EXECUTION VERSION 

CRE/ADC Venture 2012-1 Structured Transaction 

SERVICING AGREEMENT 


by and between 


COLFIN 2012 CRE ADC FUNDING, LLC 


and 


COLONY AMC 2012 CRE ADC, LLC 


Dated as of December 11, 2012 


CRE/ADC Venture 2012-1 Structured Transaction 

Servicing Agreement 

Version 3.1.1 

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Table of Contents 

Page 

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


Section 1.1 Definitions ................................................................................................... ! 


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


Article II SERVICING OBLIGATIONS OF THE SERVICER .....................................................3 


Section 2.11 Funding of Working Capital Expenses and Certain Other 


Payments; Permitted Vertical Completion Expenses; Permitted 


Section 2.1 Appointment and Acceptance as Servicer ...................................................3 


Section 2.2 Limited Power of Attorney ..........................................................................3 


Section 2.3 Servicing Fee ...............................................................................................3 


Section 2.4 Servicing Standard .......................................................................................3 


Section 2.5 Collection Account ......................................................................................4 


Section 2.6 Working Capital Reserve Account ..............................................................5 


Section 2.7 Intentionally Omitted ...................................................................................5 


Section 2.8 Escrow Accounts .........................................................................................5 


Section 2.9 Other Company Accounts ............................................................................5 


Section 2.10 Maintenance of Insurance Policies ..............................................................6 


Horizontal Development Expenses ..............................................................6 


Section 2.12 Expenses ......................................................................................................6 


Section 2.13 Insured or Guaranteed Assets ......................................................................7 


Section 2.14 Registration with MERS ..............................................................................7 


Section 2.15 Loan Modification Program ......................................................................... 8 


Section 2.16 HAMP and HAF A Incentive Fees ............................................................... 8 


Section 2.17 Compliance with RESPA and HFSH Act.. .................................................. 8 


Article III LOAN DEFAULTS; ACQUISITION OF COLLATERAL...........................................8 


Section 3.1 Delinquency Control .................................................................................... 8 


Section 3.2 Discretion ofthe Servicer in Responding to Defaults ofBorrower. ............ 8 


Section 3.3 Acquisition of Acquired Property ................................................................9 


Section 3.4 Administration of Acquired REO Properties .............................................1 0 


Article IV SUBSERVICING ......................................................................................................... l2 


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


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


Section 4.3 Servicer Liable for Subservicers ................................................................ 13 


Section 4.4 Manager Approval Required ..................................................................... 13 


Section 4.5 Regulation AB Requirements .................................................................... 13 


Article V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE 


SERVICER ...................................................................................................... l3 


Section 5.1 Representations and Warranties ................................................................. l3 


Section 5.2 Reporting, Books and Records and Compliance Covenants ..................... 15 


Section 5.3 Audits ......................................................................................................... l8 


Section 5.4 No Liens ..................................................................................................... l9 


Section 5.5 Servicer's Duty to Advise; Delivery of Certain Notices ...........................20 


Section 5.6 Notice of Breach or Change of Contro1 .....................................................20 


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Table of Contents (continued) 

Page 

Section 5.7 Copies ofDocuments ................................................................................. 21 


Section 5.8 Financial Information ................................................................................ 21 


Article VI MANAGER CONSENT .............................................................................................. 21 


Section 6.1 Actions Requiring Manager Consent.. ....................................................... 21 


Section 6.2 Amendments, Modification and Waivers ..................................................22 


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


Section 7.1 Defaults ......................................................................................................23 


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


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


Section 7.4 Effective Termination Date ....................................................................... 27 


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


Article VIII INDEPENDENCE OF PARTIES; INDEMNIFICATION ........................................28 


Section 8.1 Independence ofParties .............................................................................28 


Section 8.2 Indemnification .......................................................................................... 28 


Section 8.3 Pre-Effective Date Liabilities .................................................................... 29 


Article IX NOTICES ..................................................................................................................... 30 


Article X GOVERNING LAW; JURISDICTION ........................................................................31 


Section 10.1 Governing Law ..........................................................................................31 


Section 10.2 Jurisdiction; Venue and Service ................................................................31 


Section 10.3 Waiver of Jury Tria1.. ................................................................................. 34 


Article XI MISCELLANEOUS .....................................................................................................34 


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


Servicing Rights ......................................................................................... 34 


Section 11.2 Legal Fees ..................................................................................................34 


Section 11.3 Entire Agreement.. ..................................................................................... 35 


Section 11.4 Counterparts; Facsimile Signatures ...........................................................35 


Section 11.5 Headings ....................................................................................................35 


Section 11.6 Compliance with Law ................................................................................35 


Section 11.7 Severability ................................................................................................35 


Section 11.8 Third Party Beneficiaries ...........................................................................36 


Section 11.9 Protection of Confidential lnformation ......................................................36 


Section 11.10 Time ofEssence .........................................................................................37 


Section 11.11 No Presumption .........................................................................................37 


Section 11.12 No Right of Setoff.. .................................................................................... 37 


Section 11.13 Release oflnitial Member and Others .......................................................38 


14132778.5 ii 
Exhibits 

Exhibit A 

Exhibit B 

Exhibit C 

Schedules 

Schedule 1 

Schedule 2 

Schedule 3 

Schedule 4 

Schedule 5 

Schedule 6 

SCHEDULES AND EXHIBITS 


Asset Schedule 

Form of Electronic Tracking Agreement 

Loan Modification Program 

Fee Schedule 

Servicing Obligations 

Reimbursement of Servicer Advances 

Form of Electronic Report on the Assets and Collateral 

Termination Without Cause 

Business Plan Schedule 

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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 11th day of December, 2012 (the "Effective 

Date"), by and between Col fin 2012 CRE ADC Funding, LLC, a Delaware limited liability 

company (including its successors and assigns, the "Manager"), and Colony AMC 2012 CRE 

ADC, LLC, a Delaware limited liability company (including those of its successors and assigns 

as are expressly permitted pursuant to this Agreement, the "Servicer"). 

RECITALS 

WHEREAS, CRE/ADC Venture 2012-1, LLC (the "Company") owns the Assets 

described on the Asset Schedule attached hereto as Exhibit A (the "Asset Schedule"); 

WHEREAS, the Manager is the "Manager" of the Company with the authority and 

responsibility to service and manage the Assets and related Collateral pursuant to the LLC 

Operating Agreement; and 

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

the Assets and Collateral on behalf of the Company and the Manager in a manner that is, at all 

times, consistent with the requirements of this Agreement; 

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

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

sufficiency of which are hereby acknowledged, the Manager and the Servicer hereby agree as 

follows: 

ARTICLE I 


DEFINITIONS AND CONSTRUCTION 


Section 1.1 Definitions. For purposes of this Agreement, (i) terms used herein 

(including in the preamble and recitals hereto), but not, defined herein, shall have the respective 

meanings and definitions given, or referred to, in the Agreement of Definitions, and (ii) the 

following terms shall have the meanings and definitions hereinafter respectively set forth. 

"Agreement" shall have the meaning given in the preamble of this Agreement. 

"Agreement of Defmitions" shall mean the Agreement of Definitions - CRE/ ADC 

Venture 2012-1 Structured Transaction, dated as ofthe date hereof, by and among the Company, 

the Manager, the FDIC, as Receiver, in its capacity as the Initial Member, and certain others. 

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

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

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

"Default" shall have the meaning given in Section 7 .1. 

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

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

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

by the Manager and the Servicer without the consent of the Required Consenting Parties. 

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

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

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

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

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

"HAFA" shall mean the Home Affordable Foreclosure Alternatives program 

promulgated by the United States Department of the Treasury, as may be amended, 

supplemented or modified from time to time, as more fully described in Exhibit C. 

"HAMP" shall mean the Home Affordable Mortgage Program promulgated by the 

United States Department of the Treasury, as may be amended, supplemented or modified from 

time to time, as more fully described in Exhibit C. 

"Indemnified Parties" shall have the meaning given in Section 8.2. 

"Loan Modification Program" shall mean the FDIC Loan Modification Program 

promulgated by the FDIC, as may be amended, supplemented or modified from time to time, as 

more fully described in Exhibit C. 

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

"Other Company Accounts" shall have the meaning given in Section 2.9. 

"Pre-Existing Liabilities" shall have the meaning given in Section 8.3. 

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

"Servicing" means servicing, administering, managing and disposing of the Assets and 

the Collateral, and the terms "Service" and "Serviced" have correlative meanings. 

"Servicing Fee" shall have the meaning given in Section 2.3. 

"Servicing Obligations" shall have the meaning given in Section 2.4. 

"Servicing Standard" shall have the meaning given in Section 2.4. 

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

Article VII. 

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"Third Party Claim" shall have the meaning given in Section 8.2. 

Section 1.2 Construction. The Rules of Construction apply to this Agreement; 

provided, that any reference herein (including by reference to any defined term in the Agreement 

of Definitions) to any other Transaction Document (including as to any term defined therein) 

shall mean and refer to such Transaction Document as amended or otherwise modified or 

replaced from time to time in accordance with the terms thereof. 

ARTICLE II 


SERVICING OBLIGATIONS OF THE SERVICER 


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

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

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

dispose of the Assets and the Collateral on behalf of and as an agent of the Manager. 

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

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

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

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

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

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

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

pursuant to Article VII. 

Section 2.3 Servicing Fee. As consideration for Servicing, the Manager shall pay the 

Servicer a servicing fee in the amount and at such times as are set forth on the Fee Schedule (the 

"Servicing Fee"). 

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

duties in connection with the Servicing as are set forth on Schedule 2, as the same may be 

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

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

Company, (ii) in accordance with the terms of the Assets (and related Asset Documents), (iii) in 

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

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

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

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

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

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

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

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

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

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

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

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each Loan and related Collateral, in the absence of a customary and usual standard of practice, 

the Servicer shall comply with the applicable Fannie Mae Guidelines, if any, with respect to 

similar loans or properties in similar situations (the requirements in clauses (i) through (vii) 

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

Obligations without regard to (w) any relationship that the Servicer, the Company, the Manager 

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

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

relationship and any other relationship described in Section 5.l(h), (x) the obligations of the 

Company, the Manager, the Servicer or any Subservicer to make disbursements and advances 

with respect to the Assets and the Collateral, (y) any relationship that the Servicer or any 

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

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

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

evidenced by this Agreement or any Subservicing Agreement), and (z) the rights of the Servicer 

or any Subservicer to receive compensation (including the Servicing Fee) for its services under 

this Agreement or any Subservicing Agreement. 

Section 2.5 Collection Account. 

(a) The Servicer shall deposit (and cause each Subservicer to so deposit) into 

the Collection Account all Asset Proceeds on a daily basis (without deduction or setoff as 

provided in Section 11.12 hereof) within two Business Days after receipt thereof by the Servicer 

(or such Subservicer). The Servicer shall not cause (and shall ensure that no Subservicer causes) 

funds from any other source (other than interest or earnings on the Asset Proceeds, funds 

transferred from the Working Capital Reserve Account, the proceeds of Excess Working Capital 

Advances and Discretionary Funding Advances and other funds expressly permitted to be 

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

to be commingled in the Collection Account. 

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

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

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

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

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

applicable Required Funding Draws) and Permitted Development Expenses; provided, however, 

that if the Servicer or any Subservicer erroneously deposits any amounts into the Collection 

Account, it may request that the Manager withdraw such erroneously deposited amounts in 

accordance with Section 3.1(c) of the Custodial and Paying Agency Agreement. 

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

required to be remitted by the Servicer (or any Subservicer) to the Collection Account under this 

Agreement shall be remitted by wire transfer, in immediately available funds. 

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

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

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Section 2.6 Working Capital Reserve Account. 

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

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

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

the Working Capital Reserve into the Working Capital Reserve Account in a_n initial a_mount of 

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

Development Expenses of the Company in accordance with the LLC Operating Agreement and 

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

Servicer shall not cause (and shall ensure that no Subservicer causes) funds from any other 

source (other than interest or earnings on the Working Capital Reserve) to be commingled in the 

Working Capital Reserve Account (it being understood that deposits into such Working Capital 

Reserve Account shall be made only pursuant to the Custodial and Paying Agency Agreement 

and the LLC Operating Agreement). 

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

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

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

conditions set forth in the Servicing Obligations) for purposes of payment of applicable Working 

Capital Expenses and Permitted Development Expenses. 

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

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

Agent. 

Section 2.7 Intentionally Omitted. 

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

Servicer shall (including through applicable Subservicers) establish and maintain one or more 

Escrow Accounts, each of which shall be held in trust for the benefit of the Company and the 

PMN Agent for amounts deposited or required to be deposited therein by the applicable 

Borrower. Except as otherwise directed by the Manager, the Servicer shall (and shall cause each 

Subservicer to) deposit into the applicable Escrow Account on a daily basis, within two Business 

Days of receipt, all Escrow Payments and all other amounts required to be deposited in such 

Escrow Account pursuant to the applicable Asset Documents. The Servicer shall pay (or cause 

the applicable Subservicer to pay) to the Borrowers interest on funds in Escrow Accounts to the 

extent required by Law or the applicable Asset Documents. 

Section 2.9 Other Company Accounts. At the direction of the Manager, the Servicer 

shall (itself or through applicable Subservicers) establish and maintain such other Eligible 

Accounts (as Company Accounts) as may be directed by the Manager, each of which shall be 

held in trust for the benefit of the Company and the PMN Agent, and shall be funded and 

disbursed only in accordance with such instructions as are provided by the Manager ("Other 

Company Accounts"). 

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Section 2.10 Maintenance of Insurance Policies. 

(a) The Servicer and each Subservicer shall maintain the insurance required of 

the Servicer and such Subservicer, and all insurance required to be maintained with respect to the 

Assets (including any Collateral and any Acquired Property) being serviced pursuant to this 

Agreement, in each case as set forth in the Insurance Schedule (attached as Annex III to the LLC 

Operating Agreement) and, as to any applicable determinations by the Manager pursuant to such 

Insurance Schedule, subject to applicable instructions of the Manager. All such insurance shall 

be issued by an insurer reasonably acceptable to the Manager (and as required pursuant to the 

Insurance Schedule). 

(b) The Servicer shall, with respect to any such insurance so maintained (or 

required to be maintained) by the Servicer or any Subservicer, provide (and cause each 

Subservicer to provide), in each case as and when required and with a copy to the Manager, all 

notices and insurance certificates required of the Manager, the Company, the Servicer or any 

such Subservicer pursuant to the Insurance Schedule. Copies of fidelity bonds and insurance 

policies required to be maintained by the Servicer (or any Subservicer) shall be made available 

(and delivered) to the Manager, the Required Consenting Parties or their respective 

representatives on the Effective Date (and, with respect to each Asset, on or before the applicable 

Servicing Transfer Date with respect thereto), and shall otherwise be made available (and 

delivered) to the Manager, each Required Consenting Party and each Purchase Money Notes 

Guarantor, and their respective representatives, upon request. 

Section 2.11 Funding of Working Capital Expenses and Certain Other Payments; 

Permitted Vertical Completion Expenses; Permitted Horizontal Development Expenses. To the 

extent set forth in, and subject to the terms of, this Agreement (including the Servicing 

Obligations), the Servicer shall, on behalf of the Manager, in turn acting on behalf of the 

Company (and from funds in the applicable Company Accounts), pay (or cause the applicable 

Subservicers to so pay) applicable Working Capital Expenses and Permitted Development 

Expenses (including making applicable Required Funding Draws and Permitted Vertical 

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

rights and limitations of the Servicer (and the Subservicers) with respect to applicable decisions 

and rights of the Manager in connection with the making of Required Funding Draws and 

Permitted Vertical Development Funding Draws); provided that in each case the payment of the 

same is consistent with the applicable terms and conditions in the Custodial and Paying Agency 

Agreement and, subject to Section 5.7, the applicable terms and conditions in the LLC Operating 

Agreement and the other Transaction Documents. Servicer acknowledges that funds in the 

Company Accounts, and proceeds of Excess Working Capital Advances and Discretionary 

Funding Advances, shall be used exclusively as provided in (and subject to the terms of) the 

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

LLC Operating Agreement and the other Transaction Documents. 

Section 2.12 Expenses. Except as otherwise directed by the Manager, the Servicer shall 

use (and cause each applicable Subservicer to so use) its reasonable best efforts to recover from 

Borrowers and Obligors all amounts of Servicing Expenses that are advanced by the Servicer (as 

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permitted or required pursuant to the Servicing Obligations) as Servicer Advances to the extent 

that the Borrowers and Obligors are responsible for such Servicing Expenses under the Asset 

Documents. All such amounts not recovered from Borrowers or Obligors and all other Servicer 

Advances shall be reimbursed only in accordance with the terms set forth on Schedule 3, as the 

same may be amended from time to time by the Manager (without the consent of any Required 

Consenting Party) and the Servicer. In no event may any Servicer Advances be deducted from 

or netted against any Asset Proceeds. In the event the Servicer is reimbursed for any amount that 

does not qualify as a Servicing Expense, the Servicer shall be obligated to refund such amount to 

the Manager, or, if so directed by the Manager, directly to the Company (to the Collection 

Account) on the Specified Date immediately following the Servicer's receipt of notice from the 

Manager requesting the same. No Servicer Advances shall bear interest chargeable in any way 

to the Company or deductible from any Asset Proceeds. 

Section 2.13 Insured or Guaranteed Assets. If any Assets being Serviced pursuant to 

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

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

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

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

agrees that, upon assumption of the Servicing Obligations with respect to the Assets pursuant to 

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

insurance or guaranty. 

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

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

maintain (or register, as applicable) such Loan on the MERS® System and execute and deliver 

on behalf of the Company (including, as applicable, on behalf of the Manager, in tum on behalf 

of the Company) any and all instruments of assignment and other comparable instruments with 

respect to such assignment or re-recording of a mortgage securing a Loan in the name of 

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

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

"servicer" and 1000002 (Org Id.) shall be designated as the "investor" with respect to such Loan, 

and, if applicable, the Manager may cause or permit an applicable Subservicer (and, in the event 

such Loan is being serviced by a Rated Subservicer, shall so cause such Subservicer) to be 

designated as the "subservicer" with respect to such Loan (provided, that (i) upon the Company 

becoming a member of MERS in good standing, the Manager shall cause the Company to be 

identified in the "investor" field on the MERS® System, and (ii) at the option of the Manager in 

accordance with the LLC Operating Agreement and so long as the Manager is and remains a 

MERS member in good standing, the Manager may be designated as the "servicer" with respect 

to any such Loan, in which case the Servicer shall be designated as the "subservicer" with 

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

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

the Electronic Tracking Agreement). Except as otherwise directed by the Manager (in 

connection with a voluntary removal by the Manager of any Loan from the MERS® System 

pursuant to Section 12.3(h) of the LLC Operating Agreement), all Loans registered on the 

MERS® System shall remain registered on the MERS® System unless default, foreclosure or 

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similar legal or MERS® requirements dictate otherwise. The Servicer shall provide the Manager 

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

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

to verify the Persons identified on the MERS® System as having any interest in any of the Loans 

and to confirm that the Loans required to be registered on the MERS® System are so registered. 

For so long as any Loans remain registered with MERS, the same shall be subject to an 

Electronic Tracking Agreement in the form of Exhibit B, and, to the extent any such Loans are 

so registered with MERS as of the Closing Date, the Servicer, together with the Manager, the 

PMN Agent and the Initial Member, shall execute such Electronic Tracking Agreement on the 

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

the Manager or the Initial Member, the Servicer shall cause MERS to run a query with respect to 

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

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

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

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

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

applicable instructions from the Manager or the Initial Member, as the case may be. 

Section 2.15 Loan Modification Program. For all SFR Loans, the Servicer shall at its 

expense comply (and cause each applicable Subservicer to comply) with the terms of the Loan 

Modification Program, as more fully described in Exhibit C. 

Section 2.16 HAMP and HAFA Incentive Fees. The Servicer shall be entitled to retain 

for its own account any servicer incentive fees paid to it pursuant to the HAMP and HAF A 

programs, if applicable. 

Section 2.17 Compliance with RESP A and HFSH Act. For all SFR Loans, the Servicer 

shall comply with all requirements of RESP A, including, but not limited to, providing "hello" 

letters to Borrowers notifying such Borrowers of the transfer of servicing of the applicable Loan 

to the Servicer. For all SFR Loans, the Servicer shall comply with all requirements of the HFSH 

Act, including, but not limited to, providing notice to Borrowers on behalf of the Company 

notifying such Borrowers of the transfer of the Loans to the Company. 

ARTICLE III 


LOAN DEFAULTS; ACQUISITION OF COLLATERAL 


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

Servicer shall maintain (and cause each applicable Subservicer to maintain) a collection 

department that complies with the Servicing Standard and protects the Company's interests in 

the Assets and the Collateral in accordance with the Servicing Standard. 

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

the occurrence of an event of default under any of the Asset Documents, but subject to the other 

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

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

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compliance with the Servicing Standard, the Servicer, with the consent of the Manager, shall 

determine the response to such default and the course of action with respect to such default, 

including (a) the selection of attorneys to be used in connection with any action, whether judicial 

or otherwise, to protect the interests of the Company in the Asset and the Collateral, (b) the 

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

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

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

action, or to appoint a receiver, (d) the institution of proceedings against any Obligor, (e) the 

acceptance of a deed in lieu of foreclosure, (t) 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 UCC 

sale, and (g) the institution or continuation of proceedings to obtain a deficiency judgment 

against such Borrower or any Obligor and the collection of such judgment. Notwithstanding 

anything to the contrary contained herein, but subject to Section 5.7, the Servicer shall not, in 

connection with any such default or otherwise, take (or refrain from taking) any action if the 

taking (or refraining from taking) of such action is inconsistent with the terms of the LLC 

Operating Agreement or any other Transaction Documents without the prior written consent of 

the Manager. 

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

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

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

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

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

Manager so directs (and if required pursuant to the LLC Operating Agreement), prior to the 

acquisition of title (whether by foreclosure, deed in lieu of foreclosure, by power of sale or by 

sale pursuant to the Uniform Commercial Code, or otherwise) to any Acquired REO Property, 

the Servicer shall cause a Site Assessment to be commissioned with respect to such Collateral, 

and the costs of such Site Assessment shall be deemed to be Servicing Expenses as long as such 

costs were not paid to any Affiliate of the Manager or any Affiliate of the Servicer or any 

Subservicer. Except as is otherwise directed by the Manager, the Servicer or any Subservicer 

shall not acquire or otherwise cause the Company or any Subsidiary or other entity in which the 

Company owns any interest to acquire all or any portion of any Collateral having any actual or 

threatened Environmental Hazard by foreclosure, deed in lieu of foreclosure, power of sale or 

sale pursuant to the UCC or otherwise. If title to any Collateral that constitutes real property is 

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

to the UCC, or otherwise, title to such Acquired REO Property shall be taken by and held in the 

name of an Ownership Entity; provided, however, that for any Collateral which becomes 

Acquired REO Property after the applicable Servicing Transfer Date which contains an 

Environmental Hazard, the Ownership Entity that holds such Acquired REO Property may not 

hold title to any other Acquired REO Property. In connection with any such acquisition of title 

to Acquired Property by the Company (or any Ownership Entity) occurring after the Closing 

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

Uniform Commercial Code, or otherwise), and subject to applicable instructions from the 

Manager, the Servicer shall obtain (or shall have obtained), during the period commencing six 

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months prior to such acquisition and ending on the earlier of (i) sixty days after such acquisition 

or (ii) such earlier date as may be required in connection with the relevant exercise of remedies 

so as to comply with applicable Law and preserve rights to collect any Deficiency Balance), an 

updated Appraisal for determination of the Appraised Value (to serve as the basis for the initial 

Net Fair Value) of such Acquired Property. 

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

terms and conditions set forth herein, in connection with any Acquired REO Properties, the 

Servicer shall, in each case subject to applicable instructions from the Manager and the Servicing 

Obligations, comply with the following terms and conditions: 

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

insurance in compliance with applicable requirements herein and in the Insurance Schedule. 

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

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

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

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

to be performed by the tenants under such leases. 

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

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

Ownership Entity, or use or permit the use of any portion of an Acquired REO Property in any 

manner that could result in such use (taking into account any applicable variance obtained in 

accordance with the Servicing Standard) becoming a non-conforming use under any zoning 

ordinance or any other applicable land use Law, without the prior consent of the Manager and 

the Required Consenting Parties. 

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

1mt1ate the joint assessment of Acquired REO Property (i) with any other real property 

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

Acquired REO Property which may be deemed to constitute personal property, or any other 

procedure whereby the Lien of any Taxes which may be levied against such personal property 

shall be assessed or levied or charged to such Acquired REO Property. 

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

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

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

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

Servicing Standard and applicable requirements herein and in the other Transaction Documents) 

and in accordance with applicable Law. 

(f) With respect to any Acquired REO Property that is a Ground Lease, the 

Servicer shall cause the applicable Ownership Entity (as the lessee) to (i) pay all rents and other 

sums required to be paid by the tenant under and pursuant to the provisions of the applicable 

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Ground Lease as and when such rent or other charge is payable, and (ii) diligently and timely 

perform and observe all of the terms, covenants and conditions binding on the tenant under the 

Ground Lease. The Servicer shall not permit the applicable Ownership Entity to subordinate or 

consent to the subordination of any Ground Lease to any mortgage, lease or other interest on or 

in the ground lessor's interest in the applicable Acquired REO Property without the prior consent 

of the Manager and the Required Consenting Parties unless such subordination is required under 

the provisions of such Ground Lease. 

(g) In the event the Manager elects to cause the Company to fund any 

permitted construction or development with respect to Acquired REO Property, then the Servicer 

shall cause each Ownership Entity to pursue with diligence the applicable construction or 

development of the Acquired REO Property owned by such Ownership Entity (i) in accordance 

with the construction, development, construction management (if any) and all other material 

contracts relating to such construction or development, all requirements of Law, all restrictions, 

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

governmental approvals, (ii) (A) in the case of any such construction or development other than 

Permitted Horizontal Development, in substantial compliance with the plans and specifications 

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

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

Transaction Documents, and the related Business Plan, and (B) in the case of any Permitted 

Horizontal Development, in accordance with the applicable approved Horizontal Development 

Plan, (iii) in a good and workmanlike manner and free of defects, (iv) in a manner such that such 

Acquired REO Property remains free from any Liens, claims or assessments (actual or 

contingent) for any material, labor or other item furnished in connection therewith, and (v) in 

conformance with all other applicable requirements set forth herein and in the other Transaction 

Documents. 

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

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

act in the best interests of the Company, and the Members and creditors of the Company 

(including the FDIC in its various capacities) and in accordance with the Servicing Standard, and 

(ii) without relieving the Servicer of any obligation elsewhere in this Agreement, and subject to 

any applicable Servicing Obligations and requirements in the Transaction Documents, the 

Servicer shall not be required to act in accordance with a specific provision of this Section 3.4 if 

such action is (A) not in the best interests of Company and the Members and creditors of the 

Company (including the FDIC in its various capacities), as determined by the Servicer in the 

exercise ofits reasonable discretion, or (B) not in accordance with the Servicing Standard. 

(i) The Servicer shall furnish to the Manager, the PMN Agent and the Initial 

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

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

request. 

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ARTICLE IV 


SUBSERVICING 


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

Subservicers, including Affiliates of the Manager or of the Servicer, as it may deem necessary 

and appropriate, provided that any Subservicer meets the requirements set forth in the definition 

of Qualified Servicer. 

Section 4.2 Subservicing Agreement Requirements. Any Subservicing Agreement 

with any Subservicer shall provide for the Servicing by the Subservicer in accordance with the 

Servicing Standard and the other terms of this Agreement and the LLC Operating Agreement, 

and shall comply with the requirements set forth in Section 12.1 (b) of the LLC Operating 

Agreement. Without limitation of the foregoing, and to further clarify certain requirements so 

set forth in such Section 12.1(b) ofthe LLC Operating Agreement, the Servicer agrees that: 

(a) for purposes of Section 12.1(b)(v) of the LLC Operating Agreement, any 

such Subservicing Agreement shall include rights in favor of the FDIC, each Purchase Money 

Notes Guarantor, the PMN Agent and the Company that are equivalent to the rights granted to 

such Persons hereunder; and 

(b) for purposes of, and in addition to, as applicable, the termination rights as 

outlined in Section 12.1(b) of the LLC Operating Agreement, any such Subservicing Agreement 

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

Subservicing Agreement pursuant to Section 7.2 and Section 7.3 of this Agreement, (ii) provide 

that the Subservicer consents to its immediate termination under the Subservicing Agreement 

upon the occurrence of any of (x) a Default under Section 7.1(b) of this Agreement, or (y) an 

Insolvency Event with respect to the Subservicer, (iii) provide that the occurrence of any 

Insolvency Event with respect to the Subservicer constitutes a default under the Subservicing 

Agreement, (iv) contain default provisions that relate to the Subservicer (including to actions of 

the Subservicer) that correspond to the provisions of Section 7.1(a), .(hl, .(0, @, ~' ffi, .(g)_, .(h)_, 

ill_and ill of this Agreement, and contain provisions that correspond to Section 7.2, 7.4, and 7.5 

of this Agreement, and (v) without limitation of the foregoing, provide that each of the Manager, 

the Initial Member and the PMN Agent has the right (x) to terminate the Subservicing 

Agreement by providing written notice upon the occurrence of any default so required to be 

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

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

cure provisions in the corresponding provisions of Section 7.1 ofthis Agreement, if any), and (y) 

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

Nothing contained in any Subservicing Agreement shall alter any obligation of the Servicer 

under this Agreement or the Manager under the LLC Operating Agreement and, in the event of 

any inconsistency between the Subservicing Agreement and the terms of either this Agreement 

or the LLC Operating Agreement, the terms of this Agreement or the LLC Operating Agreement, 

as applicable, shall apply. 

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Section 4.3 Servicer Liable for Subservicers. Notwithstanding anything to the 

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

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

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

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

pursuant to any Subservicing Agreement shall be performed as a..'1 agent of the Servicer. No 

Subservicer shall be paid any fees or indemnified out of any Asset Proceeds, it being understood 

that all fees and related costs and liabilities of retaining any Subservicers shall be the sole 

responsibility of the Servicer. 

Section 4.4 Manager Approval Required. Each Subservicing Agreement and all 

Modifications thereto and the selection of the Subservicer, regardless of whether the Subservicer 

is an Affiliate of the Servicer, shall be subject to the prior written approval of the Manager 

(which approval shall not be umeasonably withheld, delayed or conditioned so long as the 

provisions required under Section 4.2 are not modified or deleted). A copy of all Subservicing 

Agreements, as executed and delivered and all amendments thereto, shall be provided to the 

Manager and, each Required Consenting Party. 

Section 4.5 Regulation AB Requirements. The Servicer shall use commercially 

reasonable efforts (i) to maintain in place, and to confirm that each Subservicer has in place, 

policies and procedures instituted to monitor any performance or other triggers and events of 

default in accordance with the applicable Asset Documents and the Servicing Obligations (as 

generally required pursuant to Sections 1122(d)(l)(i) and (ii) of Regulation AB), and (ii) to 

comply, and confirm, where applicable, that each Subservicer complies, with Sections 

1122(d)(2)(i) through (vii), and Sections 1122(d)(4)(i) through (xiv) of Regulation AB, it being 

understood that any such requirements of Regulation AB referenced herein shall be deemed 

applicable to the Servicing conducted hereunder (and under any Subservicing Agreement) 

regardless of whether such requirements apply, by their terms, only to companies registered or 

required to file reports with the Securities and Exchange Commission. 

ARTICLE V 


REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER 


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

representations and warranties as of the date hereof: 

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

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

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

and other jurisdictions where the Assets or the nature of the Servicer's activities under this 

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

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

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

in the United States. 

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

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

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

all requisite 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 organizational 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, the consummation of any other of the transactions contemplated by this Agreement, 

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

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

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

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

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

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

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

instrument, or in violation of any Law of any Governmental Authority having jurisdiction over it 

which breach or violation may impair the Servicer's ability to perform or meet any of its 

obligations under this Agreement. 

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

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

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

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

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

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

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

this Agreement has been obtained and is effective. 

(h) None of the Servicer, any Subservicer or their respective Affiliates shall, 

at any time, without the prior written approval of the Manager, the Initial Member and the PMN 

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

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

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

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

any other interest whatsoever in or relating to any such Asset or Collateral (including, in the case 

of any Loan Participation, any interest in the underlying loan or collateral with respect thereto). 

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

remain, a Qualified Servicer. 

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

covenants to the Manager as follows: 

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

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

Servicing Transfer Date with respect thereto (or, if later, the Effective Date). Information returns 

include reports on Forms 1098 and 1099 and any other reports required by Law. The Servicer 

shall be responsible for submitting all information returns required under applicable Law of any 

foreign Governmental Authority, to the extent such are required to be filed by the Company 

under such Law, relating to the Assets, for the calendar or tax year in which the Effective Date 

falls and thereafter. 

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

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

(including records transferred by the Manager to the Servicer) regarding the Assets and the 

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

Collateral, including records relating to the Company Accounts (including any Other Company 

Accounts maintained in connection with the Assets), the Escrow Accounts, Servicer Advances, 

Funding Draws, Working Capital Expenses, Permitted Development Expenses and collection 

and remittance of Asset Proceeds and all other amounts disbursed from any Company Account. 

The books of account shall be maintained in a manner that provides sufficient assurance: (A) that 

transactions of the Company are executed in accordance with, and only in accordance with, the 

general or specific authorization of the Manager consistent with the provisions of the LLC 

Operating Agreement; (B) that transactions of the Company are recorded in such form and 

manner as will (x) permit preparation of federal, state and local income and franchise Tax returns 

and information returns in accordance with the LLC Operating Agreement and as required by 

Law, (y) permit preparation of the Company's financial statements in accordance with GAAP 

and as otherwise set forth in the LLC Operating Agreement, and (z) maintain accountability for 

the Company's assets; (C) regarding the prevention or timely detection of any unauthorized, and 

non-de minimis, acquisition, use or disposition of assets of the Company or any Ownership 

Entity; and (D) that any material information regarding the business or affairs of the Company is 

accumulated, recorded, processed, summarized and reported to the Manager in a timely manner. 

For purposes of the preceding sentence "transactions of the Company" include (without 

limitation) all transfers of funds out of, into, or between, Accounts (to the extent that the 

Company has discretion with respect thereto), and the making of any sale or other Disposition of 

an Asset (including any Bulk Sale. 

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(ii) without limiting the generality of Section 5.2(b)(i), the obligation to cause 

to be kept and maintained a complete and accurate set of records as set forth in Section 5.2(b)(i) 

in any event shall at all times include the obligation to cause each of the following to be 

maintained: (A)(x) accurate records reflecting the status of ground rents, Taxes, assessments, 

water rates, sewer rents, and other charges which are or may become a Lien upon the Mortgaged 

Property (or any other Collateral) and the status of fire and hazard insurance coverage and all 

bills for the payment of such charges (including renewal premiums), and (y) accurate records, in 

reasonable detail, of all determinations as to whether (or not) to pay any of the foregoing on 

behalf of any Borrower, and the basis (and back-up documentation) for such determinations, (B) 

accurate records, in reasonable detail, of the results of site inspections of any Mortgaged 

Property or Acquired REO Property, (C) accurate records, in reasonable detail, of all 

determinations as to whether (or not) to transfer (or cause to be transferred) funds out of, into, or 

between, Accounts (to the extent that the Manager has discretion with respect thereto), and the 

basis (and back-up documentation) for all such determinations, (D) accurate records, in 

reasonable detail, of all determinations as to whether (or not) to effect any proposed sale or other 

Disposition of an Asset (including any Bulk Sale), and the basis (and back-up documentation) of 

such determination, and (E) accurate records, in reasonable detail, of all other determinations that 

are material to the Company. 

(c) The Servicer shall cause all books and records at any time kept or 

maintained pursuant to Section 5.2(b) to be and remain property of the Company (and hereby 

acknowledges and agrees that the same shall at all times be property of the Company), and to be 

maintained and retained until the date that is the later of ten years after the Closing Date and 

three years after the Final Distribution Date, which date shall be established by notice to such 

effect to the Servicer by the Manager. All such books and records shall be available during such 

period for inspection by the Manager, the FDIC, the PMN Agent, each Purchase Money Notes 

Guarantor and the Initial Member (and their respective representatives, including any applicable 

Governmental Authority) at all reasonable times during business hours on any Business Days 

(or, in the case of any such inspection after the term hereof, at such other location as is provided 

by notice to the Manager, the FDIC, the PMN Agent, each Purchase Money Notes Guarantor and 

the Initial Member, as applicable), in each instance upon not less than two Business Days' prior 

notice to the Servicer. Upon request by the Manager, the Servicer, at the sole cost and expense 

of the Manager, shall promptly send copies (the number of copies of which shall be reasonable) 

of such books and records to the Manager. The Servicer shall (and shall cause each Subservicer 

to) provide the Manager with reasonable advance notice of the Servicer' s (or any such 

Subservicer's) intention to destroy or dispose of any documents or files relating to the Assets 

and, upon the request ofthe Manager, shall allow the Manager, at its own expense, to recover the 

same from the Servicer (or such Subservicer). 

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

complete and accurate set of records shall encompass all files in the Servicer's (or any 

Subservicer's) custody, possession or control pertaining to the Assets and the Collateral, 

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

Agency Agreement) all original and other documentation pertaining to the Assets and the 

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

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and the Collateral, and all of the Servicer's (and any Subservicer's) internal memoranda 

pertaining to the Assets and the Collateral. 

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

the Specified Date, commencing with February, 2013 (or such other date as may be set forth in 

the Servicing Obligations), a monthly electronic report on the Assets and Collateral containing 

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

amended from time to time by the Manager (without the consent of any Required Consenting 

Party) and the Servicer (the "Electronic Report"). The Electronic Report shall include, but not 

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

Operating Agreement, the Cash Flow and Distribution Report and the Monthly Report, and such 

other reports and information as the Manager shall reasonably require, to the extent such 

information is reasonably available to the Servicer (or any Subservicer). Notwithstanding the 

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

Electronic Reports may exclude certain of the information otherwise required to be included 

therein if and to the extent the Initial Member (or the Transferor) is obligated to provide such 

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

information) to the Servicer and the Manager pursuant to the interim servicing and asset 

management support obligation set forth in Section 3.3 of the Contribution Agreement and the 

Initial Member (or the Transferor) fails to timely deliver such information to the Servicer and the 

Manager. 

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

the Manager and each Required Consenting Party, on or before March 1 0 of each year, or such 

other day as the Manager and the Servicer may agree, commencing in the year 2014, an annual 

officer's certificate stating, as to the signer thereof, that (i) a review of such party's activities 

during the preceding Fiscal Year (or other applicable period as set forth below in this Section 

~) and of its performance under this Agreement (or, as applicable, any Subservicing 

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

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

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

throughout such year (or other applicable period as set forth below in this Section 5.2(f)), ifthere 

has been a failure to fulfill any such obligation in any material respect, specifying each such 

failure and the nature and status thereof. The first such officer's certificate shall, with respect to 

any Asset, shall cover the period commencing on the Servicing Transfer Date and continuing 

through the end of the 2013 Fiscal Year. In the event the Servicer or any Subservicer has been 

terminated, resigned or otherwise performed in such capacity for only part of a year (or other 

applicable period, as the case may be, with respect to the period commencing, with respect to 

any Asset, on the Servicing Transfer Date through the end of the 2013 Fiscal Year), such party 

shall provide an officer's certificate pursuant to this Section 5.2 with respect to such portion of 

the year (or other applicable period). 

(g) On or before March 1 0 of each year, or such other day as the Manager and 

the Servicer agree, commencing in the year 2014, the Servicer shall, and shall cause each 

Subservicer to, provide to the Manager, each Required Consenting Party and each Purchase 

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Money Notes Guarantor (and to such other Person as the Manager may direct) a report prepared 

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

with respect to the prior Fiscal Year (or other applicable period as set forth below), 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 either the Uniform Single Attestation Program for r...1ortgage Bankers or item 

1122 of Regulation AB, such firm is of the opinion that the Servicer or applicable Subservicer' s 

activities have been conducted in compliance with this Agreement (including, to the extent 

applicable pursuant to Section 4.5 above, Regulation AB), 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. The first such reports 

shall cover the period commencing on the Effective Date (and for each Asset, covering the 

period from the applicable Servicing Transfer Date) and continuing through the end of the 2013 

Fiscal Year. 

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

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

and deliver to the Manager, and thereafter periodically update, such Business Plans, or relevant 

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

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

Manager and the Servicer without the consent of any Required Consenting Party (the "Business 

Plan Schedule"). Upon reasonable notice by any Required Consenting Party or the Manager, 

the Servicer shall make its (and each applicable Subservicer's) personnel who are familiar with 

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

purposes of discussing such Business Plans with representatives of such Required Consenting 

Party and/or the Manager and responding to questions therefrom. 

Section 5.3 Audits. Until the later of the date that is ten years after the Closing Date 

and the date that is three years after the Final Distribution Date, which date shall be established 

by notice to such effect to the Servicer by the Manager, the Servicer shall, and shall cause each 

Subservicer to, (a) provide the Manager, the PMN Agent, each Purchase Money Notes Guarantor 

and the Initial Member and their respective representatives (including any Governmental 

Authority), during normal business hours and on reasonable notice, with access to and the right 

to review all of the books of account, reports and records relating to the Assets or any Collateral, 

the Servicing Obligations, the Company Accounts (including any Other Company Accounts), the 

Escrow Accounts, disbursements under the Custodial and Paying Agency Agreement, 

distributions under the LLC Operating Agreement or any matters relating to this Agreement or 

the rights or obligations hereunder or under the other Transaction Documents, (b) permit such 

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

Agent, any Purchase Money Notes Guarantor or the Initial Member to cause such books to be 

audited by accountants selected by the Manager, the PMN Agent, such Purchase Money Notes 

Guarantor or the Initial Member, as applicable, and (d) allow the representatives of the Manager, 

the PMN Agent, any Purchase Money Notes Guarantor or the Initial Member to discuss any 

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

Collateral, the Servicing Obligations, the Company Accounts, the Escrow Accounts or any other 

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matters relating to this Agreement, the other Transaction Documents, or the rights or obligations 

hereunder and thereunder, with any such Servicer's and any such Subservicer's officers, 

directors, employees, attorneys and accountants (and by this provision the Servicer hereby 

authorizes such accountants to discuss such affairs, finances and accounts with such 

representatives). Any expense incurred by the Manager, the PMN Agent, any Purchase Money 

Notes Guarantor or the Initial Member and any reasonable out-of-pocket expense incurred by the 

Servicer in connection with the exercise by the Manager, the PMN Agent, such Purchase Money 

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

Manager, the PMN Agent, such Purchase Money Notes Guarantor or the Initial Member, as 

applicable (and in all events subject to any obligation of the Manager to bear such expenses of 

the PMN Agent, such Purchase Money Notes Guarantor or the Initial Member pursuant to the 

LLC Operating Agreement); provided, however, that any expense incident to the exercise by the 

Manager, the PMN Agent, any Purchase Money Notes Guarantor or the Initial Member of their 

respective rights pursuant to this Section 5.3 as a result of or during the continuance of a Default 

by the Servicer hereunder (including any such Default relating or attributable to any Subservicer) 

shall in all cases be borne by the Servicer. 

Section 5.4 No Liens. The Servicer shall not (i) place, or (ii) knowingly (including for 

this purpose any knowledge that the Servicer would have obtained if it had complied with the 

Servicing Standard) permit (voluntarily or involuntarily) to be placed, or to exist, any Lien on 

any of the Assets, the Collateral, the Asset Documents, or the Asset Proceeds, except for the 

Liens in favor of the Secured Parties pursuant to the Reimbursement, Security and Guaranty 

Agreement and, in the case of Collateral or Acquired Property, such other Permitted Liens as the 

Manager may permit from time to time; and the Servicer shall not take any action to interfere 

with the PMN Agent's rights as a secured party with respect to Assets, the Collateral and the 

Asset Proceeds. Notwithstanding the foregoing, (i) with respect to any Mortgaged Property 

included in the Collateral, the Servicer shall not be required pursuant to this Section 5.4 to cause 

the Company to discharge (or pay or advance funds on behalf of any Borrower for payment of) 

any Lien arising by operation of Law as a result of the applicable Borrower's failure to pay 

ground rents, Taxes, assessments, water rates, sewer rents, and other similar charges with respect 

to such Mortgaged Property, so long as the Servicer shall have determined in accordance with 

the Servicing Standard (and shall have maintained applicable records of such determination 

pursuant to Section 5.2) that the amount of such Lien (or applicable aggregate amount required 

to be paid by the Servicer so as to discharge the same) exceeds the net recoverable amount to the 

Company with respect to such Mortgaged Property, provided that, so long as such Lien remains 

in effect, the Company will not acquire title to such Mortgaged Property or otherwise have any 

liability with respect to such Lien, and (ii) in each case, to the extent the Servicer is required to 

make any applicable payment pursuant to the foregoing, such payment shall be from Company 

funds available (or made available by the Manager) for such payment (and, except as provided 

otherwise in the Servicing Obligations or with respect to a Lien arising as a result of actions or 

omissions of the Servicer in violation of other applicable provisions of this Agreement, the 

Servicer shall not be required to use its own funds, or make any Servicer Advances, to prevent or 

discharge any such Lien). 

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

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

Manager or any Required Consenting Party hereunder, the Servicer shall cause to be delivered to 

the Manager such information relating to the Assets, the Collateral, the Servicer and any 

Subservicer as the Manager may reasonably request from time to time and, in any case, shall 

ensure that the Manager is promptly advised, in writing, of any matter of which the Servicer or 

Subservicer becomes aware relating to the Assets, any of the Collateral, the Company Accounts 

(including any Other Company Accounts), the Escrow Accounts, any other accounts created 

under the Custodial and Paying Agency Agreement, or any Borrower or Obligor that materially 

and adversely affects the interests of the Company or any Required Consenting Party. Without 

limiting the generality of the foregoing, the Servicer shall immediately notify the Manager of (i) 

any claim, threatened claim or litigation against the Servicer, the Company, the Manager or the 

Initial Member (including as Transferor) arising out of or with respect to any Asset, (ii) any 

material notice from any Governmental Authority relating to any Collateral, (iii) any occurrence 

which could reasonably be expected to result in cost overruns with respect to any Loan or 

Acquired Property for which Required Funding Draws or Permitted Development Expenses (or 

other permitted development or construction expenses) have been, or are contemplated to be, 

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

hamper, prevent or interfere with the effectuation of any then-applicable Business Plan. In 

addition, the Servicer shall cause to be delivered to the Manager information indicating any 

possible Environmental Hazard with respect to any Collateral. Further, the Servicer shall cause 

to be furnished to the Manager, each month on the Specified Date, commencing the first month 

following the Effective Date and together with the Electronic Report, a report with respect to 

each Asset and Collateral (A) containing a summary of the progress made, to the extent 

applicable, in the construction, marketing and leasing of the applicable project since the last such 

report, (B) in the case of any Asset, describing the remedial efforts or enforcement actions, if 

any, being undertaken by the Servicer with respect to the applicable Asset, (C) describing the 

status of the activities contemplated by the Business Plans (which, among other things, identifies 

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

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

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

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

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

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

delivered to the Manager (including, copies of all plans and specifications, construction budgets 

and construction schedules, construction contracts, architect's agreements, leasing and brokerage 

agreements, management agreements (and modifications to each of the foregoing) and materials 

delivered by the applicable Borrower in connection with each request for an advance under the 

related Loan and (F) such other information as the Manager reasonably requests. 

Section 5.6 Notice of Breach or Change of Control. The Servicer shall immediately 

notify the Manager of (i) any failure or anticipated failure on its part to observe and perform any 

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

the Servicer, and (ii) any Change of Control with respect to the Servicer. 

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Section 5.7 Copies of Documents. Copies of the LLC Operating Agreement and the 

other Transaction Documents (or portions thereof) as Manager has determined to be necessary 

for the Servicer to be familiar with in order to perform its obligations hereunder have been 

delivered to the Servicer by the Manager, and the Servicer acknowledges receipt thereof. The 

Manager may from time to time deliver to the Servicer such Modifications or additional 

Transaction Documents (or portions of any thereof) as Manager may determine to be so 

necessary for the continued performance by Servicer of its obligations hereunder. All references 

herein to the Servicer's obligations with respect to such LLC Operating Agreement and other 

Transaction Documents shall, as between the Manager and the Servicer (and without limitation 

of obligations of the Manager, or the rights of the Initial Member or the PMN Agent under this 

Agreement, the LLC Operating Agreement or the other Transaction Documents), be deemed to 

refer to the LLC Operating Agreement and other Transaction Documents (or portions thereof) as 

have been, or from time to time are, delivered to Servicer. 

Section 5.8 Financial Information. The Servicer shall submit to the Company, with 

copies thereof to be delivered by the Servicer to each Required Consenting Party, (i) within 

forty-five days after the end of each ofits fiscal quarters, commencing on the Effective Date, and 

(ii) within ninety days after the end of each of its fiscal years, commencing on the Effective 

Date, a letter certified by an officer of the Servicer that details certain agreed upon financial 

trends and ratios relating to the Servicer (and/or such other financial information as the Manager 

or such Required Consenting Party may reasonably request from time to time). 

ARTICLE VI 


MANAGER CONSENT 


Section 6.1 Actions Requiring Manager Consent. Notwithstanding anything to the 

contrary contained in this Agreement, the Servicer shall not cause or permit to be taken any of 

the following actions without the prior written consent of the Manager (which may require the 

Manager to obtain the written consent of the Required Consenting Parties), which consent may 

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

(a) conducting any Bulk Sale, except to the extent both (x) permitted under 

the LLC Operating Agreement and (y) expressly permitted in the Servicing Obligations; 

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

foreclosure or by deed in lieu thereof) of any Asset or Collateral or Acquired Property (or any 

portion thereof) to, or any other transaction with (whether or not at usual and customary rates), 

any Affiliate of the Company, the Manager, the Servicer, any Affiliate of the Servicer, any 

Subservicer, or any Affiliate of any Subservicer; 

(c) the financing of the sale or other transfer of any Assets, Collateral or 

Acquired Property (or any portion thereof); 

(d) the sale of any Asset or Collateral or Acquired Property (or any portion 

thereof) that provides for any recourse against the Company, the Initial Member or the FDIC in 

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any capacity, or against any interest in the Company held by the Initial Member or any share of 

the Asset Proceeds allocable to the Initial Member; 

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

such funds made available through transfers of funds from the Working Capital Reserve Account 

or from Discretionary Funding Advances or Excess Working Capital Advances) or any other 

Company Account or any other account created under the Custodial and Paying Agency 

Agreement other than in accordance with the provisions of this Agreement, the LLC Operating 

Agreement, the Reimbursement, Security and Guaranty Agreement and the Custodial and Paying 

Agency Agreement; 

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

Balance of any Asset other than (i) Required Funding Draws, or (ii) Permitted Development 

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

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

the applicable Asset Documents; 

(g) in connection with its Servicing, (i) approving (x) any material 

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

plans and specifications, construction budgets or construction schedules with respect to the 

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

including any change orders); (ii) waiving or forbearing from exercising any of the lender's 

rights under, or any conditions precedent to the funding of any advances under, such Loan; (iii) 

forgiving or reducing or forbearing from collecting any indebtedness; (iv) releasing any parties 

liable for the payment of the Asset or the performance of any other obligation relating thereto; 

(v) granting any consent under any Asset Documents (including, with respect to any proposed 

transfers of any Collateral or transfers, pledges or changes in management of any direct or 

indirect interests in any Borrower, proposed alterations, proposed settlements of insurance 

claims, condemnation claims or deficiencies or proposed applications of insurance proceeds or 

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

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

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

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

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

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

Agreement or the other Transaction Documents or otherwise inconsistent with the Servicing 

Standard; or 

(h) reimbursement for any expense or cost incurred (or paid) to any Affiliate 

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

Section 6.2 Amendments, Modification and Waivers. No provision of this Agreement 

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

Servicer, and each such amendment and modification shall be subject to the prior written consent 

of each Required Consenting Party, except for those provisions that may be amended by the 

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express terms hereof without the consent of the Required Consenting Parties. In no event shall 

any such amendment or waiver limit or affect the rights or benefits expressly granted in this 

Agreement to any third party beneficiary of this Agreement other than the Initial Member (to the 

extent such third party beneficiary is, and remains, a third party beneficiary hereunder pursuant 

to Section 11.8), and/or any Related Person in relation to such third party beneficiary, without 

the express written consent of such third pa...rty beneficiary. 

ARTICLE VII 


DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE 


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

(a) any failure by the Servicer to remit (as and when required) to the 

Company or deposit in the Collection Account, any other Company Account, the Escrow 

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

amount required to be so remitted or deposited under the terms of (i) this Agreement, (ii) the 

Custodial and Paying Agency Agreement or (iii) the LLC Operating Agreement; or 

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

provided for in the definition of Insolvency Event) (i) with respect to the Servicer, or (ii) with 

respect to any Subservicer; provided, that if such Subservicer is not an Affiliate of the Servicer, 

then such Insolvency Event under this clause (ii) shall not be a Default hereunder (but shall in all 

events be a default under the applicable Subservicing Agreement) so long as the Servicer shall 

have fully replaced such affected Subservicer within thirty days after the occurrence of such 

Insolvency Event; or 

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

5.2(e), which failure continues umemedied for a period of five days, or such other period as the 

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

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

.i2ffi or Section 5.2(g), which failure continues umemedied for a period of twenty-five days, or 

such other period as the Manager and the Servicer agree, after the date on which written notice of 

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

Servicer; or 

(d) any failure by the Servicer at any time (i) to be a Qualified Servicer or to 

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

Agreement in compliance with Law, or (ii) to cause each Subservicer to meet the applicable 

characteristics of a Qualified Servicer as required under Section 4.1 and to renew or maintain any 

permit or license necessary to carry out its responsibilities under any Subservicing Agreement, 

which, in the case of either (i) or (ii), continues umemedied for a period of thirty days after the 

date on which written notice of such failure requiring the same to be remedied shall have been 

given by the Manager or the Initial Member to the Servicer; or 

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

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

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

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

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

(f) any other failure (other than those specified in any of Section 7.l(a) 

through W, or (g)_ through .(k)) by the Servicer to perform its obligations under, and otherwise to 

comply with and observe the provisions of, this Agreement or to perform any Servicing 

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

a period of thirty days, or such other period as the Manager, with the consent of the Initial 

Member, and the Servicer agree, after the date on which written notice of such failure shall have 

been given by the Manager or the Initial Member to the Servicer; provided, however, that in the 

case of a failure that cannot be cured within thirty days (or such other period as the Manager, 

with the consent of the Initial Member, and the Servicer agree) with the exercise of reasonable 

diligence, but which by its nature is curable, the cure period shall be extended for an additional 

thirty days if the Servicer can demonstrate to the reasonable satisfaction of the Manager and the 

Initial Member that the Servicer is diligently pursuing remedial action; and provided, further, 

that, with respect to any such failure under this Section 7.1 (f) that relates exclusively to 

obligations included in any applicable Schedule hereto that can be amended or otherwise 

modified without the consent of the Initial Member, then no such consent of the Initial Member 

shall be required with respect to an applicable cure period hereunder so long as such failure 

hereunder is not, or would not result in, a failure by the Manager to comply with its obligations 

under the LLC Operating Agreement and the other Transaction Documents; or 

(g) any Dissolution Event (without any cure period other than as may be 

provided for in the definition of Dissolution Event) (i) with respect to the Servicer or (ii) with 

respect to any Subservicer; provided, that any such Dissolution Event under this clause (ii) shall 

not be a Default hereunder (but shall in all events be a default under the applicable Subservicing 

Agreement) so long as the Servicer shall have fully replaced such affected Subservicer within 

thirty days after the occurrence of such Dissolution Event; or 

(h) the occurrence of any "Event of Default," as defined in the LLC Operating 

Agreement; or 

(i) receipt by the Manager or the Servicer, from the PMN Agent, of notice 

that an "Event of Default" as defined in the Reimbursement, Security and Guaranty Agreement, 

has occurred and is continuing; or 

(j) any failure by the Servicer to duly observe or perform its obligations in 

Section 11.9; provided, that in the event that any such failure of the Servicer is due to the failure 

of any Subservicer to comply with the provisions of Section 11.9, then it shall not be a Default 

under this clause (j) (but shall in all events be a default under the applicable Subservicing 

Agreement) so long as Servicer shall have replaced such Subservicer within thirty days after the 

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occurrence of such Subservicer's failure to duly observe or perform Servicer's obligation under 

Section 11.9; or 

(k) the occurrence of any Restricted Servicer Change of Control. 

Section 7.2 Termination with Cause. 

(a) Upon the occurrence of a Default pursuant to this Agreement, in each 

case, without any cure period other than as may be provided for in Section 7.1 above, each of the 

Manager (including, if applicable, any successor "Manager" pursuant to the LLC Operating 

Agreement), the Initial Member and the PMN Agent, in addition to any other rights the Manager, 

the Initial Member or the PMN Agent, may have at Law (including under the Uniform 

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

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

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

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

or payment of any fee. 

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

removal of the Manager as the "Manager" pursuant to the LLC Operating Agreement and/or 

notice from the Initial Member or the Manager of the occurrence of any Event of Default (as 

defined in the LLC Operating Agreement) under the LLC Operating Agreement, or notice from 

the PMN Agent of the occurrence of any Event of Default (as defined in the Reimbursement, 

Security and Guaranty Agreement), each of the Initial Member (and any successor "Manager" to 

the Manager under the LLC Operating Agreement) and the PMN Agent may exercise all of the 

rights of the Manager under this Agreement and further cause the termination or assignment 

from the Manager to any other Person of this Agreement (or, in lieu of such assignment, and 

including in the event of any rejection by the Manager of the Servicing Agreement in connection 

with any Insolvency Proceeding, require the Servicer to enter into a new Servicing Agreement 

(on substantially the same terms and conditions as set forth in this Agreement) with such other 

Person), without penalty or payment of any fee, and (ii) upon the occurrence of any Default 

under this Agreement, each of the Manager (or applicable successor "Manager" to the Manager 

under the LLC Operating Agreement), the Initial Member and the PMN Agent may exercise all 

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

to any other Person of this Agreement (or, in lieu of such assignment, and including in the event 

of any rejection by the Manager of the Servicing Agreement in connection with any Insolvency 

Proceeding, require the Servicer to enter into a new Servicing Agreement (on substantially the 

same terms and conditions as set forth in this Agreement) with such other Person), without 

penalty or payment of any fee, and (B) the Servicer under any Subservicing Agreement and 

cause the termination or assignment to any other Person of such Subservicing Agreement (or, in 

lieu of such assignment, and including in the event of any rejection by the Servicer of such 

Subservicing Agreement in connection with any Insolvency Proceeding, require the Subservicer 

to enter into a new Subservicing Agreement (on substantially the same terms and conditions as 

such Subservicing Agreement) with such other Person), without penalty or payment of any fee. 

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

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

(d) Upon a default or failure of the Manager to perform its obligations under 

this Agreement in a material manner, including but not limited to, the failure of the Manager to 

pay to the Servicer the Servicing Fee in a full and timely manner, the Servicer, in addition to any 

other rights it may have pursuant to this Agreement, at law or in equity, may terminate this 

Agreement by providing a Termination Notice to the Manager, with a copy each Required 

Consenting Party. The Termination Notice shall set forth with specificity the nature of the 

default or failure to perform of the Manager and provide the Manager with no less than thirty 

days to cure any such default or failure to perform. In the event that the default or failure to 

perform is not cured within thirty days after the date of delivery of the Termination Notice, the 

Servicer shall provide a second Termination Notice to the Manager with a copy to each Required 

Consenting Party, which second Termination Notice shall be prominently labeled as the "Second 

Termination Notice". Such second Termination Notice shall confirm to the Manager that the 

Servicer shall continue to perform the Servicing Obligations under this Agreement until the 

earlier to occur of (i) ninety days after the delivery of such second Termination Notice to the 

Manager and each Required Consenting Party, and (ii) the transfer of the Servicing Obligations 

to a successor Servicer (approved by each Required Consenting Party). The duty of the Servicer 

to continue to perform the Servicing Obligations as provided in the second Termination Notice is 

contingent upon the timely and full payment of the Servicing Fee to the Servicer during such 

period. The Servicer shall cooperate fully and completely with the transition of the Servicing 

Obligations to a successor Servicer in order to assure an orderly transfer. 

(e) Anything to the contrary set forth herein notwithstanding, (i) any exercise 

of remedies under this Agreement (or any Subservicing Agreement) by the Manager shall be 

subject to the applicable rights of the Initial Member and the PMN Agent under the Transaction 

Documents and applicable Law (including the Uniform Commercial Code), and (ii) in no event 

shall the Manager have a right to terminate this Agreement following the occurrence and during 

the continuation of any Default under Section 7.1 (h) above (regardless of whether other Defaults 

then exist) without the prior written consent of the Initial Member, or following the occurrence 

and during the continuation of any Default under Section 7.1(h) above (regardless of whether 

other Defaults then exist) without the prior written consent of the PMN Agent. 

Section 7.3 Termination without Cause. 

(a) The Manager may, without cause, terminate this Agreement, upon 

providing a Termination Notice to the Servicer, but only as and in accordance with the 

provisions set forth on Schedule 5 as the same may be amended from time to time by the 

Manager (without the consent of any Required Consenting Party) and the Servicer. 

(b) The Servicer may, at any time after the first anniversary of the Effective 

Date, without cause, terminate this Agreement. No termination of this Agreement by the 

Servicer shall be effective unless the Servicer delivers to the Manager, with a copy to each 

Required Consenting Party, a Termination Notice, which for the purpose of this Section 7.3(b) 

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shall be a notice of the Servicer's intent to terminate this Agreement. Such Termination Notice 

shall be provided at least sixty days prior to any date specified by the Servicer as the date of 

termination of the Servicer's Obligations under this Agreement. Notwithstanding the foregoing, 

such Termination Notice shall not be effective unless the Termination Notice contains 

confirmation of the intent and obligation of the Servicer to continue to perform its Servicing 

Obligations until the earlier of (i) ninety days after the Termination Notice is given and (ii) such 

other date on which the Servicing Obligations are transferred to a successor Servicer in an 

orderly manner. Servicer shall cooperate fully and completely with the transition of the 

Servicing Obligations to a successor Servicer, to be designated by the Manager, in order to 

assure an orderly transfer. The Servicer issuing the Termination Notice shall be liable for all 

costs and expenses associated with the transfer of Servicing Obligations to the successor 

Servicer, including but not limited to the costs and expenses of transporting the Servicing files 

and the provision of any notices to any Borrowers. 

Section 7.4 Effective Termination Date. Termination as specified in this Article VII 

shall be effective at such time as is permitted hereunder and specified in the Termination Notice. 

In the event of such termination, all authority and power of the Servicer under this Agreement, 

whether with respect to the Assets or otherwise, shall pass to and be vested in the Manager or the 

successor servicer designated by the Manager in the case of termination by the Manager, or as 

designated solely by the Initial Member (or any successor "Manager" under the LLC Operating 

Agreement) in the case of termination by the Initial Member (or such successor "Manager" under 

the LLC Operating Agreement), or as designated by solely by the PMN Agent in the case of 

termination by the PMN Agent. The Servicer agrees to cooperate with the Manager, the Initial 

Member, any successor "Manager" under the Operating Agreement, the PMN Agent and any 

successor servicer with respect to the timely and orderly transition of its obligations under this 

Agreement. The Servicer shall be liable for all obligations of the Servicer that have accrued or 

arisen under this Agreement or at Law prior to such termination. 

Section 7.5 Accounting. Upon termination or assignment of this Agreement as set 

forth herein, the Servicer shall account for and tum over to the Manager or its designee (or, if 

applicable, (i) pursuant to such instructions as may be provided by the Initial Member or any 

successor "Manager" pursuant to the LLC Operating Agreement or (ii) pursuant to such 

instructions as may be provided by the PMN Agent) funds collected under the terms of this 

Agreement. The Servicer shall provide written notice in conformance with all applicable Law to 

the Borrowers to indicate that their Assets will henceforth be Serviced by the Manager (or 

applicable successor "Manager" under the LLC Operating Agreement) or any applicable 

successor Servicer designated by the Manager (or any successor "Manager" under the LLC 

Operating Agreement), the Initial Member or the PMN Agent, as the case may be, and transfer 

its duties as the Servicer to the Manager (or successor "Manager" under the LLC Operating 

Agreement) or such successor Servicer. 

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ARTICLE VIII 


INDEPENDENCE OF PARTIES; INDEMNIFICATION 


Section 8.1 Independence of Parties. The Servicer shall have the status of, and act as, 

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

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

Section 8.2 Indemnification. 

(a) The Servicer shall indemnify and hold harmless the Company, the 

Manager, the PMN Agent, each Purchase Money Notes Guarantor, the Initial Member, the 

Receiver and the FDIC, and their respective Related Persons (all of the foregoing, collectively, 

the "Indemnified Parties") from and against any and all Losses whatsoever directly or 

indirectly resulting from, connected with, arising out of or related to (i) any breach of or 

inaccuracy in any of the Servicer's representations or warranties contained in this Agreement, (ii) 

any failure of the Servicer to timely perform its obligations under, and otherwise to comply with 

and observe the provisions of, this Agreement, or (iii) any act taken by the Servicer purportedly 

pursuant to a power of attorney granted by the Manager which act results in a claim related to the 

unlawful use of such power of attorney. The Servicer's obligations under this Section 8.2 shall 

survive termination of this Agreement (and any termination of the Servicer pursuant to the 

provisions of this Agreement), and, with respect to any third party beneficiary of this Agreement 

(and its Related Persons) shall also survive such third party beneficiary otherwise ceasing 

generally to constitutes such a third party beneficiary. Each Indemnified Party shall deliver 

notice, of any claim or demand made by any Person against such Indemnified Party for which 

such Indemnified Party may seek indemnification under this Section 8.2 (a "Third Party 

Claim"), to the Servicer promptly after receipt by such Indemnified Party of written notice of the 

Third Party Claim, describing such Third Party Claim in reasonable detail. The failure or delay 

to provide such notice, however, shall not release the Servicer from any of its obligations under 

this Section 8.2 except to the extent that it is materially prejudiced by such failure or delay. The 

Servicer acknowledges and agrees that it shall have no recourse against the Company for any 

amounts the Servicer is required to pay pursuant to this Section 8.2, and in no event shall 

expenses incurred by the Servicer or any Subservicer in connection with its obligations under 

this Section 8.2 constitute Servicing Expenses or otherwise be deducted from or reimbursed out 

of Asset Proceeds. 

(b) If the Servicer confirms in writing to the Indemnified Party within fifteen 

days after receipt of a Third Party Claim the Servicer's responsibility to indemnify and hold 

harmless the Indemnified Party therefor, the Servicer may elect to assume control over the 

compromise or defense of such Third Party Claim at the Servicer's sole expense and with 

counsel selected by the Servicer, which counsel must be reasonably satisfactory to the 

Indemnified Party, provided that (i) the Indemnified Party may, if such Indemnified Party so 

desires, employ counsel at such Indemnified Party's own expense to assist in the handling (but 

not control the defense) of any Third Party Claim; (ii) the Servicer shall keep the Indemnified 

Party advised of all material events with respect to any Third Party Claim; (iii) the Servicer shall 

obtain the prior written approval of the Indemnified Party before ceasing to defend against any 

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Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party 

Claim involving injunctive or similar equitable relief being imposed upon the Indemnified Party 

or any of its Affiliates; and (iv) the Servicer will not, without the prior written consent of the 

Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending 

or threatened action in respect of which indemnification may be sought hereunder (whether or 

not any such Indemnified Party is a party to such action), unless such settlement, compromise or 

consent by its terms obligates the Servicer to satisfy the full amount of the liability in connection 

with such Third Party Claim and includes an unconditional release of such Indemnified Party 

from all liability arising out of such Third Party Claim. 

(c) Notwithstanding anything contained herein to the contrary, the Servicer 

shall not be entitled to control (and if the Indemnified Party so desires, it shall have sole control 

over) the defense, settlement, adjustment or compromise of (but the Servicer shall nevertheless 

be required to pay all Losses incurred by the Indemnified Party in connection with such defense, 

settlement or compromise): (i) any Third Party Claim that seeks an order, injunction or other 

equitable relief against the Indemnified Party or any of its Affiliates; (ii) any action in which 

both the Servicer or any Affiliate of the Servicer, on one hand, and the Indemnified Party, on the 

other hand, are named as parties and either the Servicer (or such Affiliate) or the Indemnified 

Party determines with advice of counsel that there may be one or more legal defenses available 

to it that are different from or additional to those available to the other party or that a conflict of 

interest between such parties may exist in respect of such action; and (iii) with respect to any 

such Third Party Claim against the FDIC (in any capacity), any matter that raises or implicates 

any issue relating to any power, right or obligation of the FDIC under any Law. In addition to 

the foregoing, if the Servicer elects not to assume the compromise or defense of any Third Party 

Claim, fails to timely and properly notify the Indemnified Party of its election as herein 

provided, or, at any time after assuming such defense, fails to diligently defend against such 

Third Party Claim in good faith, the Indemnified Party may pay, settle, compromise or defend 

against such Third Party Claim (but the Servicer shall nevertheless be required to pay all Losses 

incurred by the Indemnified Party in connection with such payment, settlement, compromise or 

defense). In connection with any defense of a Third Party Claim (whether by the Servicer or the 

Indemnified Party), all of the parties hereto shall, and shall cause their respective Affiliates to, 

cooperate in the defense or prosecution thereof and to in good faith retain and furnish such 

records, information and testimony, and attend such conferences, discovery proceedings, 

hearings, trials and appeals, as may be reasonably requested by a party hereto in connection 

therewith. The Servicer shall promptly pay, discharge and satisfy any judgment or decree which 

may be entered against it or any Indemnified Party in respect of such claim subject to 

indemnification hereunder. 

Section 8.3 Pre-Effective Date Liabilities. Notwithstanding anything to the contrary 

herein, but without limitation of the release set forth in Section 11.13, it is understood and agreed 

that the Servicer shall not be liable to the Manager for any liabilities or obligations attributable to 

an act, omission or circumstances of the Initial Member (including as Transferor), the FDIC, any 

Failed Bank and the Company that occurred or existed prior to the Effective Date or, with 

respect to any particular Asset, the Servicing Transfer Date applicable thereto (the "Pre-Existing 

Liabilities"). In the event there is asserted against the Company, the Manager, the Servicer or 

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any Subservicer any claim or action with respect to any such Pre-Existing Liabilities, the 

Servicer or Subservicer, as applicable, shall notify the Manager and the Initial Member of su ch 

claim or action in accordance with Article IX. Except as provid ed otherwise in Section 8.2 

above (in the event that such claim or action is subject to the indemnification obligations of 

Servicer pursuant to Section 8.2 above), the Manager shall have the right to control and assume 

the defense of the Company, the Manager, the Servicer and the Subservicer with respect to such 

claim or action at the Manager's expense. The Servicer shall be reimbursed by the Manager in 

connection with the foregoing only to the extent of and in accordance with the terms set forth on 

Schedule 3, as the same may be amended from time to time by the Manager (without the consent 

ofthe Initial Member) and the Servicer. 

ARTICLE IX 


NOTICES 


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

given or delivered under or by reason of the provisions of this Agreement shall be del ivered in 

accordance with (and subject to) the provisions of the Notice Schedule (which Notice Schedule 

is hereby incorporated by reference); provided, that (i) for purposes ofsuch Notice Schedule, the 

initial notice address for the Servicer shall be as set forth below, and (ii) service of any writ, 

process or summons in any suit, action or proceeding arising out of, relating to, or in connection 

with this Agreement or any Transaction Document shall be subj ect to the applicable provisions 

in Section 10.2. The Servicer shall send a copy of any notice by it under this Agreement of any 

change of address or electronic mail address for purposes of this Agreement (and the Notice 

Schedule) to each of the parties to the Agreement of Definitions in the manner set forth in the 

Notice Schedule 

Notice address for Servicer: 

Colony AMC 20 12 CRE ADC, LLC 

2450 Broadway 

61

h Floor 

Santa Monica, CA 90404 

with a copy to: 	 Colony Capital, LLC 

660 Mad ison A venue 

New York, NY 10065 

Attention: Ronald M. Sanders 

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ARTICLE X 


GOVERNING LAW; JURISDICTION 


Section 10.1 Governing Law. EACH PARTY TO THIS AGREEMENT AGREES 

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

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

GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE 

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

THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS 

AGREEMENT TO THE LAW OF ANOTHER JURISDICTION AND EACH PARTY TO 

THIS AGREEMENT UNCONDITIONALLY AND IRREVOCABLY W AlVES ANY CLAIM 

TO ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

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

party hereto. 

Section 10.2 Jurisdiction; Venue and Service. Each ofthe Manager and the Servicer, in 

each case on behalf of 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, or any third-party beneficiary other than the FDIC (in any capacity), with respect 

to this Agreement may be instituted, and that any suit, action or proceeding instituted by it 

against any other party with respect to this Agreement shall be instituted, only in the Supreme 

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

District of New York, as the party instituting such suit, action or proceeding may choose (and 

appellate courts from any of the foregoing), 

(ii) consents and submits, for itself and its property, to the jurisdiction of such 

courts for the purpose of any such suit, action or proceeding instituted against it by any other 

party, 

(iii) agrees, in any suit, action or proceeding that is brought in the Supreme 

Court of the State ofNew York for New York County in accordance with the above provisions 

of this Section 1 0.2(a), to request that such suit, action or proceeding be referred to the 

Commercial Division of such Court, and 

(iv) agrees that a final judgment in any such suit, action or proceeding shall be 

conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other 

manner provided by Law; 

(b) agrees that service of all writs, process and summonses in any suit, action 

or proceeding pursuant to Section 10.2(a) may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to it at its address for notices pursuant to Article IX 

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

shall not affect the right of any party to serve process in any other manner permitted by Law; 

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(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 1 0.2(a), (ii) waives any claim that any such suit, action or 

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

not to plead or claim either of the foregoing; and 

(d) agrees that nothing contained in this Section 10.2 shall be binding upon or 

construed to constitute consent to jurisdiction by any Failed Bank or the FDIC, in any capacity, 

or constitute a limitation on any removal rights the FDIC, in any capacity, may have. 

Notwithstanding the above, with respect to any proceedings initiated by the FDIC (in any 

capacity) as a third party beneficiary, or if at any time the FDIC (in any capacity) shall be a party 

hereto as the "Manager" (as a result of an applicable replacement of the "Manager" pursuant to 

the terms of the LLC Operating Agreement), the terms of this Section 10.2 shall be restated as 

follows: 

"The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and 

unconditionally: 

(a) (i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

commenced by the FDIC, in any capacity, arising out of, relating to, or in connection with this 

Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the FDIC, in any capacity, files 

the action, suit or proceeding without the consent of the FDIC; 

(B) assert that venue is improper in either the United States 

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

District of Columbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of New 

York, County of New York, for any suit, action or proceeding against it or any of its Affiliates 

commenced by the FDIC, in any capacity, arising out of, relating to, or in connection with this 

Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the FDIC; 

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(B) assert that venue is improper in the Supreme Court of the 

State ofNew York, County ofNew York; or 

(C) assert that the Supreme Court of the State of New York, 

County ofNew York is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding by it or any of its Affiliates 

against the FDIC, in any capacity, arising out of, relating to, or in connection with this 

Agreement, the LLC Operating Agreement or any other Transaction Document in only either the 

United States District Court for the Southern District ofNew York or the United States District 

Court for the District of Columbia, and waives any right to remove or transfer such suit, action or 

proceeding to any other court or dispute-resolution forum without the consent of the FDIC, and 

agrees to consent thereafter to transfer of the suit, action or proceeding to either the United States 

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

District of Columbia at the option of the FDIC; 

(iv) agrees, if the United States District Court for the Southern District ofNew 

York and the United States District Court for the District of Columbia both lack jurisdiction to 

hear a suit, action or proceeding falling within Section 10.2(a)(iii), to bring that suit, action or 

proceeding in only the Supreme Court of the State of New York, County of New York, and 

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

dispute-resolution forum without the consent of the FDIC; and 

(v) agrees, in any suit, action or proceeding that is brought in the Supreme 

Court of the State of New York for New York County in accordance with the above provisions 

of this Section 1 0.2(a), to request that such suit, action or proceeding be referred to the 

Commercial Division of such Court. 

(b) The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and 

unconditionally agrees that any final judgment entered against it in any suit, action or proceeding 

falling within Section 1 0.2(a) may be enforced in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 10.2(d), the Servicer, on behalf of 

itself and its Affiliates, hereby irrevocably and unconditionally agrees that service of all writs, 

process and summonses in any suit, action or proceeding pursuant to Section 10.2(a) or Section 

1 0 .2(b) may be effected by the mailing of copies thereof by registered or certified mail, postage 

prepaid, to it at its address for notices pursuant to Article IX (and the Notice Schedule) (with 

copies to such other Persons as specified therein); provided, however, that the foregoing shall not 

affect the right of any party to serve process in any other manner permitted by Law. The 

Servicer, on behalf of itself and its Affiliates, further agrees that any such service of writs, 

process or summonses in any suit, action or proceeding pursuant to Section 1 0.2(a) or Section 

10.2(b) on FDIC (in any capacity) shall be in accordance with requirements of applicable Law 

(including 12 CFR section 309.7(a)), with additional delivery of a copy of such writ, process or 

summons to the FDIC (in its applicable capacity(ies)) pursuant to the notice provisions in the 

Notice Schedule. 

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(d) Nothing in this Section 10.2 shall constitute (i) consent to jurisdiction in 

any court by the FDIC (in any capacity), other than as expressly provided in Section 1 0.2(a)(iii) 

and Section 10.2(a)(iv), or (ii) a waiver or limitation of any provision in the Federal Deposit 

Insurance Act or other applicable law relating to commencement, jurisdiction, venue, limitations, 

administrative exhaustion, judicial review, removal, remand, continuation or enforcement 

(including as to limitations on attachment or execution upon assets in the possession of the 

FDIC) of actions by or against the FDIC (in any capacity), or in which the FDIC (in any 

capacity) is a party, including 12 U.S.C. § 1819(b), 182l(c), 182l(d), and 182l(j)." 

Section 10.3 Waiver of Jury Trial. EACH OF THE PAR TIES HERETO, FOR ITSELF 

AND EACH OF ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY 

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

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

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

ARTICLE XI 

MISCELLANEOUS 

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

Servicing Rights. 

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

personal services agreement between the Manager and the Servicer. Any of the following shall 

constitute an assignment for all purposes of this Agreement: (i) any merger, consolidation or 

dissolution involving the Servicer or (ii) any transfer or all or substantially all of the assets of the 

Servicer, notwithstanding whether any of the foregoing transactions occur at one time or in the 

aggregate over a period of time. The Servicer shall not assign any rights or obligations 

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 ll.l(a) 

shall be void ab initio and of no force or effect whatsoever. 

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

or any other Person any ownership interest in the Servicing or any right to transfer or sell the 

Servicing, or (ii) assign, pledge or otherwise transfer or purport to assign, pledge or otherwise 

transfer any interest to any Subservicer or other Person in the Servicing. Any purported 

assignment, pledge, delegation or other transfer in violation of this Section 11.1 (b) shall be void 

ab initio and of no force or effect whatsoever. For the avoidance of doubt, upon any sale of any 

Asset by the Company (including by the Servicer on behalf of the Manager on behalf of the 

Company) in accordance with the terms hereof and the other Transaction Documents, such Asset 

shall prospectively cease to constitute an "Asset" for any purpose of this Agreement, provided 

that nothing in this sentence releases the Servicer from any liability or obligation hereunder with 

respect to such Asset in relation to the period prior to such sale. 

Section 11.2 Legal Fees. No party to this Agreement shall be responsible for the 

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

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

hereto. 

Section 11.3 Entire Agreement. This Agreement contains the entire agreement between 

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

written, with respect to the subject matter hereof. 

Section 11.4 Counterparts; Facsimile Signatures. This Agreement may be executed in 

two or more counterparts, each of which shall be deemed an original but all of which together 

shall constitute but one and the same agreement. This Agreement and any amendments hereto, 

to the extent signed and delivered by facsimile or other electronic means, shall be treated in all 

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

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

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

signature or the fact that any signature or agreement was transmitted or communicated through 

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

enforceability of a contract and each such Person forever waives any such defense. 

Section 11.5 Headings. Paragraph titles or captions contained in this Agreement are 

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

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

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

Agreement unless otherwise specified. 

Section 11.6 Compliance with Law. Except as otherwise specifically provided herein, 

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

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

Section 11.7 Severability. Any provision of this Agreement which is prohibited or 

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

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

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

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

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

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

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

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

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

or (ill, 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, 

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and/or the circumstances under which, such provision shall be effective in such jurisdiction) for 

purposes of such proceeding to the minimum extent necessary so that such provision, as so 

modified, may then be enforced in such proceeding and (y) enforce such provision, as so 

modified pursuant to clause (x), in such proceeding. Nothing in this Section 11.7 is intended to, 

or shall, limit (1) the ability of any party to this Agreement to appeal any court ruling or the 

effect of any favorable ruling on appeal or (2) the intended effect of Section 1 0.1. 

Section 11.8 Third Party Beneficiaries. The Initial Member (including as Transferor) 

shall be and is hereby designated as a third party beneficiary under this Agreement, and, as such, 

the Initial Member is entitled to enforce this Agreement as if the Initial Member were a party 

hereto. The Company, the PMN Agent, each Purchase Money Notes Guarantor, the Receiver 

and the FDIC shall be and are hereby designated as third party beneficiaries under this 

Agreement with respect to those provisions of this Agreement which expressly grant rights to 

such Persons, and, as such, each is entitled to enforce such provisions of this Agreement as if 

such Person were a party hereto; provided, that, (i) with respect to the PMN Agent, at such time 

when such Person ceases to be a Required Consenting Party (and subject to any rights of such 

Required Consenting Party that, by their terms or nature, survive such date), and (ii) with respect 

to each Purchase Money Notes Guarantor, upon the occurrence of the PMN 

Satisfaction/Defeasance Date (and subject to any rights of such Purchase Money Notes 

Guarantor that, by their terms or nature, survive such date), such Person shall cease to have any 

of the specified rights set forth herein with respect to consents/approvals, the exercise of 

remedies following a Default and receipt of reports and other information with respect to the 

continued operation of the Business, in each case (x) to the extent relating exclusively to the 

period following such date on which such Person so ceases to be a Required Consenting Party, 

and (y) except as to any rights or remedies relating to (or the exercise or non-exercise of which 

rights or remedies would affect) the Defeasance Account or the repayment of the Purchase 

Money Notes in accordance with the terms hereof and of the other Transaction Documents, as 

determined by the PMN Agent and each Purchase Money Notes Guarantor, in each case in its 

sole discretion, and (z) unless and until the PMN Satisfaction/Defeasance Date thereafter shall be 

deemed not to have occurred as specified in the definition of such term (in which event, until any 

subsequent occurrence of the PMN Satisfaction/Defeasance Date, all of such specified rights set 

forth herein automatically shall be restored). Notwithstanding the foregoing, none of the PMN 

Agent, any Purchase Money Notes Guarantor, the FDIC, the Company and the Initial Member 

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

any liability whatsoever (including for payment of any costs, expenses, indemnities or otherwise) 

to the Servicer, any Subservicer or any other party related to this Agreement. For the avoidance 

of doubt, the Manager is entering into this Agreement in its individual capacity and not on behalf 

of the Company. There shall be no other third party beneficiaries to this Agreement. 

Section 11.9 Protection of Confidential Information. 

(a) The Servicer shall keep confidential (and shall cause any Subservicer to 

keep confidential), and shall not divulge (and shall cause any Subservicer to not divulge) to any 

party without the Manager's prior written consent, any information pertaining to the LLC 

Operating Agreement, the Assets or any Borrower or Obligor or the Collateral, except as 

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

for the Servicer or a Subservicer, as applicable, to do so in working with legal counsel, auditors, 

taxing authorities, regulatory authorities or any other Governmental Authority or in accordance 

with the Servicing Standard; provided, that, to the extent that disclosure should be required by 

Law (including any securities listing requirements or the requirements of any self-regulatory 

organization), subpoena, or in connection with any legal or regulatory proceeding (including in 

connection with or pursuant to any action, suit, subpoena, arbitration or other dispute resolution 

process or other legal proceedings, whether civil or criminal, and including before any court or 

administrative or legislative body), the Servicer shall, and shall cause all Subservicers to, use all 

reasonable efforts to maintain confidentiality and shall (unless otherwise prohibited by Law) 

notify the Manager, the PMN Agent and the Initial Member within one Business Day after its 

knowledge of such legally required disclosure so that the Manager, the PMN Agent and/or the 

Initial Member may seek an appropriate protective order and/or (in the case of the Manager) 

direct the Manager to waive the Servicer's or Subservicer's, as the case may be, compliance with 

this Agreement. Notice shall be by telephone, by email and in writing. In the absence of a 

protective order or waiver, the Servicer and any applicable Subservicer may make such required 

disclosure if, in the written opinion of Servicer's outside counsel (which opinion shall be 

provided to the Manager, the PMN Agent and the Initial Member prior to disclosure pursuant to 

this Section 11.9), failure to make such disclosure would subject the Servicer or the Subservicer, 

as the case may be, to liability for contempt, censure or other legal penalty or liability. 

(b) The Servicer shall, and shall cause each Subservicer to, (i) comply with all 

applicable Laws regarding the privacy or security of Customer Information, and (ii) maintain and 

comply with policies and procedures for protection of Customer Information in a way that is 

designed to ensure such compliance with applicable Laws (including by obtaining information 

technology audits and maintaining monitoring software on internal accounting systems and the 

systems of applicable Servicers, Subservicers and other third-party vendors generating, 

maintaining or otherwise having access to any Customer Information). The Servicer shall, and 

shall cause each Subservicer to, promptly make available to the Initial Member and the PMN 

Agent information regarding such policies and procedures as requested by either of them from 

time to time. The Servicer further agrees that any Customer Information transmitted 

electronically by it shall be encrypted. 

Section 11.10 Time of Essence. Time is hereby declared to be of the essence of this 

Agreement and of every part hereof. 

Section 11.11 No Presumption. This Agreement shall be construed fairly as to each 

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

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

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

hereto. 

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

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

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

deduction) against the Asset Proceeds (or the Company). 

Section 11.13 Release of Initial Member and Others. The Servicer hereby releases and 

discharges each Prior Servicer from any and all claims (including any counterclaim or defensive 

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

kind or nature that the Servicer had, has or might have in the future, whether known or unknown, 

which are related in any manner whatsoever to the Servicing (prior to the applicable Servicing 

Transfer Date) by the Prior Servicers, in each case other than for acts or omissions constituting 

gross negligence, violation of Law or willful misconduct of such Prior Servicer. 

[Remainder ofPage Intentionally Left Blank] 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

as ofthe day and year fust above written. 

MANAGER: 

SERVICER: 


(Slgna111fe Pqe to Setvlcil& A&RCmCnl· f>l&e I of I) 

CREIAOC Vcntun; 2012-1 Structured Transac:tioo 

Servicin& A&r=nent 

Version 3.1.1 

l413lT71. ) 
EXHIBIT A 


ASSET SCHEDULE 


A-1 


CREIADC Venture 2012-1 Structured Transaction 

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Version 3.1.1 

14132778.5 
EXHIBITB 


[FORM OF ELECTRONIC TRACKING AGREEMENT] 


B-1 


CREIADC Venture 2012-1 Structured Transaction 

SeiVicing Agreement 

Version 3.1.1 

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EXHIBIT C 

LOAN MODIFICATION PROGRAM 

If, as of the Effective Date, the Servicer is enrolled in the Home Affordable Modification 

Program (HAMP), then, for the purpose of the Servicing Agreement, (i) for SFR Loans that 

quality for modification under HAMP ("HAMP Qualifying Loans"), the Servicer shall follow 

the HAMP Guidelines defined and described in ill below, unless some other Loan Modification 

Program is required or approved by the FDIC in accordance with the terms of the Servicing 

Agreement, and (ii) for any particular SFR Loan that does not quality for a modification under 

HAMP, the Servicer shall determine whether the particular SFR Loan qualifies for modification 

and, if so, modify such SFR Loan, under the FDIC Mortgage Loan Modification Program 

described in .ill} below. 

If, as of the Effective Date, the Servicer is not enrolled in HAMP, then, for the purpose of the 

Servicing Agreement, the Servicer shall (in the event of and with respect to SFR Loans) follow 

the FDIC Mortgage Loan Modification Program described in [ill below, unless some other Loan 

Modification Program is required or approved by the FDIC in accordance with the terms of the 

Servicing Agreement. 

If the Servicer determines that a particular SFR Loan does not qualify for a modification under 

either HAMP or the FDIC Mortgage Loan Modification Program, the Servicer shall propose an 

alternative Loan Modification Program under which the SFR Loan can be modified and shall 

submit the proposed program for approval by the FDIC in accordance with the terms of the 

Servicing Agreement. 

I. HOME AFFORDABLE MODIFICATION PROGRAM 

On April 6, 2009, the United States Department of the Treasury released HAMP guidelines to 

promote sustainable loan modifications for homeowners at risk of losing their homes due to 

foreclosure. HAMP provides a detailed framework for servicers to modify mortgages on owneroccupied residential properties and offers financial incentives to lenders and servicers that 

participate in HAMP. HAMP also provides financial incentives for homeowners whose 

mortgages are modified pursuant to HAMP guidelines to remain current on their mortgages after 

modification. 

HAFA- Home Affordable Foreclosure Alternatives Program 

Pursuant to Supplemental Directive 09-09, as modified on March 26, 2010, the United States 

Department of the Treasury added HAFA to the options within HAMP. HAMP servicers are 

encouraged to participate in HAF A, which establishes guidelines for short sales and deeds-inlieu of foreclosure as alternatives to foreclosure for homeowners who do not qualify for a HAMP 

loan modification. HAF A offers additional financial incentives to servicers. 

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The Servicer shall undertake a review of its mortgage loan portfolio to identify HAMP 

Qualifying Loans and shall modify HAMP Qualifying Loans under the HAMP 

Guidelines. Further details about HAMP, including program terms and borrower eligibility 

criteria, are available at http://www.hmpadmin.com. 

II. FDIC MORTGAGE LOAN MODIFICATION PROGRAM 

The objective of the FDIC Mortgage Loan Modification Program ("FDIC Program") is to 

modify the terms of certain residential mortgage loans so as to improve affordability, increase 

the probability of performance, allow borrowers to remain in their homes and increase the value 

of the loans to the FDIC and assignees. The Program provides for the modification of FDIC 

Qualifying Loans (as defined below) by reducing the borrower's monthly housing debt to 

income ratio ("DTI Ratio") to a target of 31%, but never to exceed 38%, at the time of the 

modification and eliminating adjustable interest rate and negative amortization features. 

Qualifying Loans 

In order for an SFR Loan to be an FDIC Qualifying Loan it must meet all of the following 

criteria, which must be confirmed by the lender (any such SFR Loan so meeting all such criteria, 

an "FDIC Qualifying Loan"): 

• The collateral securing the SFR Loan is owner-occupied; and 

• The mortgagor has a first priority lien on the collateral; and 

• Either the borrower is at least 60 days delinquent or a default is reasonably 

foreseeable. 

Modification Process 

The lender shall undertake a review of its mortgage loan portfolio to identify FDIC Qualifying 

Loans. For each FDIC Qualifying Loan, the lender shall determine the net present value 

("NPV") of the modified loan using the Discount Rate and conservative default rates that reflect 

their own portfolio experience. For the purposes of this determination, "Discount Rate" shall be 

the current Freddie Mac Primary Mortgage Market Survey® ("PMMS") weekly rate for 30-year 

fixed-rate conforming loans with an added risk premium of 250 basis points. When performing 

loan-level NPV calculations, the Discount Rate must be applied consistently to all cash flows. 

Accordingly, the Discount Rate applied to the no-modification cash flow shall be the same as the 

Discount Rate applied to the modification cash flow. In the event that the Freddie Mac PMMS 

weekly rate for 30-year fixed-rate conforming loans is no longer available, or is no longer posted 

through electronic transmission, Servicer will use such other rate as FDIC may direct or approve. 

If the NPV of the FDIC Qualifying Loan will exceed the NPV of the foreclosed collateral upon 

disposition, then the Qualifying Loan shall be modified so as to reduce the borrower's monthly 

DTI Ratio to 31% (or to the lowest DTI Ratio higher than 31%, resulting in a NPV exceeding the 

foreclosed collateral upon disposition - but not to exceed 38%) at the time of the modification. 

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To achieve this, the lender shall use a combination of interest rate reduction, term extension and 

principal forbearance, in the order set forth below. 

The borrower's monthly DTI Ratio shall be a percentage calculated by dividing the borrower's 

monthly housing payment (including principal, interest, taxes and insurance) by the borrower's 

monthly income. For these purposes, (1) the borrower's monthly housing payment shall be the 

amount required to pay monthly principal and interest plus one-twelfth of the then current annual 

amount required to pay real property taxes and homeowner's insurance with respect to the 

collateral and (2) the borrower's monthly income shall be the amount of the borrower's (along 

with any co-borrowers') documented and verified gross monthly income. 

In order to calculate the monthly principal payment, the lender shall capitalize to the outstanding 

principal balance of the FDIC Qualifying Loan the amount of all delinquent interest, delinquent 

taxes, past due insurance premiums, third party fees and (without duplication) escrow advances 

(such amount, the "Capitalized Balance"). 

In order to achieve the goal of reducing the DTI Ratio to 31%, the lender shall take the following 

steps in the following order of priority with respect to each FDIC Qualifying Loan: 

1. Reduce the interest rate to the then current Freddie Mac Survey Rate for 30-year fixed 

rate mortgage loans, and adjust the term to 30 years. 

2. If the DTI Ratio is still in excess of 31%, reduce the interest rate further, but no lower 

than 3%, until the DTI ratio of31% is achieved. 

3. If the DTI Ratio is still in excess of 31% after adjusting the interest rate to 3%, extend the 

remaining term of the loan by 10 years. 

4. If the DTI Ratio is still in excess of 31%, calculate a new monthly payment (the 

"Adjusted Payment Amount") that will result in the borrower's monthly DTI Ratio not 

exceeding 31%. After calculating the Adjusted Payment Amount, the lender shall bifurcate the 

Capitalized Balance into two portions - the amortizing portion and the non-amortizing portion. 

The amortizing portion of the Capitalized Balance shall be the mortgage amount that will fully 

amortize over a 40-year term at an annual interest rate of 3% and monthly payments equal to the 

Adjusted Payment Amount. The non-amortizing portion of the Capitalized Balance shall be the 

difference between the Capitalized Balance and the amortizing portion of the Capitalized 

Balance. The lender shall agree to forbear from collecting the non-amortizing portion of the 

Capitalized Balance during the term of the loan, and such amount shall be due and payable only 

upon the earlier of (i) maturity of the modified loan, (ii) a sale ofthe property or (iii) a pay-off or 

refinancing of the loan. No interest shall be charged on the non-amortizing portion of the 

Capitalized Balance, but repayment shall be secured by a first lien on the collateral. 

5. If, under any of the above steps, the NPV of a modification is less than the NPV of the 

foreclosed collateral upon disposition, the DTI may be increased to the minimum level where the 

NPV of the modification exceeds the NPV of the foreclosed collateral upon disposition. 

However, under no circumstances will the DTI for the modification exceed 38%. 

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At the end of the five (5) year period commencing on the date of the loan modification, the 

interest rate on the modified loan shall adjust to the Freddie Mac Survey Rate as of the date of 

the loan modification, but subject to an annual adjustment cap of one percent (1 %) per year. At 

that time, the monthly amount due by the borrower will also adjust to amortize fully the 

remaining Capitalized Balance (or, in any case in which the Capitalized Balance was bifurcated, 

the amortizing portion thereof) over the remaining term of the modified loan. 

Additional Modification Terms 

In connection with the modification of any FDIC Qualifying Loan, the following additional 

requirements shall apply. 

1. The lender shall not charge (and no borrower shall be required to pay) any modification, 

refinance or other similar fees or points in connection with the modification, nor shall any such 

fees, costs or charges be capitalized. 

2. Unpaid late fees and prepayment penalties otherwise chargeable to the borrower shall be 

waived. 

3. Modified loans shall not include any prepayment penalties. 

4. The lender shall establish an escrow account for the payment of future taxes and . . msurance premmms. 

5. The lender shall provide the FDIC with the NPV for each FDIC Qualifying Loan 

including the discount and default rates used. 

Related Junior Lien Mortgage Loans 

In cases where the lender holds a junior lien mortgage loan that is collateralized by the same 

property that collateralizes an FDIC Qualifying Loan that is modified as described above, the 

junior lien mortgage loan shall also be modified to enhance overall affordability to the borrower. 

At a minimum, the lender shall reduce the interest rate on the junior lien mortgage loan to no 

more than 2% per annum. Further modifications may be made at the lender's discretion as 

needed to support affordability and performance of the modified first lien FDIC Qualifying 

Loan. 

Amendments 

The Program may be modified either (i) by the FDIC, upon written notice to the lender of such 

modification, or (ii) as proposed by the lender with respect to a group of loans with similar 

characteristics, if approved in writing by the FDIC. 

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CRE/ADC Venture 2012-1 Structured Transaction 

ELECTRONIC TRACKING AGREEMENT 


by and among 


FEDERAL DEPOSIT INSURANCE CORPORATION, 


[Private Owner], 

[Servicer], 

MERSCORP, INC., 


and 


MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. 


Dated as of December_, 2012 


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ELECTRONIC TRACKING AGREEMENT 


THIS ELECTRONIC TRACKING AGREEMENT (this "Agreement") is made and 

entered into as of December_, 2012 by and among (a) a (the 

''Manager"); (b) , a (the "Servicer"); (c) MERSCORP, Inc. (the 

"Electronic Agent"); (d) Mortgage Electronic Registration Systems, Inc. ("MERS"); [and] (e) 

the Federal Deposit Insurance Corporation (in any capacity, the "FDIC"), as receiver 

("Receiver") for various failed financial institutions (including its successors and assigns 

thereto), as initial member pursuant to the LLC Operating Agreement referred to below (the 

"Initial Member"); and (f) the FDIC, as Receiver, as collateral agent (as the defined "PMN 

Agent") pursuant to the Reimbursement, Security and Guaranty Agreement referred to below 

(including its successors and assigns thereto) (the "Collateral Agent"). 

WHEREAS, the Manager and the Servicer have entered into that certain Servicing 

Agreement, dated as of December 11, 2012 (the "Servicing Agreement"), pursuant to which, 

among other things, the Servicer is responsible for servicing the Loans (as defined below); and 

WHEREAS, pursuant to the Amended and Restated Limited Liability Company 

Operating Agreement of CRE/ ADC Venture 2012-1, LLC, a Delaware limited liability company 

(the "Company"), dated as of December 11, 2012 (the "LLC Operating Agreement"), the 

Initial Member has the right to replace the Manager and to control the actions of the Company 

with respect to the Loans; and 

WHEREAS, pursuant to the Reimbursement, Security and Guaranty Agreement dated as 

of December 11, 2012 (the "Reimbursement, Security and Guaranty Agreement"), by and 

among the Company, the Collateral Agent, the Initial Member and the grantors party thereto, the 

Company has pledged the Loans to the Secured Parties defined therein and such Secured Parties 

will have a first priority security interest in the Loans; and 

WHEREAS, the Manager and each Rights Holder (as defined below) desire to continue 

to have the Loans registered on the MERS® System (defined below) such that the mortgagee of 

record under each Mortgage (defined below) shall be identified as MERS. 

NOW, THEREFORE, the parties, intending to be legally bound, agree as follows: 

1. Definitions. Capitalized terms used in this Agreement shall have the meanings assigned 

to them below. 

"Affected Loans" shall have the meaning assigned to such term in Section 4(b). 

"Agreement" shall have the meaning assigned to such term in the preamble. 

"Assignment of Mortgage" shall mean, with respect to any Mortgage, an assignment of 

the Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the 

laws of the jurisdiction wherein the related mortgaged property is located to effect the 

assignment of the Mortgage upon recordation. 

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"Collateral Agent" shall have the meaning given in the preamble. 


"Collateral Agent Notice" shall have the meaning given in Section 4(i). 


"Company" shall have the meaning given in the recitals. 


"Electronic Agent" shall have the meaning given in the preamble. 


"Event of Default" shall mean any "Default" as defined in the Servicing Agreement or 


an "Event of Default" as defined in the LLC Operating Agreement or an "Event of Default" as 

defined in the Reimbursement, Security and Guaranty Agreement. 

"FDIC" shall have the meaning given in the preamble. 

"Initial Member" shall have the meaning given in the preamble. 

"LLC Operating Agreement" shall have the meaning given in the recitals. 

"Loan" shall mean each mortgage loan held by the Company that is, as of the date 

hereof, registered on the MERS® System. 

"Manager" shall have the meaning given in the preamble. 

"MERS" shall have the meaning given in the preamble. 

"MERS Designated Loan" shall have the meaning given in Section 3. 

"MERS Procedures Manual" shall mean the MERS Procedures Manual attached as 

Exhibit B hereto, as it may be amended from time to time. 

"MERS® System" shall mean the Electronic Agent's mortgage electronic registry 

system, as more particularly described in the MERS Procedures Manual. 

"Mortgage" shall mean a lien, mortgage or deed of trust securing a Note. 

"Note" shall mean a promissory note or other evidence of indebtedness of the obligor 

thereunder, representing a Loan, and secured by the related Mortgage. 

"Notice of Default" shall mean a notice from any Rights Holder that an Event of Default 

has occurred and is continuing, substantially in the form of Exhibit C hereto. 

"Opinion of Counsel" shall mean a written opinion of counsel in form and substance 

reasonably acceptable to each Rights Holder. 

"Person" shall mean any individual, corporation, company, voluntary association, 

partnership, joint venture, limited liability company, trust, unincorporated association or 

government (or any agency, instrumentality or political subdivision thereof). 

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"Receiver" shall have the meaning given in the preamble. 

"Reimbursement, Security and Guaranty Agreement" shall have the meaning given in 

the recitals. 

"Rights Holder" shall mean the Initial Member and the Collateral Agent; provided, that 

(a) the rights of the Initial Member as Rights Holder shall be junior and subordinate to the rights 

of the Collateral Agent in such capacity to the extent set forth in Section 4(i) below, and (b) upon 

delivery by Collateral Agent of the Collateral Agent Notice pursuant to Section 4(i) below, the 

Collateral Agent shall cease, on a going forward basis (and without termination of any indemnity 

rights or rights with respect to any period prior to delivery of such Collateral Agent Notice), to 

be a Rights Holder hereunder. 

"Servicing Agreement" shall have the meaning given in the recitals. 

"Secured Parties" shall mean collectively, the Collateral Agent, each co-agent or subagent appointed by the Collateral Agent from time to time pursuant to the Reimbursement, 

Security and Guaranty Agreement and the FDIC acting in its corporate capacity as Purchase 

Money Note Guarantor under the Reimbursement, Security and Guaranty Agreement. 

"Senior Rights Holder" shall mean (a) the Collateral Agent, for so long as it is a Rights 

Holder, and (b) thereafter, the Initial Member. 

"Servicer" shall have the meaning given in the preamble. 

"Subservicer" shall mean any subservicers engaged by the Servicer as permitted under 

the LLC Operating Agreement. 

2. 	 Appointment of the Electronic Agent. 

(a) Each Rights Holder and the Manager, by execution and delivery of this 

Agreement, each does hereby appoint MERSCORP, Inc. as the Electronic Agent, subject to the 

terms of this Agreement, to perform the obligations set forth herein. 

(b) 	 MERSCORP, Inc., by execution and delivery of this Agreement, does hereby 

(i) agree with each Rights Holder and the Manager, subject to the terms of this Agreement, to 

perform the services set forth herein, and (ii) accepts its appointment as the Electronic Agent. 

3. 	 Designation of MERS as Mortgagee of Record; Designation of Investor and Servicer of 

Record in MERS. 

The Manager represents, warrants and covenants that (a) it has designated or shall 

designate MERS as, and has taken or will take such action as is necessary to cause MERS to be, 

the mortgagee of record, as nominee for the Company, with respect to the Loans in accordance 

with the MERS Procedures Manual, and (b) it has designated or will promptly designate 

1000002 (Org I d.) as the "investor" and the Servicer as the "servicer" in the MERS® System for 

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each such Loan (each Loan so designated is a "MERS Designated Loan") and the Collateral 

Agent or the Initial Member as the "interim funder" on the MERS® System with respect to each 

MERS Designated Loan, and, if applicable pursuant to the LLC Operating Agreement, will 

designate any Subservicer retained under the Servicing Agreement as the "subservicer"; 

provided, that (i) upon the Company becoming a member of MERS in good standing, the 

Manager shall cause the Company to be identified in the "investor" field on the MERS® 

System, (ii) the Manager may, pursuant to the terms of the LLC Operating Agreement designate 

itself as the "servicer" with respect to any such MERS Designated Loan, in which case the 

Servicer shall be designated as the "subservicer" with respect thereto, (iii) upon receipt of the 

Collateral Agent Notice, the Electronic Agent will promptly designate the Initial Member as the 

"interim funder" on the MERS® System with respect to each MERS Designated Loan, and (iv) 

no other Person shall be identified on the MERS® System as having any interest in such MERS 

Designated Loan unless otherwise consented to by each Rights Holder required pursuant to this 

Agreement. 

4. 	 Obligations of the Electronic Agent; Rights of Collateral Agent Superior to Initial 

Member. 

(a) The Electronic Agent shall ensure that MERS, as the mortgagee of record under 

each MERS Designated Loan, shall promptly forward all properly identified notices MERS 

receives in such capacity to the person or persons identified in the MERS® System as the 

servicer as well as, if a subservicer is identified in the MERS® System, the subservicer for such 

MERS Designated Loan. 

(b) Upon receipt of a Notice of Default, in the form of Exhibit C, from a Rights 

Holder in which such Rights Holder shall identify the MERS Designated Loans with respect to 

which the Manager's right to act as servicer or undisclosed investor's or the Company's right to 

act as investor, or the Servicer's right to act as servicer or subservicer, as applicable, thereof has 

been terminated by such Rights Holder (the "Affected Loans"), the Electronic Agent shall 

modify the applicable investor fields, servicer fields and/or subservicer fields to reflect the 

investor, servicer and/or subservicer on the MERS® System as such Rights Holder or such 

Rights Holder's designee with respect to such Affected Loans. Following such Notice of 

Default, the Electronic Agent shall follow the instructions of each Rights Holder with respect to 

the Affected Loans, without further consent of the Manager or the Servicer (and, in the case of 

instructions by the Collateral Agent, without further consent of the Initial Member), and shall 

deliver to each Rights Holder any documents and/or information (to the extent such documents 

or information are in the possession or control of the Electronic Agent) with respect to the 

Affected Loans requested by such Rights Holder. 

(c) Upon the Senior Rights Holder's request and instructions, and at the Manager's 

sole cost and expense, the Electronic Agent shall deliver to such Rights Holder or its designee an 

Assignment of Mortgage from MERS, in blank, in recordable form but unrecorded with respect 

to each Affected Loan; provided, however, that the Electronic Agent shall not be required to 

comply with the foregoing unless the costs of doing so shall be paid (by the Servicer, the 

Manager, or a third party). 

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(d) The Electronic Agent shall promptly notify each Rights Holder and the Manager 

if it has actual knowledge that any mortgage, pledge, lien, security interest or other charge or 

encumbrance exists with respect to any of the Loans. Upon the reasonable request of [a] [the] 

Rights Holder or the Manager, the Electronic Agent shall review the "investor" and "interim 

funder" fields and shall notify such Rights Holder if any Person other than the Company IS 

identified in the "investor" field or if any Person is identified in the "interim funder" field. 

(e) In the event that (i) any Rights Holder, the Company, the Manager, the Servicer, 

the Electronic Agent or MERS shall be served by a third party with any type oflevy, attachment, 

writ or court order with respect to any MERS Designated Loan or (ii) a third party shall institute 

any court proceeding by which any MERS Designated Loan shall be required to be delivered 

otherwise than in accordance with the provisions of this Agreement, the Electronic Agent shall 

promptly deliver or cause to be delivered to the other parties to this Agreement copies of all 

court papers, orders, documents and other materials concerning such proceedings. 

(f) Upon the request of any Rights Holder, the Electronic Agent shall run a query 

with respect to any and all specified fields with respect to any or all of the MERS Designated 

Loans and, if requested by the Senior Rights Holder, shall change the information in the "interim 

funder" field in accordance with the Senior Rights Holder's instructions. 

(g) MERS, as mortgagee of record for the MERS Designated Loans, shall take all 

such actions as may be required by a mortgagee in connection with servicing the MERS 

Designated Loans at the request of the applicable servicer identified on the MERS® System, 

including, but not limited to, executing and/or recording, any modification, waiver, subordination 

agreement, instrument of satisfaction or cancellation, partial or full release, discharge or any 

other comparable instruments, at the sole cost and expense of the Manager. 

(h) MERS shall cause certain officers or other representatives of each Rights Holder 

to be appointed as agents of MERS with respect to the MERS Designated Loans, with the power 

to wield all of the powers specified in the form of power of attorney used to appoint such agent, 

substantially in the form attached hereto as Exhibit D. 

(i) Until such time as MERS and the Electronic Agent receive notice from the 

Collateral Agent that all obligations under the Reimbursement, Security and Guaranty 

Agreement have been paid and performed in full (the "Collateral Agent Notice"), (i) all rights 

of the Collateral Agent as a Rights Holder hereunder shall be senior and superior to all rights of 

the Initial Member, as a Rights Holder hereunder, including without limitation the right to assign 

Loans, change the "interim funder" field, instruct MERS, deliver a Notice of Default, permit 

MERS or the Electronic Agent to assign this Agreement or resign hereunder, remove MERS or 

the Electronic Agent under this Agreement, or terminate this Agreement, and (ii) in the event of 

any conflicting instructions from the Collateral Agent and the Initial Member, the instructions 

from the Collateral Agent shall govern and control. 

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5. Access to Information. 

Upon any Rights Holder's request, the Electronic Agent shall furnish to such Rights 

Holder or its respective auditors information in its possession with respect to the MERS 

Designated Loans and shall permit them to inspect the Electronic Agent's and MERS' records 

relating to the MERS Designated Loans at all reasonable times during regular business hours. 

6. Representations of the Electronic Agent and MERS. 

The Electronic Agent and MERS hereby represent and warrant as of the date hereof that: 

(a) each of the Electronic Agent and MERS has the corporate power and authority 

and the legal right to execute and deliver, and to perform its obligations under, this Agreement, 

and has taken all necessary corporate action to authorize its execution, delivery and performance 

of this Agreement; 

(b) no consent or authorization of, filing with, or other act by or in respect of, any 

arbitrator or governmental authority and no consent of any other Person is required in connection 

with the execution, delivery, performance, validity or enforceability of this Agreement; 

(c) this Agreement has been duly executed and delivered on behalf of the Electronic 

Agent and MERS and constitutes a legal, valid and binding obligation of the Electronic Agent 

and MERS enforceable in accordance with its terms, except as enforceability may be limited by 

bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of 

creditors' rights generally and by general principles of equity (whether enforcement is sought in 

proceedings in equity or at law); and 

(d) the Electronic Agent and MERS will maintain at all times insurance policies for 

fidelity and errors and omissions in amounts of at least three million dollars ($3,000,000) and 

five million dollars ($5,000,000) respectively, and a certificate and policy of the insurer shall be 

furnished to each Rights Holder upon request and shall contain a statement of the insurer that 

such insurance will not be terminated prior to thirty (30) days' written notice to each Rights 

Holder. 

7. Covenants ofMERS. 

(a) MERS shall (i) not incur any indebtedness other than in the ordinary course of its 

business, (ii) not engage in any dissolution, liquidation, consolidation, merger or sale of assets, 

(iii) not engage in any business activity in which it is not currently engaged, (iv) not take any 

action that might cause MERS to become insolvent, (v) not form, or cause to be formed, any 

subsidiaries, (vi) maintain books and records separate from any other Person, (vii) maintain its 

bank accounts separate from any other Person, (viii) not commingle its assets with those of any 

other Person and hold all of its assets in its own name, (ix) conduct its own business in its own 

name, (x) pay its own liabilities and expenses only out of its own funds, (xi) observe all 

corporate formalities, (xii) enter into transactions with affiliates only if each such transaction is 

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intrinsically fair, commercially reasonable, and on the same terms as would be available in an 

arm's length transaction with a Person that is not an affiliate, (xiii) pay the salaries of its own 

employees from its own funds, (xiv) maintain a sufficient number of employees in light of its 

contemplated business operations, (xv) not guarantee or become obligated for the debts of any 

other Person, (xvi) not hold out its credit as being available to satisfy the obligation of any other 

Person, (xvii) not acquire the obligations or securities of its affiliates or owners, including 

partners, members or shareholders, as appropriate, (xviii) not make loans to any other Person or 

buy or hold evidence of indebtedness issued by any other Person (except for cash and 

investment-grade securities), (xix) allocate fairly and reasonably any overhead expenses that are 

shared with an affiliate, including paying for office space and services performed by any 

employee of any affiliate, (xx) use separate stationery, invoices, and checks bearing its own 

name, (xxi) not pledge its assets for the benefit of any other Person, (xxii) hold itself out as a 

separate identity, (xxiii) correct any known misunderstanding regarding its separate identity and 

not identify itself as a division of any other Person, and (xxiv) maintain adequate capital in light 

of its contemplated business operations. 

(b) MERS agrees that in no event shall MERS' status as mortgagee of record with 

respect to any MERS Designated Loan confer upon MERS any rights or obligations as an owner 

of any MERS Designated Loan or the servicing rights related thereto, and MERS will not 

exercise such rights unless directed to do so by Senior Rights Holder. 

8. Covenants of the Manager and the Servicer. 

(a) The Servicer represents that it is and covenants that it will remain a member of 

MERS in good standing. The Manager covenants that if it causes the Company to be designated 

as the "investor" with respect to any MERS Designated Loan as provided in Section 3, it shall 

cause the Company to become a member of MERS in good standing and remain a member of 

MERS in good standing so long it is designated as the "investor" with respect to such MERS 

Designated Loans. 

(b) Each of the Manager and the Servicer hereby covenants and agrees with each 

Rights Holder and each other that, with respect to each MERS Designated Loan, it will not 

identify any party except the Company or the Servicer in the "investor" field and will not 

identity any party except the applicable Rights Holder in accordance with Section 3, in the 

"interim funder" field on the MERS® System, provided that upon the Company becoming a 

member of MERS in good standing, the Manager shall cause the Company to be identified in the 

"investor" field on the MERS® System. 

(c) The Manager or the Servicer will provide each Rights Holder with MERS 

Identification Numbers for each MERS Designated Loan. 

9. No Adverse Interest of the Electronic Agent or MERS. 

By execution of this Agreement, the Electronic Agent and MERS each represents and 

warrants that it currently holds, and during the existence of this Agreement shall hold, no adverse 

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interest, by way of security or otherwise, in any MERS Designated Loan. The MERS 

Designated Loans shall not be subject to any security interest, lien or right to set-off by the 

Electronic Agent, MERS, or any third party claiming through the Electronic Agent or MERS, 

and neither the Electronic Agent nor MERS shall pledge, encumber, hypothecate, transfer, 

dispose of, or otherwise grant any third party interest in, the MERS Designated Loans. 

10. Indemnification of the Rights Holder. 

The Electronic Agent agrees to indemnify and hold each Rights Holder and its designees 

harmless against any and all liabilities, obligations, losses, damages, penalties, actions, 

judgments, suits, costs, expenses or disbursements, including reasonable attorneys' fees, that 

such Rights Holder may sustain arising out of any breach by the Electronic Agent of this 

Agreement, the Electronic Agent's negligence, bad faith or willful misconduct, its failure to 

comply with any Rights Holder's instructions hereunder (for which appropriate evidence of any 

applicable written consent of the Senior Rights Holder to such instructions shall have been 

delivered to the Electronic Agent) or to the extent caused by delays or failures arising out of the 

inability of such Rights Holder or the Electronic Agent to access information on the MERS® 

System. The foregoing indemnification shall survive any termination or assignment of this 

Agreement. 

11. Reliance of the Electronic Agent. 

(a) In the absence of bad faith on the part of the Electronic Agent, the Electronic 

Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions 

expressed therein, upon any request, instruction, certificate or other document furnished to the 

Electronic Agent, reasonably believed by the Electronic Agent to be genuine and to have been 

signed or presented by the proper party or parties and conforming to the requirements of this 

Agreement. 

(b) Notwithstanding any contrary information which may be delivered to the 

Electronic Agent by the Manager or the Servicer, the Electronic Agent may conclusively rely on 

any information or Notice of Default delivered by any Rights Holder, and the Manager and the 

Servicer shall indemnify and hold the Electronic Agent harmless for any and all claims asserted 

against it for any actions taken in good faith by the Electronic Agent in connection with the 

delivery of such information or Notice of Default. 

12. Fees. 

It is understood that the Electronic Agent or its successor will charge such fees and 

expenses for its services hereunder as set forth in a separate agreement between the Electronic 

Agent and the Manager. The Electronic Agent shall give prompt written notice of any 

disciplinary action instituted with respect to the Manager's failure to pay any fees required in 

connection with its use of the MERS® System, and will give written notice to each Rights 

Holder at least thirty (30) days prior to any revocation of the Servicer' s membership and, if 

applicable in accordance with Section 3, the Company's membership in the MERS® System. 

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13. Resignation of the Electronic Agent; Termination. 

(a) Each Rights Holder has entered into this Agreement with the Electronic Agent 

and MERS in reliance upon the independent status of the Electronic Agent and MERS, and the 

representations as to the adequacy of their facilities, personnel, records and procedures, its 

integrity, reputation and financial standing, and the continuance thereof. Neither the Electronic 

Agent nor MERS shall assign this Agreement or the responsibilities hereunder or delegate their 

rights or duties hereunder (except as expressly disclosed in writing to, and approved by, each 

Rights Holder) or any portion hereof or sell or otherwise dispose of all or substantially all of its 

property or assets without providing each Rights Holder with at least sixty (60) days' pnor 

written notice thereof. 

(b) Neither the Electronic Agent nor MERS shall resign from the obligations and 

duties hereby imposed on them except by mutual consent of the Electronic Agent, MERS and 

each Rights Holder, or upon the determination that the duties of the Electronic Agent and MERS 

hereunder are no longer permissible under applicable law and such incapacity cannot be cured by 

the Electronic Agent and MERS. Any such determination permitting the resignation of the 

Electronic Agent and MERS shall be evidenced by an Opinion of Counsel to such effect 

delivered to each Rights Holder, which Opinion of Counsel shall be in form and substance 

acceptable to each Rights Holder. No such resignation shall become effective until the 

Electronic Agent and MERS have delivered to the Senior Rights Holder all of the Assignments 

of Mortgage, in blank, in recordable form but unrecorded for each MERS Designated Loan 

identified by the Senior Rights Holder. 

14. Removal of the Electronic Agent. 

(a) The Senior Rights Holder or the Manager, with or without cause with respect to 

the performance of the Electronic Agent under this Agreement, may remove and discharge the 

Electronic Agent and MERS from the performance of its duties under this Agreement with 

respect to some or all of the MERS Designated Loans by written notice from the Senior Rights 

Holder or the Manager, as applicable, to the other parties hereto. 

(b) In the event of termination of this Agreement, at Manager's sole cost and expense 

(except for termination pursuant to delivery of a Notice of Default or termination by the 

Electronic Agent pursuant to Section 16) the Electronic Agent shall follow the instructions ofthe 

Senior Rights Holder for the disposition of the documents in its possession pursuant to this 

Agreement, and deliver to the Senior Rights Holder an Assignment of Mortgage, in blank, in 

recordable form but unrecorded for each MERS Designated Loan identified by the Senior Rights 

Holder. Notwithstanding the foregoing, in the event that the Senior Rights Holder or the 

Manager terminates this Agreement with respect to some, but not all, of the MERS Designated 

Loans, this Agreement shall remain in full force and effect with respect to any MERS Designated 

Loans for which this Agreement is not terminated hereunder. Notwithstanding any termination 

of this Agreement, the provisions of Section 10 shall survive any termination. 

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15. Notices. 

All written communications hereunder shall be delivered, by overnight courier, to the 

Electronic Agent and/or any Rights Holder and/or the Manager and/or the Servicer as indicated 

on the signature page hereto, or at such other address as designated by such party in a written 

notice to the other parties. All such communications shall be deemed to have been duly given 

upon receipt (or refusal thereof), in each case given or addressed as aforesaid. 

16. Term of Agreement. 

(a) This Agreement shall continue to be in effect until terminated by the Manager or 

the Senior Rights Holder in accordance with Section 14(a) or the Electronic Agent sending 

written notice to the other parties of this Agreement at least thirty (30) days prior to said 

termination. 

(b) Upon the termination of this Agreement by the Electronic Agent or the 

termination of this Agreement by the Senior Rights Holder for cause as provided in Section 

14(a), the Electronic Agent shall, at the Electronic Agent's sole cost and expense, execute and 

deliver to the Senior Rights Holder or its designee an Assignment of Mortgage with respect to 

each MERS Designated Loan identified by the Senior Rights Holder, in blank, in recordable 

form but unrecorded. In the event that this Agreement is terminated by the Manager or the 

Senior Rights Holder without cause as provided in Section 14(a), the duties of the Electronic 

Agent in the preceding sentence shall be at the sole cost and expense of the Manager. In 

addition, the Senior Rights Holder and the Electronic Agent may, at the sole option of the Senior 

Rights Holder, and the Manager and the Electronic Agent may, at the sole option of Manager, 

enter into a separate agreement which shall be mutually acceptable to the respective parties with 

respect to any or all of the MERS Designated Loans with respect to which this Agreement is 

terminated. 

17. Authorizations. 

Any ofthe persons whose signatures and titles appear on Exhibit A hereto are authorized, 

acting singly, to act for the Rights Holder, the Manager, the Servicer, the Electronic Agent or 

MERS, as the case may be, under this Agreement. The parties may change the information on 

Exhibit A hereto from time to time but each of the parties shall be entitled to rely conclusively on 

the then current Exhibit A until receipt of a superseding exhibit. 

18. Amendments. 

This Agreement may be amended from time to time only by written agreement signed by 

each Rights Holder, the Manager, the Servicer, the Electronic Agent and MERS. 

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19. Severability. 

If any provision of this Agreement is declared invalid by any court of competent 

jurisdiction, such invalidity shall not affect any other provision, and this Agreement shall be 

enforced to the fullest extent required by law. 

20. Binding Effect. 

This Agreement shall be binding and inure to the benefit of the parties hereto and their 

respective successors and assigns. 

21. Governing Law. 

THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND 

GOVERNED BY THE LAW OF THE COMMONWEALTH OF VIRGINIA. 

EACH RIGHTS HOLDER (OTHER THAN THE FDIC IN ANY OTHER 

CAPA CITY), THE MANAGER, THE SERVICER, THE ELECTRONIC AGENT AND 

MERS EACH IRREVOCABLY AGREES THAT ANY ACTION OR PROCEEDING 

ARISING OUT OF OR IN ANY MANNER RELATING TO THIS AGREEMENT MAY 

BE BROUGHT IN ANY COURT OF THE COMMONWEALTH OF VIRGINIA, OR IN 

THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, AND BY 

THE EXECUTION AND DELIVERY OF THIS AGREEMENT EXPRESSLY AND 

IRREVOCABLY ASSENT AND SUBMIT TO THE NONEXCLUSIVE JURISDICTION 

OF ANY SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING. 

22. Waiver of Jury Trial. 

EACH OF THE RIGHTS HOLDERS, THE MANAGER, THE SERVICER, THE 

ELECTRONIC AGENT AND MERS EACH IRREVOCABLY AGREES TO WAIVE ITS 

RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING AGAINST IT 

ARISING OUT OF, OR RELATED IN ANY MANNER TO, THIS AGREEMENT OR 

ANY RELATED AGREEMENT. 

23. Execution. 

This Agreement may be executed in one or more counterparts and by the different parties 

hereto on separate counterparts, each of which, when so executed, shall be deemed to be an 

original; such counterparts, together, shall constitute one and the same agreement. 

24. Cumulative Rights. 

The rights, powers and remedies of the Electronic Agent, MERS, each Rights Holder, the 

Manager and the Servicer under this Agreement shall be in addition to all rights, powers and 

remedies given to the Electronic Agent, MERS, the Manager, the Servicer and such Rights 

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Holder by virtue of any statute or rule of law, or any other agreement, all of which rights, powers 

and remedies shall be cumulative and may be exercised successively or concurrently without 

impairing such Rights Holder's rights in the Loans. 

25. Status of Electronic Agent. 

Nothing herein contained shall be deemed or construed to create a partnership or joint 

venture between the parties hereto, and the services of the Electronic Agent and MERS shall be 

rendered as independent contractors for the Rights Holders, the Manager and the Servicer. Other 

than the obligations of the Electronic Agent and MERS expressly set forth herein, the Electronic 

Agent and MERS shall have no power or authority to act as agent for any Rights Holder, the 

Manager or the Servicer pursuant to any grant of authority made under or pursuant to this 

Agreement. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 

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IN WITNESS WHEREOF, each Rights Holder, the Manager, the Servicer, the Electronic 

Agent and MERS have duly executed this Agreement as of the date first above written. 

Initial Member: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION IN ITS CAPACITY AS 

RECEIVER (AS DEFINED HEREIN), as Initial 

Member 

By: 

Name: .________J 

Title: ,________J

Address for Notices: 

Federal Deposit Insurance Corporation 

Reference: 

Structured Transaction 

550 17th Street, NW (Room F-8014) 

Washington, D.C. 20429-0002 

Attention: Associate Director, Asset Management 

Division of Resolutions and Receiverships 

[E-mail Address: [enter applicable shared email 

mailbox for transaction] 

E-Mail Reference: 

Structured Transaction] 

with a copy to: 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership 

Section, Special Issues Unit 

Reference: 

Structured Transaction 

3501 Fairfax Drive (Room E-7098) 

Arlington, VA 22226-3599 

Attention: Kathleen Russo 

E-mail Address: 

E-mail Reference: ._____________] 

Structured Transaction 

[Signature Page to Electronic Tracking Agreement] 

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Collateral Agent: 

FEDERAL DEPOSIT INSURANCE 

CORPORATION IN ITS CAPACITY AS 

RECEIVER (AS DEFINED HEREIN), as 

Collateral Agent 

By: 

Name: ~-------------J

Title: 

Address for Notices: 

Federal Deposit Insurance Corporation 

Reference: 

Structured Transaction 

550 17th Street, NW (Room F-8014) 

Washington, D.C. 20429-0002 

Attention: Associate Director, Asset Management 

Division of Resolutions and Receiverships 

[E-mail Address: [enter applicable shared email 

mailbox for transaction] 

E-Mail Reference: 

Structured Transaction] 

with a copy to: 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership 

Section, Special Issues Unit 

Reference: 

Structured Transaction 

3501 Fairfax Drive (Room E-7098) 

Arlington, VA 22226-3599 

Attention: Kathleen Russo 

E-mail Address: 

E-mail Reference: 

Structured Transaction 

[Signature Page to Electronic Tracking Agreement] 

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Manager: 

_______________], a '--____], 

as the Manager 

By: 

Name: ~-------------J 

Title: 

Address for Notices: 

[Address] 

Attention: 

[E-mail Address: 

with a copy to: 

[Address] 

Attention: 

[E-mail Address: 

and 

[Address] 

Attention: 

[E-mail Address: 

[Signature Page to Electronic Tracking Agreement] 

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Version 3.1.1 

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Servicer: 

], a ~------------------

as the Servicer 

By: 

Name: L_______________J

Title: 

Address for Notices: 

[Address] 

Attention: 


[E-mail Address: .______]] 


with a copy to: 


[Address] 

Attention: 

[E-mail Address: 

and 

[Address] 

Attention: 

[E-mail Address: 

[Signature Page to Electronic Tracking Agreement] 

CRE/ADC Venture 2012-1 Structured Transaction 

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Electronic Agent: 

MERSCORP, INC., 

as Electronic Agent 

By: 

Name: ~-------------" 

Title: 

Address for Notices: 


[1818 Library Street 


Suite 300 


Reston, VA 20 190] 


Attention: 


MERS: 

MORTGAGE ELECTRONIC 

REGISTRATION SYSTEMS, INC., 

as MERS 

By: 

Name: ~-------------" 

Title: 

Address for Notices: 


[1818 Library Street 


Suite 300 


Reston, VA 20 190] 


Attention: 


[Signature Page to Electronic Tracking Agreement] 

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EXHIBIT A 


LIST OF AUTHORIZED PERSONS 


RIGHTS HOLDER AUTHORIZATIONS: 


Any of the persons whose signatures and titles appear below, or attached hereto, are authorized, 

acting singly, to act for the Collateral Agent as Rights Holder under this Agreement: 

By: ------------------­ By: ----------------­ By: 

Name: ------------------­ Name: ----------------­ Name: -----------------­

Title: ------------------­ Title: ----------------­ Title: 

Any of the persons whose signatures and titles appear below, or attached hereto, are authorized, 

acting singly, to act for the Initial Member as Rights Holder under this Agreement; provided, 

however that the authority of such persons is junior and subordinate to the person(s) authorized 

to act for the Collateral Agent as Rights Holder listed above, until such time as MERS and the 

Electronic Agent receive the Collateral Agent Notice (as defined in this Agreement). 

By: By: By: 

Name: Name: Name: 

Title: Title: Title: 

MANAGER AUTHORIZATIONS: 

Any of the persons whose signatures and titles appear below, or attached hereto, are authorized, 


acting singly, to act for the Manager under this Agreement: 


By: By: By: 


Name: Name: Name: 


Title: Title: Title: 


By: By: By: 


Name: Name: Name: 


Title: Title: Title: 


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SERVICER AUTHORIZATIONS: 


Any of the persons whose signatures and titles appear below, or attached hereto, are authorized, 


acting singly, to act for the Servicer under this Agreement: 


By: By: By: 


Name: Name: Name: 


Title: Title: Title: 


By: By: By: 


Name: Name: Name: 


Title: Title: Title: 


ELECTRONIC AGENT AUTHORIZATIONS: 


Any of the persons whose signatures and titles appear below, or attached hereto, are authorized, 


acting singly, to act for the Electronic Agent under this Agreement: 


By: By: By: 


Name: Name: Name: 


Title: Title: Title: 


MERS AUTHORIZATIONS: 


Any of the persons whose signatures and titles appear below, or attached hereto, are authorized, 


acting singly, to act forMERS under this Agreement: 


By: By: By: 


Name: Name: Name: 


Title: Title: Title: 


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EXHIBIT B 


MERSPROCEDURESMANUAL 


The MERS Procedures Manual shall be found on the MERS website at: http://www.mersinc.org 

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EXHIBIT C 


NOTICE OF DEFAULT 

-------'-­

Attention: 

MERSCORP, Inc. 

1818 Library Street, Suite 300 

Reston, VA 20190 

Ladies and Gentlemen: 

Please be advised that this Notice of Default is being issued pursuant to Section 4(b) of that 

certain Electronic Tracking Agreement (the "Electronic Tracking Agreement"), dated as of 

December _, 2012, by and among (a) a (the "Manager"), 

(b) a (the "Servicer"), (c) MERSCORP, Inc. (the "Electronic 

Agent"), (d) Mortgage Electronic Registration Systems, Inc. ("MERS"), (e) the Federal Deposit 

Insurance Corporation (in any capacity, the "FDIC"), as Receiver ("Receiver") for various 

failed financial institutions] (including its successors and assigns thereto), as Initial Member, and 

(f) the FDIC, as Receiver, as collateral agent (as the defined "PMN Agent") pursuant to the 

Reimbursement, Security and Guaranty Agreement referred to in the Electronic Tracking 

Agreement (including its successors and assigns thereto), as Collateral Agent. The Affected 

Loans are listed on the attached Schedule I (including the mortgage identification numbers). 

Accordingly, the Electronic Agent shall not accept instructions from the Manager, the Servicer 

or any party other than the undersigned Rights Holder (and, as applicable, any other Rights 

Holder) with respect to such Loans, until otherwise notified by the undersigned Rights Holder. 

Any terms used herein and not otherwise defined shall have such meaning specified in the 

Electronic Tracking Agreement. 

Name: 

Title: 

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Schedule I 

AFFECTED LOANS 

N/A 

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EXHIBIT D 

FORM OF MERS LIMITED POWER OF ATTORNEY 

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a Delaware corporation 

("MERS") and a wholly owned subsidiary of MERSCORP, Inc., a Delaware corporation 

("MERSCORP"), hereby appoints the attached list of persons in Schedule A as Attorneys-inFact ("Agents") for MERS for the limited purpose of executing documents and taking certain 

other actions as set forth below for those certain loans (the "MERS Designated Loans") secured 

by mortgages or deeds of trusts held by MERS as mortgagee or beneficiary in a nominee 

capacity pursuant to that certain Electronic Tracking Agreement dated as of December_, 2012 

(the "Agreement") among ], a ], MERS, MERSCORP 

and the Federal Deposit Insurance Corporation (in any capacity, the "FDIC"), as receiver 

("Receiver") for various failed financial institutions listed or otherwise referenced on Schedule 

B (including its successors and assigns thereto), as initial member pursuant to the LLC Operating 

Agreement referred to in the Agreement (the "Initial Member"), and as collateral agent (as the 

defined "PMN Agent") pursuant to the Reimbursement, Security and Guaranty Agreement 

referred to in the Agreement (including its successors and assigns thereto) (the "Collateral 

Agent"), in each case as a Rights Holder ("Rights Holder"). 

Limited Power of Attorney Actions: 

(1) release the lien of any MERS Designated Loan registered on the MERS® System that is 

shown to be registered to the Receiver; 

(2) assign the lien of any MERS Designated Loan naming MERS as the mortgagee when the 

Receiver is also the current promissory note-holder, or if the MERS Designated Loan is 

registered on the MERS® System, is shown to be registered to the Receiver; 

(3) execute any and all documents necessary to foreclose (or post-foreclosure, to sell to 

another entity) any property securing any MERS Designated Loan registered on the MERS® 

System that is shown to be registered to the Receiver, including but not limited to (a) 

substitution of trustee on Deeds of Trust, (b) Trustee's Deeds upon sale on behalf of MERS, 

(c) Affidavits of Non-military Status, (d) Affidavits of Judgment, (e) Affidavits of Debt, (f) 

quitclaim deeds, (g) Affidavits regarding lost promissory notes, and (h) endorsements of 

promissory notes to VA or HUD on behalf of MERS as a required part of the claims process; 

(4) take any and all actions and execute all documents necessary to protect the interest of the 

Receiver, the beneficial owner of the MERS Designated Loans, or MERS, in any bankruptcy 

proceeding regarding a MERS Designated Loan registered on the MERS® System that is 

shown to be registered to the Receiver, including but not limited to: (a) executing Proofs of 

Claim and Affidavits of Movant under 11 U.S.C. Sec. 501-502, Bankruptcy Rule 3001-3003, 

and applicable local bankruptcy rules, (b) entering a Notice of Appearance, (c) voting for a 

trustee of the estate of the debtor, (d) voting for a committee of creditors, (e) attending the 

meeting of creditors of the debtor, or any adjournment thereof, and voting on behalf of the 

Receiver, the beneficial owner of the MERS Designated Loans, or MERS, on any question 

that may be lawfully submitted before creditors in such a meeting, (f) completing, executing, 

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and returning a ballot accepting or rejecting a plan, and (g) executing reaffirmation 

agreements; 

(5) take any and all actions and execute all documents necessary to refinance, subordinate, 

amend, or modify any and all MERS Designated Loans registered on the MERS® System 

that is shown to be registered to the Receiver; and 

(6) endorse checks made payable to Mortgage Electronic Registration Systems, Inc., to the 

Receiver that are received by the Receiver for payment on any MERS Designated Loan 

registered on the MERS® System that is shown to be registered to the Receiver. 

For purposes of clarification, references herein to any MERS Designated Loan shown to be 

registered to the Receiver shall be deemed to include, without limitation, any such MERS 

Designated Loan for which the Receiver, in any capacity, is designated in the MERS® System as 

the "servicer", "investor", "interim funder" or "warehouse/gestation lender". 

Agent(s) shall have full power and authority to act on behalf of MERS in these limited matters. 

This power and authority shall authorize Agent(s) to exercise all of MERS legal rights and 

powers, including all rights and powers that MERS may acquire in the future with regard to the 

MERS Designated Loans. 

This Limited Power of Attorney shall be construed narrowly as a limited power of attorney. The 

description of specific powers above is intended to limit or restrict the powers granted in this 

Limited Power of Attorney. 

This Limited Power of Attorney shall become effective immediately upon execution and shall 

expire (i) upon the termination or earlier repudiation (by the Receiver under 12 U.S.C. § 1821(e)) 

of the Agreement, and (ii) as to any Agent(s), at such time as such Agent is no longer an 

employee or agent of the FDIC. This Limited Power of Attorney may be revoked by MERS 

and/or MERSCORP by providing written notice to Agent(s), but only at a time after all of the 

MERS Designated Loans have been transferred by MERS to the Receiver or a third party or 

parties designated by the Receiver. 

Dated: December 2012. 

Mortgage Electronic Registration Systems, Inc., 

a Delaware Corporation 

By:_______ 

Name: 

Title: 

CRE/ADC Venture 2012-1 Structured Transaction 

Electronic Tracking Agreement 

Version 3, 1.1 

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SCHEDULE A 


Federal Deposit Insurance Corporation, in its separate capacities as the Initial Member and as 

the Collateral Agent, in each case as Rights Holder 

List of Agents for Mortgage Electronic Registration Systems, Inc. 

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SCHEDULE B 


CDE/ADC Venture 2012-1 Structured Transaction 


List of Various Failed Financial Institutions 


Bank Name City State Fund Closing Date 

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ACKNOWLEDGMENT 

STATE OF VIRGINIA § 

§ 

COUNTY OF FAIRFAX § 

This instrument was acknowledged before me on the day of by , a 

duly authorized representative of Mortgage Electronic Registration Systems, Inc., a Delaware 

corporation, on behalf of said corporation. 

Notary Public, State of Virginia 

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SCHEDULE4 


FORM OF ELECTRONIC REPORT ON THE ASSETS AND COLLATERAL 


N/A 

SCHEDULE 4 

CRE/ ADC Venture 2012-1 Structured Transaction 

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Version 3.1.1 

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SCHEDULE 5 

TERMINATION WITHOUT CAUSE 

Manager may not terminate this Agreement without cause. 

SCHEDULE 5 


Schedules to Servicing Agreement for 

CRE/ADC Venture 2012-1, LLC Venture 
SCHEDULE 6 


BUSINESS PLAN SCHEDULE 


Servicer shall prepare, deliver and update the Business Plans and Consolidated Business Plans 

pursuant to Section 7. 7 of the Amended and Restated Limited Liability Company Operating 

Agreement and Section 5.2(h) of the Servicing Agreement. 

SCHEDULE 6 


Schedules to Servicing Agreement for 

CRE/ADC Venture 2012-1, LLC Venture