collateral has been converted to Acquired Collateral and, until such 

time as the Acquired Collateral (or any portion thereof) is liquidated, the unpaid principal 

balance of the related Loan (adjusted pro rata for partial collateral sales, debt forgiveness or 

retained indebtedness) at the time at which such Loan was converted to Acquired Collateral plus 

any outstanding balance remaining on such Loan which is evidenced by a modification 

agreement or a replacement or successor promissory note executed by the Borrower. 

“Working Capital Advance” shall mean amounts advanced by or on behalf of the 

Company to fund the Company’s operations and operating deficits. 

Section 1.02 Construction. This Agreement shall be construed and interpreted in 

accordance with the following: 

(a) References to “Affiliates” include, only 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) Accounting terms shall have the meanings assigned to them by GAAP 

applied on a consistent basis by the accounting entity to which they refer. 

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

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

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

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EXECUTION VERSION 
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. 

(f) 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. 

(g) 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. 

(h) 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. 

(i) 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 

PARTICIPATION INTERESTS 

Section 2.01 Acquisition and Sale. The Company hereby irrevocably grants, conveys, 

transfers and assigns to Participant, and Participant hereby irrevocably acquires and takes from 

the Company, the Participation Interest. It is the intention of the parties hereto that the 

conveyance of the Participation Interest as contemplated by this Agreement shall constitute a 

conveyance, transfer and assignment of that Participation Interest, including a beneficial interest 

in the Loans and the Loan Proceeds as and to the extent provided under New York law, from the 

Company to Participant and that such Participation Interest (including such beneficial interest in 

the Loans) shall not be part of the Company’s estate, as determined pursuant to 11 U.S.C. § 

541(d), as amended, in the event of the filing of a bankruptcy petition by or against the Company 

under any bankruptcy law. 

Section 2.02 Participant’s Share. The Participation Interest shall entitle Participant to 

receive 80% of all Loan Proceeds after reimbursement of Company Advances and Working 

Capital Advances, as and to the extent permitted by Section 3.03, and after funding of any 

Liquidity Reserve and any Litigation Reserve, as and to the extent permitted by Section 4.03, 

until the later to occur of (i) receipt by Participant of the Recovery Threshold Amount, after 

aggregating the proceeds received by Participant from the sale of the LLC Interest (before 

deducting any fees due to advisers), and the proceeds received by Participant from Participant’s 

share of Loan Proceeds and, (ii) the date that is one (1) year after the Effective Date; and 

thereafter (automatically and without any action on the part of any Person), the Participation 

Interest shall entitle Participant to 60% of all remaining Loan Proceeds (such percentage share, 

the “Participant’s Share”). Upon the later to occur of (x) receipt by Participant of the Recovery 

Threshold Amount and (y) the date that is one (1) year after the Effective Date,, unless the 

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EXECUTION VERSION 
 

Recovery Threshold is achieved that event occurs as a result of a single sale of the remaining 

Loans and Acquired Collateral following a Clean-Up Call, Participant shall submit its 

Participation Certificate to the Company for replacement and the Company shall issue a new 

Participation Certificate to Participant evidencing the change in Participant’s Share from 80% to 

60%. 

Section 2.03 Participation Certificates. 

(a) Issuance of Certificate. The Participation Interest shall be evidenced by a 

Participation Certificate executed and delivered to Participant by the Company in the form of 

Exhibit D attached hereto (as the same may be replaced from time to time, the “Participation 

Certificate”). 

(b) Register. The Company shall maintain a register in which ownership of 

the Participation (including all transfers of all or any part thereof) is recorded. The Company 

and any agent of the Company may treat as the owner of the Participation the Person in whose 

name the Participation is registered on the register on any applicable date for the purpose of 

receiving payments under such Participation and on any other date for all other purposes. 

(c) Missing, Damaged and Destroyed Certificates. Upon the surrender of any 

mutilated Participation Certificate to the Company, or upon the receipt by the Company of 

evidence satisfactory to it that a Participation Certificate has been destroyed, lost or stolen, the 

Company shall replace the damaged, lost, stolen or destroyed Participation Certificate. 

Section 2.04 Nature of Participation. Except as is expressly provided in this 

Agreement, the Participation Interest shall not impose any obligations or liabilities on Participant 

with respect to the Loans and Participant shall not be liable for or obligated to pay (and 

Participant’s Share shall not be reduced by) any funding obligations of the Company or any costs 

or expenses incurred in connection with the ownership, servicing, management or administration 

of the Loans. 

Section 2.05 Company as Lender of Record; Third Parties. Notwithstanding the 

Participation Interest in favor of Participant created by this Agreement, the Company shall be 

and remain the lender under the Loans, retaining the Loans and the Loan Documents in the 

Company’s own name (or in the name of MERS as nominee). The Company shall be, and 

hereby is, authorized to deal with all Persons with respect to the Loans, including Borrowers, 

Guarantors, and parties to intercreditor agreements, and parties to Loan Participation agreements. 

Participant hereby authorizes any third party, without inquiry as to whether any action by the 

Company is authorized hereunder, to deal with the Company concerning the Loans in the same 

manner as if Participant’s Participation Interest therein were not outstanding. As between 

Participant and the Company, nothing in the foregoing shall modify any obligation of Participant 

to the Company or of the Company to Participant set forth in this Agreement or any Ancillary 

Document. Subject to Participant’s obligations to provide interim servicing with respect to the 

Loans under the Contribution Agreement, all communications with Borrowers shall be made by 

(or on behalf of) and through the Company, and Participant shall not communicate directly with 

any Borrower, Guarantor or any of their respective principals, any party to any Loan 

Participation agreement, or any property manager or leasing agent or any broker for the 

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EXECUTION VERSION 
Collateral or any part thereof, regarding this Agreement or Participant’s Participation Interest, or 

cause any Borrower to be involved in or affected by any dispute between Participant and the 

Company. 

Section 2.06 Security Interest. This Agreement shall constitute a security agreement 

under applicable Law and, in furtherance thereof the Company shall be deemed to have granted, 

and does hereby grant, to Participant a perfected first priority security interest in the Loans (and 

all Loan Documents) and all Loan Proceeds (including any such proceeds as are withheld for 

deposit into the Liquidity Reserve Account or the Litigation Reserve Account pursuant to 

Section 4.03) for the benefit of Participant and its assignees as security for the Company’s 

obligations under this Agreement, including its obligation to pay Participant’s Share hereunder. 

All of the Notes and other Custodial Documents shall be held by the Document Custodian as set 

forth in Section 8.01(c) (except and to the extent the same are permitted to be removed from the 

Document Custodian’s possession as provided in the Custodial Agreement). The Participant 

shall retain possession of the Notes and other Custodial Documents with respect to the Loans 

until such time as the Company retains the Document Custodian pursuant to the provisions of 

Section 8.01(c) and, at such time, shall cause the Document Custodian to take possession of the 

Notes and other Custodial Documents with respect to the Loans on behalf of Participant. The 

Company hereby authorizes the filing by Participant of such financing statements in such 

jurisdictions as Participant deems appropriate (in its sole and absolute discretion) with respect to 

the Loans, the Loan Documents and the proceeds of the Loans. The Company shall deliver to 

Participant, (i) for each Loan, an allonge, endorsed in blank, and executed by the Company, and 

(ii) for each Loan that is not registered on the MERS® system, an assignment, in blank, and 

executed by the Company. Such allonges and assignments shall be held by the Document 

Custodian with the Notes and other Custodial Documents. Participant shall not use the allonge 

to effect the endorsement of a Note or the assignment to effect the assignment of a mortgage to 

Participant unless Participant is entitled to exercise its rights as a secured party. The Company 

shall also execute and deliver to Participant, and cause the Servicer to execute and deliver to 

Participant, the Electronic Tracking Agreement. The Company shall be designated as the 

“servicer” with respect to the Loans on the MERS® system, and the Servicer shall be designated 

as the “subservicer” with respect to the Loans on the MERS® system. No other Person shall be 

identified on the MERS® system as having any interest in any of the Loans. The Company shall 

provide Participant with such reports from the MERS® system as Participant, from time to time, 

may request, including to allow Participant to verify the Persons identified on the MERS® 

system as having any interest in any of the Loans and to confirm that the Loans required to be 

registered on the MERS® system are so registered. Without limiting the foregoing, upon the 

request of Participant, the Company 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 Loans registered on the 

MERS® system and provide the results to Participant and, if requested by Participant, 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. 

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ARTICLE III 

DISBURSEMENTS; REIMBURSEMENTS 

Section 3.01 Advances To Be Company Obligation. Subject to the obligations of 

Participant to provide interim servicing for the Loans under the Contribution Agreement, and 

subject to the provisions of Section 3.03, all disbursements and advances under any Loan that 

are made to or for the account of Borrowers pursuant to the Loan Documents after the date 

hereof, and all other advances required to be made by (or on behalf of) the Company pursuant to 

this Agreement, shall be funded by (or through or on behalf of) the Company, and not by 

Participant or through any reduction in Participant’s Share or the amounts due hereunder. 

Section 3.02 Advances. The Company shall cause all Company Advances, including 

Borrower Reimbursable Costs (including Escrow Advances) and Post-Acquisition Costs, to be 

funded and advanced in accordance with the Loan Documents and the terms of this Agreement 

(including as is necessary to comply with the Servicing Standard). Notwithstanding anything to 

the contrary contained herein, in no event shall the Company be obligated to advance any 

Borrower Reimbursable Costs or Post-Acquisition Costs if the Company determines, in its 

discretion exercised in accordance with the Servicing Standard, that such amount, when 

combined with all previous such Company Advances and Receiver Advances for such Loan, 

would not ultimately be recoverable from the Loan Proceeds from such Loan (including from the 

related Collateral). The Company shall be required to make Working Capital Advances if, at any 

time, the Loan Proceeds, including funds available in the Collection Account or in any Liquidity 

Reserve Account or Litigation Reserve Account, are insufficient to pay all costs and expenses 

incurred by the Company. Without limiting the foregoing, to the extent not paid or reimbursed 

by a Borrower or Guarantor or available from Loan Proceeds or, if unavailable from either 

source, from the Liquidity Reserve or Litigation Reserve, the Company shall make Working 

Capital Advances to pay Company Advances, Borrower Reimbursable Costs and PostAcquisition Costs as well as any other costs incurred by the Company in connection with the 

servicing of the Loans. Working Capital Advances shall be unsecured, and the amount thereof 

shall not in any way increase the Company’s Share. Working Capital Advances shall be payable 

only out of the assets of the Company and only as and to the extent provided in Section 3.03(a), 

and Participant shall have no liability for, and no Person shall have any recourse against 

Participant for, any Working Capital Advance or the repayment thereof. Working Capital 

Advances shall not bear interest. 

Section 3.03 Reimbursements. 

(a) Permitted Reimbursements. The Company may be reimbursed for 

Company Advances from the Loan Proceeds, without any specific consent or authorization from 

Participant. The Company shall not otherwise be entitled to reimbursement or payment of 

Company Advances. Each month, the Company shall utilize or distribute the Loan Proceeds in 

the following order of priority: 

(i) first, to reimburse the Company for Working Capital Advances, 

but only to the extent the same were used to pay costs or expenses constituting Company 

Advances; and 

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EXECUTION VERSION 
(ii) then, to pay the Company the Management Fee; and 

(iii) then, to pay fees and expenses of the Document Custodian; and 

(iv) then, to reimburse the Company for any then outstanding Company 

Advances (without duplication of any amounts paid pursuant to clauses (i), (ii) or (iii) 

above); and 

(v) then, to fund any Liquidity Reserve Account or any Litigation 

Reserve Account as and to the extent permitted by Section 4.03; and 

(vi) last, to make distributions, pursuant to Section 4.01(a) of 

Participant’s Share and the Company’s Share. 

(b) Costs That Are Not Reimbursable. Notwithstanding anything else to the 

contrary contained herein or in any Ancillary Document, in no event shall (i) Receiver Advances 

be treated as Company Advances; (ii) Participant have any liability for any (x) Borrower 

Reimbursable Costs or Post-Acquisition Costs, other than to the extent the same constitute 

Company Advances, or (y) Company Advances, other than to the extent the same are 

reimbursable from Loan Proceeds as and to the extent expressly provided for in this Section 

3.03; (iii) any of the following be treated as Company Advances or be reimbursable to the 

Company: (A) any fine, tax or other penalty, late fee, service charge, interest or similar charge, 

costs to release Liens or any other costs or expenses incurred by or on behalf of the Company as 

a result of the Company’s or any Servicer’s or Subservicer’s failure to service any Loan or 

Collateral properly in accordance with the applicable Loan Documents, this Agreement, the 

Servicing Agreement, any Subservicing Agreement or otherwise, or failure to make a payment in 

a timely manner, or failure otherwise to act in a timely manner, or (B) any overhead or 

administrative expense of the Company or any other Person (including costs and expenses 

incurred by the Company to comply with reporting, recordkeeping, licensing and similar 

requirements imposed on the Company under the Company Operating Agreement or under the 

provisions of this Agreement, including Sections 5.05 and 8.01(a) and (l) of this Agreement); 

and (iv) are any advances made by (or on behalf of) the Company to bear interest that is included 

in Company Advances or otherwise charged or chargeable in any way to Participant or deducted 

from Loan Proceeds. 

ARTICLE IV 

ALLOCATIONS; ACCOUNTS 

Section 4.01 Allocations and Distributions. 

(a) Allocations. After reimbursement of Company Advances and other 

expenses as and to the extent permitted by Section 3.03(a)(i) through (v) and the deposit of any 

funds properly withheld and deposited into the Liquidity Reserve Account or the Litigation 

Reserve Account pursuant to Section 4.03, the remaining Loan Proceeds (including any 

recoveries of Receiver Advances) shall be allocated as follows: Participant shall be allocated 

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EXECUTION VERSION 
and, entitled to receive Participant’s Share and, following the disbursement of Participant’s Share 

(and not until Participant’s Share has been disbursed to Participant), the remaining Loan 

Proceeds shall be for the benefit of the Company (such proceeds, the “Company’s Share”). 

(b) Distributions. The Company shall cause to be forwarded to Participant on 

or prior to the fifteenth (15) day of each month (or if the fifteenth (15th) day is not a Business 

Day, the immediately following Business Day of the month), commencing on the fifteenth (15th) 

day of the first month following the Servicing Transfer Date, Participant’s Share of the Loan 

Proceeds received in the prior calendar month. All amounts due to Participant under this 

Agreement shall be remitted by wire transfer, in immediately available funds, to such account or 

accounts as Participant may, from time to time, direct. Upon the receipt by Participant of 

Participant’s Share of the Loan Proceeds, Participant shall be deemed to have released its 

security interest in the Company’s Share with respect to such Loan Proceeds and the Company’s 

Share may be disbursed to the Company. At such time as a Loan or the related Collateral is 

liquidated in its entirety (and the balance of the Loan reduced to zero, all related Collateral is 

sold or otherwise disposed of in accordance with this Agreement, a discounted payoff is accepted 

as payment in full, or the Loan is otherwise satisfied or discharged or the remaining balance 

charged-off in accordance with this Agreement), and upon receipt by Participant of Participant’s 

Share with respect thereto, Participant shall be deemed to have released its security interest in the 

Note related to such Loan and the Company’s Share with respect to the Loan Proceeds. At such 

time, the Company may (and is hereby authorized by Participant to) request the release of such 

Note from the Document Custodian. 

Section 4.02 Collection Account. On or prior to the Closing, the Company shall 

establish or cause to be established and, after the Closing, the Company shall maintain (and, 

prior to the Servicing Transfer Date, permit Participant, as the interim servicer as described in 

Section 5.03 and under the Contribution Agreement, to use the same as provided in the 

Contribution Agreement) and, thereafter, cause the Servicer to maintain the Collection Account, 

held in trust for the benefit of Participant and the Company. The Company shall cause all Loan 

Proceeds to be deposited into the Collection Account on a daily basis. No funds from any other 

source (other than interest or earnings on the Loan Proceeds) shall be commingled in the 

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

Collection Account (including interest and earnings thereon) shall be allocated and may be 

withdrawn and disbursed only in accordance with the provisions of Section 3.03(a) and Section 

4.01; provided, however, that if the Company, a Servicer or a Subservicer at any time 

erroneously deposits any amount into the Collection Account, it may withdraw such amount. 

Amounts on deposit in the Collection Account shall be invested in Permitted Investments but 

with a maturity that allows for their allocation and distribution on a monthly basis in accordance 

with Section 4.01. The Servicer shall be authorized and directed to withdraw funds from the 

Collection Account only to make disbursements in accordance with this Agreement and not for 

any other purpose. 

Section 4.03 Liquidity and Litigation Reserves. 

(a) Liquidity Reserve. The Company, in its discretion, may establish a 

liquidity reserve (the “Liquidity Reserve”) from which to fund Company Advances (other than 

litigation costs and expenses (including attorneys’ fees), which may be funded through the use of 

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EXECUTION VERSION 
a Litigation Reserve pursuant to Section 4.03(b)). If the Company elects to establish a Liquidity 

Reserve it shall establish a Liquidity Reserve Account. The Liquidity Reserve Account shall be 

held in trust for the benefit of Participant and the Company and shall be established and 

maintained for the sole purpose of holding and distributing the Liquidity Reserve funds. The 

Company may fund the Liquidity Reserve with such portion of the Loan Proceeds as it deems 

appropriate, in the exercise of its reasonable discretion, in accordance with the provisions of 

Section 3.03(a). At the time of the Final Distribution, all remaining funds held in the Liquidity 

Reserve shall be distributed to Participant and to the Company, in accordance with their 

respective Participant’s Share and Company’s Share, pursuant to Section 4.01(b). Amounts on 

deposit in the Liquidity Reserve Account shall be invested in Permitted Investments, shall not be 

used to pay costs or expenses other than Company Advances (excluding litigation costs and 

expenses), and shall be used to pay Company Advances (other than litigation costs and expenses) 

only in any month in which the Loan Proceeds received during that month are insufficient to 

provide sufficient cash to pay all Company Advances due and payable (without prepayment) 

during that month. No funds from any other source (other than interest or earnings on the funds 

held in the Liquidity Reserve Account) shall be commingled in the Liquidity Reserve Account. 

Amounts on deposit in the Liquidity Reserve Account (including interest and earnings thereon) 

shall be used and may be withdrawn and disbursed only in accordance with the provisions of this 

Section and Section 3.03(a) and Section 4.01(b). The Servicer shall be authorized and directed 

to withdraw funds from the Liquidity Reserve Account only to make disbursements in 

accordance with this Agreement and not for any other purpose. The Liquidity Reserve Account 

(and all funds therein) shall be subject to the security interest granted to Participant in Section 

2.06 of this Agreement and, as such, prior to establishing the Liquidity Reserve Account or 

withholding any amounts for deposit therein, the Company shall provide Participant with an 

account control agreement that is acceptable to Participant and such agreement shall be executed 

and delivered by Participant, the Company and the Eligible Institution that will hold such 

Liquidity Reserve Account. 

(b) Litigation Reserve. The Company, in its discretion, may establish a 

litigation reserve (the “Litigation Reserve”) from which to fund litigation costs and expenses 

(including attorneys’ fees) that constitute Company Advances. If the Company elects to 

establish a Litigation Reserve it shall establish a Litigation Reserve Account. The Litigation 

Reserve Account shall be held in trust for the benefit of Participant and the Company and shall 

be established and maintained for the sole purpose of holding and distributing the Litigation 

Reserve funds. The Company may fund the Litigation Reserve with such portion of the Loan 

Proceeds as it deems appropriate, in the exercise of its reasonable discretion, in accordance with 

the provisions of Section 3.03(a). At the time of the Final Distribution, all remaining funds held 

in the Litigation Reserve shall be distributed to Participant and to the Company, in accordance 

with their respective Participant’s Share and Company’s Share, pursuant to Section 4.01(b). 

Amounts on deposit in the Litigation Reserve Account shall be invested in Permitted 

Investments, shall not be used to pay costs or expenses other than litigation costs and expenses 

that constitute Company Advances, and shall be used to pay such litigation costs and expenses 

only in any month in which the Loan Proceeds received during that month are insufficient to 

provide sufficient cash to pay all Company Advances due and payable (without prepayment) 

during that month. No funds from any other source (other than interest or earnings on the funds 

held in the Litigation Reserve Account) shall be commingled in the Litigation Reserve Account. 

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Amounts on deposit in the Litigation Reserve Account (including interest and earnings thereon) 

shall be used and may be withdrawn and disbursed only in accordance with the provisions of this 

Section and Section 3.03(a) and Section 4.01(b). The Servicer shall be authorized and directed 

to withdraw funds from the Litigation Reserve Account only to make disbursements in 

accordance with this Agreement and not for any other purpose. The Litigation Reserve Account 

(and all funds therein) shall be subject to the security interest granted to Participant in Section 

2.06 of this Agreement and, as such, prior to establishing the Litigation Reserve Account or 

withholding any funds for deposit therein, the Company shall provide Participant with an 

account control agreement that is acceptable to Participant and such agreement shall be executed 

and delivered by Participant, the Company and the Eligible Institution that will hold such 

Litigation Reserve Account. 

ARTICLE V 

SERVICING OBLIGATIONS OF THE COMPANY 

Section 5.01 Appointment and Acceptance as Servicer. Effective as of the Cut-Off 

Date, the Company is appointed (and accepts the appointment as) servicer for the Loans and any 

Collateral (sometimes referred to herein as the “servicer”). 

Section 5.02 Servicing Standard. The Company shall be responsible for servicing the 

Loans and the Collateral in accordance with the provisions of this Section 5.02 (collectively, the 

“Servicing Standard”) and the other provisions of this Article V, including the provisions of 

Section 5.03 (which require that servicing be performed through a Servicer). The Company shall 

cause the Loans and the Collateral to be serviced, administered, managed and disposed of 

(collectively, the “Servicing Obligations”) (i) in the best interests and for the benefit of 

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

Documents), (iii) in accordance with the terms of this Agreement (including Article III and 

Article IV and this Article V), (iv) in accordance with all applicable Law, (v) in compliance 

with the Statement on Loss Mitigation Strategies for Servicers of Residential Mortgages 

(September 2007), issued by the federal financial institutions regulatory agencies and the 

Conference of State Bank Supervisors, the Statement on Working with Mortgage Borrowers 

(April 2007), issued by the federal financial institutions regulatory agencies, and the Loan 

Modification Program (collectively, the “Guidelines”), 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 is higher, but using no less care and diligence 

than would be customarily employed by a prudent servicer following customary and usual 

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

managing and administering similar loans and properties on an arms’ length basis, provided that 

in the absence of a customary and usual standard of practice, the Company shall comply with the 

Fannie Mae Guidelines applicable to similar loans or collateral in similar situations. The 

Company shall cause its Servicing Obligations with respect to the Loans and the Collateral to be 

performed without regard to (i) any relationship that the Company, or any Servicer or 

Subservicer, or any of their respective Affiliates may have to any Borrower, Guarantor or other 

obligor, or any of their respective Affiliates, including any other banking or lending relationship, 

(ii) the Company’s, or any Servicer’s or Subservicer’s, obligation to make disbursements and 

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advances with respect to the Loans and Collateral, (iii) any relationship that the Servicer or any 

Subservicer may have to each other or to the Company or any of its Affiliates, or any 

relationship that any of their respective Affiliates may have to the Company or any of its 

Affiliates (other than the contractual relationship evidenced by this Agreement or the Servicing 

Agreement or any Subservicing Agreement), and (iv) the Company’s, or any Servicer’s or 

Subservicer’s, right to receive compensation (including the Management Fee or any portion of 

the Company’s Share) for its services under this Agreement, the Servicing Agreement or any 

Subservicing Agreement. Without limiting the generality of the foregoing, the Company’s 

Servicing Obligations hereunder shall include the following: 

(a) discharging in a timely manner each and every obligation which the Loan 

Documents provide is to be performed by the lender thereunder, on its own behalf and on behalf 

of Participant; 

(b) incurring costs (including Borrower Reimbursable Costs and PostAcquisition Costs) in accordance with the provisions of the Loan Documents; 

(c) causing to be maintained for the Collateral (including any Acquired 

Collateral) with respect to each Loan with respect to which the Borrower has failed to maintain 

required insurance, fire, hurricane, flood and hazard insurance with extended coverage as is 

customary in the area in which the Collateral is located and in such amounts and with such 

deductibles as the Company may, in the exercise of its reasonable discretion, determine are 

prudent; 

(d) ensuring compliance with the terms and conditions of each insurer under 

any hazard policies and prepare and present claims under any policy in a timely fashion in 

accordance with the terms of the policy; 

(e) supervising and coordinating the construction, ownership, management, 

leasing and preservation of the Collateral as well as all other matters involved in the 

administration, preservation and ultimate disposition of the Collateral; 

(f) to the extent consistent with the foregoing, seeking to maximize the timely 

and complete recovery of principal and interest on the Loans and otherwise to maximize the 

value of the Loans and the Collateral; 

(g) except as otherwise set forth in this Agreement, making decisions under, 

and enforcing and performing in accordance with, the Loan Documents all loan administration, 

inspections, review of financial data and other matters involved in the servicing, administration 

and management of the Loans and the Collateral; and 

(h) ensuring that all filings required to maintain perfection in any Collateral 

remain up to date and in force, including Uniform Commercial Code financing statements. 

Section 5.03 Retention of Servicer. On the date hereof, the Company shall enter into a 

Servicing Agreement to provide for the servicing and administration and management of the 

Loans and Collateral by a Qualified Servicer (the “Servicer”). Except for the period between the 

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Cut-Off Date and the Servicing Transfer Date, during which time the Loans shall be serviced by 

the Receiver pursuant to its interim servicing obligations in the Contribution Agreement, the 

Loans shall at all times be serviced (and any Collateral managed) by or through the Servicer, 

including any Subservicers permitted hereunder and engaged by the Servicer (“Subservicers”) 

and the performance of all day-to-day Servicing Obligations of the Company shall be conducted 

by or through the Servicer (including any Subservicers). Subject to the other terms and 

conditions of this Agreement, the Servicer may be an Affiliate of the Company. The Servicer 

may engage or retain Subservicers, including Affiliates of the Company, as it may deem 

necessary and appropriate, by entering into a subservicing agreement with each such Subservicer 

(“Subservicing Agreement”) and provided that any Subservicer meets the requirements set 

forth in clause (i), (iv) and (v) and, to the extent applicable to the services to be performed by 

such Subservicer, clauses (ii) and (iii) of the definition of Qualified Servicer. The costs and fees 

of the Servicer (and any Subservicers) shall be borne exclusively by the Company (and not 

Participant and, except for Company Advances that are reimbursed in accordance with this 

Agreement, without reduction in Participant’s Share or the amounts due hereunder with respect 

thereto). Under no circumstances is the Company to transfer to any Servicer any ownership 

interest in the servicing to the Loans or any right to transfer or sell the servicing to the Loans 

(other than in connection with the sale of any Loan), and no Servicer shall assign, pledge or 

otherwise transfer or purport to assign, pledge or otherwise transfer any interest in the servicing 

to the Loans (other than in connection with the sale of any Loan), and any purported assignment, 

pledge or other transfer in violation of this provision shall be void ab initio and of no effect. 

(a) Servicing and Subservicing Agreement Requirements. Except as is 

otherwise agreed in writing by Participant, the Servicing Agreement (and any Subservicing 

Agreement with any Subservicer) shall, among other things, (i) provide for the servicing of the 

Loans and management of the Collateral by the Servicer (or Subservicer) in accordance with the 

Servicing Standard and the other terms of this Agreement; (ii) be terminable upon no more than 

30 days prior notice in the Event of Default or any default under the Servicing Agreement (or 

Subservicing Agreement); (iii) provide that Participant as well as the Company (and, in the case 

of any Subservicing Agreement, the Servicer) shall be entitled to exercise termination rights 

upon the occurrence of any Event of Default; (iv) provide that the Servicer (or Subservicer) and 

the Company acknowledge that the Servicing Agreement (or Subservicing Agreement) 

constitutes a personal services agreement between the Company and the Servicer (or between the 

Servicer and the Subservicer); (v) provide that Participant is a third party beneficiary thereunder 

and entitled to enforce the same upon the occurrence of any Event of Default; (vi) upon the 

occurrence of any Event of Default, provide that Participant may exercise all of the rights of the 

Company (or, in the case of a Subservicing Agreement, the Servicer) thereunder and cause the 

termination or assignment of the same to any other Person, without penalty or payment of any 

fee; (vii) provide that Participant (and its representatives) shall have access to and the right to 

review, copy and audit the books and records of Servicer and any Subservicers and that the 

Servicer and all Subservicers shall make available their respective officers, directors, employees, 

accountants and attorneys to answer Participant’s (and its representatives) questions or to discuss 

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

to the Loans, the Collateral, the Servicing, or the Collection Account or any other accounts 

established or maintained pursuant to this Agreement or the Servicing Agreement, or any matters 

relating to this Agreement or the rights or obligations hereunder (to the extent provided in 

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Section 5.05); (viii) provide that all Loan Proceeds are to be deposited into the Collection 

Account on a daily basis and that under no circumstances are funds, other than Loan Proceeds 

and recoveries on Receiver Advances and interest and earnings thereon, to be deposited into the 

Collection Account; (ix) provide that the Servicer consents to the immediate termination of the 

Servicer upon the occurrence of any Event of Default as described in Section 10.01(b); (x) 

provide that the Servicer shall not transfer or assign its rights under the Servicing Agreement, 

other than its rights to delegate to Subservicers certain responsibilities thereunder as and to the 

extent permitted by this Agreement, and that any prohibited transfer shall be void ab initio; (xi) 

provide that all of the Loans shall be registered on the MERS® system unless default, 

foreclosure or similar legal or MERS requirements dictate otherwise; and (xii) to provide for 

such other matters as are necessary or appropriate to ensure that the Servicer is obligated to 

comply with the Servicing Obligations of the Company hereunder. Nothing contained in the 

Servicing Agreement shall alter any obligation of the Company under this Participation 

Agreement (without reference to the Servicing Agreement) and, in the event of any inconsistency 

between the Servicing Agreement and the terms of this Agreement (without reference to the 

Servicing Agreement), the terms of this Agreement (without reference to the Servicing 

Agreement) shall control. 

(b) Company Liable for Servicer and Subservicers. Notwithstanding anything 

to the contrary contained herein, the use of the Servicer (or Subservicer) shall not release the 

Company from any of its Servicing Obligations or other obligations under this Agreement, and 

the Company shall remain responsible and liable for all acts and omissions of the Servicer (and 

each Subservicer of the Servicer) as fully as if such acts and omissions were those of the 

Company. All actions of the Servicer (or Subservicer) performed pursuant to the Servicing 

Agreement shall be performed as an agent of the Company (or, in the case of Subservicers, the 

Servicer). 

(c) Participant Approval Required. Each Servicer that does not have an 

Acceptable Rating, regardless of whether the Servicer is an Affiliate of the Company, shall be 

subject to the prior written approval of Participant (which approval shall not be unreasonably 

withheld, delayed or conditioned). A copy of all Servicing Agreements and Subservicing 

Agreements, as executed and delivered, and all amendments thereto, shall be provided to 

Participant. 

(d) Regulation AB Requirements. The Company shall ensure that each 

Servicer (and any Subservicer) (A) has in place policies and procedures to comply with the 

provisions of Section 1122(d)(1)(i) through (iv) of Regulation AB, and (B) complies with the 

provisions of Sections 1122(d)(2)(i) through (vii), 1122(d)(3)(i) through (iv), and 1122(d)(4)(i) 

through (xv) of Regulation AB (regardless of whether any such requirements apply, by their 

terms, only to companies registered or required to file reports with the Securities and Exchange 

Commission). 

(e) Servicer Fees. No Servicer or Subservicer shall be paid any fees or 

indemnified out of any Loan Proceeds, other than any Loan Proceeds paid or distributed to the 

Company in accordance with Section 3.03(a) or Section 4.01. 

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Section 5.04 Fidelity Bond; E&O Insurance. The Servicer and each Subservicer shall 

at all times maintain in effect a blanket fidelity bond and an errors and omissions insurance 

policy affording, in each case, coverage with respect to all officers, directors, employees and 

other Persons acting on behalf of the Servicer or the Subservicer, as applicable, and covering 

errors and omissions in the performance of the Servicer’s, or the Subservicer’s, as applicable, 

obligations under this Agreement, the Servicing Agreement and any Subservicing Agreement. 

The errors and omissions insurance policy and the fidelity bond shall be in such form and 

amount that would meet the requirements of Fannie Mae if Fannie Mae were the purchaser of the 

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

Section shall be made available to Participant and its representatives upon request. 

Section 5.05 Books and Records; Reports; Certifications; Audits. 

(a) Maintenance of Books and Records. The Company shall cause to be kept 

and maintained (including by the Servicer and any Ownership Entity and including records 

transferred by Participant to the Company in connection with its conveyance of the Loans to the 

Company under the Contribution Agreement), at all times, at the Company’s principal place of 

business, a complete and accurate set of files, books and records regarding the Loans and the 

Collateral, and the Company’s and Participant’s interests in the Loans and the Collateral, 

including records relating to the Collection Account, any Liquidity Reserve Account, any 

Litigation Reserve Account and Company Advances. This obligation to maintain a complete and 

accurate set of records shall encompass all files in the Company’s custody, possession or control 

pertaining to the Loans and the Collateral, including all original and other documentation 

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

expense pertaining to the Loans and the Collateral, and all of the Company’s (and Servicers’ and 

Subservicers’) internal memoranda pertaining to the Loans and the Collateral. 

(b) Retention of Books and Records. The Company 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 Effective Date of this Agreement or three (3) years after the date on which the Final 

Distribution is made. All such books and records shall be available during such period for 

inspection by Participant or its representatives (including any Governmental Authority) and 

agents at the office of the Company described in Article XV hereof at all reasonable times 

during business hours on any Business Day (or, in the case of any such inspection after the term 

hereof, at such other location as is provided by notice to Participant), in each instance upon two 

(2) Business Days’ prior notice to the Company. Upon request by Participant, the Company, at 

the sole cost and expense of Participant, shall promptly send copies (the number of copies of 

which shall be reasonable) of such books and records to Participant. The Company shall provide 

Participant with reasonable advance notice of the Company’s intention to destroy or dispose of 

any documents or files relating to the Loans and, upon the request of Participant, shall allow 

Participant, at its own expense, to recover the same from the Company. 

(c) Monthly Reports. The Company shall cause to be furnished to Participant, 

on or prior to the fifteenth (15th) day of each month (or if the fifteenth (15th) day is not a Business 

Day, then the first Business Day thereafter), commencing on the fifteenth (15th) day of the first 

month following the Servicing Transfer Date, an electronic report on the Loans and Collateral 

(including the Collection Account, any Liquidity Reserve Account, any Litigation Reserve 

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Account and Company Advances) containing the information and substantially in the form set 

forth on Exhibit F or as may otherwise be agreed by the parties. 

(d) Annual Compliance Certificates. The Company shall, and shall cause 

each Servicer and Subservicer to, deliver to Participant, on or before March 15 of each year, 

commencing in the year 2010, an officer’s certificate stating, as to the signer thereof, that (i) a 

review of such party’s activities during the preceding calendar year (or portion thereof) and of its 

performance under this Agreement (or, as applicable, the Servicing Agreement or 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, the Servicing Agreement or Subservicing 

Agreement) in all material respects throughout such year or portion thereof or, if there has been a 

failure to fulfill any such obligation in any material respect, specifying each such failure and the 

nature and status thereof. In the event a Servicer or any Subservicer was terminated, resigned or 

otherwise performed in such capacity for only part of a year, such party shall provide an officer’s 

certificate pursuant to this Section with respect to such portion of the year. 

(e) Annual Compliance Report. On or before March 15 of each year, 

commencing in the year 2010, the Company shall cause each Servicer and Subservicer, each at 

its own expense or the expense of the Company, to provide a report on an assessment of 

compliance with the servicing requirements in this Agreement that contains (i) a statement by 

such party of its responsibility for assessing compliance with such servicing requirements, (ii) a 

statement that such party used such servicing requirements to assess compliance with such 

servicing requirements, and (iii) such party’s assessment of compliance with such servicing 

requirements for the preceding calendar year, including if there has been any material instance of 

noncompliance with such servicing requirements, a discussion of each such failure and the nature 

and status thereof. 

(f) Audits. Until the later of the date that is ten (10) years after the Effective 

Date and the date that is three (3) years after the Final Distribution, the Company shall, and shall 

cause each Servicer and Subservicer to, (i) provide any representative of Participant (including 

any government agency or instrumentality), during normal business hours and on reasonable 

notice, with access to all of the books of account, reports and records relating to the Loans or any 

Collateral or the servicing thereof, or the Collection Account, any Liquidity Reserve Account, 

any Litigation Reserve Account, or any matters relating to this Agreement or the rights or 

obligations hereunder, (ii) permit such representatives to make copies of and extracts from the 

same, (iii) allow Participant to cause such books to be audited by accountants selected by 

Participant, and (iv) allow Participant’s representatives to discuss the Company’s and Servicer’s 

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

servicing, or the Collection Account, any Liquidity Reserve Account, any Litigation Reserve 

Account, or any matters relating to this Agreement or the rights or obligations hereunder, with its 

officers, directors, employees, accountants (and by this provision the Company hereby authorizes 

such accountants to discuss such affairs, finances and accounts with such representatives), 

Servicers and Subservicers, and attorneys. Any expense incurred by Participant and any 

reasonable out-of-pocket expense incurred by the Company in connection with the exercise by 

Participant of its rights in this Section shall be borne by Participant; provided, however, that any 

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expense incident to the exercise by Participant of its rights pursuant to this Section as a result of 

or during the continuance of an Event of Default shall in all cases be borne by the Company. 

Section 5.06 Recovery of Expenses; Interest; Working Capital Advances. The 

Company shall cause commercially reasonable efforts to be used to recover from Borrowers and 

Guarantors those Company Advances and Receiver Advances which such Borrowers or 

Guarantors are obligated to pay. No Company Advances shall bear interest chargeable in any 

way to Participant. The Company shall make Working Capital Advances as required in Section 

3.02. 

Section 5.07 Company’s Duty To Advise Participant; Delivery of Certain Notices. In 

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

Participant hereunder, the Company shall cause to be delivered to Participant such information 

relating to the Loans and Collateral as Participant may reasonably request from time to time and, 

in any case, shall ensure that Participant is promptly advised, in writing, of any matter of which 

the Company or the Servicer becomes aware relating to the Loans, any of the Collateral, the 

Collection Account, any Liquidity Reserve Account, any Litigation Reserve Account, or any 

Borrower or Guarantor that materially and adversely affects the interests of Participant 

hereunder. Without limiting the generality of the foregoing, the Company shall cause to be 

delivered to Participant information indicating any possible Environmental Hazards with respect 

to any Collateral. To the extent Participant requests information which is dependent upon 

obtaining such information from a Borrower, Guarantor or other third party, the Company shall 

cause to be made commercially reasonable efforts to obtain such information but it shall not be a 

breach by the Company of this Agreement if the Company fails to cause such information to be 

provided to Participant because a Borrower, Guarantor or other Person has failed to provide such 

information after such efforts have been made. 

Section 5.08 Releases of Collateral. Subject to the provisions of Section 4.16(b) of the 

Contribution Agreement, the Company is authorized to cause the release or assignment of any 

Lien granted to or held by the Company on any Collateral upon payment of any Loan in full and 

satisfaction in full of all of the secured obligations with respect to a Loan, upon receipt of a 

discounted payoff as payment in full of a Loan, or upon a sale of the Loan to any Person. 

Section 5.09 Certain Servicing and Loan Administration Decisions. Subject to the 

other terms and conditions of this Agreement (including the Servicing Standard), the Company 

shall have full power and authority, acting alone or through the Servicer and any Subservicers, to 

cause to be done any and all things in connection with the servicing and administration of the 

Loans that the Company may deem necessary or desirable, and cause to be made all servicing 

decisions in its reasonable discretion, including the following: 

(a) (i) modify or amend in any material respect any of the Loan Documents, 

(ii) waive or forbear from exercising any of the lenders’ material rights thereunder, (iii) waive 

any material condition to any Borrower’s right to receive disbursements, insurance proceeds, 

condemnation awards or other sums pursuant to the Loan Documents or to the completion of the 

construction or any restoration following a casualty or condemnation, and (iv) grant any material 

approvals or determinations with respect to modifications of or reallocations within any sources 

and uses schedule related to any Note; 

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(b) forgive or reduce, or forbear from collecting, the indebtedness of a 

Borrower under any of the Loan Documents (including interest at the Default Rate and late fees), 

increase the indebtedness evidenced by the Notes or any of the other Loan Documents, and 

permit the Loan Documents to secure any indebtedness other than the indebtedness secured by 

the Collateral on the Effective Date; 

(c) reduce the Interest Rate under, or modify the maturity date of, any Note; 

(d) release or approve a transfer or encumbrance of any of the Collateral or 

accept substitute collateral for the Loan; 

(e) release any party or parties now or hereafter liable for the payment of the 

Loan or the performance of any other obligation relating thereto, including in connection with 

any Guarantee or any environmental indemnity; 

(f) permit the Collateral, or any portion thereof or any interest therein, or the 

beneficial ownership of Borrower, or any portion thereof, to be conveyed or transferred to any 

other Person or Persons or permit the indebtedness, or any portion thereof, to be assumed by any 

other Person or Persons; 

(g) cancel or agree to the termination of any of the Loan Documents; 

(h) approve any change order, even if the same would materially alter the use, 

type or construction quality of the Collateral; 

(i) consent to any agreement in any Insolvency Proceeding relating to any 

Loan, any Borrower, any Guarantor, any other obligor with respect to a Loan, or any Collateral, 

including voting for a plan of reorganization, and take any and all actions reasonably necessary 

to obtain relief from any stay imposed as part of (or seek dismissal of) any Insolvency 

Proceeding relating to any Loan, any Borrower, any Guarantor, any other obligor with respect to 

a Loan or any Collateral; 

(j) consent to any direct or indirect transfers or pledges of the ownership 

interests in any Borrower, any change in management of any Borrower (or its permitted 

successors and assigns), or any material change in the organizational documents of any 

Borrower; 

(k) approve any material modification, extension or termination of any lease 

to the extent such material modification, extension or termination requires the Company’s 

consent pursuant to the terms of the Loan Documents; 

(l) subordinate the Liens of the Collateral Document or any other Loan 

Document; 

(m) consent to any senior or subordinate financing affecting Borrower or the 

Collateral, or any mezzanine financing affecting Borrower or any direct or indirect member of 

Borrower; 

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(n) waive any material default under the Loan Documents; 

(o) consent to material physical alterations of the Collateral; 

(p) settle, or consent to the settlement of, (i) any insurance claim or (ii) any 

condemnation claim or (iii) any deficiency; 

(q) consent to the application of condemnation awards or insurance proceeds 

for any purpose for the restoration of any Collateral in accordance with the terms of the Loan 

Documents or application to the secured obligations; 

(r) amend, or waive any provision of, any intercreditor agreement, and make 

all decisions with respect to the Loans under any intercreditor agreement; 

(s) take any Enforcement Action; 

(t) sell any Loan or deficiency to a third party; 

(u) accept a deed in lieu or in aid of foreclosure; 

(v) approve a mezzanine loan on the terms set forth in the Note or other Loan 

Documents and enter into an intercreditor agreement in connection therewith; and 

(w) if the applicable Loan is subject to an intercreditor agreement or Loan 

Participation agreement with any entity other than Affiliate of the Company, exercise any buysell rights, redemption rights, or rights under the Loan Participation agreement or similar rights. 

Section 5.10 Management and Disposition of Collateral. Subject to the other terms and 

conditions of this Agreement (including the Servicing Standard), the Company shall have full 

power and authority, acting alone or through the Contract Servicer and any Subservicers, to 

cause to be done any and all things in connection with the Company’s management of any 

Collateral or Acquired Collateral, that the Company may deem necessary or desirable, and cause 

to be made all asset management decisions in its reasonable discretion, including the following: 

(a) The Company may cause the retention of property management and 

leasing firms and other agents and contractors. 

(b) If required because construction has not been completed, the Company 

may enter into contracts for the completion and maintenance of the construction project, 

including contracts with the general contractor, the architect and the major subcontractors. 

(c) The Company (i) shall have the right but not the obligation to cause the 

termination of any property manager or exclusive sales agent (if any) and (ii) shall have the sole 

right to cause to be hired and terminated any property managers, sales agents and, if the 

Acquired Collateral is not then fully complete at the time in question, contractors, architects and 

other design and construction professionals and consultants. 

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(d) The Company shall cause reasonable efforts to be used to sell any 

Acquired Collateral to unaffiliated third parties for cash, and shall be responsible for the 

documentation of such sales. 

(e) The Company shall cause legal counsel to be hired when necessary or 

desirable in connection with any Acquired Collateral. 

(f) The Company may permit the sale, transfer or release of all or any portion 

of any Acquired Collateral. 

(g) The Company may permit capital improvements and physical or structural 

changes to be made to the Collateral, and the costs of all such improvements shall be deemed to 

be Post-Acquisition Costs. 

(h) The Company may permit the authorization of any easements or other 

changes to title. 

(i) The Company may permit the settlement of any insurance claim or 

condemnation awards. 

(j) The Company may release a Borrower, any Guarantor, or any other party 

now or hereafter liable for the payment of a Loan or the performance of any other obligation 

relating thereto, including in connection with any Guarantee, any environmental indemnity, or 

any intercreditor agreement, or amendment in any way any intercreditor agreement. 

(k) The Company may permit any lease for the Acquired Collateral or any 

new property management agreement relating to the property, or approve any modification to a 

lease, property management agreement, exclusive sales agreement, architect’s agreement, 

construction agreement, or other material agreements relating to the property. 

(l) The Company may permit any change in the property that would result in 

the termination or unavailability of any material Entitlement, franchise, license or approval for 

the property as contemplated by the Loan Documents. 

(m) The Company may permit the institution of any new Enforcement Action 

against a Borrower, any Guarantor or any other Person. 

(n) To the extent not precluded by Section 2.6 of the Contribution Agreement, 

the Company shall seek to recover from any Person, such as title companies and other insurers, 

such amounts as the Company may be entitled to claim therefore with respect to any Loan or 

Collateral. 

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ARTICLE VI 

LOAN DEFAULTS; ACQUISITION OF COLLATERAL 

Section 6.01 Discretion of the Company in Responding to Defaults of Borrower. Upon 

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

terms and conditions of this Agreement (including the Servicing Obligations of the Company), 

the Company 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 respective interests of the Company and 

Participant in the Loan 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 Loan Documents securing the Loan pursuant to the power of sale contained therein 

or through a judicial action, (d) the institution of proceedings against any Guarantor, (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 Guarantor. 

Section 6.02 Acquisition of Collateral. Nothing in this Section 6.02 or anything else in 

this Agreement shall be deemed to affirmatively require the Company to cause to be acquired all 

or any portion of any Collateral with respect to which there exists any Environmental Hazards. 

Prior to acquisition of title to any Collateral (whether by foreclosure, deed in lieu of foreclosure, 

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

Company shall cause to be commissioned with respect to such Collateral either (i) a Transaction 

Screen Process consistent with ASTM Standard E 1528-06, by an environmental professional or 

(ii) such other site inspections and assessments 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 

reimbursable as if it were a Company Advance as long as the costs for such Site Assessment 

were not paid to any Affiliate of the Company, or any Affiliate of the Servicer or any 

Subservicer. If title to any Collateral with respect to which there exists any Environmental 

Hazards 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 Collateral shall be 

taken and held in the name of a limited liability company or such other entity that is a Single 

Purpose Entity as the Company may choose (the “Ownership Entity”), whether already in 

existence or formed by the Company for such purpose. The Company or its wholly-owned 

subsidiary or Affiliate shall be the sole managing member of any Ownership Entity and 

Participant shall have a participation interest in the Acquired Collateral held by the Ownership 

Entity that provides for it to receive its Participant’s Share in accordance with Section 4.01 as if 

the Acquired Collateral were held by the Company. The purposes of the Ownership Entity shall 

be to hold the Acquired Collateral pending sale, complete construction of such Collateral, and 

operate the Collateral as efficiently as possible in order to minimize financial loss to the 

Company and Participant and to sell the Acquired Collateral as promptly as practicable in a way 

designed to minimize financial loss to the Company and Participant. Notwithstanding anything 

to the contrary contained herein, either the Ownership Entity shall be a pass-through entity with 

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no entity-level income tax obligations, or Participant’s Share shall be allocated before accrual or 

payment of any income tax due by such Ownership Entity, and the Company shall indemnify and 

hold harmless Participant from and against any liability for any income taxes due by the 

Ownership Entity. 

ARTICLE VII 

PARTICIPANT CONSENT; LIMITS ON LIABILITY 

Section 7.01 Actions Requiring Participant Consent. Notwithstanding anything to the 

contrary contained in this Agreement, the Company shall not permit to be taken any of the 

following actions without the prior written consent of Participant, which may be withheld or 

conditioned in Participant’s sole and absolute discretion: 

(a) the sale or other transfer of any Loan or Collateral (or any portion thereof) 

to any Affiliate of the Company, any Servicer or Subservicer, or any Affiliate of any Servicer or 

Subservicer; 

(b) the financing of the sale or other transfer of any Loan or Collateral (or any 

portion thereof), unless cash in an amount equal to Participant’s Share of the sale price, after 

deduction of Company Advances related to such Loan or Collateral, is distributed to Participant; 

(c) the sale of any Loan or Collateral (or any portion thereof) that provides for 

any recourse against Participant or Participant’s Share of the Loan Proceeds; 

(d) any disbursement of any funds in the Collection Account other than in 

accordance with the provisions of this Agreement; 

(e) the Company ceasing to be a member in good standing of MERS; 

(f) other than capitalizing accrued and unpaid interest, other amounts 

permitted to be capitalized pursuant to the Loan Modification Program, Company Advances and 

Receiver Advances, advancing additional funds that would increase the Unpaid Principal 

Balance; or 

(g) reimbursement for any expense or cost incurred (or paid) to any Affiliate 

of the Company or any Affiliate of the Servicer or any Subservicer. 

Section 7.02 Limitation of Liability. 

(a) Company Liability Generally. Neither the Company nor any of its 

Affiliates, nor any of their respective officers, directors, employees, partners, principals or 

agents, including the Servicer and any Subservicer, shall be liable for any action taken or omitted 

to be taken by them or any one of them under this Agreement or in connection with any Loan or 

Collateral or any portion thereof, except for any act or omission constituting (i) gross negligence, 

bad faith or willful misconduct (including any act or omission constituting theft, embezzlement, 

breach of trust or violation of any Law) or (ii) a material breach of this Agreement. The failure 

to obtain Participant consent as required by any provision of this Agreement and the failure to 

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comply with the obligations in Section 8.01 shall be considered a material breach of this 

Agreement and gross negligence on the part of the Company. Neither the Company nor any of 

its Affiliates, nor any of their respective officers, directors, employees, partners, principals or 

agents, including the Servicer and any Subservicer, shall be liable to Participant for any action 

taken or omitted to be taken by Participant. 

(b) Reliance on Notices, etc. Neither the Company nor Participant shall incur 

any liability to the other by acting in good faith upon any notice, consent, certificate or other 

instrument or writing (including telegram, cable, telex or telecopy) that is reasonably believed by 

the Company or Participant, as applicable, to be genuine and to have been signed or sent by the 

proper party and that on its face is properly executed. 

(c) Participant Liability Generally. In the event Participant exercises its rights 

pursuant to Article X, neither Participant nor any of its officers, directors, employees, attorneys 

or agents, including any Servicer and any Subservicer, shall be liable for any action taken or 

omitted to be taken by them or any one of them under this Agreement or in connection with any 

Loan or Collateral or any portion thereof, except for any act or omission constituting willful 

misconduct. 

(d) No Consequential Damages. Regardless of the legal theory upon which 

any claim by or against the Company or Participant is based, including any claim based on 

contract, tort, strict liability, or fraud, neither Participant nor the Company shall be liable for, or 

may recover from the other, any amounts other than actual losses, costs and expenses (including 

reasonable attorneys’ fees and litigation and similar costs to pursue such recovery) incurred by 

the party asserting the claim. Without limiting the foregoing, neither party shall be liable for, or 

entitled to recover from the other party, any consequential, special, indirect, punitive, treble, 

nominal or exemplary damages, business interruption costs or expenses, or damages for lost 

profits, operating losses or lost investment opportunity (regardless of whether any such damages 

are characterized as direct or indirect), each of which is and all of which are hereby excluded by 

agreement of Participant and the Company, regardless of whether the party against whom such 

damages may be claimed has been advised of the possibility of any such damages, unless (in 

each case) such losses are incurred by the party asserting the claim as a direct result of a claim 

asserted against such party by a third party. For purposes of this Section, the following claims 

shall not constitute claims asserted by a third party: (A) with respect to the Company, any claims 

asserted by (1) any Servicer or Subservicer, (2) any Affiliate of any of the Company or any 

Servicer or Subservicer, and (3) any officer, director, employee, partner, principal or agent of 

any of the Company, any Servicer or Subservicer, or any Affiliate of the Company, any Servicer 

or Subservicer; and (B) with respect to Participant, any claims asserted by any Affiliate or 

officer, director, employee, partner, principal or agent of Participant or any Affiliate. 

ARTICLE VIII 

ADDITIONAL COMPANY COVENANTS; INDEMNIFICATION 

Section 8.01 Covenants. The Company hereby covenants with Participant as follows: 

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(a) Company Status; Licensing. The Company shall, at all times, be a single 

member limited liability company organized under the laws of the State of Delaware and a 

Single Purpose Entity. As soon as reasonably practical after the Effective Date the Company 

shall apply for and, thereafter, use its reasonable best efforts to obtain, as quickly as possible, and 

maintain all such licenses as are required to conduct its business, including qualifications to 

conduct business in jurisdictions other than Delaware and licenses to purchase, own or service 

the Loans, if the failure to so obtain such licenses would reasonably be expected to result in the 

imposition of fines, penalties or other liabilities on the Company, claims and defenses being 

asserted against the Company (including counterclaims and defense asserted by Borrowers), or 

materially adversely affect the Company or the Company’s ability to foreclose on the Collateral 

securing or otherwise realize the full value of any Loan or Acquired Collateral. 

(b) Company Obligations. The Company (i) shall at all times have in effect 

and be subject to the Company Operating Agreement, (ii) except as is otherwise expressly 

permitted therein, shall amend the Company Operating Agreement only with the prior written 

approval of Participant, and (iii) shall not enter into or allow itself to become subject to any other 

constituent documents inconsistent with any terms of the Company Operating Agreement. 

(c) Document Custodian. The Company shall retain and enter into and, at all 

times, be a party to a Custodial Agreement with a document custodian (the “Document 

Custodian”) who is a Qualified Custodian and such Document Custodian shall at all times have 

custody and possession of the Notes and other Custodial Documents. At no time shall the 

Company have more than one Document Custodian. The fees and expenses paid to the 

Document Custodian shall be no more than market rates and the Custodial Agreement shall be 

terminable by the Company and Participant upon no more than thirty (30) days notice, without 

cause thereunder. In the event that the Company (or its Servicer) removes any Notes or other 

Custodial Documents from the possession of the Document Custodian (which shall be done only 

in accordance with the Custodial Agreement), (i) any loss or destruction of or damage to such 

Notes or Custodial Documents shall be the liability of the Company (who, along with its Servicer 

shall be responsible for safeguarding such Notes and Custodial Documents), and (ii) such Notes 

shall be returned to the Document Custodian within the time provided under the applicable 

Uniform Commercial Code to maintain Participant’s perfection thereof by possession. If any 

Notes or Custodial Documents are removed in connection with the modification or restructuring 

of a Loan, the modified or restructured Notes and any Custodial Documents removed in 

connection therewith shall be returned to the Document Custodian as soon as possible following 

the completion of the restructuring or modification (and, in any event, in accordance with clause 

(ii) of the immediately preceding sentence). The Company shall ensure that Participant receives 

a copy of each demand, notice or other communication given under the Custodial Agreement at 

the time that such notice or other communication is given thereunder. 

(d) Relationships with Borrowers, etc. The Company shall not, at any time, 

(i) be a partner or joint venturer with any Borrower, (ii) be an agent of any Borrower, or allow 

any Borrower to be an agent of the Company, or (iii) except as is otherwise contemplated by its 

ownership of the Loans and its right to hold Acquired Collateral, have any interest whatsoever in 

any Borrower, Guarantor or other obligor with respect to any Loan or any of the Collateral. 

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(e) No Conflicting Obligations. The Company shall not, at any time, enter 

into or become a party to any agreement that would conflict with the terms of this Agreement. 

(f) Compliance with Law. The Company shall, at all times, comply with 

applicable Law in connection with the performance of its obligations under this Agreement. 

(g) No Company Debt. Without limiting its obligation to constitute a Single 

Purpose Entity, the Company shall not, at any time, incur any Debt. 

(h) No Dissolution or Liquidation. The Company shall not dissolve or 

liquidate at any time prior to such time as the Company makes the Final Distribution and this 

Agreement is terminated. 

(i) No Bankruptcy Filing. The Company shall not (i) file a voluntary petition 

for bankruptcy, (ii) file a petition or answer seeking any reorganization, arrangement, 

composition, readjustment, liquidation, dissolution or similar relief under any Law, (iii) make an 

assignment for the benefit of creditors, (iv) seek, consent or acquiesce in the appointment of a 

trustee, receiver or liquidator or of all or any substantial part of its properties, (v) file an answer 

or other pleading admitting or failing to contest the material allegations of (A) a petition filed 

against it in any proceeding described in clause (i) through (iv), or (B) any order adjudging it a 

bankrupt or insolvent or for relief against it in any bankruptcy or Insolvency Proceeding, or (vi) 

allow itself to become unable to pay its obligations as they become due or allow the sum of its 

debts to be greater than all of its property, at a fair valuation. 

(j) No Liens. The Company shall not place or permit (voluntarily or 

involuntarily) any Lien to be placed on any of the Loans, the Loan Documents or the Loan 

Proceeds (other than the security interest granted to Participant hereunder), and shall not take any 

action to interfere with Participant’s rights as a secured party with respect to the Loans. 

(k) Servicer. The Company shall at all times cause its Servicing Obligations 

under this Agreement to be performed by a Servicer that is a Qualified Servicer. 

(l) MERS Member. The Company shall become a member of MERS on or 

before the Servicing Transfer Date and, for so long as this Agreement is in effect, maintain itself 

as a MERS member in good standing (including paying all dues and other fees required to 

maintain its membership, which costs shall not constitute Company Advances, and complying 

with MERS policies and procedures). The Company shall give prompt written notice of any 

disciplinary action instituted with respect to its failure to pay any fees required in connection 

with its use of the MERS® system or otherwise comply with any MERS policies or procedures. 

Section 8.02 Indemnification. 

(a) The Company shall indemnify and hold harmless Participant and 

Participant’s Affiliates, and their respective officers, directors, employees, partners, principals, 

agents and contractors (the “Indemnified Parties”) from and against any losses, damages, 

liabilities, costs and expenses (including reasonable attorneys’ fees and litigation and similar 

costs, and other out-of-pocket expenses incurred in investigating, defending, asserting or 

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preparing the defense or assertion of any of the foregoing), deficiencies, claims, interest, awards, 

judgments, penalties and fines (collectively, “Losses”) arising out of or resulting from (i) any 

breach by the Company or any of its Affiliates or any of their respective officers, directors, 

employees, partners, principals, agents or contractors (including any Servicer or Subservicer) of 

any of the Company’s obligations under or covenants or agreements contained in this Agreement 

(including any claim asserted by Participant against the Company to enforce its rights pursuant to 

Section 10.02 or by any third party and including any breach caused by any Servicer or 

Subservicer), or any third-party allegation or claim based upon facts alleged that, if true, would 

constitute such a breach, or (ii) any gross negligence, bad faith or willful misconduct (including 

any gross negligence, bad faith or willful misconduct of any Servicer or Subservicer and 

including any act or omission constituting theft, embezzlement, breach of trust or violation of 

any Law). Such indemnity shall survive the termination of this Agreement. In order for an 

Indemnified Party to be entitled to any indemnification provided for under this Agreement in 

respect of, arising out of or involving a Loss or a claim or demand made by any Person against 

the Indemnified Party (a “Third Party Claim”), such Indemnified Party shall deliver notice 

thereof to the Company promptly after receipt by such Indemnified Party of written notice of the 

Third Party Claim, describing in reasonable detail the facts giving rise to any claim for 

indemnification hereunder, the amount of such claim (if known) and such other information with 

respect thereto as is available to the Indemnified Party and as the Company may reasonably 

request. The failure or delay to provide such notice, however, shall not release the Company 

from any of its obligations under this Section 8.02 except to the extent that it is materially 

prejudiced by such failure or delay. 

(b) If for any reason the indemnification provided for herein is unavailable or 

insufficient to hold harmless the Indemnified Parties, the Company shall contribute to the 

amount paid or payable by the Indemnified Parties as a result of the Losses of the Indemnified 

Parties in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties, 

on the one hand, and the Company (including any Servicer or Subservicer), on the other hand in 

connection with a breach of the Company’s obligations under this Agreement. 

(c) If the Company confirms in writing to the Indemnified Party within fifteen 

(15) days after receipt of a Third Party Claim the Company’s responsibility to indemnify and 

hold harmless the Indemnified Party therefore, the Company may elect to assume control over 

the compromise or defense of such Third Party Claim at the Company’s own expense and by the 

Company’s own counsel, which counsel must be reasonably satisfactory to the Indemnified 

Party, provided that (i) the Indemnified Party may, if such Indemnified Party so desires, employ 

counsel at such Indemnified Party’s own expense to assist in the handling (but not control the 

defense) of any Third Party Claim; (ii) the Company shall keep the Indemnified Party advised of 

all material events with respect to any Third Party Claim; (iii) the Company shall obtain the prior 

written approval of the Indemnified Party before ceasing to defend against any Third Party Claim 

or entering into any settlement, adjustment or compromise of such Third Party Claim involving 

injunctive or similar equitable relief being imposed upon any Indemnified Party or any of its 

Affiliates; and (iv) the Company will not, without the prior written consent of each Indemnified 

Party, settle or compromise or consent to the entry of any judgment in any pending or threatened 

action in respect of which indemnification may be sought hereunder (whether or not any such 

Indemnified Party is a party to such action), unless such settlement, compromise or consent by 

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its terms obligates the Company to satisfy the full amount of the liability in connection with such 

Third Party Claim and includes an unconditional release of the Indemnified Party from all 

liability arising out of such Third Party Claim. 

(d) Notwithstanding anything contained herein to the contrary, the Company 

shall not be entitled to control (and if the Indemnified Party so desires, it shall have sole control 

over) the defense, settlement, adjustment or compromise of (but the Company shall nevertheless 

be required to pay all Losses incurred by the Indemnified Party in connection with such defense, 

settlement or compromise): (i) any Third Party Claim that seeks an order, injunction or other 

equitable relief against the Indemnified Party or any of its Affiliates; (ii) any action in which 

both the Company (or any Affiliate) and the Indemnified Party are named as parties and either 

the Company (or such Affiliate) or the Indemnified Party determines with advice of counsel that 

there may be one or more legal defenses available to it that are different from or additional to 

those available to the other party or that a conflict of interest between such parties may exist in 

respect of such action; and (iii) any matter that raises or implicates any issue relating to any 

power, right or obligation of the Federal Deposit Insurance Corporation (in any capacity) under 

any Law. If the Company elects not to assume the compromise or defense against the asserted 

liability, fails to timely and properly notify the Indemnified Party of its election as herein 

provided, or, at any time after assuming such defense, fails to diligently defend against such 

Third Party Claim in good faith, the Indemnified Party may pay, compromise or defend against 

such asserted liability (but the Company shall nevertheless be required to pay all Losses incurred 

by the Indemnified Party in connection with such defense, settlement or compromise). In 

connection with any defense of a Third Party Claim (whether by the Company or the 

Indemnified Party), all of the parties hereto shall, and shall cause their respective Affiliates to, 

cooperate in the defense or prosecution thereof and to in good faith retain and furnish such 

records, information and testimony, and attend such conferences, discovery proceedings, 

hearings, trials and appeals, as may be reasonably requested by a party hereto in connection 

therewith. 

(e) Under no circumstances shall any liability of the Company under the 

provisions of this Section 8.02 constitute a Company Advance or otherwise be charged to 

Participant or deducted from Participant’s Share. 

ARTICLE IX 

CLEAN-UP CALL 

Section 9.01 Clean-Up Call Rights. Participant shall have the right, exercisable in its 

sole and absolute discretion, to require the liquidation and sale, for cash consideration, of any 

remaining Loans and Acquired Collateral held by the Company or any Ownership Entity (the 

“Clean-Up Call”) at any time after the earlier to occur of (i) the date that is ten (10) years after 

the Effective Date and (ii) the date on which the then Unpaid Principal Balance is ten percent 

(10%) or less of the Unpaid Principal Balance as of the Cut-Off Date as set forth on the Loan 

Schedule. 

Section 9.02 Exercise of Clean-Up Call Rights. In order to exercise its rights under this 

Section, Participant shall give notice in writing to the Company, setting forth the date by which 

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the remaining Loans and Acquired Collateral are to be liquidated by the Company, which date 

shall be no less than 150 calendar days after the date of such notice. 

Section 9.03 Company To Proceed Expeditiously. The Company shall proceed 

expeditiously to cause to be commenced the liquidation of the remaining Loans and Acquired 

Collateral by means of sealed bid sales to Persons other than Affiliates of the Company, the 

Servicer or any Subservicer, or Affiliates of the Servicer or any Subservicer. The selection of 

any financial adviser or other third party broker or sales agent retained for the liquidation of the 

remaining Loans and Acquired Collateral pursuant to this Section shall be subject to the prior 

approval of Participant, such approval not to be unreasonably withheld, delayed or conditioned. 

In the event the remaining Loans and Collateral are not liquidated by the date specified in the 

notice provided by Participant pursuant to Section 9.02, Participant shall be entitled to liquidate 

the remaining Loans and Collateral in its discretion and the Company shall cooperate and assist 

with such liquidation to the extent reasonably requested by Participant. In the event the 

Company or any Affiliate thereof desires to bid to acquire the remaining Loans and Collateral, 

then Participant shall be entitled to liquidate the remaining Loans and Collateral in its discretion. 

In the event Participant undertakes to liquidate the remaining Loans and Collateral pursuant to 

this Section, all costs and expenses incurred by it shall be deducted from the Loan Proceeds and, 

after reimbursing the Company for any Company Advances to which it is entitled pursuant to 

this Agreement, the remaining Loan Proceeds shall be allocated between and distributed to 

Participant and the Company in accordance with Section 4.01. 

ARTICLE X 

EVENTS OF DEFAULT OF THE COMPANY 

Section 10.01 Events of Default. An “Event of Default” means the occurrence of any of 

the following: 

(a) Any failure by the Company to cause to be allocated any amount required 

to be allocated to Participant under the terms of this Agreement or to cause to be remitted to 

Participant any payment required to be made to Participant under the terms of this Agreement, as 

set forth in the monthly cash flow and distribution report, in either case which continues 

unremedied until 12:00 p.m. New York time on the Business Day immediately following the 

date upon which written notice of such failure, requiring the same to be remedied, shall have 

been given to the Company; or 

(b) There occurs any Insolvency Event (without any cure period other than as 

may be provided for in the definition of Insolvency Event) with respect to the Company, any 

Affiliate of the Company, the Servicer or any Affiliate thereof, or any Subservicer or any 

Affiliate thereof, or the Guarantor under the Guaranty required to be delivered pursuant to the 

LLC Interest Sale Agreement (or any replacement thereof); or 

(c) Any failure of the Company to duly perform its obligations in Section 

5.05(d) or Section 5.05(e),which failure 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 to the Company; or 

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(d) Any failure of the Company to cause to be made any Company Advance 

pursuant to Article III, which failure 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 to the Company; or 

(e) The failure (i) by the Company at any time to comply with its obligation to 

retain and maintain the retention of a Servicer that is a Qualified Servicer, including as a result of 

the failure of the Servicer to meet the criteria of a Qualified Servicer, or (ii) by the Company to 

comply with its obligation to retain and maintain the retention of a Document Custodian that is a 

Qualified Custodian, including as a result of the failure of the Document Custodian to meet the 

criteria of a Qualified Custodian, which, in the case of either clause (i) or (ii), 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 to the Company; or 

(f) The failure of the Company or any member of the Company to comply 

with and enforce the provisions of the Company Operating Agreement, which 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 to the Company; or 

(g) The failure of the 

Company to cause the liquidation of the remaining Loans and Acquired Collateral in accordance 

with Section 9.03 within the time specified by Participant (without any cure period) upon the 

exercise by Participant of the Clean-Up Call; or 

(h) The occurrence of either (i) an event of default or material breach by the 

Servicer under the Servicing Agreement, which 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 Company to the Servicer or by Participant to the Company, or (ii) a 

failure by the Company to replace the Servicer upon the occurrence of either an Event of Default 

under this Agreement as a result of the Servicer’s acts or omissions or a material breach of or 

event of default under the Servicing Agreement by the Servicer, in either case which 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 to the Company; or 

(i) The occurrence of any event of default or material breach by the Company 

under the Servicing Agreement or the Custodial Agreement (including any failure to pay fees or 

expenses due thereunder by the Company) which, in either case, remains unremedied following 

the expiration of any cure period provided for therein (with no additional cure period hereunder); 

or 

(j) The failure, as a result of any act or omission of the Company or its 

Servicer, of the parties to complete the transfer of the servicing to the Loans to the Servicer on or 

prior to the Servicing Transfer Date; or 

(k) Any other failure (other than those specified in any of Sections 10.01(a) 

through (j)) on the part of the Company duly to observe or perform in any material respect any 

other covenants or agreements on the part of the Company contained in this Agreement 

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(including any obligations imposed upon any Servicer or Subservicer), which 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 to the Company; provided, however, 

that in the case of a failure that cannot be cured within thirty (30) days, the cure period shall be 

extended for an additional thirty (30) days if the Company can demonstrate to the reasonable 

satisfaction of Participant that the Company is diligently pursuing remedial action. 

Section 10.02 Remedies Upon Events Of Defaults. 

(a) General. Upon the occurrence of an Event of Default, in addition to any 

other rights it may have pursuant to this Agreement, any Ancillary Document or applicable Law 

(including the Uniform Commercial Code), whether at law or in equity and whether pursuant to 

statute or regulation or otherwise, and any or all of which may be exercised at Participant’s 

option and the Company’s expense, Participant shall have the right to take, at Participant’s 

option and the Company’s expense, one or more of the following actions: (i) upon notice in 

writing to the Company (effective at such time as is specified in such notice), to act on behalf of 

the Company to terminate the existing Servicer (and any Subservicers) and to cause the 

Company to enter into a new Servicing Agreement with a servicer (a “successor Servicer”) 

selected by Participant (in its sole and absolute discretion), and (ii) upon notice in writing to the 

Company (effective at such time as is specified in such notice), to terminate the Company’s 

rights as servicer pursuant to this Agreement and, in such case, (A) to terminate the Servicer and 

select (in its sole and absolute discretion), and enter into a Servicing Agreement with, a 

successor Servicer, such Servicing Agreement to be between Participant and the successor 

Servicer chosen by Participant, or (B) to retain the existing Servicer and to enter into a new 

Servicing Agreement between Participant and the Servicer (or to effect an assignment of the 

existing Servicing Agreement from the Company to Participant). Participant shall have no 

obligation to assume any obligations or liabilities of the Company under or in connection with 

any Servicing Agreement. Notwithstanding the foregoing, Participant shall not exercise its right 

to terminate the Servicer in the absence of (1) an Event of Default as described in Section 

10.01(a) if such Event of Default is due to the failure by the Servicer to perform any material 

obligation under the Servicing Agreement, (2) an Event of Default as described in Section 

10.01(b) with respect to the Servicer or any Affiliate thereof or Any Subservicer or any Affiliate 

thereof, or Section 10.01(c) with respect to the Servicer or any Subservicer, or if the Servicer is 

an Affiliate of the Company, with respect to the Company or any Affiliate of the Company, (3) 

an Event of Default as described in Section 10.01(e)(i) as a result of the failure of the Servicer at 

any time to meet the criteria of a Qualified Servicer, or Section 10.01(h)(i), or (4) any other 

Event of Default that consists of a breach of a servicing obligation under this Agreement. In 

addition, the Company hereby consents to the immediate termination of the Servicer upon the 

occurrence of any Event of Default described in Section 10.01(b). 

(b) Appointment of Successor Servicer. If Participant exercises its right to act 

on behalf of the Company to appoint a successor Servicer, the costs and expenses associated with 

such successor Servicer (including any servicing fees) shall be borne by the Company (and not 

Participant), and no termination or other fee shall be due to the Company or the Servicer or any 

Subservicer in connection with or as a result of any such action. All authority and power of the 

Company to act with respect to the terminated Servicer shall pass to and be vested in Participant 

under this Section and, without limitation, Participant is hereby authorized and empowered, as 

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attorney-in-fact or otherwise, to execute and deliver, on behalf of and at the expense of the 

Company, any and all documents and other instruments and to do or take any and all acts 

necessary or appropriate to effect the termination of the Servicer and the replacement of the 

Servicer with a successor Servicer. 

(c) Termination of Company’s Rights as Servicer. If Participant exercises its 

right pursuant to this Section to terminate the Company’s rights as servicer under this 

Agreement, all authority and power of the Company to act as servicer under this Agreement shall 

pass to and be vested in Participant under this Section and, without limitation, Participant is 

hereby authorized and empowered, as attorney-in-fact or otherwise, to execute and deliver, on 

behalf of and at the expense of the Company, any and all documents and other instruments and to 

do or take any and all acts necessary or appropriate to effect the termination and replacement of 

the Servicer and, in the event Participant decides to retain the Servicer, to enter into a new 

Servicing Agreement between Participant and the Servicer or to effect an assignment of the 

existing Servicing Agreement from the Company to Participant. Participant shall have and be 

entitled to exercise all rights of the Company as servicer under this Agreement and the costs and 

expenses associated with any such successor Servicer or the existing Servicer (including any 

servicing fees) shall be borne by the Company (and not Participant). 

(d) Cooperation To Facilitate Transfer. In any event, if a Servicer or 

Subservicer is terminated pursuant to the provisions of this Article X, the Company shall, and 

shall cause any Servicer (and any Subservicer) to, provide Participant and any successor Servicer 

in a timely manner with all documents, records and data (including electronic documents, 

records and data) requested by Participant or any successor Servicer to enable it and any 

successor Servicer to assume the responsibilities as servicer under this Agreement, and to 

cooperate with Participant in effecting the termination of any Servicer (or Subservicer) or the 

Company’s rights as servicer under this Agreement, including (x) the transfer within one (1) 

Business Day of all cash amounts which, at the time, shall be or should have been credited to the 

Collection Account or are thereafter received with respect to any Loans or Acquired Collateral, 

and (y) the transfer of all lockbox accounts with respect to which payments or other amounts 

with respect to the Loans are directed or the redirection of all such payments and other amounts 

to such account as Participant may specify, and (z) the assignment to Participant of the right to 

access all such lockbox accounts, the Collection Account, any Liquidity Reserve Account, any 

Litigation Reserve Account and any other account into which Loan Proceeds or Borrower 

escrow payments are deposited or held. Following the taking of any action pursuant to this 

Article X, the Company shall continue to be entitled to be reimbursed for Company Advances 

but only to the extent that it was entitled to reimbursement of Company Advances prior to such 

action. The Company shall be liable for, and Participant shall be entitled to deduct from the 

Company’s Share, all costs and expenses incurred by Participant (x) associated with the 

complete transfer of the servicing data, (y) associated with the completion, correction or 

manipulation of servicing data as may be required to correct errors or insufficiencies in the 

servicing data to enable Participant and any successor Servicer (and Subservicers) to service the 

Loans and Acquired Collateral properly and effectively, and (z) to retain and maintain the 

services of a successor Servicer (and any Subservicers). Within a reasonable time after receipt of 

a written request of the Company for the same, Participant shall provide reasonable 

documentation evidencing such costs and expenses, but Participant’s right to deduct such costs 

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and expenses from the Company’s Share shall not be subject to or contingent upon the provision 

of such documentation. 

(e) Power of Attorney. The Company hereby irrevocably constitutes and 

appoints Participant and any officer or agent thereof, with full power of substitution, as its true 

and lawful attorney-in-fact for the purposes of this Agreement and allowing Participant to 

perfect, preserve the validity, perfection and priority of, and enforce any lien granted by this 

Agreement and, after the occurrence and during the continuance of any Event of Default, to 

exercise its rights, remedies and powers and privileges under this Agreement. This appointment 

as attorney-in-fact is irrevocable and coupled with an interest until this Agreement is terminated 

and the security interests created hereby are released. Without limiting the generality of the 

foregoing, Participant shall be entitled under this Section 10.02(e) to do any of the following if 

an Event of Default has occurred and is continuing: (i) ask, demand, collect, sue for, recover, 

receive and give receipt and discharge for amounts due and to become due under and in respect 

of any or all of the Loans; (ii) file any claims or take any action or proceeding in any court of law 

or equity that Participant may reasonably deem necessary or advisable for the collection of all or 

any part of the Loans, defend any suit, action or proceeding brought against the Company with 

respect to any Loan, and settle, compromise or adjust any such suit, action or proceeding; (iv) 

execute, in connection with any sale or disposition of the Loans, any endorsements, assignments, 

bills of sale or other instruments of conveyance or transfer with respect to all or any part of the 

Loans; (v) enforce the rights of the Company under any provision of any Servicing Agreement to 

the extent permitted thereunder and under the terms of this Agreement; (vi) pay or discharge 

taxes and Liens levied or placed on the Loans; (vii) generally, sell, transfer, pledge and make any 

agreement with respect to or otherwise deal with any of the Loans as fully and completely as 

though Participant were the absolute owner thereof for all purposes; and (viii) do, at Participant’s 

option and the Company’s expense, at any time and from time to time, all acts and things that 

Participant reasonably deems necessary to protect, preserve, or realize upon the Loans and 

Participant’s security interests therein and to effect the intent of this Agreement, all as fully and 

effectively as the Company might do. Anything in this Section to the contrary notwithstanding, 

Participant agrees that it shall not exercise any right under the power of attorney provided for in 

this Section unless an Event of Default shall have occurred and be continuing. 

(f) Offsets. Without limiting any other rights of Participant hereunder, in the 

event Participant exercises any rights or remedies as a result of or in connection with the 

occurrence of an Event of Default, all costs and expenses (including reasonable attorneys’ fees 

and litigation and similar costs, and other out-of-pocket expenses incurred in investigating, 

defending, asserting or preparing the defense or assertion of any claim) incurred by Participant 

with respect thereto may be offset by Participant against the Company’s Share. 

ARTICLE XI 

RELATIONSHIP BETWEEN PARTICIPANT AND THE COMPANY 

It is expressly understood and agreed that, with respect to this Agreement and the 

transactions contemplated hereby, as between themselves, Participant and the Company each 

hereby acknowledge and agree that Participant is participating in the ownership of the Loans and 

Participant and the Company are not investing in a common enterprise or partnership with each 

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other. Each of the Company and Participant acknowledges that it shall occupy the status of, act 

as and be considered independent contractors and neither shall in any event be considered an 

agent, creditor, partner or employee of the other, it being the intent of the Parties that this 

Agreement shall not constitute nor be construed to create a partnership or joint venture of any 

kind between Participant and the Company. 

ARTICLE XII 

ASSIGNMENT 

Section 12.01 No Assignment by Company. The Company shall not sell participations 

in the Loans or assign or delegate this Agreement or, except as is required by Section 5.03, any 

rights or obligations hereunder to any other Person, without the prior written consent of 

Participant, which consent may be withheld or conditioned in Participant’s sole and absolute 

discretion. Any purported sale, sub-participation or assignment or delegation in violation of the 

preceding sentence shall be void ab initio and of no force or effect whatsoever. Subject to the 

foregoing, this Agreement shall be binding on and shall inure to the benefit of the Company and 

its respective successors and permitted assigns. The Company hereby acknowledges and agrees 

that this Agreement constitutes a personal services agreement between the Company and 

Participant. 

Section 12.02 Assignments by Participant. Participant shall be entitled to sell and assign 

all (but not part) of its Participation Interest (and the entire Participation Interest will be sold and 

transferred as a single participation interest) and, in conjunction therewith, its rights and 

obligations under this Agreement subject to applicable Law and the provisions of this Article 

XII. Participant’s right to sell and transfer its Participation Interest (and assign its rights and 

obligations under this Agreement) to any other Person, shall be subject to the following 

provisions: 

(a) Transfer Supplement. Except as provided in Section 12.02(b), any such 

assignment shall be made pursuant to a Transfer Supplement in substantially the form attached 

hereto as Exhibit G, duly completed, with such immaterial changes thereto as Participant and the 

transferee shall agree upon (a “Transfer Supplement”). Upon the execution and delivery of a 

Transfer Supplement by Participant and transferee, the same shall be delivered to the Company 

and, upon receipt, the Company shall acknowledge the same and be deemed to have accepted 

such Transfer Supplement. From and after the close of business at the Company’s office at 2700 

Agoura Road, Calabasas, CA 91301, on the Transfer Effective Date specified in such Transfer 

Supplement, the transferee shall be a party hereto and, to the extent provided in such Transfer 

Supplement, shall have the rights and obligations of Participant hereunder. 

(b) Transfer to FDIC. The Receiver, as the initial Participant, shall be entitled 

to transfer the Participation Interest to the FDIC (in any capacity) at any time, without the 

execution and delivery of a Transfer Supplement. Upon written notice of any such transfer 

delivered to the Company, the Company shall be deemed to have acknowledged such transfer 

and shall reflect such transfer on its books and in the register in which ownership of the 

Participation is recorded. The transfer of the Participation Interest shall be deemed to be 

effective on the transfer date specified by the FDIC in its notice to the Company of such transfer 

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unless such notice is not provided pursuant to the provisions of this Section within seven (7) 

Business Days after such date, in which case the transfer shall be deemed to be effective on the 

date on which such notice is received by the Company (the “Deemed Effective Date”). From 

and after the Transfer Effective Date specified in such Transfer Supplement or the Deemed 

Effective Date, as applicable, the transferring Participant shall be released from any obligations it 

may have under this Agreement and shall cease to be a party to this Agreement. 

(c) Exchange of Participation Certificate. Upon any such assignment, the 

Participation Certificate held by the transferor shall be exchanged and a new Participation 

Certificate, as necessary to evidence each transferee and its interest, evidencing such transfer 

shall be issued. 

ARTICLE XIII 

LENDERS’ TITLE INSURANCE; RIGHTS TO PAYMENTS 

Section 13.01 Title Policies. The Company and Participant hereby acknowledge and 

agree that the title policies insuring the Lien of the Collateral Documents securing the Loans 

which are required by the Loan Documents were issued in favor of Participant as the only 

insured thereunder; and have been or will be endorsed to reflect the Company as the only 

insured, but that Participant shall share in the Company’s interest therein, including any recovery 

thereunder, in accordance with the terms of this Agreement. 

Section 13.02 Sharing of Payments. Except as otherwise expressly set forth herein, 

neither the Company nor Participant shall obtain any payment or payments (whether voluntary or 

involuntary, through the exercise of any right of set-off or otherwise) to be applied on account of 

its interest in the Loans unless such payment or payments shall be shared by Participant and the 

Company in accordance with the terms of this Agreement. If any such payment or payments are 

rescinded, set aside or otherwise recovered by or on behalf of the Person from whom the 

payment or payments are received, or by or for the creditors of such Person, then any such 

payment or payments made to the Company or Participant pursuant to the preceding sentence 

shall be returned by the Company or Participant against whom such recovery is made. 

ARTICLE XIV 

TERMINATION 

At such time as the Final Distribution has been made, and all amounts due to Participant 

under and in accordance with this Agreement have been received by Participant, this Agreement 

shall be terminated and Participant shall have no further rights or remedies under this Agreement 

or with respect to the Loans, provided, however, that the provisions of Section 5.05(b), Section 

5.05(f), Section 7.02, Section 8.02, Article X, Article XI, Article XIV, Article XV, Article 

XVI, Article XVII and Article XIX and Participant’s rights thereunder and remedies for a 

breach thereof, shall survive the termination of this Agreement until such time as the obligations 

under Section 5.05(b) and Section 5.05(f) expire by their terms. 

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ARTICLE XV 

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, or, delivered by hand or by 

nationally recognized air courier service, directed to the address of such Person set forth below: 

If to Participant: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

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 

If to the Company 

before the Closing: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

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

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

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 

If to the Company 

after the Closing: PNMAC Mortgage Co. (FI), LLC 

27001 Agoura Road 

Calabasas, CA 91301 

Attention: David M. Walker 

with a copy to: PNMAC Mortgage Co. (FI), LLC 

27001 Agoura Road 

Calabasas, CA 91301 

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Attention: Jeff Grogin or Don Brewster 

Any such notice shall become effective when received (or receipt is refused) by the addressee, 

provided that any notice or communication that is received (or refused) 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. From time to time, any Person may designate a new 

address for purposes of notice hereunder by notice to such effect to the other Persons identified 

above. 

ARTICLE XVI 

GOVERNING LAW; JURISDICTION 

Section 16.01 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY 

AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK 

EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER 

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW 

OF ANOTHER JURISDICTION. Nothing in this Agreement shall require any unlawful action 

or inaction by any party hereto. 

Section 16.02 Jurisdiction; Venue and Service. The Company, for itself and 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 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 or the United States District Court for the District of 

Columbia (and appellate courts from any of the foregoing) as the party instituting such suit, 

action or proceeding may in its sole discretion elect, (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 16.02(a) may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to the Company at its address for notices pursuant to 

Article XV (with copies to such other Persons as specified therein); provided, however, that 

nothing contained in this Section 16.02 shall affect the ability of the Company 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 16.02(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 

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(d) agrees that nothing contained in this Section 16.02 shall be construed as a 

consent to jurisdiction by the Failed Bank or the FDIC in any capacity. 

Section 16.03 Waiver of Jury Trial. EACH OF THE COMPANY, FOR ITSELF AND 

ITS AFFILIATES, AND THE PARTICIPANT 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 XVII 

RIGHT TO SPECIFIC PERFORMANCE 

THE COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT THE 

DAMAGES TO BE INCURRED BY PARTICIPANT AS A RESULT OF THE COMPANY’S 

BREACH OF THIS AGREEMENT WILL BE DIFFICULT, IF NOT IMPOSSIBLE, TO 

ASCERTAIN, THAT DAMAGES WILL NOT BE AN ADEQUATE REMEDY AND THAT 

ANY BREACH OR THREATENED BREACH OF ANY OF THE PROVISIONS OF THIS 

AGREEMENT BY THE COMPANY MAY CAUSE IMMEDIATE IRREPARABLE HARM 

FOR WHICH THERE MAY BE NO ADEQUATE REMEDY AT LAW. ACCORDINGLY, 

THE PARTIES AGREE THAT, IN THE EVENT OF ANY SUCH BREACH OR 

THREATENED BREACH, PARTICIPANT SHALL BE ENTITLED TO IMMEDIATE AND 

PERMANENT EQUITABLE RELIEF (INCLUDING INJUNCTIVE RELIEF AND SPECIFIC 

PERFORMANCE OF THE PROVISIONS OF THIS AGREEMENT) FROM A COURT OF 

COMPETENT JURISDICTION (IN ADDITION TO ANY OTHER REMEDY TO WHICH IT 

MAY BE ENTITLED AT LAW OR IN EQUITY). THE PARTIES AGREE AND STIPULATE 

THAT PARTICIPANT SHALL BE ENTITLED TO SUCH EQUITABLE (INCLUDING 

INJUNCTIVE) RELIEF WITHOUT POSTING A BOND OR OTHER SECURITY AND THE 

COMPANY FURTHER WAIVES ANY DEFENSE IN ANY SUCH ACTION FOR SPECIFIC 

PERFORMANCE OR INJUNCTIVE RELIEF THAT A REMEDY AT LAW WOULD BE 

ADEQUATE AND ANY REQUIREMENT UNDER LAW TO POST SECURITY AS A 

PREREQUISITE TO OBTAINING EQUITABLE RELIEF. NOTHING CONTAINED IN 

THIS SECTION SHALL LIMIT THE PARTIES’ RIGHT TO ANY REMEDIES AT LAW, 

INCLUDING THE RECOVERY OF DAMAGES FOR BREACH OF THIS AGREEMENT. 

ARTICLE XVIII 

WITHHOLDING 

The Company shall be entitled to deduct and withhold such amounts required to be 

deducted and withheld under any applicable provision of federal, state or local tax Law from any 

distribution otherwise payable to Participant hereunder. To the extent that amounts are so 

deducted and withheld and paid over to the appropriate taxing authority, such deducted and 

withheld amounts shall be treated for all purposes of this Agreement as having been paid to 

Participant. Notwithstanding the foregoing, no amounts shall be deducted or withheld from any 

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distribution to Participant hereunder provided that Participant delivers to the Company a properly 

completed Internal Revenue Service Form W-9, W-8ECI or W-8BEN (or an applicable 

successor form) that exempts such distributions from such deductions and withholding. 

ARTICLE XIX 

MISCELLANEOUS 

Section 19.01 Entire Agreement. This Agreement and the Ancillary Documents contain 

the entire agreement between Participant and the Company with respect to the subject matter 

hereof and supersedes any and all other prior agreements, whether oral or written. 

Section 19.02 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 19.03 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 19.04 Compliance with Law. Except as otherwise specifically provided herein, 

each party to this Agreement shall, at its own cost and expense, obey and comply with all 

applicable laws, as they may pertain to such party’s performance of its obligations hereunder 

Section 19.05 Severability. Any provision of this Agreement which is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (i) if such provision is prohibited or unenforceable in such jurisdiction only as to a 

particular Person or Persons and/or under any particular circumstance or circumstances, such 

provision shall be ineffective, but only in such jurisdiction and only with respect to such 

particular Person or Persons and/or under such particular circumstance or circumstances, as the 

case may be; (ii) without limitation of clause (i), such provision shall in any event be ineffective 

only as to such jurisdiction and only to the extent of such prohibition or unenforceability, and 

such prohibition or unenforceability in such jurisdiction shall not invalidate or render 

unenforceable such provision in any other jurisdiction; and (iii) without limitation of clauses (i) 

or (ii), such ineffectiveness shall not invalidate any of the remaining provisions of this 

Agreement. Without limitation of the preceding sentence, it is the intent of the parties to this 

Agreement that in the event that in any court proceeding, such court determines that any 

provision of this Agreement is prohibited or unenforceable in any jurisdiction (because of the 

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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 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 16.01. 

Section 19.06 No Third Party Beneficiaries. This Agreement is made for the sole benefit 

of Participant and the Company and their respective successors and permitted assigns, and no 

other Person or Persons (including Borrowers or any co-lender or other Person with any interest 

in or liability under any of the Loans) shall have any rights or remedies under or by reason of this 

Agreement. 

Section 19.07 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 19.08 Time of Essence. Time is hereby declared to be of the essence of this 

Agreement and of every part hereof. 

Section 19.09 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 19.10 Amendments and Waivers. No provision of this Agreement may be 

amended or waived except in writing executed by all of the parties to this Agreement. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

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IN WITNESS WHEREOF, the paries hereto have caused this Paricipation Agreement to 

be executed as of the day and year first above written. 

PARTICIPANT: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION AS RECEIVER FOR FIRST 

NATIONAL BANK OF NEVADA

Title: Attorney-in-Fact 

THE COMPANY: 

FNBNI, LLC 

By: Federal Deposit Insurance Corporation as 

Receiver for First National Bank of 
 Nevada, as Sole 

Title: Attorney-in-Fact 

S-l 

FIRM_DM-# 123 I 7974-v3-FDIC _- _ FNBN_IJinal_Res_Par_& _ Serv _Ag.DO 

EXECUTION VERSION 
EXHIBIT A
 

LOAN SCHEDULE
 

[Attached] 

FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
EXHIBIT B-1
 

FORM OF CUSTODIAL AGREEMENT
 

[Attached] 

FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
EXHIBIT B-2
 

FORM OF SERVICING AGREEMENT
 

[Attached] 

FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
EXHIBIT C
 

FORM OF ELECTRONIC TRACKING AGREEMENT
 

[Attached] 

FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
 

EXHIBIT D 

FORM OF PARTICIPATION CERTIFICATE 

This Participation Certificate evidences an undivided ownership interest, as hereinafter 

specified, in the Loans and the Loan Documents relating thereto pursuant to the terms of that 

certain Participation and Servicing Agreement (the “Agreement”) dated as of December 29, 

2008, by and between the Federal Deposit Insurance Corporation as Receiver for First National 

Bank of Nevada (“Participant”) and FNBN I, LLC (the “Company”). 

The Participant’s Share evidenced by this Participation Certificate is sixty eighty percent 

(80%). 

Initially capitalized terms used and not otherwise defined in this Participation Certificate 

shall have the meanings given such terms in the Agreement. 

FNBN I, LLC 

By: Federal Deposit Insurance Corporation as 

Receiver for First National Bank of Nevada, as 

Sole Member and Manager 

By: 

Name: Ralph Malami 

Title: Attorney-in-Fact 

Effective Date of this Certificate: December 29, 2008 

D-1 

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EXHIBIT E 

LOAN MODIFICATION PROGRAM 

[Attached] 

D-1 

FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
EXHIBIT F 

FORM OF MONTHLY REPORT 

MONTHLY REPORTS 

Data File 

Requested Information in attached list 

Cashflow and Distribution Report 

Principal collections 

+ Interest collections 

+ Real Estate Owned (“REO”) properties liquidation proceeds 

+Recoveries of Company Advances (including Advances and Receiver Advances) 

+ Other Collections (including late fees and penalties) 

Release from Liquidity Reserve 

+Release from Litigation Reserve 

 GROSS FUNDS AVAILABLE 

- Payments on Loan Participations 

 NET FUNDS AVAILABLE 

- Prior month cumulative Working Capital Advances 

- Management Fees 

- Custodial Fee 

- Company Advances 

- Holdback for Liquidity Reserve Account 

- Holdback for Litigation Reserve Account 

 TOTAL AUTHORIZED DISBURSEMENTS 

NET DISTRIBUTABLE CASH 

+ Working Capital Advance (amount equal to total in row above, if negative) 

ADJUSTED NET DISTRIBUTABLE CASH 

DISTRIBUTION TO PARTICIPANT (%) 

DISTRIBUTION TO COMPANY (%) 

 TOTAL DISTRIBUTIONS (Equal to Adjusted Net Distributable Cash) 

Threshold Tracking Report 

Threshold Level 

Cumulative distributions toward Recovery Threshold, beginning of month 

+ Current month distribution 

= Cumulative distributions toward Recovery Threshold, end of month 

Remaining distributions to Recovery Threshold, end of month 

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FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
Monthly Loan and REO Rollforward Report:– by # and $ 

Loans 

By #: 

Beginning number of loans 

- Pay-offs 

- REO transfers 

= Ending number of loans 

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FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
By $: 

Beginning pool balance (UPB) 

+ Commitments funded 

- Payments received, 

- UPB transfers to REO 

- Write down of principal (Other) 

= Ending pool balance (UPB) 

REO 

By #: 

Beginning number of REO properties 

+ Transfers in 

- Sales 

= Ending number 

By $: 

Beginning UPB of REO properties 

+ Capitalized Post-Acquisition Costs 

+ UPB on REO transfers in 

- Net liquidation proceeds 

- Reimbursement of Post Acquisition Expenses 

+/- Realized Gain (Losses) 

= Ending UPB 

Working Capital Advances Report 

WORKING CAPITAL ADVANCES - MONTHLY 

ROLLFORWARD
 

Cumulative balance, prior month-end 

Net advances (recoveries), current month 

Cumulative balance, current month-end 

Liquidity Reserve Report 

LIQUIDITY RESERVE - MONTHLY ROLLFORWARD 

Balance, beginning of month 

Current month addition 

Current month disbursements 

Balance, end of month 

Litigation Reserve Report 

LITIGATION RESERVE - MONTHLY ROLLFORWARD 

Balance, beginning of month 

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FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
Current month addition 

Current month disbursements 

Balance, end of month 

Delinquency Report 

# and $ by delinquency classification: Current, < 30, 30-60 days, 61-90 days, > 90 days, in 

foreclosure, in bankruptcy, REO 

Breakout of > 60 day delinquencies by collateral type, # and $ 

Breakout of > 60 day delinquencies by state, # and $ 

Significant Litigation Report 

Provide a litigation summary report describing any claim or counterclaim (“claim”) filed against 

the Company and/or Servicer with respect to assets subject to this Agreement, the actions taken 

to defend such claim, and an estimate of the projected exposure for: a) any claim in which the 

Company or Servicer expects to incur more than $10,000 in Corporate Advances to defend such 

claim, b) any claim in which multiple plaintiffs have joined in filing an action against the 

Company and/or Servicer or the same law firm has filed individual claims on behalf of more than 

one plaintiff, and c) any claim(s) regardless of the dollar amount naming: (i) First National Bank 

of Nevada or , (ii) FDIC (in any capacity) as defendant(s). Activity should be updated quarterly. 

Environmental Exposure Report 

Provide a report identifying any assets in which the Site Assessment identified an Environmental 

Hazard together with information on the nature of the hazard, additional tests performed, and the 

cost of correcting the hazard identified in the Site Assessment. 

REO Report 

Listing of REO properties held to include original loan number, date of ownership, description, 

collateral type, address, UPB (of the loan prior to foreclosure), net book value, listing date, 

estimated sale date, appraisal amount, original list price, current list price cumulative PostAcquisition Costs incurred, broker name, and comments 

Modification Report 

Listing of loans modified, to include borrower name, loan balance and terms before 

modification, loan balance and terms after modification 

Liquidation Report 

Listing of loans and REO properties liquidated, to include borrower name, UPB, cumulative 

Post-Acquisition Costs, net liquidation proceeds, realized loss amount 

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EXECUTION VERSION 
Short Sale Report 

Listing of loans for which short sales were accepted, to include borrower name, UPB, payoff 

accepted, realized loss amount 

Judgment Report 

Listing of Judgments obtained, to include borrower name, Judgment amount, current month and 

cumulative payments received, remaining balance 

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EXECUTION VERSION 
 

SEMIANNUAL REPORT 

Projected Cash Flows 

Excel model of projected cash flows to Participant by month, as of June 30 and December 31 

each year. The model should present projected monthly cash inflows on the loans and REO, 

projected outflows for Borrower Reimbursable Costs, net monthly cash available for allocation, 

and the amount of allocation to Participation Certificate. 

The projection should run through the final projected distribution on the Participation Certificate. 

AS AVAILABLE 

Loan Schedule 

Loan Schedule from the Document Custodian, as provided to the Company. 

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EXECUTION VERSION 
 

Reporting Requirements 

Data File from servicing system to be provided in Excel 

(or such other data fields that Participant may request related to Company assets 

utilizing systems maintained by Servicer or any Subservicer) 

Data Fields Required by property 

Loan Number 

2nd Loan Number 

Combined Loan Amount 

1st Loan Amt 

2nd Loan Amt 

Combined UPB or Disb Amt 

1st Loan UPB or Disb 

2nd Ln UPB or Disb Amt 

Original Rate 

Current Rate 

Term 

Note 

CP Mod 

1st Due 

Next Due 

Maturity 

Margin 

Index 

Street 

City 

ST 

ZIP 

Original Appraisal 

Lien 

Credit Score 

CoBwr Score 

Units 

Prop Class 

Purp Type 

Occ 

Documentation 

Int Only 

Int Only End 

PMI Cert 

Basis 

PI Pymt 

TI Pymt 

2nd T&I Bal 

TI Balance 

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EXECUTION VERSION 
Last CP Insp 

CP % Comp 

COO 

BPO Date 

BPO Value As Is 

BPO Value Repair or Complete 

BPO Prop Condition 

Last Dlq Insp 

Inspection Type 

Insp Order 

Inspection Comments 

Updated Score 

Type 

Prod 

Product Description 

1st Mtg Loan 

Builder 

Sq Ft 

Int Type 

Inv 

Grp 

FC 

Consumer Indicator 

Bankruptcy Date 

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FNBN I Final Part&Serv Ag.DOC 

EXECUTION VERSION 
EXHIBIT G 

FORM OF TRANSFER SUPPLEMENT 

THIS TRANSFER SUPPLEMENT, dated as of the date specified in Item I of Schedule I 

hereto, among the Transferring Participant specified in Item 2 of Schedule I hereto (the 

“Transferring Participant”), the Purchasing Participant specified in Item 3 of Schedule I hereto 

(the “Purchasing Participant”), and the Company is made and entered into with reference to 

the following: 

Recitals: 

A. This Transfer Supplement is being executed and delivered in accordance with 

Section 12.02 of that certain Participation and Servicing Agreement, dated as of December 29, 

2008, between the Federal Deposit Insurance Corporation as Receiver for First National Bank of 

Nevada as Participant and FNBN I, LLC, as the Company (collectively, the “Parties”) (as the 

same may be amended, modified or supplemented from time to time, collectively the 

“Participation Agreement”). Initially capitalized terms used and not otherwise defined herein 

shall have the meanings given such terms in the Participation Agreement. 

B. The Purchasing Participant wishes to become Participant under the Participation 

Agreement and have assigned to it all of the Transferring Participant’s rights and obligations 

under the Loans and Loan Documents. 

C. The Transferring Participant is selling and assigning to the Purchasing Participant, 

and the Purchasing Participant is purchasing and assuming, all of the Transferring Participant’s 

rights and obligations under the Loans and the Loan Documents, (the “Transferring 

Participant’s Interests”). 

NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as 

follows: 

1. Transfer Effective Notice. Upon receipt by the Company of four (4) counterparts 

of this Transfer Supplement (to each of which is attached a fully completed Schedule I and 

Schedule II, and each of which has been executed by the Transferring Participant and by the 

Purchasing Participant), the Company will transmit to the Transferring Participant and the 

Purchasing Participant a transfer effective notice substantially in the form of Schedule III to this 

Transfer Supplement (a “Transfer Effective Notice”). The date on which the transfer effected 

by this Transfer Supplement shall become effective (the “Transfer Effective Date”), shall be the 

date on which the Purchasing Participant becomes the owner of record of the Transferring 

Participant’s Participation on the register maintained by the Company. From and after the close 

of business at Company’s office on the Transfer Effective Date, the Purchasing Participant shall 

be Participant under the Participation Agreement for all purposes thereof having the interest in 

the Transferring Participant’s Interests reflected in this Transfer Supplement. 

2. Purchase Price; Sale. At or before 12:00 o’clock noon, local time at the 

Transferring Participant’s office specified in Schedule III, on the Transfer Effective Date, the 

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EXECUTION VERSION 
Purchasing Participant shall pay to the Transferring Participant, in immediately available funds, 

an amount equal to the purchase price, as agreed upon between the Transferring Participant and 

the Purchasing Participant (the “Purchase Price”), for the Transferring Participant’s Interests. 

Effective upon receipt by the Transferring Participant of the Purchase Price from the Purchasing 

Participant, the Transferring Participant hereby irrevocably sells, assigns and transfers to the 

Purchasing Participant, without recourse, representation or warranty (express or implied) except 

as set forth in Section 5 hereof, and the Purchasing Participant hereby irrevocably purchases, 

takes and assumes from the Transferring Participant, the Transferring Participant’s Interests. 

3. Principal, Interest and Fees. All principal payments, interest, fees and other 

amounts that would otherwise be payable from and after the Transfer Effective Date to or for the 

account of the Transferring Participant in respect of the Transferring Participant’s Interests shall, 

instead, be payable to or for the account of the Purchasing Participant. 

4. Further Assurances. At any time and from time to time upon the written request 

of any party to this Transfer Supplement, each other party hereto will execute and deliver such 

further documents and do such further acts and things as such requesting party may reasonably 

request in order to effect the purposes of this Transfer Supplement. 

5. Certain Representations and Agreements. By executing and delivering this 

Transfer Supplement, the Transferring Participant and the Purchasing Participant represent, 

warrant and confirm to and agree with each other and the Company as follows: 

5.1 Each of the Transferring Participant and the Purchasing Participant has all 

requisite corporate or company authority to execute and deliver this Transfer Supplement and 

perform its obligations hereunder. 

5.2 The Purchasing Participant confirms that it has made such review, analysis and 

decision to acquire an interest in the Loans independently and without reliance upon the 

Company or the Transferring Participant. 

5.3 The Purchasing Participant confirms that it has such knowledge and experience in 

the origination, sale and/or purchase of performing and non-performing or distressed loans, 

including, without limitation, construction loans secured by residential properties, as well as 

financial and business matters as to enable the undersigned to utilize the information made 

available to it with respect to the Transferring Participant’s Interests to evaluate the merits and 

risks of a purchase of the Transferring Participant’s Interests, and to make an informed decision 

with respect thereto. 

5.4 The Purchasing Participant acknowledges, understands and represents that it is 

able to bear the economic risks associated with the acquisition and ownership of the Transferring 

Participant’s Interests, including, without limitation, the risk of a total loss of its investment 

therein and the risk that it may be required to hold the Transferring Participant’s Interests for an 

indefinite period of time. 

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5.5 The Purchasing Participant acknowledges that, unless otherwise provided in this 

Transfer Supplement, the Transferring Participant is not and will not make any representation or 

warranty with respect to the Transferring Participant’s Interests. 

5.6 The Purchasing Participant acknowledges and agrees that (i) the proposed sale of 

the Transferring Participant’s Interests is not intended to constitute the sale of a “security” within 

the meaning of the Securities Act or any applicable federal or state securities laws, (ii) no 

inference that any of the Transferring Participant’s Interests is a “security” under such federal or 

state securities laws shall be drawn from any of the representations or warranties made by the 

Purchasing Participant, (iii) it is not contemplated that any filing will be made with the Securities 

and Exchange Commission or pursuant to the Blue Sky or securities laws of any jurisdiction, and 

(iv) if any of the Transferring Participant’s Interests is a security, such may not be resold or 

otherwise transferred by the undersigned except in accordance with any and all applicable 

securities and Blue Sky laws. 

5.7 The Purchasing Participant shall perform in accordance with its terms all of the 

obligations which by the terms of the Participation Agreement are required to be performed by it 

as Participant. 

[Other representations to be agreed to by Purchasing Participant and Transferring 

Participant.] 

6. Schedule II. Schedule II hereto sets forth administrative information with respect 

to the Purchasing Participant. 

7. Governing Law. This Transfer Supplement shall be governed by, construed and 

enforced in accordance with the laws of the State of New York, without regard to principles of 

choice of law that might refer the governance, construction or enforcement of this Transfer 

Supplement to the laws of any other jurisdiction. 

8. Counterparts. This Transfer Supplement may be executed in any number of 

counterparts and by the different parties hereto on separate counterparts each of which, when so 

executed, shall be deemed an original, but all such counterparts shall constitute but one and the 

same instrument. 

IN WITNESS WHEREOF, the parties hereto have caused this Transfer Supplement to be 

executed by their respective duly authorized officers on Schedule I hereto as of the date set forth 

in Item I of Schedule I hereto. 

[Remainder of Page Intentionally Left Blank] 

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SCHEDULE I TO TRANSFER SUPPLEMENT 

COMPLETION OF INFORMATION AND 

SIGNATURES FOR TRANSFER SUPPLEMENT 

Re: Participation and Servicing Agreement, dated December 29, 2008 between the 

Federal Deposit Insurance Corporation as Receiver for First National Bank of 

Nevada and FNBI I, LLC, a __________________ (as the same may be amended, 

modified or supplemented from time to time, the “Participation Agreement”). 

Item I (Date of Assignment Supplement): [Insert date of Assignment Supplement] 

Item 2 (Transferring Participant): [Insert name of Transferring Participant] 

Item 3 (Purchasing Participant): [Insert name of Purchasing Participant] 

Item 5 (Signatures of Parties to Transfer Supplement): 

[Name of Transferring Participant], as Transferring 

Participant 

By: 

Title: 

[Name of Purchasing Participant], as Purchasing 

Participant 

By: 

Title: 

FNBN I, LLC 

By: 

Sole Member and Manager 

By: 

Title: 

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SCHEDULE II TO TRANSFER SUPPLEMENT 

LIST OF OFFICES, ADDRESSES 

FOR NOTICES 

[Name of Purchasing Participant] 

Notice Information for Purchasing Participant: 

Address for Notices: 

Attention: 

Telephone: 

Facsimile: 

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EXECUTION VERSION 
SCHEDULE III TO TRANSFER SUPPLEMENT 

TRANSFER EFFECTIVE NOTICE 

To: [Insert Names of Transferring 

Participant and Purchasing Participant] 

The undersigned, as the Company under the Participation and Servicing Agreement dated 

as of ______________ ___, 2008, by and between Federal Deposit Insurance Corporation, as 

Receiver for First National Bank of Nevada, and FNBN I, LLC (collectively, the “Parties”) (as 

the same may be amended, modified or supplemented from time to time, the “Participation 

Agreement”), acknowledges receipt of four (4) executed counterparts of a completed Transfer 

Supplement, dated ___________, 20__, from [name of Transferring Participant] to [name of 

Purchasing Participant] (the “Transfer Supplement”). Initially capitalized terms used and not 

otherwise defined in this Transfer Effective Notice have the meanings given in the Transfer 

Supplement. 

Pursuant to the Transfer Supplement, you are advised that the Transfer Effective Date 

will be _________________, 20___. [Insert fifth Business Day following date of Transfer 

Effective Notice or other date agreed to among the Transferring Participant, the Purchasing 

Participant, and the Company.] 

Very truly yours, 

FNBN I, LLC 

By: 

Sole Member and Manager 

By: 

Name: 

Title: 

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EXECUTION VERSION