SERVICING AGREEMENT 

by and between 

FNBN I, LLC 

and 

PENNYMAC LOAN SERVICES, LLC 

Dated as of December 29, 2008 

FNB SERVICING AG 

EXECUTION VERSION 
TABLE OF CONTENTS 

Page 

ARTICLE I DEFINITIONS AND CONSTRUCTION .................................................................. 1 

Section 1.01 Definitions................................................................................................... 1 

ARTICLE II SERVICING OBLIGATIONS OF THE SERVICER............................................... 8 

Section 2.01 Appointment and Acceptance as Servicer .................................................. 8 

Section 2.02 Limited Power of Attorney ......................................................................... 9 

Section 2.03 Servicing Fee .............................................................................................. 9 

Section 2.04 Servicing Standard...................................................................................... 9 

Section 2.05 Registration with MERS®........................................................................ 10 

Section 2.06 Collection Account ................................................................................... 10 

Section 2.07 Escrow Accounts ...................................................................................... 10 

Section 2.08 Other Accounts ......................................................................................... 11 

Section 2.09 Maintenance of Insurance Policies; Errors and Omissions and Fidelity 

Coverage ................................................................................................... 11 

Section 2.10 Expenses ................................................................................................... 11 

Section 2.11 Insured or Guaranteed Loans .................................................................... 11 

ARTICLE III LOAN DEFAULTS; ACQUISITION OF COLLATERAL .................................. 12 

Section 3.01 Delinquency Control................................................................................. 12 

Section 3.02 Discretion of the Company in Responding to Defaults of Borrower........ 12 

Section 3.03 Acquisition of Acquired Collateral ........................................................... 12 

ARTICLE IV SUBSERVICING .................................................................................................. 13 

Section 4.01 Retention of Subservicer ........................................................................... 13 

Section 4.02 Subservicing Agreement Requirements.................................................... 13 

Section 4.03 Servicer Liable for Subservicers............................................................... 14 

Section 4.04 Company Approval Required ................................................................... 15 

Section 4.05 Regulation AB Requirements ................................................................... 15 

ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE 

SERVICER ................................................................................................................................... 15 

Section 5.01 Representations and Warranties................................................................ 15 

Section 5.02 Reporting, Books and Records and Compliance Covenants .................... 16 

Section 5.03 Audits........................................................................................................ 18 

Section 5.04 No Liens.................................................................................................... 18 

Section 5.05 Servicer’s Duty to Advise; Delivery of Certain Notices .......................... 18 

Section 5.06 Notice of Breach ....................................................................................... 19 

ARTICLE VI PARTICIPANT CONSENT .................................................................................. 19 

Section 6.01 Actions Requiring Participant Consent..................................................... 19 

Section 6.02 Amendments, Modification and Waivers ................................................. 19 

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FNB SERVICING AG 

EXECUTION VERSION 
ARTICLE VII DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE ............ 20 

Section 7.01 Defaults..................................................................................................... 20 

Section 7.02 Termination with Cause ............................................................................ 21 

Section 7.03 Termination without Cause ....................................................................... 21 

Section 7.04 Effective Date ........................................................................................... 22 

Section 7.05 Accounting................................................................................................ 22 

ARTICLE VIII INDEPENDENCE OF PARTIES; INDEMNIFICATION ................................. 22 

Section 8.01 Independence of Parties ............................................................................ 22 

Section 8.02 Indemnification ......................................................................................... 22 

Section 8.03 Procedure for Indemnification .................................................................. 23 

ARTICLE IX NOTICES............................................................................................................... 23 

ARTICLE X GOVERNING LAW; JURISDICTION.................................................................. 24 

Section 10.01 Governing Law ......................................................................................... 24 

Section 10.02 Jurisdiction; Venue and Service................................................................ 24 

Section 10.03 Waiver of Jury Trial .................................................................................. 25 

ARTICLE XI MISCELLANEOUS .............................................................................................. 25 

Section 11.01 No Assignment by Servicer; No Transfer of Ownership Interests in 

Servicing Rights........................................................................................ 25 

Section 11.02 Legal Fees ................................................................................................. 26 

Section 11.03 Entire Agreement ...................................................................................... 26 

Section 11.04 Counterparts; Facsimile Signatures .......................................................... 26 

Section 11.05 Headings ................................................................................................... 26 

Section 11.06 Construction .............................................................................................. 26 

Section 11.07 Compliance with Law ............................................................................... 27 

Section 11.08 Severability ............................................................................................... 27 

Section 11.09 Third Party Beneficiary............................................................................. 27 

Section 11.10 Protection of Confidential Information..................................................... 28 

Section 11.11 Time of Essence ........................................................................................ 28 

Section 11.12 No Presumption ........................................................................................ 28 

Section 11.13 No Right of Setoff..................................................................................... 28 

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FNB SERVICING AG 

EXECUTION VERSION 
SCHEDULES AND EXHIBITS 

Exhibits 

Exhibit A Loan Schedule 

Exhibit B Electronic Tracking Agreement 

Exhibit C Loan Modification Program 

Schedules 

Schedule 1 Fee Schedule 

Schedule 2 Servicing Obligations 

Schedule 3 Reimbursement of Servicer Advances 

Schedule 4 Form of Electronic Report on the Loans and Collateral 

Schedule 5 Termination Without Cause 

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FNB SERVICING AG 

EXECUTION VERSION 
SERVICING AGREEMENT 

THIS 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 (including its successors and assigns, the 

“Company”), and PennyMac Loan Services, LLC, a Delaware limited liability company 

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

Agreement, the “Servicer”). 

RECITALS 

WHEREAS, the Company owns the Loans (as defined below) described on the Loan 

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

WHEREAS, the Company is obligated to service and manage the Loans and related 

Collateral (as defined below) pursuant to that certain Participation and Servicing Agreement (the 

“Participation Agreement”) dated as of the 29th day of December, 2008, by and between the 

Company and the Federal Deposit Insurance Corporation (“FDIC”), as receiver (“Receiver”) for 

First National Bank of Nevada, including its successors and assigns, (the “Participant”); and 

WHEREAS, the Company and the Servicer desire that the Servicer service and 

administer the Loans and Collateral on behalf of the Company in a manner that is, at all times, 

consistent with the requirements of this Agreement; 

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

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

sufficiency of which are hereby acknowledged, the Company and the Servicer 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 in this Section 1.01. 

“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 other 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 this 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 

FNB SERVICING AG 

EXECUTION VERSION 
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, the Participant shall not 

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

“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, 

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 Servicer or any other Person, or (y) servicing, management or similar fees paid to the 

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. 

“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 have the meaning given in Section 2.06. 

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FNB SERVICING AG 

EXECUTION VERSION 
“Company” shall have the meaning given in the Preamble. 

“Custodian” shall mean The Bank of New York Trust Co. NA 

“Default” shall have the meaning given in Section 7.01. 

“Eligible Account” shall mean a segregated trust or custodial account or accounts 

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

benefit of the Company and the Participant as required by Article II. 

“Effective Date” shall mean December 29, 2008. 

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

Exhibit B. 

“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 

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

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

be withdrawn by the FDIC 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. 

“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 Accounts” shall have the meaning given in Section 2.07. 

“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. 

“Failed Bank” shall mean First National Bank of Nevada. 

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

any successor thereto. 

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FNB SERVICING AG 

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. 

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

by the Company and the Servicer without the Participant’s consent. 

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

successor thereto. 

“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. 

“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 2.04. 

“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. 

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

“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; 

Proceeding; 

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

(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; 

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FNB SERVICING AG 

EXECUTION VERSION 
(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 ninety (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 ninety (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 

ninety (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 rate of 

any default interest, if applicable. 

“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. 

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

loan or Loan Participation into which any such listed loan is refinanced, including participation 

interests and co-lending interests in any listed loans, as applicable, 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 Company 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 Guarantors 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. 

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FNB SERVICING AG 

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

criteria described in Exhibit C, 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 the 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. 

“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 Servicing Transfer Date, 

including principal, interest, default interest, 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 Accounts. 

“Loan Schedule” shall have the meaning given in the first Recital of this Agreement. 

“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. 

“Mortgaged Property” shall mean the fee simple interest in real property, together with 

improvements thereto and any fixtures, leases and other real or personal property securing the 

related Note. 

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

agreement, shared credit or 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. 

“Other Accounts” shall have the meaning given in Section 2.08. 

“Participant” shall have the meaning given in the second Recital of this Agreement. 

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FNB SERVICING AG 

EXECUTION VERSION 
“Participation Agreement” shall have the meaning given in the second Recital of this 

Agreement. 

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

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

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 Servicer 

or any other Person, or (y) servicing, management or similar fees paid to the Servicer or any 

other Person. 

“Qualified Servicer” shall mean any Person that (i) has all required licenses and is 

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 

FDIC-insured depository institution, and (iv) in the case of any mortgage loan servicer or special 

servicer that does not have an Acceptable Rating, is acceptable to and approved by the 

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. 

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

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

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

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

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

with the Servicing Standard, or (ii) except as is otherwise expressly permitted pursuant to this 

Agreement, that are paid to any Affiliate of the Servicer, a Subservicer or any Affiliate of any 

Subservicer, or (iii) that are incurred to pay fees or other compensation to or expenses of 

financial advisers; and (b) fees and expenses of the Custodian, and (c) to the extent not covered 

by either of clause (a) or (b), all legal fees and expenses (including judgments, settlements and 

reasonable attorneys fees) incurred by the Servicer in its defense of claims asserted against the 

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FNB SERVICING AG 

EXECUTION VERSION 
Company that (x) relate to one or more Loans, and (y) 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. 

“Servicer Remittance Date” shall mean the 10th day of each month, or such other day 

as is agreed to by the Servicer and the Company, provided, however, that, in any case, if such 

day is not a Business Day, the Servicer Remittance Date shall be the immediately preceding 

Business Day. 

“Servicing Fee” shall have the meaning given in Section 2.03. 

“Servicing Obligations” shall have the meaning given in Section 2.04. 

“Servicing Standard” shall have the meaning given in Section 2.04. 

“Servicing Transfer Date” shall be February 1, 2009, or such other date as is agreed to 

by the Servicer and the Company. 

“Site Assessment” shall have the meaning given in Section 3.03. 

“Subservicer” shall have the meaning given in Section 4.01. 

“Subservicing Agreement” shall have the meaning given in Section 4.02. 

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

Article VII. 

“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 

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. 

ARTICLE II 

SERVICING OBLIGATIONS OF THE SERVICER 

Section 2.01 Appointment and Acceptance as Servicer. Effective as of the date hereof, 

the Company appoints the Servicer to service and administer the Loans and any Collateral on 

behalf of and as an agent of the Company. 

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FNB SERVICING AG 

EXECUTION VERSION 
Section 2.02 Limited Power of Attorney. The Company hereby grants to the Servicer a 

limited power of attorney to execute all documents on its behalf in accordance with the Servicing 

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

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

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

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

pursuant to Article VII. 

Section 2.03 Servicing Fee. As consideration for servicing the Loans, on each Servicer 

Remittance Date, the Servicer shall be paid such monthly servicing fees as are set forth on the 

Fee Schedule (the “Servicing Fee”). 

Section 2.04 Servicing Standard. The Servicer shall take such actions and perform such 

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

and Collateral as are set forth on Schedule 2, as the same may be amended from time to time by 

the Company and the Servicer without the Participant’s consent (“Servicing Obligations”). The 

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

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

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

all applicable Law, (v) with respect to all Loans, 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, 

and the Statement on Working with Mortgage Borrowers (April 2007), issued by the federal 

financial institutions regulatory agencies, as the same may be amended from time to time, and 

any Loan Modification Program provided to the Servicer by the Company (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 Servicer shall comply with the Fannie Mae Guidelines 

applicable to similar loans or collateral in similar situations (the requirements in clauses (i) 

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

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

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

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

any of its Affiliates may have to each other or to the Servicer or any of its Affiliates (other than 

the contractual relationship evidenced by this Agreement or any Subservicing Agreement), (iv) 

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

Affiliates (other than the contractual relationship evidenced by this Agreement), and (v) the 

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

its services under this Agreement or any Subservicing Agreement. 

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FNB SERVICING AG 

EXECUTION VERSION 
Section 2.05 Registration with MERS®. The Servicer shall register any Loan on the 

MERS® System and execute and deliver, on behalf of the Company any and all instruments of 

assignment and other comparable instruments with respect to such assignment or re-recording of 

a mortgage securing a Loan in the name of MERS®, solely as nominee for the Company and its 

successors and assigns. No other Person shall be identified on the MERS® system as having any 

interest in any of the Loans. The Loans shall remain registered on the MERS® system unless 

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

shall provide the Company with such reports from the MERS® system as either the Company, 

from time to time, may request, including to allow the Company 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. The Servicer shall also 

execute and deliver to the Company the Electronic Tracking Agreement. Without limiting the 

foregoing, upon the request of the Company, the Servicer shall cause MERS® to run a query 

with respect to any and all specified fields on the MERS® system with respect to any or all of 

the Loans registered on the MERS® system and provide the results to the Company and, if 

requested by the Company, shall cause MERS® to change the information in such fields, to the 

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

instructions. 

Section 2.06 Collection Account. 

(a) Except as otherwise directed by the Company. on or prior to the Servicing 

Transfer Date, the Servicer shall establish and maintain one or more Eligible Accounts, each of 

which shall be entitled in trust for the benefit of the Company and the Participant and shall be for 

the purpose of holding and distributing the Loan Proceeds (the “Collection Account”). The 

Servicer shall deposit into the Collection Account all Loan Proceeds 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. 

(b) Except as otherwise directed by the Company, on a monthly basis, the 

Servicer shall remit all amounts on deposit in the Collection Account to the Company by the 

Servicer Remittance Date. 

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

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

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

Agreement. 

(d) Except as otherwise directed by the Company, any and all amounts due 

the Company under this Agrement shall be remitted by wire transfer, in immediately available 

funds to such account or accounts as the Company may, from time to time, direct. 

Section 2.07 Escrow Accounts. Except as otherwise directed by the Company, the 

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

entitled in trust for the benefit of the Company and the Participant (“Escrow Accounts”). The 

Servicer shall deposit into the Escrow Accounts on a daily basis all collections from the 

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

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items for the account of the Borrowers. The Servicer shall pay to the Borrowers interest on 

funds in Escrow Accounts to the extent required by law. 

Section 2.08 Other Accounts. Except as otherwise directed by the Company, the 

Servicer shall establish and maintain such other Eligible Accounts as may be directed by the 

Company, each of which shall be entitled in trust for the benefit of the Company and the 

Participant, and shall be funded and disbursed only in accordance with such instructions as are 

provided by the Company (“Other Accounts”). 

Section 2.09 Maintenance of Insurance Policies; Errors and Omissions and Fidelity 

Coverage. 

(a) The Servicer and each Subservicer shall cause to be maintained for the 

Collateral (including any Acquired Collateral) from an insurer reasonably acceptable to the 

Company for 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, 

from time to time, is directed by the Company. 

(b) 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 or 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. The Servicer and each Subservicer shall provide 

the Company with certificates evidencing such coverage. 

(c) Copies of fidelity bonds and insurance policies required to be maintained 

pursuant to this Section shall be made available to the Company and its representatives upon 

request. 

Section 2.10 Expenses. Except as otherwise directed by the Company, the Servicer 

shall use its reasonable best efforts to recover from Borrowers and Guarantors all Borrower 

Reimbursable Costs that are Servicer Advances. All such Borrower Reimbursable Costs not 

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

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

time to time by the Company and the Servicer without the Participant’s consent. In the event the 

Servicer is reimbursed for any expense that is not, or cannot be documented as, a Servicer 

Advance, in the reasonable determination of the Company, the Servicer shall be obligated to 

refund such amounts to the Company on the Service Remittance Date immediately following the 

Servicer’s receipt of notice from the Company requesting the same. No Servicer Advances shall 

bear interest chargeable in any way to the Company or deductible from any Loan Proceeds. 

Section 2.11 Insured or Guaranteed Loans. If any Loans being serviced pursuant to this 

Agreement are insured or guaranteed by any Governmental Authority, the Servicer 

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acknowledges and agrees that, if the Company so directs in the Servicing Obligations with 

respect to such Loans, it shall take any and all actions as may be necessary to insure such 

insurance or guarantees remain in full force and effect. The Servicer acknowledges and agrees 

that, upon assumption of the Servicing Obligations with respect to the Loans pursuant to this 

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

or guaranty. 

ARTICLE III 

LOAN DEFAULTS; ACQUISITION OF COLLATERAL 

Section 3.01 Delinquency Control. Except as otherwise directed by the Company, the 

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

Standard and protect the Company’s investment in the Loans in accordance with the Servicing 

Standard with Borrowers who are delinquent or in default. 

Section 3.02 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 Servicer and 

such direction as the Company may otherwise provide that is consistent with the Servicer’s 

compliance with the Servicing Standard, the Servicer 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 the 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 and the collection of such judgment. 

Section 3.03 Acquisition of Acquired Collateral. Any acquisition of Collateral shall 

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

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

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

Property, the Servicer shall immediately provide written notice of same to the Company. In 

addition, if the Company so directs, the Servicer shall cause to be commissioned with respect to 

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

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

whether there are any actual or threatened Environmental Hazards (a “Site Assessment”) 

prepared by a Person who regularly conducts environmental audits using customary industry 

standards. Except as is otherwise directed by the Company, the Servicer or any Subservicer shall 

not acquire or otherwise cause the Company or any other ownership entity to acquire all or any 

portion of any Collateral having any actual or threatened Environmental Hazard by foreclosure, 

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EXECUTION VERSION 
deed in lieu of foreclosure, power of sale or sale pursuant to the Uniform Commercial Code or 

otherwise. 

ARTICLE IV 

SUBSERVICING 

Section 4.01 Retention of Subservicer. The Servicer may engage or retain subservicers, 

including Affiliates of the Servicer (individually and collectively, “Subservicer”), as it may 

deem necessary and appropriate, 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. 

Section 4.02 Subservicing Agreement Requirements. Any subservicing agreement with 

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

(a) provide for the servicing of the Loans and management of the Collateral by the 

Subservicer in accordance with the Servicing Standard and the other terms of this Agreement; 

(b) be terminable with or without cause, upon no more than thirty (30) days prior notice 

in the event of any Default under this Agreement or the Subservicing Agreement; 

(c) provide that the Servicer (and, in the case of any Subservicing Agreement, the 

Subservicer) as well as the Company and the Participant shall be entitled to exercise termination 

rights thereunder; 

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

Agreement constitutes a personal services agreement between the Servicer and the Subservicer; 

(e) provide that each of the Participant and the Company is a third party beneficiary 

thereunder and entitled to enforce the Subservicing Agreement; 

(f) (i) upon a Default under this Agreement, provide that the Company and Participant 

may exercise all of the rights of (A ) the Company under this Agreement and cause the 

termination or assignment of this Agreement to any other Person, without penalty or payment of 

any fee, and (B) the Servicer under any or or all the Subservicing Agreements entered into by the 

Servicer, to any other Person, without penalty or payment of any fee, and (ii) upon a default 

under any Subservicing Agreement, provide that the Company and Participant may exercise all 

of the rights of the Servicer under such Subservicing Agreement and cause the termination or 

assignment of any such Subservicing Agreement to any other Person, without penalty or 

payment of any fee; 

(g) provide that the Company and the Participant (and each of their respective 

representatives) shall have access to and the right to review, copy and audit the books and 

records of the Subservicer and that the Subservicer shall make available its officers, directors, 

employees, accountants and attorneys to the Company and the Participant (and each of their 

respective representatives) to answer questions or to discuss any matter relating to the 

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

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

established or maintained pursuant to this Agreement or the Subservicing Agreement or any 

matters relating to the Subservicing Agreement or the rights or obligations thereunder; 

(h) 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 Servicer Advances and interest and earnings thereon, to be deposited into the Collection 

Account; 

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

Subservicing Agreement with the Servicer and that any prohibited transaction shall be void ab 

initio; 

(j) provide that all of the Loans shall be registered on the MERS® system (where 

applicable) unless default, foreclosure or similar legal or MERS requirements dictate otherwise; 

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

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

Subservicer is obligated to comply with the Servicing Obligations of the Servicer hereunder in 

the conduct of such matters as are delegated to the Subservicer, 

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

the provisions of Sections 7.01(a), (b), (c), (e), (f) and (h) of this Agreement, and (ii) provide 

that the Participant has the right (x) to terminate the Subservicing Agreement by providing 

written notice upon the occurrence of any such default (except that, with respect to default under 

the provision that parallels Section 7.01(c), only with respect to the provisions that parallel 

Sections 5.02(f) and (g) that shall be referred to therein), without any cure period other than as 

may be provided for in the default provisions that parallel provisions in Section 7.01, and in the 

event of any Default under any of Sections 7.01(a), (b), (c) (but, with respect to a Default under 

clause (c), only with respect to Sections 5.02(f) and (g) referred to therein), (e), (f) or (h) of this 

Agreement, and (y) otherwise to enforce the rights of the Servicer under the Subservicing 

Agreement; and 

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

Subservicing Agreement upon a Default under Section 7.01(b) of this Agreement and upon the 

occurrence of any Insolvency Event with respect to the Subservicer or any of its Affiliates, and 

(ii) the occurrence of any Insolvency Event with respect to the Subservicer or any Affiliate 

thereof constitutes a default under the Subservicing Agreement. 

Section 4.03 Servicer Liable for Subservicers. Notwithstanding anything to the 

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

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

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

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

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

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

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Section 4.04 Company Approval Required. Each Subservicing Agreement and all 

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

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

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

conditioned). A copy of all Subservicing Agreements, as executed and delivered and all 

amendments thereto, shall be provided to the Company. 

Section 4.05 Regulation AB Requirements. The Servicer shall ensure, where 

applicable, that each 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). 

ARTICLE V 

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER 

Section 5.01 Representations and Warranties. The Servicer hereby makes the following 

representations and warranties as of the date hereof: 

(a) The Servicer (i) is a limited liability company, duly organized, validly 

existing and in good standing under the laws of the State of Delaware; (ii) has qualified or will 

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

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

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

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

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

in the United States. 

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

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

transactions contemplated by this Agreement and has been duly authorized by all necessary 

requisite action on the part of the Servicer. 

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

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

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

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

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

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

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

a party valid and binding upon the Servicer in accordance with their terms and conditions. 

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

authorized to do so. 

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

servicing of the Loans under this Agreement, the consummation of any other of the transactions 

contemplated by this Agreement, and the fulfillment of or compliance with the terms hereof are 

in the ordinary course of business of the Servicer and (i) will not result in a breach of any term or 

provision of the articles or charter or bylaws or operating agreement of the Servicer; (ii) conflict 

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

notice or lapse of time, or both, would constitute a default) under the terms of any agreement or 

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

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

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

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

meet any of its obligations under this Agreement. 

(f) No litigation is pending or threatened against the Servicer that would 

prohibit the Servicer from entering into this Agreement or is likely to materially and adversely 

affect either the ability of the Servicer to perform its obligations under this Agreement or the 

financial condition of the Servicer. 

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

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

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

this Agreement has been obtained and is effective. 

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

shall, 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 Servicer or any Subservicer, or (iii) have 

any interest whatsoever in any Borrower, Guarantor or other obligor with respect to any Loan or 

any of the Collateral. 

Section 5.02 Reporting, Books and Records and Compliance Covenants. The Servicer 

covenants to the Company as follows: 

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

Service information returns related to the Loans for all applicable periods commencing with the 

Servicing Transfer Date. Information returns include reports on Forms 1098 and 1099 and any 

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

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

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

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

(b) The Servicer shall cause to be kept and maintained (including by any 

Subservicer and including records transferred by the Company to the Servicer), at all times, at 

the Servicer’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 interests in the Loans and the 

Collateral, including records relating to the Collection Account, and any other accounts 

maintained in connection with the Loans and Servicer Advances. 

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

retained until the date that is the later of ten (10) years after the Effective Date of this Agreement 

or three (3) years after the date on which the final Loan Proceeds are distributed to the Company, 

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

records shall be available during such period for inspection by the Company and the Participant 

(and their representatives, including any applicable Government Authority) at all reasonable 

times during business hours on any Business Days (or, in the case of any such inspection after 

the term hereof, at such other location as is provided by notice to the Company or the Participant, 

as applicable), in each instance upon two (2) Business Days’ prior notice to the Servicer. Upon 

request by the Company, the Servicer, at the sole cost and expense of the Company, shall 

promptly send copies (the number of copies of which shall be reasonable) of such books and 

records to the Company. The Servicer shall provide the Company with reasonable advance 

notice of the Servicer’s intention to destroy or dispose of any documents or files relating to the 

Loans and, upon the request of the Company, shall allow the Company, at its own expense, to 

recover the same from the Servicer. The Servicer shall also maintain complete and accurate 

records reflecting the status of taxes, ground rents and other recurring charges generally accepted 

by the mortgage servicing industry, which would become a Lien on the security property. 

(d) The covenants set forth in Section 5.02(b) and (c) above to maintain a 

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

possession or control pertaining to the 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 Servicer’s (and 

Subservicer’s) internal memoranda pertaining to the Loans and the Collateral. 

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

the Servicer Remittance Date, commencing the first month following the Servicing Transfer 

Date, a monthly Electronic Report on the Loans and Collateral containing such information and 

substantially in the form set forth on Schedule 4, as the same may be amended from time to time 

by the Company and the Servicer without the Participant’s consent. 

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

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

Servicer may agree, 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, any Subservicing 

Agreement) has been made under such officer’s supervision, and (ii) to the best of such officer’s 

knowledge and belief, based on such review, such party has fulfilled all of its obligations under 

this Agreement (or, as applicable, any Subservicing Agreement) in all material respects 

throughout such year or portion thereof or, if there has been a failure to fulfill any such 

obligation in any material respect, specifying each such failure and the nature and status thereof. 

In the event any Subservicer was terminated, resigned or otherwise performed in such capacity 

for only part of a year, such party shall provide such annual compliance certificate with respect 

to such portion of the year. 

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

and the Servicer agree, commencing in the year 2010, the Servicer shall cause each Subservicer, 

each at its own expense or the expense of the Servicer, 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 and Servicer shall simultaneously deliver the annual compliance report to the 

Company. 

Section 5.03 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 date on which the final Loan Proceeds are 

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

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

the Participant and their respective representatives (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, the Collection Account, the Escrow Accounts, any Other Accounts or any matters 

relating to this Agreement or the rights or obligations hereunder, (b) permit such representatives 

to make copies of and extracts from the same, (c) allow the Company and the Participant to 

cause such books to be audited by accountants selected by the Company or the Participant, as 

applicable, and (d) allow the Company and the Participant to discuss the Servicer’s and 

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

Servicing, the Collection Account, the Escrow Accounts, and any Other Accounts established 

pursuant to this Agreement or any other matters relating to this Agreement or the rights or 

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

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

with such representatives), Subservicers, and attorneys. 

Section 5.04 No Liens. The Servicer 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, and shall not take any action to interfere with the Participant’s rights as a secured party 

with respect to the Loans, Collateral and Loan Proceeds. 

Section 5.05 Servicer’s Duty to Advise; Delivery of Certain Notices. In addition to 

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

Company hereunder, the Servicer shall cause to be delivered to the Company, such information 

relating to the Loans and Collateral as the Company may reasonably request from time to time 

and, in any case, shall ensure that the Company is promptly advised, in writing, of any matter of 

which the Servicer or Subservicer becomes aware relating to the Loans, any of the Collateral, the 

Collection Account, Escrow Accounts, any Other Accounts or any Borrower or Guarantor that 

materially and adversely affects the interests of the Company or the Participant. Without 

limiting the generality of the foregoing, the Servicer shall immediately notify the Company of 

any claim, threatened claim or litigation against the Company arising out of any Loan and shall 

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EXECUTION VERSION 
cause to be delivered to the Company information indicating any possible Environmental 

Hazards with respect to any Collateral. 

Section 5.06 Notice of Breach. The Servicer shall immediately notify the Company 

and the Participant of any failure or anticipated failure on its part to observe and perform any 

warranty, representation, covenant or agreement required to be observed and performed by it as 

the Servicer. 

ARTICLE VI 

PARTICIPANT CONSENT 

Section 6.01 Actions Requiring Participant Consent. Notwithstanding anything to the 

contrary contained in this Agreement, neither the Company nor the Servicer shall permit to be 

taken any of the following actions without the prior written consent of the Participant in the 

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, the Servicer, any Affiliate of the Servicer, any Subservicer, or 

any Affiliate of any Subservicer; 

(b) the financing of the sale or other transfer of any Loan or Collateral (or any 

portion thereof); 

(c) the sale of any Loan or Collateral (or any portion thereof) that provides for 

any recourse against the Company or the Participant, subject to the terms and conditions of the 

Participation Agreement; 

(d) any disbursement of any funds in the Collection Account or any Other 

Accounts other than in accordance with the provisions of this Agreement; 

(e) where applicable the Servicer or any Subservicer ceases to be a member in 

good standing of MERS; 

(f) other than capitalizing accrued and unpaid interest and other amounts 

permitted to be capitalized pursuant to the Loan Modification Program or the Participation 

Agreement, 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, any Affiliate of the Servicer or any Affiliate of any Subservicer. 

Section 6.02 Amendments, Modification and Waivers. No provision of this Agreement 

may be amended, modified or waived except in writing executed by the Company and the 

Servicer and, except for those provisions that may be amended without the Participant’s consent, 

as and to the extent expressly provided in this Agreement, each such amendment and 

modification shall be subject to the prior written consent of the Participant (which consent shall 

not be unreasonably withheld, delayed or conditioned). 

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ARTICLE VII 

DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE 

Section 7.01 Defaults. A default (“Default”) means the occurence of: 

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

Collection Account, the Escrow Accounts or any Other Accounts any amount required to be so 

remitted or deposited under the terms of this Agreement in any 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 by 

the Company to the Servicer; or 

(b) any Insolvency Event (without any cure period other than as may be 

provided for in the definition of Insolvency Event) with respect to the Servicer or any Affiliate 

therof, or any Subservicer or any Affiliate thereof; or 

(c) any failure by the Servicer to duly perform its obligations in (i) Section 

5.02(e), which failure continues unremedied for a period of five (5) days, or such other period as 

the Company and the Servicer agree, after the date on which written notice of such failure, 

requiring the same to be remedied, shall have been given by the Company to the Servicer, or (ii) 

in Section 5.02(f) or 5.02(g), which failure continues unremedied for a period of twenty-five 

(25) days, or such other period as the Company and the Servicer agree, after the date on which 

written notice of such failure, requiring the same to be remedied, shall have been given by the 

Company to the Servicer; or 

(d) any failure by the Servicer to cause to be allocated any amount required to 

be allocated to the Company or to cause to be remitted to the Company any payment required to 

be made to the Company 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 by the Company to the 

Servicer; or 

(e) any failure by the Servicer at any time (i) to comply with its obligation to 

be a Qualified Servicer and to renew or maintain any permit or license necessary to carry out its 

responsibilities under this Agreement in compliance with Law, or or (ii) to cause each 

Subservicer to be a Qualified Servicer and to renew or maintain any permit or license necessary 

to carry out is responsibilities in any Subservicing Agreement, which, in the case of either (i) or 

(ii), continues unremeidied 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 

(f) the occurrence of a material breach by the Servicer under this 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 

20 

FNB SERVICING AG 

EXECUTION VERSION 
 

(g) any failure by the Servicer to cause any Subservicer to comply with the 

terms of its Subservicing Agreement with the Servicer, the occurrence of a default or material 

breach by any Subservicer under its Subservicing Agreement or the failure by the Servicer to 

replace any Subservicer upon the occurrence of any such event in accordance with the terms 

governing material breach or default under the applicable Subservicing Agreement; or 

(h) any other failure (other than those specified in any of Sections 7.01(a) 

through (g)) by the Servicer duly to observe or perform in any material respect any other 

covenants or agreements on the part of the Servicer contained in this Agreement or to perform 

any Servicing Obligation in compliance with the Servicing Standard, and such failure continues 

unremedied for a period of thirty (30) Business Days, or such other period as the Company and 

the Servicer agree, after the date on which written notice of such failure, requiring the same to be 

remedied, shall have been given by the Company to the Servicer; provided, however, that in the 

case of a failure that cannot be cured within thirty (30) Business Days (or such other period as 

the Company and the Servicer agree), the cure period shall be extended for an additional thirty 

(30) days if the Servicer can demonstarte to the reasonable satisfaction of the Company that the 

Servicer is diligently pursuing remedial action. 

Section 7.02 Termination with Cause. 

(a) Upon the occurrence of any Default pursuant to this Agreement (without 

any cure period other than as may be provided for in Section 7.01 above), the Company, in 

addition to any other rights the Company may have pursuant to this Agreement, at law (including 

the Uniform Commercial Code), equity, including injunctive relief, specific performance or 

otherwise, may terminate this Agreement by providing a Termination Notice to the Servicer. 

(b) Upon the occurrence of a Default pursuant to any of Sections 7.01(a), (b), 

(c) (but with respect to a Default under clause (c), only with respect to Sections 5.02(f) and (g) 

referred to therein), or any of Sections 7.01(e), (f) or (h) of this Agreement (in each case, 

without any cure period other than as may be provided for in Section 7.01 above), the 

Participant, in addition to any other rights the Participant may have at law or equity, including 

injunctive relief, specific performance or otherwise, may terminate this Agreement by providing 

a Termination Notice to the Servicer and may terminate the Subservicing Agreements by 

providing a written termination notice to the Subservicers. The Servicer agrees that the 

Participant is entitled to enforce this Agreement upon the occurrence of any Default pursuant to 

Sections 7.01(a), (b), (c) (but with respect to a Default under clause (c), only with respect to 

Sections 5.02(f) and (g) referred to therein), and Section 7.01(e), (f) and (h), without penalty or 

payment or any fee. 

(c) The Servicer hereby consents to its immediate termination under this 

Agreement by the Participant upon a Default under Section 7.01(b) of this Agreement. 

Section 7.03 Termination without Cause. The Company may at any time, without 

cause, terminate this Agreement, upon providing a Termination Notice to the Servicer, but only 

as and in accordance with the provisions set forth on Schedule 5, as the same may be amended 

from time to time by the Company and the Servicer without the Participant’s consent. 

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FNB SERVICING AG 

EXECUTION VERSION 
Section 7.04 Effective Date. Termination as specified in this Article VII shall be 

effective at such time as is specified in the Termination Notice. In the event of such termination, 

all authority and power of the Servicer under this Agreement, whether with respect to the Loans 

or otherwise, shall pass to and be vested in the Company, the Participant or the successor 

servicer as designated by the Company in the case of termination by the Company, or as 

designated solely by the Participant in the case of termination by the Participant. The Servicer 

agrees to cooperate with the Company, the Participant and such successor servicer with the 

timely and orderly transition of its obligations under this Agreement. The Servicer shall be liable 

for all obligations of the Servicer that have accrued under this Agreement or at Law prior to such 

termination. 

Section 7.05 Accounting. Upon termination of this Agreement as set forth herein, the 

Servicer shall account for and turn over to the Company or the Participant, or the designee of 

either, funds collected under the terms of this Agreement. The Servicer shall provide written 

notice in conformance with all applicable Law to the Borrowers to indicate that their Loans will 

henceforth be serviced by the Participant, the Company or any successor servicer designated by 

either the Participant or the Company, as the case may be, and transfer its duties as the Servicer 

to either the Participant, the Company or any successor Servicer as applicable. 

ARTICLE VIII 

INDEPENDENCE OF PARTIES; INDEMNIFICATION 

Section 8.01 Independence of Parties. The Servicer shall have the status of, and act as, 

an independent contractor. Nothing herein contained shall be construed to create a partnership or 

joint venture or any similar relationship between the Company and the Servicer. 

Section 8.02 Indemnification. The Servicer agrees to indemnify, defend and hold 

harmless the Company, the Participant and each of their respective Affiliates, directors, officers, 

employees and agents and each of their respective successors and assigns (the “Indemnified 

Parties”) from and against any and all claims, demands, suits, actions, proceedings, assessments, 

losses, costs, expenses (including, without limitation, attorneys’ fees), damages and liabilities of 

any kind or nature whatsoever directly or indirectly resulting from or arising out of or related to 

(i) any inaccuracy in any of the Servicer’s warranties or representations contained in this 

Agreement, (ii) any failure by the Servicer to observe or perform any or all of the Servicer’s 

covenants, agreements or warranties contained in this Agreement, (iii) any act taken by the 

Servicer purportedly pursuant to a power of attorney granted by the Company which act results 

in a claim soley by virtue of the unlawful use of such power of attorney, or (iv) failure by the 

Servicer or any Subservicer to discharge obligations on any Mortgaged Property relating to 

taxes, ground rents or other such recurring charges generally accepted by the mortgage servicing 

industry, which would become a Lien on the Collateral. The Servicer shall immediately notify 

the Indemnified Party if a claim is made with respect to this Agreement or any Loans, assume 

(with prior consent of the Indemnified Party) the defense of any such claim and pay all expenses 

in connection therewith, including attorney fees, and promptly pay, discharge and satisfy any 

judgment or decree which may be entered against it or any party indemnified hereunder in 

respect of such claim. No expenses incurred by the Servicer or any Subservicer in connection 

with its obligations under this Section 8.02 shall constitute a Servicer Advance. The Servicer 

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FNB SERVICING AG 

EXECUTION VERSION 
 

 

shall follow any reasonable written instructions received from the Indemnified Party in 

connection with such claims, it being understood that the Indemnified Party shall have no duty to 

monitor or give instructions with respect to such claims. 

Section 8.03 Procedure for Indemnification. Promptly upon receipt of written notice of 

any claim, in respect of which indemnity may be sought pursuant to the terms of this Agreement, 

the Indemnified Party will use its best efforts to notify the Servicer in writing thereof in 

sufficient time for the Servicer to respond to such claim. Except to the extent that the Servicer is 

prejudiced thereby, the omission of the Indemnified Party to promptly notify the Servicer of any 

such claim shall not relieve the Servicer from any liability which it may have to the Indemnified 

Party in connection therewith. If any claim shall be asserted or commenced against the 

Indemnified Party, the Servicer will be entitled to participate therein, and to the extent it may 

wish to assume the defense, conduct or settlement thereof, it shall be entitled to do so with 

counsel reasonably satisfactory to the Indemnified Party; provided, however, that in the event the 

Servicer fails, in the reasonable judgment of the Indemnified Party, vigorously to defend or 

pursue or attempt to settle such claim, the Company shall have the right to assume the conduct, 

defense or settlement thereof, provided that the Company shall obtain the prior written approval 

of the Indemnified Party before ceasing to defend against any claim or entering into any 

settlement, adjustment or compromise of such claim involving injunctive or similar equitable 

relief imposed upon any Indemnified Party or any of its or his Affiliates. After notice from the 

Servicer to the Company of its election to assume the defense, conduct or settlement thereof, the 

Servicer will not be liable to the Company for any legal or other expenses consequently incurred 

by the Company in connection with the defense, conduct or settlement thereof. 

ARTICLE IX 

NOTICES 

All notices, requests, demands, and other communications required or permitted to be 

given or delivered under or by reason of the provisions of this Agreement shall be in writing and 

shall be given by certified or registered mail, postage prepaid, or, delivered by hand or by 

nationally recognized air courier service, directed to the address of such Person set forth below: 

If to the Company: 27001 Agoura Road, Suite 350 

 Calabasas, CA 91301 

Attention: David Walker 

with a copy to: 27001 Agoura Road, Suite 350 

 Calabasas, CA 91301 

Attention: Jeff Grogin or Don Brewster 

If to the Participant: Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

 550 17th Street, NW (F-7014) 

Washington, D.C. 20429-0002 

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FNB SERVICING AG 

EXECUTION VERSION 
 

 

 

 

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 Servicer: 27001 Agoura Road 

 Calabasas, CA 91301 

Attention: John Lawrence 

with a copy to: 27001 Agoura Road, Suite 350 

 Calabasas, CA 91301 

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 X 

GOVERNING LAW; JURISDICTION 

Section 10.01 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 10.02 Jurisdiction; Venue and Service. Each of the parties hereto, for itself and 

each of its Affiliates, hereby irrevocably and unconditionally: 

(a) agrees that any suit, action or proceeding instituted against it by any other 

party with respect to this Agreement may be instituted, and that any suit, action or proceeding 

instituted by it against any other party with respect to this Agreement shall be instituted, only in 

the Supreme Court of the State of New York, County of New York, or the U.S. District Court for 

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

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FNB SERVICING AG 

EXECUTION VERSION 
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 10.02(a) may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to the Servicer at its address for notices pursuant to 

Article IX (with copies to such other Persons as specified therein); provided, however, that 

nothing contained in this Section 10.02(a) shall affect the ability of the Servicer to be served 

process in any other manner permitted by Law; 

(c) (i) waives any objection that it may now or hereafter have to the laying of 

venue of any suit, action or proceeding arising out of or relating to this Agreement brought in 

any court specified in Section 10.02(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. 

Section 10.03 Waiver of Jury Trial. EACH OF THE PARTIES HERETO, FOR ITSELF 

AND EACH OF ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY 

WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE 

ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY 

SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 

ARTICLE XI 

MISCELLANEOUS 

Section 11.01 No Assignment by Servicer; No Transfer of Ownership Interests in 

Servicing Rights. 

(a) The Servicer hereby acknowledges that this Agreement constitutes a 

personal services agreement between the Company and the Servicer. The Servicer shall not 

assign any rights or obligations hereunder to any other Person other than as is expressly provided 

in this Agreement. Any purported sale, sub-participation or assignment or delegation in 

violation of this Section 11.01(a) shall be void ab initio and of no force or effect whatsoever. 

(b) Under no circumstances shall the Servicer transfer to any Subservicer or 

any other Person any ownership interest in the servicing of the Loans or any right to transfer or 

sell the servicing to the Loans (other than in connection with the sale of any Loan). The Servicer 

shall not assign, pledge or otherwise transfer or purport to assign, pledge or otherwise transfer 

any interest to any Person in the servicing of the Loans (other than in connection with the sale of 

any Loan). Any purported assignment, pledge, delegation or other transfer in violation of this 

Section 11.01(b) shall be void ab initio and of no force or effect whatsoever. 

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FNB SERVICING AG 

EXECUTION VERSION 
Section 11.02 Legal Fees. No party to this Agreement shall be responsible for the 

payment of the legal fees or expenses incurred by the other party hereto in connection with the 

negotiation and execution of this Agreement or any subsequent modifications or supplements 

hereto. 

Section 11.03 Entire Agreement. This Agreement contains the entire agreement between 

the Company and the Servicer and supersedes any and all other prior agreements, whether oral or 

written, with respect to the subject matter hereof. 

Section 11.04 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 means of a facsimile machine, 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 to deliver a signature or the fact that any 

signature or agreement was transmitted or communicated through the use of a facsimile machine 

as a defense to the formation or enforceability of a contract and each such Person forever waives 

any such defense. 

Section 11.05 Headings. Paragraph titles or captions contained in this Agreement are 

inserted only as a matter of convenience and for reference and in no way define, limit, extend or 

describe the scope of this Agreement or the intent of any provisions hereof. All Section and 

paragraph references contained herein shall refer to Sections and paragraphs in this Agreement 

unless otherwise specified. 

Section 11.06 Construction. This Agreement shall be construed and interpreted in 

accordance with the following: 

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

only such other Persons which from time to time constitute “Affiliates” of such specified Person, 

and do not include, at any particular time, other Persons that may have been, but at such time 

have ceased to be, “Affiliates” of such specified Person, except to the extent that any such 

reference specifically provides otherwise. 

(b) The term “or” is not exclusive. 

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

replacement to such Law. 

(d) References to any document, instrument or agreement (including this 

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

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

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

thereto, as amended, modified and supplemented from time to time in accordance with its terms 

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

26 

FNB SERVICING AG 

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

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

provision of this Agreement. 

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

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

they are in fact followed by such words. 

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

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

such period. 

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

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

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

Section 11.07 Compliance with Law. Except as otherwise specifically provided herein, 

each party to this Agreement shall, at its own cost and expense, obey and comply with all 

applicable Laws, as they may pertain to such party’s performance of its obligations hereunder. 

Section 11.08 Severability. Any provision of this Agreement which is prohibited or 

unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be limited as 

follows: (i) if such provision is prohibited or unenforceable in such jurisdiction only as to a 

particular Person or Persons and/or under any particular circumstance or circumstances, such 

provision shall be ineffective, but only in such jurisdiction and only with respect to such 

particular Person or Persons and/or under such particular circumstance or circumstances, as the 

case may be; (ii) without limitation of clause (i), such provision shall in any event be ineffective 

only as to such jurisdiction and only to the extent of such prohibition or unenforceability, and 

such prohibition or unenforceability in such jurisdiction shall not invalidate or render 

unenforceable such provision in any other jurisdiction; and (iii) without limitation of clauses (i) 

or (ii), such ineffectiveness shall not invalidate any of the remaining provisions of this 

Agreement. Without limitation of the preceding sentence, it is the intent of the parties to this 

Agreement that in the event that in any court proceeding, such court determines that any 

provision of this Agreement is prohibited or unenforceable in any jurisdiction (because of the 

duration or scope (geographic or otherwise) of such provision, or for any other reason) such 

court shall have the power to, and shall, (x) modify such provision (including without limitation, 

to the extent applicable, by limiting the duration or scope of such provision and/or the Persons 

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 10.01. 

Section 11.09 Third Party Beneficiary. The Participant shall be and is hereby designated 

as a third party beneficiary under this Agreement and, as such, the Participant is entitled to 

enforce this Agreement as if the Participant were a party hereto. Notwithstanding the foregoing 

27 

FNB SERVICING AG 

EXECUTION VERSION 
the Participant shall have no obligation to undertake any of the duties of the Company hereunder 

and shall have no liability whatsoever to the Servicer, any Subservicer or any other party related 

to this Agreement. There shall be no other third party beneficiaries. Nothing contained in 

Section 10.02 of this Agreement shall be construed to constitute consent to jurisdiction by the 

Failed Bank or the FDIC, in any capacity. 

Section 11.10 Protection of Confidential Information. The Servicer shall keep 

confidential and shall not divulge to any party, without the Company’s prior written consent, any 

information pertaining to the Participation Agreement, the Loans or any Borrower thereunder, 

except as required pursuant to this Agreement and except to the extent that it is necessary and 

appropriate for the Servicer to do so in working with legal counsel, auditors, taxing authorities, 

regulatory authorities or other Governmental Authorities or in accordance with the Servicing 

Standard. 

Section 11.11 Time of Essence. Time is hereby declared to be of the essence of this 

Agreement and of every part hereof. 

Section 11.12 No Presumption. This Agreement shall be construed fairly as to each 

party hereto and if at any time any such term or condition is desired or required to be interpreted 

or construed, no consideration shall be given to the issue of who actually prepared, drafted or 

requested any term or condition of this Agreement or any agreement or instrument subject 

hereto. 

Section 11.13 No Right of Setoff. The Servicer hereby waives any and all rights it may 

otherwise have (whether by contract or operation of Law or otherwise) to any setoff, offset, 

counterclaim or deduction (or to assert any claim for any setoff, offset counterclaim or 

deduction) against the Loan Proceeds. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

28 

FNB SERVICING AG 

EXECUTION VERSION 
IN WITNESS WHEREOF, the paries hereto have caused this Agreement to be executed 

'as of the day and year first above written. 

COMPANY: 

FNBNI, LLC

SERVICER: 

PennyMac Loan Services, LLC, a Delaware limited 

liability company 

B

29 

FNB SERVICING AG 

EXECUTION VERSION
 
EXHIBIT A
 

LOAN SCHEDULE
 

[Attached] 

FNB SERVICING AG 

EXECUTION VERSION 
EXHIBIT B
 

ELECTRONIC TRACKING AGREEMENT
 

[Attached] 

FNB SERVICING AG 

EXECUTION VERSION 
EXHIBIT C
 

LOAN MODIFICATION PROGRAM
 

[Attached] 

FNB SERVICING AG 

EXECUTION VERSION 
SCHEDULE 1
 

FEE SCHEDULE 

[To be provided by Servicer and Company] 

FNB SERVICING AG 

EXECUTION VERSION 
SCHEDULE 2
 

SERVICING OBLIGATIONS 

[To be provided by Servicer and Company] 

FNB SERVICING AG 

EXECUTION VERSION 
SCHEDULE 3
 

REIMBURSEMENT OF SERVICER ADVANCES 

[To be provided by Servicer and Company] 

FNB SERVICING AG 

EXECUTION VERSION 
SCHEDULE 4
 

FORM OF ELECTRONIC REPORT ON THE LOANS AND COLLATERAL
 

[To be provided by Servicer and Company] 

FNB SERVICING AG 

EXECUTION VERSION 
SCHEDULE 5
 

TERMINATION WITHOUT CAUSE 

[To be provided by Servicer and Company] 

FNB SERVICING AG 

EXECUTION VERSION