Execution Copy 

SERVICING AGREEMENT 

BY AND BETWEEN 

INDYMAC VENTURE, LLC 

AND 

ONEWEST BANK, FSB 

Dated as of March 19, 2009 

#10037937v23 
TABLE OF CONTENTS 

Page 

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

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

ARTICLE II SERVICING OBLIGATIONS OF THE SERVICER............................................. 10 

Section 2.01 Appointment and Acceptance as Servicer ................................................ 10 

Section 2.02 Limited Power of Attorney ....................................................................... 10 

Section 2.03 Servicing Fee ............................................................................................ 10 

Section 2.04 Servicing Obligations and Servicing Standard ......................................... 10 

Section 2.05 Registration with MERS........................................................................... 11 

Section 2.06 Collection Account ................................................................................... 11 

Section 2.07 LIP Account.............................................................................................. 12 

Section 2.08 Escrow Accounts ...................................................................................... 13 

Section 2.09 Other Accounts ......................................................................................... 13 

Section 2.10 Maintenance of Insurance Policies; Errors and Omissions and Fidelity 

Coverage ................................................................................................... 13 

Section 2.11 Expenses ................................................................................................... 14 

Section 2.12 Insured or Guaranteed Loans .................................................................... 14 

ARTICLE III LOAN DEFAULTS; ACQUISITION OF COLLATERAL .................................. 14 

Section 3.01 Delinquency Control................................................................................. 14 

Section 3.02 Discretion of the Company in Responding to Defaults of Borrower........ 14 

Section 3.03 Acquisition of Acquired Collateral ........................................................... 15 

ARTICLE IV SUBSERVICING .................................................................................................. 15 

Section 4.01 Retention of Subservicer ........................................................................... 15 

Section 4.02 Subservicing Agreement Requirements.................................................... 15 

Section 4.03 Servicer Liable for Subservicers............................................................... 17 

Section 4.04 Company Approval Required ................................................................... 18 

ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE 

SERVICER ................................................................................................................................... 18 

Section 5.01 Representations and Warranties................................................................ 18 

Section 5.02 Reporting, Books and Records and Compliance Covenants .................... 19 

Section 5.03 Audits by the Company and the Participant ............................................. 21 

Section 5.04 No Liens.................................................................................................... 21 

Section 5.05 Servicer’s Duty to Advise; Delivery of Certain Notices .......................... 21 

Section 5.06 Notice of Breach ....................................................................................... 21 

ARTICLE VI PARTICIPANT CONSENT .................................................................................. 22 

Section 6.01 Actions Requiring Participant Consent..................................................... 22 

Section 6.02 Amendments, Modification and Waivers ................................................. 22 

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ARTICLE VII DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE ............ 23 

Section 7.01 Defaults..................................................................................................... 23 

Section 7.02 Termination with Cause ............................................................................ 24 

Section 7.03 Termination without Cause ....................................................................... 24 

Section 7.04 Effective Date ........................................................................................... 24 

Section 7.05 Accounting................................................................................................ 25 

ARTICLE VIII INDEPENDENCE OF PARTIES; INDEMNIFICATION ................................. 25 

Section 8.01 Independence of Parties ............................................................................ 25 

Section 8.02 Indemnification ......................................................................................... 25 

Section 8.03 Procedure for Indemnification .................................................................. 26 

ARTICLE IX NOTICES............................................................................................................... 26 

ARTICLE X GOVERNING LAW; JURISDICTION.................................................................. 27 

Section 10.01 Governing Law ......................................................................................... 27 

Section 10.02 Jurisdiction; Venue and Service................................................................ 27 

Section 10.03 Waiver of Jury Trial .................................................................................. 28 

ARTICLE XI MISCELLANEOUS .............................................................................................. 28 

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

Servicing Rights........................................................................................ 28 

Section 11.02 Legal Fees ................................................................................................. 28 

Section 11.03 Entire Agreement ...................................................................................... 29 

Section 11.04 Counterparts; Facsimile Signatures .......................................................... 29 

Section 11.05 Headings ................................................................................................... 29 

Section 11.06 Construction .............................................................................................. 29 

Section 11.07 Compliance with Law ............................................................................... 30 

Section 11.08 Severability ............................................................................................... 30 

Section 11.09 Third Party Beneficiary............................................................................. 30 

Section 11.10 Protection of Confidential Information..................................................... 31 

Section 11.11 No Presumption ........................................................................................ 31 

Section 11.12 No Right of Setoff..................................................................................... 31 

Section 11.13 Release of Participant and Predecessor Servicers..................................... 31 

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SCHEDULES AND EXHIBITS 

Exhibits 

Exhibit A Loan Schedule 

Exhibit B Electronic Tracking Agreement 

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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SERVICING AGREEMENT 

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

“Agreement”) is made and entered into as of the 19th day of March, 2009 (the “Effective 

Date”) by and between INDYMAC VENTURE, LLC, a Delaware limited liability company 

(including its successors and assigns, the “Company”), and ONEWEST BANK, FSB, a federal 

savings bank (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 (as defined below) attached hereto as Exhibit A; and 

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

Collateral (as defined below), including the Acquired Collateral, pursuant to that certain 

Participation and Servicing Agreement (the “Participation Agreement”), dated as of the 19th 

day of March, 2009, by and between the Company and the Federal Deposit Insurance 

Corporation as Receiver (“Receiver”) for IndyMac Federal Bank, FSB (including its successors 

and assigns, the “Participant”); and 

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

administer the Loans and the 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: 

“Acceptable Rating” means any of the top three rating categories that may be assigned 

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

“Acquired Collateral” means real or personal property to which title is acquired 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” means, with respect to any specified Person, any other Person that directly or 

indirectly, through one or more intermediaries, controls, is controlled by or is under common 

control with such specified Person); provided, however, that for purposes of this Agreement, the 

Participant shall not be deemed to be an Affiliate of the Company or of any Affiliate of the 
Company. For 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” has the meaning given in the preamble and shall include all exhibits and 

schedules hereto. 

“Authorized Funding Draw” means any principal advance after the Effective Date with 

respect to a Loan listed on the Loan Schedule (which shall include any unfunded principal 

commitment that is permitted to be allocated to an interest reserve pursuant to the Loan 

Documents and is set forth in the column of the Loan Schedule entitled “Undisbursed Balance – 

Interest Reserve”), up to the Maximum Authorized Funding Draw; provided, however, that (i) if 

required by applicable Law or if otherwise deemed necessary by the Company and the related 

Loan Documents provide for the Company’s right to request the same, an endorsement to the 

title policy insuring the Loan, which endorsement shall be in form and content acceptable to the 

Company, is obtained that (a) brings down the effective date of the title policy to the date on 

which the applicable Authorized Funding Draw it covers is made, (b) increases the liability limit 

of the title policy by an amount at least equal to the principal amount of such Authorized 

Funding Draw, and (c) contains no new exceptions to title that have not been authorized or 

consented to by the Company in accordance with the Servicing Standard prior to the time the 

request for such principal advance is made; (ii) notwithstanding the Servicing Standard, the 

Servicer shall make or permit an Authorized Funding Draw if the then outstanding principal 

balance of the Loan exceeds the value of the Collateral (as reasonably determined by the 

Company or the Servicer) only if the Company determines, in its reasonable judgment, that the 

Borrower is reasonably likely to be able to repay the Loan or that the making of the Authorized 

Funding Draw is in the best interests (in terms of maximizing the value of the Loan) of the 

Company and the Participant; and (iii) such advance is made in accordance with the terms of the 

Loan and the Loan Documents; provided, however, if any term with respect to the Loan or the 

Loan Documents precludes such advance in the event of a Borrower default, such term may be 

waived if the Company determines, in its reasonable judgment, that such waiver is in the best 

interests of the Company and the Participant in terms of maximizing the value of the Loan. 

“Borrower” means the borrower or other obligor with respect to a Loan. 

“Business Day” means any day except a Saturday, Sunday or other day on which federal 

savings banks in California, New York or Washington, D.C. or United States federal government 

offices are required or authorized by Law to close. 

“Collateral” means 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, whether or not expressly so specified. 

“Collateral Document” means any pledge agreement, security agreement, personal or 

corporate guaranty, deed of trust, deed, mortgage, contract for the sale of real property, 

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assignment, collateral agreement or other agreement or document of any kind, whether an 

original or a copy, whether similar to or different from those enumerated, (i) 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 the Notes evidencing the Loans or (ii) evidencing the 

Acquired Collateral. 

“Collection Account” has the meaning given in Section 2.06(a). 

“Company” has the meaning given in the preamble. 

“Conservator” means the FDIC in its capacity as Conservator for IndyMac Federal 

Bank, FSB. 

“Default” has the meaning given in Section 7.01. 

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

“Effective Date” has the meaning given in the preamble. 

“Electronic Tracking Agreement” means an agreement in the form of Exhibit B, as it 

may be supplemented or amended. 

“Eligible Account” means one or more segregated trust or custodial account or accounts 

established and maintained with an Eligible Institution, each of which shall be held in trust for 

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

“Eligible Institution” means a Person that is not a Related Person of the Company and 

that is a federally insured depository institution that is well capitalized; provided that a Related 

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

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

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

case such Related Person 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 Hazard” means 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” has the meaning given in Section 2.08. 

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“Escrow Advance” means 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. 

“Excluded Expenses” means any advances for fees, costs, expenses or indemnified 

amounts that: (i) are not incurred in accordance with the Servicing Standard, (ii) are paid to any 

Related Person of the Company, or any Related Person of the Servicer or any Subservicer 

(except payments to IndyMac Financial Services (or any successor thereto) or as is otherwise 

expressly permitted pursuant to this Agreement), (iii) are incurred by the Company or the 

Servicer to become a MERS member or to maintain the Company or the Servicer as a MERS 

member in good standing, (iv) are incurred to pay fees or other compensation to or expenses of 

financial advisers, (v) constitute interest on any Servicing Expenses, (vi) constitute overhead or 

administrative costs incurred by the Servicer or any other Person, (vii) constitute any servicing, 

management or similar fees paid to the Servicer, any Subservicer or any other Person or (viii) are 

incurred, and relate only to the period, after the Effective Date as a result of the Servicer’s or any 

Subservicer’s failure to service any Loan or Collateral properly in accordance with the applicable 

Loan Documents, this Agreement, any Subservicing Agreement, the Servicing Standard or 

otherwise or failure to make a payment in a timely manner, or failure otherwise act in a timely 

manner; except in each of the foregoing cases, to the extent such failure was caused by (x) the 

action or inaction of the Participant or MERS or (y) a technical failure or other malfunction of 

the MERS® System, and in either case, without any fault of the Company or the Servicer. 

“Failed Thrift” means IndyMac Bank, FSB. 

“Fannie Mae” means the Federal National Mortgage Association of the United States, or 

any successor thereto. 

“Fee Schedule” means Schedule 1, as the same may be amended from time to time by 

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

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

“Governmental Authority” means 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. 

“Guarantor” means any guarantor 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. 

“Immediate Family Member” means, with respect to any individual, his or her spouse, 

parents, parents-in-law, grandparents, descendents, children (whether natural or adopted), 

children-in-law, stepchildren, grandchildren and grandchildren-in-law. 

“Indemnified Parties” has the meaning given in Section 8.02. 

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

of the following events: 

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creditors; 

(1) the specified Person makes a general assignment for the benefit of its 

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; 

(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) at least 90 days have passed following the commencement of any 

proceeding against the specified Person seeking reorganization, arrangement, composition, 

readjustment, liquidation, dissolution or similar relief under any Law, and such proceeding has 

not been dismissed, or at least 90 days have passed following 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 and such 

appointment has not been vacated or stayed, or if the appointment is stayed, at least 90 days have 

passed following the expiration of the stay if the appointment has not been vacated. 

“Insolvency Proceeding” means 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. 

“Law” means any applicable statute, law, ordinance, regulation, rule, code, injunction, 

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

“Lien” means any mortgage, pledge, security interest, equity interest, participation 

interest, lien or other charge or encumbrance, including the lien or retained security title of a 

conditional vendor, upon or with respect to any property or assets. 

“LIP Account” shall mean an Eligible Account established and maintained with an 

Eligible Institution for the sole purpose of holding and distributing the LIP Funds. 

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“LIP Funds” has the meaning given in Section 2.07(a). 

“LLC Interest” has the meaning given in the Participation Agreement. 

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

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

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

Liens of the 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” means all documents, agreements, certificates, instruments and other 

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

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

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

part of a Loan or any Acquired Collateral or evidencing any transaction contemplated thereby, 

and all Modifications thereto. 

“Loan Participation” means any loan subject to a shared credit, participation or similar 

intercreditor agreement (excluding, for the avoidance of doubt, the Participation Agreement) 

under which the Failed Thrift, the Conservator 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 Thrift, the Conservator or the Receiver was a participating financial depository 

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

“Loan Participation Agreement” means an agreement (excluding, for the avoidance of 

doubt, the Participation Agreement) under which the Failed Thrift, the Conservator or the 

Receiver was the lead or agent financial depository institution or otherwise managed or held a 

shared credit or sold participations, or under which the Failed Thrift, the Conservator or the 

Receiver was a participating financial depository institution or purchased participations in a 

credit managed by another Person. 

“Loan Proceeds” means (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 are received at any time after the Effective Date, including principal, 

interest, interest at the Default Rate, prepayment fees, premiums and charges, extension and exit 

fees, late fees, assumption fees, other fees and charges, insurance proceeds and condemnation 

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

related Collateral in accordance with the terms of the Loan Documents; (ii) any and all proceeds 

from sales or other dispositions of any or all of the Loans or the Collateral; (iii) 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; (iv) any 

recoveries from Borrowers or Guarantors of any kind or nature with respect to the Loans; and (v) 

any interest or other earnings accrued and paid on any of the foregoing clauses (i) through (iv) 

while held in the Collection Account or any Other Account. 

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“Loan Schedule” means the schedule of Loans attached as Exhibit A (and delivered in 

electronic format to the Company), which shall be updated as of the Closing Date. 

“Maximum Authorized Funding Draw” means, with respect to any Loan, the 

maximum aggregate amount of principal advances set forth in the column of the Loan Schedule 

entitled “Maximum Authorized Funding Draw” (which shall include any unfunded principal 

commitment that is permitted to be allocated to an interest reserve pursuant to the Loan 

Documents and is set forth in the column of the Loan Schedule entitled “Undisbursed Balance – 

Interest Reserve”), as the same may be adjusted with the consent of the Participant (such consent 

not to be unreasonably withheld) to correct errors due to a miscalculation of the maximum 

aggregate amount of the unfunded principal commitment for such Loan under the relevant Loan 

Documents. 

“MERS” means Mortgage Electronic Registration Systems, Incorporated. 

“MERS® System” means the MERSCORP, Inc. mortgage electronic registry system, as 

more particularly described in the MERS Procedures Manual (a copy of which is attached as an 

exhibit to the Electronic Tracking Agreement). 

“Modification” means any extension, renewal, substitution, replacement, supplement, 

amendment or modification of any agreement, certificate, document, instrument or other writing, 

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

“Note” means each note or promissory note, lost instrument affidavit, loan agreement, 

shared credit or Loan Participation Agreement, intercreditor agreement, reimbursement 

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

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

“Other Accounts” has the meaning given in Section 2.09. 

“Participant” has the meaning given in the recitals. 

“Participation Agreement” has the meaning given in the recitals. 

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

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

ratings, if any, provided for in this definition: 

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

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

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

America; 

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

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

provided that, in the case of obligations that are not fully FDIC-insured deposits, the commercial 

paper and/or long-term unsecured debt obligations of such depository institution or trust 

company (or in the case of the principal depository institution in a holding company system, the 

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commercial paper or long-term unsecured debt obligations of such holding company) have an 

Acceptable Rating; 

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

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

Rating Agency rating such obligations; 

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

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

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

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

“Person” means 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. 

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

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

business are necessary for the servicing of the Loans and management of the Collateral and the 

Acquired Collateral, (ii) is a member of MERS (if any of the Loans being serviced are registered 

on the MERS® System), (iii) has the management capacity and experience to service loans of 

the type held by the Company, especially performing and non-performing construction loans 

secured by residential or commercial properties, including the number and types of loans 

serviced, and the ability to track, process and post payments, to furnish tax reports to borrowers, 

to monitor construction, and to approve and disburse construction draws, and (iv) (x) has an 

Acceptable Rating as a mortgage loan servicer or special servicer, (y) is an FDIC-insured 

depository institution or an Affiliate of an FDIC-insured depository institution, or (z) 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” means 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” has the meaning given in the recitals. 

“Related Person” means, with respect to any specified Person, (i) any Affiliate of such 

specified Person, (ii) any Person owning or controlling five percent (5%) or more of the 

outstanding voting securities, voting equity interests, or beneficial interests of the Person 

specified, (iii) any officer, director, general partner, managing member, trustee, employee or 

promoter of the Person specified or any Immediate Family Member of such officer, director, 

general partner, managing 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) (other than an Immediate Family Member referred to in clause (iii)) acts in any capacity 

referred to in clause (iii), or (v) any Person who is an officer, director, general partner, managing 

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member, trustee or holder of five percent (5%) or more of the 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 

a Related Person of the Company or of any Related Person of the Company. 

“Servicer” has the meaning given in the preamble. 

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

Servicing Expenses, and (b) to the extent not covered by clause (a), any and all legal fees and 

expenses (including judgments, settlements and reasonable attorneys’ fees) incurred by the 

Servicer in its defense of claims asserted against the Company that (x) relate to one or more 

Loans, and (y) arise out of the acts or omissions of the Failed Thrift, the Conservator or the 

Receiver in connection with the origination or servicing of such Loans prior to the Effective 

Date. 

“Servicer Remittance Date” means 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 Expenses” means all customary and reasonable out-of-pocket fees, costs, 

expenses and indemnified amounts incurred in connection with servicing the Loans and the 

Acquired Collateral, including (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, (ii) 

any and all reasonable out-of-pocket expenses necessary to protect or preserve the value of the 

Collateral 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, and (iii) any and all direct expenses related to the preservation, operation, 

demolition, management and sale of the Acquired Collateral, including real estate broker fees 

and expenses; provided, however, that Servicing Expenses shall not include, without the prior 

written consent of the Company (in the Company’s sole and absolute discretion), Authorized 

Funding Draws or any Excluded Expenses. 

“Servicing Fee” has the meaning given in Section 2.03. 

“Servicing Obligations” has the meaning given in Section 2.04. 

“Servicing Standard” has the meaning given in Section 2.04. 

“Site Assessment” has the meaning given in Section 3.03. 

“Subservicer” has the meaning given in Section 4.01. 

“Subservicing Agreement” has the meaning given in Section 4.02. 

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

Article VII. 

“Uniform Commercial Code” means, 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” means, at any time, (i) for each Loan, an amount equal to 

the then aggregate outstanding principal balance of the Loan and (ii) for each Loan with respect 

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

such time as the Acquired Collateral (or portion thereof) is liquidated, an amount equal to the 

unpaid principal balance of the related Loan (adjusted pro rata for partial collateral sales, debt 

forgiveness or retained indebtedness) at the time 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, administer, manage and dispose of the 

Loans and the Collateral on behalf of and as an agent of the Company. 

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 and the 

Collateral, 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 Obligations and 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 the 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 (the “Servicing Obligations”). The Servicer shall perform its Servicing 

Obligations (i) in the best interests and for the benefit of the Participant and the Company, (ii) in 

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

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

Law, and (v) 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, 

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whichever standard is higher, but using no less care and diligence than would be customarily 

employed by a prudent servicer following customary and usual standards of practice of prudent 

mortgage lenders, loan servicers and asset managers servicing, managing and administering 

similar loans and properties on an arms’ length basis (the requirements in clauses (i) through (v) 

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

Obligations without regard to (a) 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, 

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

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

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

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

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

Subservicing Agreement) and (d) the Servicer’s or any Subservicer’s right to receive 

compensation (including the Servicing Fee) for its services under this Agreement or any 

Subservicing Agreement. 

Section 2.05 Registration with MERS. The Servicer shall take all actions necessary to 

ensure that all Loans registered on the MERS® System shall remain registered unless default, 

foreclosure or similar legal or MERS requirements dictate otherwise. No Person other than 

MERS, solely as nominee for the Company and its successors and assigns, shall be identified on 

the MERS® System as having any interest in any of the Loans that are so registered unless 

otherwise consented to by the Participant. The Servicer shall provide the Company and the 

Participant with such reports from MERS as either the Company or the Participant, 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 

registered on the MERS® System continue to be 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 request that MERS 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 request that MERS 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, the Servicer shall establish 

and maintain one or more Eligible Accounts, which shall be held in trust for the benefit of the 

Company and the Participant and shall be for the sole purpose of holding and distributing the 

Loan Proceeds (each, a “Collection Account”). The Servicer shall deposit into the Collection 

Account all Loan Proceeds on a daily basis (without deduction or setoff as provided in Section 

11.13 hereof). 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 each Servicer 

Remittance Date, the Servicer shall remit all amounts then on deposit in the Collection Account 

to the Company. 

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

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

(d) Amounts on deposit in the Collection Account shall be invested in 

Permitted Investments, but with a maturity that allows for their allocation and distribution on a 

monthly basis in accordance with this Agreement. 

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

account control agreement among the Company, the Participant and the Eligible Institution that 

will hold such Collection Account. 

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

the Company under this Agreement 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 LIP Account. 

(a) Except as otherwise directed by the Company, the Servicer shall maintain 

the LIP Account, which shall be held in trust for the benefit of the Company and the Participant 

and which shall be funded with an initial principal amount equal to the aggregate Maximum 

Authorized Funding Draw as of the date the LLC Interest is sold (or such later time as is agreed 

to by the Company and the Participant) (the “LIP Funds”). The Participant and the Company 

shall, promptly upon the Company’s request therefor, deposit additional amounts into the LIP 

Account as may be necessary to reflect any adjustment to the Maximum Authorized Funding 

Draw with respect to any Loan that is permitted under the definition of the term “Maximum 

Authorized Funding Draw” in Section 1.01 hereof. No funds from any other source (other than 

interest or earnings on the LIP Funds) shall be commingled in the LIP Account. 

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

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

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

Agreement. 

(c) The Servicer shall be authorized, at the Company’s direction, to withdraw 

funds (or to make draw requests on the escrow agent for funds) from the LIP Account only to 

make Authorized Funding Draws, and the LIP Account and the LIP Funds shall not otherwise be 

used for any purpose (except in connection with the liquidation of the LIP Account in 

accordance with Section 2.07(d)). The Servicer shall not permit withdrawals from the LIP 

Account for any other purpose. 

(d) At the direction of the Company, the LIP Account shall be liquidated (and 

no further Authorized Funding Draws may be made on or after the date of such direction), and 

all remaining LIP Funds then on deposit in the LIP Account, including all interest and earnings 

thereon, shall be distributed to the Company. 

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(e) The LIP Account (and all funds therein) will be subject to an account 

control agreement among the Company, the Participant and the Eligible Institution that will hold 

such LIP Account. 

(f) The LIP Funds shall be invested in Permitted Investments, but with a 

maturity that allows for (i) distribution of the LIP Funds as and when needed to make Authorized 

Funding Draws and (ii) liquidation of the LIP Account and distribution of the remaining LIP 

Funds (which liquidation and distribution shall be at such time and in such manner as the 

Company shall direct the Servicer). 

Section 2.08 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 held 

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 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 or by the Applicable Loan Documents. 

Section 2.09 Other Accounts. At the direction of the Company, the Servicer shall 

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

which shall be held 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 2.10 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 and Acquired Collateral with respect to which the Borrower has failed 

to maintain required 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, at all times, in such form and amount that would meet the requirements, as 

amended from time to time, of Fannie Mae if Fannie Mae were the purchaser of the Loans, 

unless the Servicer or Subservicer, as the case may be, has received a waiver from Fannie Mae of 

any requirement to maintain such insurance in the form and amount required by Fannie Mae. 

The Servicer and each Subservicer shall provide the Company with copies of certificates 

evidencing such coverage. 

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

pursuant to this Section 2.10 shall be made available to the Company and its representatives 

upon request. 

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

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

Expenses that are Servicer Advances. All such Servicing Expenses 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 Servicer 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 be deductible from any Loan Proceeds. 

Section 2.12 Insured or Guaranteed Loans. If any Loans being serviced pursuant to 

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

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 

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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 Collateral, the 

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

Company so directs, prior to the acquisition of title to any Collateral (whether by foreclosure, 

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

Code, or otherwise), the Servicer shall cause to be commissioned with respect to such Collateral 

(i) a Transaction Screen Process consistent with ASTM Standard E 1528-06, by an 

environmental professional or (ii) such other site inspections and assessments, if any, as would 

be customary for the jurisdiction in which the Collateral is located (including, for the avoidance 

of doubt, conducting no site inspections or assessments if consistent with the standards of this 

clause) in order to ascertain whether there are any actual or threatened Environmental Hazards (a 

“Site Assessment”), and the cost of such Site Assessment shall be treated as a Servicing Expense 

as long as the costs for such Site Assessment were not paid to any Related Person of the 

Company, the Servicer or any Subservicer. 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, 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 one or 

more subservicers, including Affiliates of the Company or the Servicer (individually and 

collectively, “Subservicer”), as it may deem necessary and appropriate, provided that any 

Subservicer meets the requirements set forth in clauses (i) and (iv) 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”) shall, among other things: 

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

(including the Acquired Collateral) by the Subservicer in accordance with the Servicing Standard 

and the other terms of this Agreement; 

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

occurrence and during the continuance of an Event of Default under the Participation Agreement 

or any Default under this Agreement or any default under the Subservicing Agreement as set 

forth in Section 4.02(n) below; 

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(c) provide that the Servicer, as well as the Company and the Participant, shall 

be entitled to exercise termination rights thereunder upon the occurrence and during the 

continuance of an Event of Default under the Participation Agreement or any Default under this 

Agreement; 

(d) provide that each of the Subservicer and 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 upon the occurrence 

and during the continuance of an Event of Default under the Participation Agreement or any 

Default under this Agreement; 

(f) provide that (i) upon the occurrence and during the continuance of an 

Event of Default under the Participation Agreement or any Default under this Agreement, the 

Participant may exercise all of the rights of the Servicer thereunder and cause the termination or 

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

any fee; 

(g) provide that the 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 

Acquired Collateral, the Servicing Obligations, the Collection Account, the LIP Account, the 

Escrow Accounts or any Other Accounts established or maintained pursuant to the Participation 

Agreement, this Agreement or the Subservicing Agreement or any matters relating to the 

Participation Agreement, this Agreement or 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 (without reduction or setoff as provided in Section 11.13 hereof) and 

that under no circumstances are funds other than Loan Proceeds and interest and earnings 

thereon to be deposited into the Collection Account; 

(i) provide that under no circumstances are any funds, other than the LIP 

Funds and interest and earnings thereon, to be deposited into the LIP Account; 

(j) 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; 

(k) provide that all of the Loans registered on the MERS® System shall 

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

otherwise; 

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

(m) 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; 

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

that parallel the provisions of Sections 7.01(a), (b), (c), (d), (e), (f) and (h) of this Agreement, 

and (ii) provide that each of the Participant and the Company has the right (x) to terminate the 

Subservicing Agreement by providing written notice upon the occurrence and during the 

continuance 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) 

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 upon the occurrence and during the 

continuance 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), (d), (e), (f) or 

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

Subservicing Agreement; 

(o) 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; 

(p) provide a full release and discharge of the Participant and any predecessor 

servicer, and all of their respective officers, directors, employees, agents, attorneys, contractors 

and representatives, and all of their respective successors, assigns (other than the Company) and 

Affiliates, from any and all claims (including any counterclaim or defensive claim), demands, 

causes of action, judgments or legal proceedings and remedies of whatever kind or nature that 

the Subservicer had, has or might have in the future, whether known or unknown, which are 

related in any manner whatsoever to the servicing of the Loans by the Participant or such other 

predecessor servicer prior to the Effective Date (other than due to gross negligence or willful 

misconduct of the Participant or other predecessor servicer); and 

(q) not conflict with the provisions of this Agreement or the Participation 

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 a Related Person 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. 

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 federal savings bank, duly organized, validly existing 

and in good standing under the laws of the United States; (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 this Agreement has been duly authorized by 

all requisite corporate 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); and all requisite corporate action has been taken by the Servicer 

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

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

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

authorized to do so. 

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

servicing of the Loans and the Collateral under this Agreement, the consummation of any other 

of the transactions contemplated by this Agreement, and the fulfillment of or compliance with 

the terms hereof are in the ordinary course of business of the Servicer and will not (i) result in a 

breach of any term or provision of the articles or charter or bylaws or 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 

-18­
 

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 

period beginning January 1, 2009. 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 (including the Acquired Collateral), and the Company’s 

and the Participant’s interests in the Loans, the Collateral and the Acquired Collateral, including 

records relating to the Collection Account, the LIP Account and any Other Accounts maintained 

in connection with the Loans and Servicer Advances and the disbursement of the Loan Proceeds. 

(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 

-19­
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 Effective 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. 

(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, and shall cause each 

Subservicer to, each at its own expense or the expense of the Company provide a report prepared 

by a nationally recognized firm of independent certified public accountants to the effect that, 

with respect to the most recently ended fiscal year, such firm has examined certain records and 

documents relating to compliance with the servicing requirements in this Agreement and that, on 

the basis of such examination conducted substantially in compliance with the Uniform Single 

Attestation Program for Mortgage Bankers, such firm is of the opinion that the Company or the 

Servicer’s (or Subservicer’s) activities have been conducted in compliance with this Agreement, 

-20­
or that such examination has disclosed no material items of noncompliance except for (i) such 

exceptions as such firm believes to be immaterial, and (ii) such other exceptions as are set forth 

in the report. 

Section 5.03 Audits by the Company and the Participant. 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 and the right to review all of the books of account, reports and records relating to 

the Loans or any Collateral, the Servicing Obligations, the Collection Account, the LIP 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 Obligations, the Collection 

Account, the LIP Account, the Escrow Accounts and any Other Accounts 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 Collateral, 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, the Collateral and the 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 and the Participant hereunder, the Servicer shall cause to be delivered to the Company 

and the Participant such information relating to the Loans, the Collateral, the Servicer and any 

Subservicer as the Company or the Participant may reasonably request from time to time and, in 

any case, shall ensure that the Company and the Participant are 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, the LIP Account, the 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 and the Participant of any claim, threatened claim or litigation 

against the Company arising out of any Loan and shall cause to be delivered to the Company and 

the Participant 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 

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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, which 

may be withheld or conditioned in the Participant’s sole and absolute discretion: 

(a) the sale or other transfer of any Loan, Collateral or Acquired Collateral (or 

any portion thereof) to any Related Person of the Company or to the Servicer or any Subservicer, 

or any Related Person of the Servicer or any Subservicer; 

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

Acquired Collateral (or any portion thereof), unless such financing is approved by the Company 

consistent with the Company’s obligations under the Participation Agreement; 

(c) the sale of any Loan, Collateral or Acquired Collateral (or any portion 

thereof) that provides for any recourse against the Company or the Participant, unless such sale is 

approved by the Company consistent with the Company’s obligations under the Participation 

Agreement; 

(d) any disbursement of any funds in the Collection Account, the LIP 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 when any Loan is registered on the MERS® System; 

(f) other than capitalizing accrued and unpaid interest and Servicing Expenses 

and other than through the making of Authorized Funding Draws, advancing additional funds 

that would increase the Unpaid Principal Balance of any Loan; or 

(g) reimbursement for any expense or cost incurred (or paid) to any Related 

Person of the Company or any Related Person of the Servicer or any Subservicer, except as 

otherwise expressly permitted by this Agreement. 

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 LIP 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) 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, or (ii) 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 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 (ii) to cause each Subservicer 

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

its responsibilities under any Subservicing Agreement, which, in the case of either (i) or (ii), 

continues unremedied for a period of thirty (30) days after the date on which written notice of 

such failure requiring the same to be remedied shall have been given by the Company to the 

Servicer; or 

(f) the occurrence of any event of default or 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 

(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 

-23­
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 to duly 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) 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 sixty (60) days (or such other period as the Company 

and the Servicer agree), the cure period shall be extended for an additional sixty (60) days if the 

Servicer can demonstrate 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 and during the continuance 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), or in equity, including injunctive 

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

Termination Notice to the Servicer. 

(b) Upon the occurrence and during the continuance of a Default pursuant to 

any of clauses (a), (b), (c), (d), (e), (f) or (h) of Section 7.01 (but, with respect to a Default under 

clause (c), only with respect to Sections 5.02(f) and (g) referred to therein), in each case, without 

any cure period other than as may be provided for in Section 7.01, the Participant, in addition to 

any other rights the Participant may have at law or equity, including injunctive relief, specific 

performance or otherwise, may (i) terminate this Agreement by providing a Termination Notice 

to the Servicer and the Company, (ii) terminate the Subservicing Agreements by providing a 

written termination notice to the Subservicers and the Company and (iii) otherwise enforce this 

Agreement, in any case, without penalty or payment of 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. 

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 

-24­
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 respect 

to the timely and orderly transition of its obligations under this Agreement. The Servicer shall 

be liable for all obligations of the Servicer that have accrued under this Agreement or at Law 

prior to such termination. 

Section 7.05 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 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 or any Subservicer to observe or perform any or all of the Servicer’s covenants, 

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

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

in a claim related to the unlawful use of such power of attorney, or (iv) failure by the Servicer or 

any Subservicer to discharge obligations on any Collateral relating to taxes, ground rents or other 

such recurring charges generally accepted by the mortgage servicing industry, which would 

become a Lien on the Collateral. The Servicer shall immediately notify the Indemnified Party if 

a claim is made with respect to this Agreement or any Loans or Collateral, assume (with prior 

consent of the Indemnified Party) the defense of any such claim and pay all expenses in 

connection therewith, including attorneys’ fees, and promptly pay, discharge and satisfy any 

judgment or decree which may be entered against it or any Indemnified Party in respect of such 

claim. No expenses incurred by the Servicer or any Subservicer in connection with its 

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

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

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

give instructions with respect to such claims. 

-25­
 

 

 

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 failure of the Indemnified Party to promptly notify the Servicer of any 

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

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

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

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

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

Servicer fails, in the reasonable judgment of the Indemnified Party, to vigorously 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 being imposed upon any Indemnified Party or any of its 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: 888 East Walnut Street 

Pasadena, CA 91101-7211 

Attention: Steven T. Mnuchin 

with a copy to: Cleary Gottlieb Steen & Hamilton LLP 

One Liberty Plaza 

New York, NY 10006 

Attention: Paul E. Glotzer 

If to the Participant: Manager, Structured Transactions 

c/o Federal Deposit Insurance Corporation 

 550 17th Street, NW (Room F-7008) 

Washington, D.C. 20429-0002 

Attention: George Alexander 

-26­
 

 

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: 888 East Walnut Street 

Pasadena, CA 91101-7211 

Attention: Steven T. Mnuchin 

with a copy to: Cleary Gottlieb Steen & Hamilton LLP 

 One Liberty Plaza 

New York, NY 10006 

Attention: Paul E. Glotzer 

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

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

proceeding instituted by it against any other party with respect to this Agreement shall be 

instituted, only in the U.S. District Court for the Southern District of New York or the United 

States District Court for the District of Columbia (and appellate courts from any of the 

foregoing), (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; 

-27­
(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 it at its address for notices pursuant to Article IX 

(with copies to such other Persons as specified therein); provided, however, that nothing 

contained in this Section 10.02(a) shall affect the ability of any party to be served process in any 

other manner permitted by Law; 

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

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

any court specified in Section 10.02(a), (ii) waives any claim that any such suit, action or 

proceeding brought in any such court has been brought in an inconvenient forum and (iii) agrees 

not to plead or claim either of the foregoing; and 

(d) agrees that nothing contained in this Section 10.02 shall be construed as a 

limitation on any removal rights the FDIC may have. 

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. 

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. 

-28­
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 facsimile or other electronic means, shall be treated 

in all manner and respects as an original agreement and shall be considered to have the same 

binding legal effect as if it were the original signed version thereof delivered in person. No 

signatory to this Agreement shall raise the use of a facsimile machine or other electronic means 

to deliver a signature or the fact that any signature or agreement was transmitted or 

communicated through the use of a facsimile machine or other electronic means as a defense to 

the formation or enforceability of a contract and each such Person forever waives any such 

defense. 

Section 11.05 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” and “Related Persons” include only other 

Persons which from time to time constitute “Affiliates” or “Related Persons” of such specified 

Person, as the case may be, and do not include, at any particular time, other Persons that may 

have been, but at such time have ceased to be, “Affiliates” or “Related Persons”, as the case may 

be, of such specified Person, except to the extent that any such reference specifically provides 

otherwise. 

(b) The term “or” is not exclusive. 

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

replacement to such Law. 

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

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

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

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

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

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

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

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

provision of this Agreement. 

-29­
(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, 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 upon the occurrence and during the continuance of any Event 

of Default under the Participation Agreement as if the Participant were a party hereto. 

Notwithstanding the foregoing 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 

-30­
Subservicer or any other party related to this Agreement. There shall be no other third party 

beneficiaries. 

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, or 

any Collateral 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 No Presumption. This Agreement shall be construed fairly as to each 

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

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

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

hereto. 

Section 11.12 No Right of Setoff. The Servicer hereby waives any and all rights it may 

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

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

deduction) against the Loan Proceeds. 

Section 11.13 Release of Participant and Predecessor Servicers. The Servicer hereby 

releases and discharges the Participant and any predecessor servicer, and all of their respective 

officers, directors, employees, agents, attorneys, contractors and representatives, and all of their 

respective successors, assigns (other than the Company) and Affiliates, from any and all claims 

(including any counterclaim or defensive claim), demands, causes of action, judgments or legal 

proceedings and remedies of whatever kind or nature that the Servicer had, has or might have in 

the future, whether known or unknown, which are related in any manner whatsoever to the 

servicing of the Loans by the Participant or such other predecessor servicer prior to the Effective 

Date (other than due to gross negligence or willful misconduct of the Participant or other 

predecessor servicer). 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

-31­
IN WITNESS WHEREOF, the parties hereto have caused this Servicing Agreement to be 

executed as ofthe day and year ftrst above written. 

COMPANY: 

INDYMAC VENTURE, LLC 

SERVICER : 

ONEWEST BANK, FSB 

Name: J hu . Eaton 

Title: ~ thorized Signatory 

Groups 6-8 - Servicing Agreement 
EXHIBIT A
 

LOAN SCHEDULE 

SEE SECTION VI (GROUPS 6-8), SCHEDULES TO SERVICING AGREEMENT, ON THE 

SCHEDULES CD. 

 


 

EXHIBIT B
 

ELECTRONIC TRACKING AGREEMENT
 

SEE TAB 74 FOR EXECUTED COPY. 
SCHEDULES
 

SEE SECTION VI (GROUPS 6-8), SCHEDULES TO SERVICING AGREEMENT, ON THE 

SCHEDULES CD. 

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