Multibank Structured Transaction 2010-1 CRE

EXECUTION COPY

SERVICING AGREEMENT
 

by and between
 

COLFIN AXLE FUNDING, LLC
 

and
 

SITUSSERV L.P.
 

Dated as of July 2, 2010

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

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TABLE OF CONTENTS
 

Page

Article I DEFINITIONS AND CONSTRUCTION............................................................. 1
 

Section 1.1 Definitions............................................................................................ 1
 

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

Article II SERVICING OBLIGATIONS OF THE SERVICER........................................... 4
 

Section 2.1 Appointment and Acceptance as Servicer ........................................... 4
 

Section 2.2 Limited Power of Attorney .................................................................. 4
 

Section 2.3 Servicing Fee ....................................................................................... 4
 

Section 2.4 Servicing Standard............................................................................... 4
 

Section 2.5 Collection Account .............................................................................. 5
 

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

Section 2.7 Escrow Accounts ................................................................................. 6
 

Section 2.8 Other Accounts .................................................................................... 6
 

Section 2.9 Maintenance of Insurance Policies; Errors and Omissions and
 

Fidelity Coverage................................................................................. 6
 

Section 2.10 Funding of Working Capital Expenses and Funding Draws ............... 8
 

Section 2.11 Expenses .............................................................................................. 8
 

Section 2.12 Insured or Guaranteed Loans............................................................... 8
 

Section 2.13 Registration with MERS...................................................................... 9
 

Section 2.14 Retained Obligations............................................................................ 9
 

Article III LOAN DEFAULTS; ACQUISITION OF COLLATERAL................................ 10
 

Section 3.1 Delinquency Control.......................................................................... 10
 

Section 3.2 Discretion of the Servicer in Responding to Defaults of
 

Borrower ............................................................................................ 10
 

Section 3.3 Acquisition of Acquired Property...................................................... 10
 

Section 3.4 Administration of REO Properties..................................................... 11
 

Article IV SUBSERVICING ................................................................................................ 13
 

Section 4.1 Retention of Subservicer.................................................................... 13
 

Section 4.2 Subservicing Agreement Requirements............................................. 13
 

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

Section 4.4 Manager Approval Required.............................................................. 16
 

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Section 4.5 Regulation AB Requirements............................................................ 16
 

Article V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
 

SERVICER .......................................................................................................... 16
 

Section 5.1 Representations and Warranties......................................................... 16
 

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

Section 5.3 Audits................................................................................................. 20
 

Section 5.4 No Liens............................................................................................. 21
 

Section 5.5 Servicer’s Duty to Advise; Delivery of Certain Notices ................... 21
 

Section 5.6 Notice of Breach or Change of Control ............................................. 22
 

Section 5.7 Copies of Documents......................................................................... 22
 

Section 5.8 Financial Information......................................................................... 22
 

Article VI MANAGER CONSENT...................................................................................... 22
 

Section 6.1 Actions Requiring Manager Consent................................................. 22
 

Section 6.2 Amendments, Modification and Waivers.......................................... 24
 

Article VII DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE............ 24
 

Section 7.1 Defaults.............................................................................................. 24
 

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.................................. 27
 

Section 8.1 Independence of Parties..................................................................... 27
 

Section 8.2 Indemnification.................................................................................. 27
 

Section 8.3 Procedure for Indemnification ........................................................... 28
 

Section 8.4 Pre-Effective Date Liabilities ............................................................ 28
 

Article IX NOTICES............................................................................................................. 29
 

Article X GOVERNING LAW; JURISDICTION .............................................................. 30
 

Section 10.1 Governing Law .................................................................................. 30
 

Section 10.2 Jurisdiction; Venue and Service......................................................... 30
 

Section 10.3 Waiver of Jury Trial........................................................................... 33
 

Article XI MISCELLANEOUS ............................................................................................ 33
 

Section 11.1 No Assignment by Servicer; No Transfer of Ownership
 

Interests in Servicing Rights.............................................................. 33
 

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Section 11.2 Legal Fees.......................................................................................... 33
 

Section 11.3 Entire Agreement............................................................................... 34
 

Section 11.4 Counterparts; Facsimile Signatures ................................................... 34
 

Section 11.5 Headings ............................................................................................ 34
 

Section 11.6 Compliance with Law........................................................................ 34
 

Section 11.7 Severability ........................................................................................ 34
 

Section 11.8 Third Party Beneficiaries................................................................... 35
 

Section 11.9 Protection of Confidential Information.............................................. 35
 

Section 11.10 Time of Essence................................................................................. 36
 

Section 11.11 No Presumption ................................................................................. 36
 

Section 11.12 No Right of Setoff.............................................................................. 36
 

Section 11.13 Release of Initial Member and Others............................................... 36
 

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SCHEDULES AND EXHIBITS
 

Exhibits

Exhibit A Loan Schedule

Exhibit B Electronic Tracking Agreement

Schedules

Schedule 1 List of Various Failed Financial Institutions

Schedule 2 Fee Schedule

Schedule 3 Servicing Obligations

Schedule 4 Reimbursement of Servicer Advances

Schedule 5 Form of Electronic Report on the Loans and Collateral

Schedule 6 Termination Without Cause

Schedule 7 Business Plans and Consolidated Business Plans

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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 2nd day of July, 2010 (the “Effective Date”),

by and between ColFin Axle Funding, LLC, a Delaware limited liability company (including its

successors and assigns, the “Manager”), and SitusServ L.P., a Texas limited partnership

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

Agreement, the “Servicer”).

RECITALS

WHEREAS, 2010-1 CRE Venture, LLC (the “Company”) owns the Loans (as defined

below) described on the Loan Schedule attached hereto as Exhibit A (the “Loan Schedule”);

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

responsibility to service and manage the Loans and related Collateral (as defined below)

pursuant to that certain Amended and Restated Limited Liability Company Operating Agreement

dated as of the Closing Date defined below (the “LLC Operating Agreement”), by and between

the Company, the Manager, including in its separate capacity as a member of the Company (in

such capacity as a member, together with its successors and assigns, the “Private Owner”), and

the Federal Deposit Insurance Corporation (in any capacity, the “FDIC”), as receiver for the

Failed Banks defined herein (the FDIC, in its separate capacities as receiver with respect to each

such receivership, the “Receiver”, and the Receiver as the Initial Member under such LLC

Operating Agreement, including its successors and assigns, the “Initial Member”); and

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

the Loans 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, the following terms shall

have the meanings set forth below. Any other defined terms used herein but not defined herein

shall have the meanings set forth in the Agreement of Common Definitions, dated as of July 2,

2010, between the Initial Member, the Company, the Private Owner, the Bank, the Collateral

Agent and the Purchase Money Notes Guarantor.

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

“Consolidated Business Plan” shall have the meaning given in the LLC Operating

Agreement.

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“Controlled Affiliate” with respect to the Servicer or any Subservicer, shall mean any

Affiliate thereof that is Controlled by the Servicer or such Subservicer, as applicable, or by its

Specified Parent (in the case of the Servicer).

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

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

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

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

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

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

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

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

Eligible Institution if the Initial Member and the Purchase Money Notes Guarantor provide a

written consent (which may be withheld in each such person’s sole and absolute discretion),

which consent may be withdrawn upon written notification to the Manager, in which case such

Affiliate of the Private Owner (or of the Manager) shall no longer constitute an Eligible

Institution as of the receipt of such notice and any accounts maintained pursuant to this

Agreement at such institution shall be moved to an Eligible Institution within three (3) Business

Days after the receipt of such notice.

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

“Fee Schedule” shall mean Schedule 2, as the same may be amended from time to time

by the Manager and the Servicer without the consent of the Purchase Money Notes Guarantor or

the Initial Member.

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

“Other Accounts” shall have the meaning given in Section 2.7.

“Retained Obligations” shall have the meaning given in Section 2.14.

“Servicer Advances” shall mean advances made by or on behalf of the Servicer to fund

Servicing Expenses.

“Servicing Fee” shall have the meaning given in Section 2.3.

“Servicing Obligations” shall have the meaning given in Section 2.4.

“Servicing Standard” shall have the meaning given in Section 2.4.

“Site Assessment” shall have the meaning given in Section 3.3.

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“Specified Date” shall mean the 10th day of each month, or such other day as is agreed to

by the Servicer and the Manager, provided, however, that, in any case, if such day is not a

Business Day, the Specified Date shall be the immediately preceding Business Day.

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

Article VII.

Section 1.2 Construction. This Agreement shall be construed and interpreted in

accordance with the following:

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

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

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

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

reference specifically provides otherwise.

(b) The term “or” is not exclusive.

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

replacement to such Law.

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

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

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

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

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

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

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

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

provision of this Agreement.

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

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

they are in fact followed by such words.

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

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

such period.

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

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

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

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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 Loan or Group of Loans, as of the applicable Servicing Transfer Date

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

dispose of the Loans 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 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 Loans and the

Collateral, the Manager shall pay the Servicer a servicing fee in the amount and at such times as

are set forth on the Fee Schedule (the “Servicing Fee”).

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

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

and Collateral as are set forth on Schedule 3, 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 Loans (and related Loan Documents), (iii) in accordance with

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

Law, (v) 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,

and (vi) to the extent consistent with the foregoing terms, in the same manner in which a prudent

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

manage and administer similar properties for its own portfolio or for other Persons, whichever

standard is higher, but using no less care and diligence than would be customarily employed by a

prudent servicer following customary and usual standards of practice of prudent mortgage

lenders, loan servicers and asset managers servicing, managing and administering similar loans

and properties on an arms’ length basis, provided that, with respect to each Loan and related

Collateral, in the absence of a customary and usual standard of practice, the Servicer shall

comply with the applicable Fannie Mae Guidelines, if any, with respect to similar loans or

properties in similar situations (the requirements in clauses (i) through (vii) collectively, the

“Servicing Standard”). In addition, the Servicer shall perform its Servicing Obligations without

regard to (a) any relationship that the Servicer, the Company, the Manager or any Subservicer or

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

Affiliates, including any other banking or lending relationship and any other relationship

described in Section 5.1(h), (b) the Company’s, the Manager’s, the Servicer’s or any

Subservicer’s obligation to make disbursements and advances with respect to the Loans and the

Collateral, (c) any relationship that the Servicer or any Subservicer may have to each other or to

the Company, the Manager or any of their respective Affiliates, or any relationship that any of

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

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

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

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

Subservicing Agreement.

Section 2.5 Collection Account.

(a) The Servicer shall deposit into the Collection Account all Loan Proceeds

on a daily basis (without deduction or setoff as provided in Section 11.2 hereof) within two

Business Days after receipt thereof by the Servicer. The Servicer shall not cause funds from any

other source (other than interest or earnings on the Loan Proceeds and 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 Funding Draws); provided, however, that if the Servicer or any Subservicer

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

erroneously deposited amount.

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

required to be remitted by the Servicer to the Collection Account under this Agreement shall be

remitted by wire transfer, in immediately available funds.

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

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

Section 2.6 Working Capital 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

into such Working Capital Reserve Account a reserve (together with such additional amounts as

may from time to time be in such Working Capital Reserve Account, the “Working Capital

Reserve”) in an initial amount of $7,500,000) for purposes of funding Working Capital

Expenses of the Company to the extent there are insufficient funds for payment of the same from

the funds in the Collection Account. Except as otherwise directed by the Manager, the Servicer

shall not cause funds from any other source (other than interest or earnings on the Working

Capital Reserve) 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).

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

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

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

conditions set forth in the Servicing Obligations).

(c) The Working Capital Account (and all funds therein) will be subject to an

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

Section 2.7 Escrow Accounts. Except as otherwise directed by the Manager, the

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

in trust for the benefit of the Company and the Collateral Agent (each, an “Escrow Account”,

which term shall include all so-called “lockbox” accounts maintained under the Loan Documents

and any other accounts maintained by the Company under the Loan Documents for amounts

deposited or required to be depoisted therein by the applicable Borrower). Except as otherwise

directed by the Manager, the Servicer shall deposit into the applicable Escrow Account on a

daily basis all collections from the Borrowers for the payment of taxes, assessments, hazard

insurance premiums, and comparable items for the account of the Borrowers, and all other

amounts required to be deposited in such Escrow Account pursuant to the applicable Loan

Documents. The Servicer shall pay to the Borrowers interest on funds in Escrow Accounts to the

extent required by Law or the applicable Loan Documents.

Section 2.8 Other Accounts. At the direction of the Manager, the Servicer shall

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

which shall be held in trust for the benefit of the Company and the Collateral Agent, and shall be

funded and disbursed only in accordance with such instructions as are provided by the Manager

(“Other Accounts”).

Section 2.9 Maintenance of Insurance Policies; Errors and Omissions and Fidelity

Coverage.

(a) The Servicer and each Subservicer shall cause insurance coverage to be

maintained for the Collateral (including any Acquired Property) as required under the

Reimbursement, Security and Guaranty Agreement and the LLC Operating Agreement,

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

Operating Agreement and, for so long as the same remain in effect the Reimbursement, Security

and Guaranty Agreement), insurance from an insurer reasonably acceptable to the Manager for

each Loan with respect to which the Borrower has failed to maintain required insurance, fire,

hurricane, flood and hazard insurance with extended coverage as is customary in the area in

which the Collateral is located and in such amounts and with such deductibles as, from time to

time, is directed by the Manager.

(b) The Servicer and each Subservicer shall maintain each of the following

types of insurance coverage having such limits as described below:

(i) Errors & Omissions Liability with limits of not less than

$10,000,000 per claim and $10,000,000 in the aggregate. The Manager shall be

notified immediately upon the reduction of or potential reduction of 50% of the

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limits. The Manager may require that the Servicer and each Subservicer purchase

additional limits to provide back to the required limits as stated above. “Potential

reduction of 50%” shall mean any knowledge by the Servicer or Subservicer, as

applicable, that a claim or the sum of all claims, current or initiated after effective

date of policy which would reduce the limits by 50%.

(ii) Directors & Officers Liability with limits of not less than

$10,000,000 each claim and $10,000,000 in the aggregate.

(iii) Crime Insurance or a Fidelity Bond in an amount of not less than

$10,000,000 covering employee theft, forgery & alteration, wire/funds transfer,

computer fraud, client coverage. Such coverage shall insure all employees or any

other persons authorized by Servicer or Subservicer to handle any funds, money,

documents and papers relating to any Loan, and shall protect the Servicer or

Subservicer, as applicable, against losses arising out of theft, embezzlement,

fraud, misplacement, and other similar causes. The Manager and the Company

shall each be named as a loss payee with respect to claims arising out of assets

handled under this Agreement or any applicable Servicing Agreement or

Subservicing Agreement.

(iv) General Liability with limits of not less than $1,000,000 each

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

products/completed operations, advertising and personal injury. The Manager

and the Company shall each be named as additional insured. Policy shall include

a Waiver of Subrogation in favor of the Manager and the Company.

(v) Auto Liability with a combined single limit of not less than

$1,000,000 to provide coverage for any owned, hired, or non-owned vehicles.

(vi) Workers Compensation in such amount as required by the states in

which the Servicer or Subservicer, as applicable, operates, including coverage for

Employer’s Liability in an amount not less than, $1,000,000. Policy shall include

a Waiver of Subrogation in favor of the Manager and the Company.

(vii) Umbrella Liability in an amount of not less than $10,000,000 each

occurrence and in the aggregate.

All such policies shall be written with carriers having a minimum insurer rating of A- VIII from

A.M. Best and A from Standard & Poor’s. All such policies shall have a minimum notice of

cancellation of thirty (30) days, except for non-payment of premium whereby a ten (10) day

notice of cancellation is acceptable. Certificates shall show each of the Manager and the

Company as certificate holder, or as otherwise designated by the language in clauses (i)-(vii)

above.

The Servicer shall provide (or shall cause each Subservicer to provide) the Purchase Money

Notes Guarantor, the Manager and the Initial Member with certificates evidencing all such

policies on the Effective Date (and, with respect to each Loan, the applicable Servicing Transfer

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Date with respect thereto) and each anniversary of the Closing Date thereafter, and otherwise

upon request of the Manager, the Purchase Money Notes Guarantor or the Initial Member.

Copies of fidelity bonds and insurance policies required to be maintained pursuant to this Section

2.9 shall be made available to the Manager, the Purchase Money Notes Guarantor and the Initial

Member or their respective representatives on the Effective Date (and, with respect to each Loan,

on the applicable Servicing Transfer Date with respect thereto), and shall otherwise be made

available to any of the Manager, the Purchase Money Notes Guarantor and the Initial Member

and their respective representative upon request.

Section 2.10 Funding of Working Capital Expenses and Funding Draws. To the extent

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

Servicer shall, on behalf of the Manager, in turn acting on behalf of the Company (and from

Company funds made available by the Manager), make applicable Funding Draws and pay other

applicable Working Capital Expenses; provided that the making of the same is consistent with

the applicable terms and conditions in the Custodial and Paying Agency Agreement and, subject

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

other Transaction Documents. Servicer acknowledges that (a) subject to the Custodial and

Paying Agency Agreement (and any permitted transfer or release as funds as provided therein),

the Working Capital Reserve shall be used exclusively for funding of Working Capital Expenses

(including the making of applicable Funding Draws with respect to specified Loans or related

Acquired Property), but only if there are insufficient available funds in the Collection Account;

(b) proceeds of Discretionary Funding Advances shall be used exclusively for making Funding

Draws with respect to specified Loans or related Acquired Property (and in no event may

Discretionary Funding Advances be used for payment of any Working Capital Expenses other

than Funding Draws); and (c) proceeds of Excess Working Capital Advances shall be used

exclusively for payment Working Capital Expenses other than Funding Draws (and in no event

may Excess Working Capital Advances be used for the making of any Funding Draws) and for

such other purposes as may be expressly permitted pursuant to the LLC Operating Agreement.

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

use its reasonable best efforts to recover from Borrowers and Obligors all amounts of Servicing

Expenses that are advanced by the Servicer (as permitted or required pursuant to the Servicing

Obligations) as Servicer Advances to the extent that the Borrowers and Obligors are responsible

for such Servicing Expenses under the Loan 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 4, as the same may be amended from time to time by the

Manager (without the consent of the Initial Member) and the Servicer. In no event may any

Servicer Advances be deductible from or netted against any Loan 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 amounts 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 Loan

Proceeds.

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

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

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

with respect to such Loans, 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 Loans pursuant to

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

insurance or guaranty.

Section 2.13 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 turn on behalf

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

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

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

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

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

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

such Loan (provided, that, at the option of the Manager in accordance with the LLC Operating

Agreement and so long as each applicable designee is and remains a MERS member in good

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

and (2) 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(g) of

the LLC Operating Agreement), all Loans registered on the MERS® System shall remain

registered on the MERS® System unless default, foreclosure or similar legal or MERS®

requirements dictate otherwise. The Servicer shall provide the Manager and the Initial Member

with such reports from the MERS® System as the Manager or the Initial Member, from time to

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

identified on the MERS® System as having any interest in any of the 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 Collateral Agent and

the Initial Member, shall execute such Electronic Tracking Agreement on the Closing Date and

deliver the same to MERS. Without limiting the foregoing, upon the request of the Manager or

the Initial Member, the Servicer shall cause MERS to run a query with respect to any and all

specified fields on the MERS® System with respect to any or all of the 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 its instructions.

Section 2.14 Retained Obligations. As used herein, the “Retained Obligations” shall

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

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

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

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

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

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

shall, mutatis mutandis, be deemed a reference to the Manager.

ARTICLE III

LOAN DEFAULTS; ACQUISITION OF COLLATERAL

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

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

Standard and protects the Company’s interests in the Loans 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 Loan Documents, but subject to the other

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

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

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

cause to be determined the response to such default and course of action with respect to such

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

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

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

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

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

judicial action, (d) the institution of proceedings against any Obligor, (e) the acceptance of a

deed in lieu of foreclosure, (f) the purchase of the real property Collateral at a foreclosure sale or

trustee’s sale or the purchase of the personal property Collateral at a Uniform Commercial Code

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

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

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

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

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

Operating Agreement 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 Loan as to which the Servicer has received actual notice of, or

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

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

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

be commissioned with respect to such Collateral (i) a Transaction Screen Process consistent with

ASTM Standard E 1528-06, by an environmental professional or (ii) such other site inspections

and assessments by a Person who regularly conducts environmental audits using customary

industry standards as would customarily be undertaken or obtained by a prudent lender in order

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to ascertain whether there are any actual or threatened Environmental Hazards (a “Site

Assessment”), and the cost of such Site Assessment shall be deemed to be a Servicing Expense

as long as the costs for such Site Assessment were not paid to any Affiliate of the Manager or

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

the Servicer or any Subservicer shall not acquire or otherwise cause the Company or any

subsidiary or other entity in which the Company owns any interest to acquire all or any portion

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

lieu of foreclosure, power of sale or sale pursuant to the Uniform Commercial Code or

otherwise. If title to any Collateral that constitutes real property is to be acquired by foreclosure,

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

Code, or otherwise, title to such Acquired Property shall be taken by and held in the name of an

Ownership Entity; provided, however, that for any Collateral which becomes Acquired Property

after the Servicing Transfer Date relating thereto and with respect to which there exists any

Environmental Hazard, the Ownership Entity that holds such Collateral may hold title only to the

relevant Collateral with respect to which the Environmental Hazard exists.

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

conditions set forth herein, in connection with any REO Properties, the Servicer shall, in each

case subject to applicable instructions from the Manager and the Servicing Obligations, comply

with the following terms and conditions:

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

insurance in compliance with applicable requirements herein and in the LLC Operating

Agreement.

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

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

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

practices for properties similar to the applicable 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 REO Property owned by such Ownership

Entity, or use or permit the use of any portion of an REO Property in any manner that could

result in such use (taking into account any applicable variance obtained in accordance with the

Servicing Standard) becoming a non-conforming use under any zoning ordinance or any other

applicable land use law, rule or regulation, without the prior consent of the Manager, the

Collateral Agent and the Initial Member.

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

initiate the joint assessment of REO Property (i) with any other real property constituting a tax

lot separate from such REO Property, and (ii) with any portion of an 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 REO Property.

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

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

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 Transaction Documents) and in accordance with

applicable Law.

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

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

under such agreements (including their right to receive management fees) to the rights and

interest of the Collateral Agent under the applicable REO Mortgage (as defined in the

Reimbursement, Security and Guaranty Agreement).

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

lease (in each case, a “ground lease”), the Servicer shall cause the applicable Ownership Entity

to (i) pay all rents and other sums required to be paid by the tenant under and pursuant to the

provisions of the applicable ground lease as and when such rent or other charge is payable, and

(ii) diligently and timely perform and observe all of the terms, covenants and conditions binding

on the tenant under the ground lease. The Servicer shall not permit the applicable Ownership

Entity to subordinate or consent to the subordination of any ground lease to any mortgage, lease

or other interest on or in the ground lessor’s interest in the applicable REO Property without the

prior consent of the Manager and the Collateral Agent unless such subordination is required

under the provisions of such ground lease.

(h) In the event the Manager elects to fund the construction of the REO

Property (pursuant to Funding Draws for such purpose), then the Servicer shall cause each

Ownership Entity to pursue with diligence the construction of the REO Property owned by such

Ownership Entity (i) in accordance with the construction, construction management (if any) and

all other material contracts relating to such construction, and all requirements of Law, all

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

governmental approvals, (ii) in substantial compliance with the plans and specifications therefor

as in existence on the Closing Date and as thereafter modified by the Manager (or the Servicer,

to the extent permitted in the Servicing Obligations), (iii) in a good and workmanlike manner and

free of defects, (iv) in a manner such that such REO Property remains free from any Liens,

claims or assessments (actual or contingent) for any material, labor or other item furnished in

connection therewith and (v) in conformance with the requirements for Funding Draws.

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

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

best interests of the Company, and the members and creditors of the Company (including the

FDIC in its various capacities) and in accordance with the Servicing Standard, and (ii) without

relieving the Servicer of any obligation elsewhere in this Agreement, and subject to any

applicable Servicing Obligations, the Servicer shall not be required to act in accordance with a

specific provision of this Section 3.4 if such action is (A) not in the best interests of Company

and the members and creditors of the Company (including the FDIC in its various capacities), as

determined by the Servicer in the exercise of its reasonable discretion, or (B) not in accordance

with the Servicing Standard.

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(j) The Servicer shall furnish to the Manager, the Collateral Agent and the

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

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

request.

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 (individually and

collectively, “Subservicer”), 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 (“Subservicing Agreement”) shall, among other things:

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

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

Agreement and the LLC Operating Agreement;

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

of any Event of Default (as defined in the LLC Operating Agreement), any Default under this

Agreement or any default under the Subservicing Agreement as set forth in Section 4.2(m)

below;

(c) provide that the Servicer as well as the Manager and the Initial Member

shall each be entitled to exercise termination rights thereunder;

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

Subservicing Agreement constitutes a personal services agreement between the Servicer and the

Subservicer;

(e) provide that each of the Initial Member and the Manager is a third party

beneficiary under the Subservicing Agreement for all purposes and is entitled to enforce the

Subservicing Agreement, and that each of the FDIC, the Purchase Money Notes Guarantor and

the Company is a third party beneficiary thereunder to the extent of any rights expressly granted

to such Person under the Subservicing Agreement (and such Subservicing Agreement shall

include rights in favor of the FDIC, the Purchase Money Notes Guarantor and the Company that

are equivalent to the rights granted to such Persons hereunder) and is entitled to enforce the

Subservicing Agreement with respect to such rights; and further provide that in no event shall

any amendment or waiver to any such Subservicing Agreement limit or affect any rights of any

such third party beneficiary thereunder without the express written consent of such third party

beneficiary;

(f) provide that (i) upon removal of the Manager as the “Manager” pursuant

to the LLC Operating Agreement and/or notice from the Initial Member or the Manager of the

occurrence of any Event of Default (as defined in the LLC Operating Agreement) under the LLC

Operating Agreement, the Initial Member (and any successor “Manager” under the LLC

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Operating Agreement) may exercise all of the rights of the Manager under this Agreement and

further cause the termination or assignment to any other Person of this Agreement (and, in the

event of any such termination or assignment of this Agreement, the termination or assignment of

any Subservicing Agreement), without penalty or payment of any fee, and (ii) upon the

occurrence of any Default under this Agreement, each of the Manager (or applicable successor

“Manager” under the LLC Operating Agreement) and the Initial Member may exercise all of the

rights of (A) the Manager under this Agreement and cause the termination or assignment of this

Agreement to any other Person, without penalty or payment of any fee, and (B) the Servicer

under the Subservicing Agreement and cause the termination or assignment of the Subservicing

Agreement to any other Person, without penalty or payment of any fee;

(g) provide that the Initial Member, the Manager, the Purchase Money Notes

Guarantor and the Company (and each of their respective representatives) shall each have access

to and the right to review, copy and audit the books and records of the Subservicer and that the

Subservicer shall make available its officers, directors, employees, accountants and attorneys to

answer the Initial Member’s, the Manager’s, the Purchase Money Notes Guarantor’s and the

Company’s (and each of their respective representatives’) questions or to discuss any matter

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

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

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

accounts created under the Custodial and Paying Agency Agreement or any matters relating to

this Agreement or the Subservicing Agreement or the rights or obligations thereunder;

(h) provide that all Loan Proceeds are to be deposited into the Collection

Account on a daily basis (without reduction or setoff as provided in Section 11.12 hereof) within

two Business Days of receipt and that under no circumstances are any funds, other than Loan

Proceeds and interest and earnings thereon and the proceeds of Working Capital Advances and

Discretionary Funding Advances, to be commingled into the Collection Account;

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

under the Subservicing Agreement with the Servicer and that any prohibited sale, transfer or

assignment shall be void ab initio;

(j) provide that the Subservicer consents to the immediate termination of the

Subservicer pursuant to Section 7.2 of this Agreement;

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

against the Loan Proceeds (or the Company);

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

that the Subservicer is obligated to comply with the Servicing Obligations of the Servicer

hereunder in the conduct of such matters as are delegated to the Subservicer;

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

that correspond to the provisions of Section 7.1(a), (b), (c), (d), (e), (f), (g) and (h) of this

Agreement, and (ii) provide that each of the Manager and the Initial Member has the right (x) to

terminate the Subservicing Agreement by providing written notice upon the occurrence of any

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such default, 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 of this Agreement), and (y)

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

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

under the Subservicing Agreement upon the occurrence of any of (x) a Default under Section

7.1(b) of this Agreement, or (y) an Insolvency Event with respect to the Subservicer or any of its

Related Parties, and (ii) the occurrence of any Insolvency Event with respect to the Subservicer

or any of its Related Parties constitutes a default under the Subservicing Agreement;

(o) provide a full release and discharge of the Initial Member, the Company,

the Existing Servicers (as defined in the Contribution Agreement), the FDIC, in relation to any

particular Loan, the relevant Failed Bank and any predecessor-in-interest thereof, any Ownership

Entities existing as of the applicable Servicing Transfer Date, and all of their respective officers,

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

respective successors, assigns and Affiliates (but excluding, in all cases, the Manager) (any such

Person, a “Prior Servicer” and collectively, the “Prior Servicers”), from any and all claims

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

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

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

servicing of the Loans by the Prior Servicers prior to the applicable Servicing Transfer Date

(other than due to gross negligence, violation of law or willful misconduct of such Prior

Servicer);

(p) provide that, to the extent required under Section 2.13 hereof (or Section

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

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

otherwise;

(q) provide that the Subservicer shall immediately notify the Manager and the

Initial Member upon becoming aware of any Subservicer or any Affiliate thereof at any time, (i)

being or becoming a partner or joint venturer with any Borrower or Obligor, (ii) being or

becoming an agent of any Borrower or Obligor, or allowing any Borrower or Obligor to be an

agent of such Subservicer or of any Affiliate thereof, or (iii) having any interest whatsoever in

any Borrower or Obligor; and

(r) not conflict with the Servicing Standard or any other terms or provisions

of this Agreement, the LLC Operating Agreement, the Custodial and Paying Agency Agreement

or any of the other Transaction Documents insofar as such other terms or provisions apply to the

Subservicer or the Servicing Obligations. Nothing contained in any Subservicing Agreement

shall alter any obligation of the Servicer under this Agreement or the Manager under the LLC

Operating Agreement and, in the event of any inconsistency between the Subservicing

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

this Agreement or the LLC Operating Agreement, as applicable, shall apply.

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

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

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

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

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

conditioned so long as the provisions required under Section 4.2 are not modified or deleted). A

copy of all Subservicing Agreements, as executed and delivered and all amendments thereto,

shall be provided to the Manager.

Section 4.5 Regulation AB Requirements. The Servicer shall use commercially

reasonable efforts to maintain in place, and to confirm, where applicable, that each Subservicer

has in place, policies and procedures to comply with the relevant servicing criteria provisions of

Section 1122(d)(1) of Regulation AB that are applicable and relate to the servicing being

conducted under this Agreement, including for purposes of preparation and delivery of the

annual reports (including the independent accountant report) required pursuant to Section 5.2(g)

below; provided that the following Regulation AB criteria shall not be deemed relevant to the

servicing being conducted under this Agreement: Section 1122(d)(1)(iii) regarding backup

servicer requirements; Sections 1122(d)(3)(i-iv) regarding paying agent requirements; and

Section 1122(d)(4)(xv) regarding external credit enhancement.

ARTICLE V

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER

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

representations and warranties as of the date hereof:

(a) The Servicer (i) is a limited partnership, duly organized, validly existing

and in good standing under the laws of the State of Texas, (ii) has qualified or will qualify to

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

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

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

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

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

United States.

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

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

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

all requisite limited partnership 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 limited partnership action has been taken by the

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

is or will be a party valid and binding upon the Servicer in accordance with their terms and

conditions.

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

authorized to do so.

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

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

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

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

breach of any term or provision of the articles or charter or bylaws or 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) Neither the Servicer nor any Subservicer or their respective Controlled

Affiliates shall, at any time, (i) be a partner or joint venturer with any Borrower or Obligor, (ii)

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

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

whatsoever in any Borrower or Obligor.

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

remain, a Qualified Servicer.

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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 Loan 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 Loans, for the calendar or tax year in which the Effective Date

falls and thereafter.

(b) The Servicer shall cause to be kept and maintained, 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 Loans and the

Collateral, and the Company’s interests in the Loans and the Collateral, including records

relating to the Collection Account, the Working Capital Reserve Account, the Escrow Accounts

and any Other Accounts maintained in connection with the Loans, Servicer Advances, Funding

Draws and other Working Capital Expense and collection and remittance of Loan Proceeds. The

books of account shall be maintained in a manner that provides sufficient assurance that:

(a) transactions are executed in accordance with the general or specific authorization of the

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

the Company are recorded in such form and manner as will: (i) 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; (ii) permit preparation of the Company’s

financial statements in accordance with GAAP and the LLC Operating Agreement and the

provisions of the reports required to be provided thereunder; and (iii) maintain accountability for

the Company’s assets.

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

retained until the date that is the later of ten (10) years after the Closing Date and three (3) years

after the date on which the final Loan Proceeds are distributed to the Company, which date shall

be established by notice to the Servicer from the Manager. All such books and records shall be

available during such period for inspection by the Manager, the FDIC, the Purchase Money

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

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

Business Days (or, in the case of any such inspection after the term hereof, at such other location

as is provided by notice to the Manager, the FDIC, the Purchase Money Notes Guarantor and the

Initial Member, as applicable), in each instance upon not less than two (2) Business Days’ prior

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

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

of such books and records to the Manager. The Servicer shall provide the Manager with

reasonable advance notice of the Servicer’s intention to destroy or dispose of any documents or

files relating to the Loans and, upon the request of the Manager, shall allow the Manager, at its

own expense, to recover the same from the Servicer. The Servicer shall also maintain complete

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

which could become a Lien on any Collateral.

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

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

possession or control pertaining to the Loans 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 Loans and the Collateral, all documentation relating to

items of income and expense pertaining to the Loans and the Collateral, and all of the Servicer’s

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

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

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

the Servicing Obligations), a monthly Electronic Report on the Loans and Collateral containing

such information and substantially in the form set forth on Schedule 5 as the same may be

amended from time to time by the Manager (without the consent of the Initial Member) and the

Servicer (the “Electronic Report”). The Electronic Report shall include, but not be limited to,

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

Agreement, the “Distribution Date Report” and the “Monthly Report” (each as defined in the

LLC Operating Agreement), and such other reports and information as the Manager shall

reasonably require, to the extent such information is reasonably available to the Servicer.

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

Date, the applicable Electronic Reports may exclude certain of the information otherwise

required to be included therein if and to the extent the Initial Member is obligated to provide

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

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

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

Initial Member fails to timely deliver such information to the Servicer and the Manager.

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

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

Servicer may agree, commencing in the year 2011, an annual officer’s certificate stating, as to

the signer thereof, that (i) a review of such party’s activities during the preceding calendar year

(or other applicable period as set forth below in this Section 5.2(f)) and of its performance under

this Agreement (or, as applicable, any Subservicing Agreement) has been made under such

officer’s supervision, and (ii) to the best of such officer’s knowledge and belief, based on such

review, such party has fulfilled all of its obligations under this Agreement (or, as applicable, any

Subservicing Agreement) in all material respects throughout such year or portion thereof or, if

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

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

respect to any Loan, shall cover the period commencing on the Servicing Transfer Date and

continuing through the end of the 2010 calendar year. In the event any Subservicer was

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 Loan, on the Servicing Transfer Date through the end of the 2010 calendar 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 10th of each year, or such other day as the Manager

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

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applicable Subservicer to, provide to the Manager (and/or to such other Person as the Manager

may direct) the annual reports (including the independent accountant report) for the prior year (or

other applicable period as set forth below) required under Section 1122 of Regulation AB

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

or required to file reports with the Securities and Exchange Commission) with respect to the

relevant servicing criteria provisions of Section 1122(d)(1) of Regulation AB that are applicable

to the servicing being conducted under this Agreement pursuant to Section 4.5 above. The first

such reports shall cover the period commencing on the Effective Date (and for each Loan,

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

of the 2010 calendar year.

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

Agreement to prepare, review and periodically update Business Plans and Consolidated Business

Plans, the Servicer shall prepare and deliver to the Manager, and thereafter periodically update,

such Business Plans and Consolidated Business Plans, or relevant portions thereof or information

to be included therein, in each case to the extent set forth and required pursuant to Schedule 7

hereto as the same may be amended from time to time by the Manager and the Servicer without

the consent of the Initial Member (the “Business Plan Schedule”). Upon reasonable notice by

the Initial Member, the Purchase Money Notes Guarantor or the Manager, the Servicer shall

make its personnel who are familiar with the Business Plans and Consolidated Business Plans (or

relevant portions thereof) available during normal business hours for the purposes of discussing

such Business Plans and Consolidated Business Plans with representatives of the Initial Member,

the Purchase Money Notes Guarantor and/or the Manager and responding to questions

therefrom.

Section 5.3 Audits. Until the later of the date that is ten (10) years after the Closing

Date and the date that is three (3) years after the date on which the final Loan Proceeds are

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

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

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

Accounts, any Other Accounts or any matters relating to this Agreement or the rights or

obligations hereunder, (b) permit such representatives to make copies of and extracts from the

same, (c) allow the Manager, the Purchase Money Notes Guarantor and the Initial Member to

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

Notes Guarantor or the Initial Member, as applicable, and (d) allow the Manager, the Purchase

Money Notes Guarantor and the Initial Member to discuss the Servicer’s and Subservicer’s

affairs, finances and accounts, as they relate to the Loans, the Collateral, the Servicing

Obligations, the Collection Account, the Escrow Accounts, and any Other Accounts or any other

matters relating to this Agreement or the rights or obligations hereunder, with its officers,

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

accountants to discuss such affairs, finances and accounts with such representatives),

Subservicers, and attorneys. Any expense incurred by the Manager, the 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 Purchase Money Notes Guarantor

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

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

incident to the exercise by Manager, the 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

an Default by the Servicer hereunder shall in all cases be borne by the Servicer.

Section 5.4 No Liens. The Servicer (i) shall not place or voluntarily permit any Lien

to be placed on any of the Loans, the Collateral, the Loan Documents or the Loan Proceeds,

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

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

Reimbursement, Security and Guaranty Agreement, and (ii) shall not take any action to interfere

with the Collateral Agent’s rights as a secured party with respect to the Loans, the Collateral and

the Loan Proceeds.

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

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

Manager, the Purchase Money Notes Guarantor and the Initial Member hereunder, the Servicer

shall cause to be delivered to the Manager such information relating to the Loans, 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 any Subservicer becomes aware relating to the Loans, any of the Collateral, the

Collection Account, the Escrow Accounts, any accounts created under the Custodial and Paying

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

adversely affects the interests of the Company, the Purchase Money Notes Guarantor or the

Initial Member. Without limiting the generality of the foregoing, the Servicer shall immediately

notify the Manager of (i) any claim, threatened claim or litigation against the Servicer, the

Company, the Manager or the Initial Member arising out of or with respect to any Loan, (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 Funding Draws have been, or are contemplated to be, made, or (iv)

any other occurrence which would reasonably be expected to materially hamper, prevent or

interfere with the effectuation of any then-applicable Business Plans or Consolidated 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 Loan and Collateral (i) 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, (ii) in the case of any Loan, describing the remedial efforts or enforcement actions, if any,

being undertaken by the Servicer with respect to the applicable Loan, (iii) describing the status of

the activities contemplated by the Business Plans and the Consolidated Business Plan(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 or Consolidated

Business Plan), (iv) 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

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(including capitalized interest, real estate taxes and other soft costs), (v) to the extent requested

by the Manager, any materials delivered by the Borrower to the Company or the Servicer

pursuant to the applicable Loan Documents not theretofore delivered to the Manager (including,

without limitation, copies of all plans and specifications, construction budgets and construction

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

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

the applicable Borrower in connection with each request for an advance under the related Loan

and (vi) such other information as the Manager reasonably requests.

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

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

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

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

Section 5.7 Copies of Documents. Copies of the LLC Operating Agreement 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 amendments, 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 Purchase

Money Notes Guarantor, under this Agreement, the LLC Operating Agreement or the other

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

Transaction Documents (or portions thereof) as have been, or from time to time are, delivered to

Servicer.

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

copies thereof to be delivered by the Servicer to the Purchase Money Notes Guarantor and the

Initial Member, (i) within forty-five (45) days after the end of each of its fiscal quarters,

commencing on the Effective Date, and (ii) within ninety (90) days after the end of each of its

fiscal years, commencing on the Effective Date, a letter certified by an officer of the Servicer

that details certain agreed upon financial trends and ratios relating to the Servicer (and/or such

other financial information as the Manager, the Purchase Money Notes Guarantor or the Initial

Member 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 consent of the Initial Member and/or the Purchase Money Notes

Guarantor), which consent may be withheld or conditioned in the sole and absolute discretion of

the Manager:

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

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

Agreement);

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

foreclosure or by deed in lieu thereof) of any Loan 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 Loans, Collateral or

Acquired Property (or any portion thereof);

(d) the sale of any Loan or Collateral or Acquired Property (or any portion

thereof) that provides for any recourse against the Company, the Initial Member or the FDIC in

any capacity, or against any interest in the Company held by the Initial Member or any share of

the Loan Proceeds allocable to the Initial Member;

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

such funds made available through Discretionary Funding Advances or Excess Working Capital

Advances), the Working Capital Reserve Account, the accounts created under the Custodial and

Paying Agency Agreement or any Other Accounts other than in accordance with the provisions

of this Agreement, the LLC Operating Agreement, the Reimbursement, Security and Guaranty

Agreement and the Custodial and Paying Agency Agreement;

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

Balance of any Loan other than (i) Funding Draws, or (ii) 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 Loan Documents;

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

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

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

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

are the subject of such Loan (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 Loan or the performance of any other obligation relating thereto; (v) granting any consent

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

of any Collateral or transfers, pledges or changes in management of any direct or indirect

interests in any Borrower, proposed alterations, proposed settlements of insurance claims,

condemnation claims or deficiencies or proposed applications of insurance proceeds or

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

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

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

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

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

such Loan, 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 the Initial Member, except for those provisions that may be amended by the express terms

hereof without the Initial Member’s consent. In no event shall any such amendment or waiver

limit or affect the rights of the FDIC (as a third party beneficiary hereunder as specified in

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

ARTICLE VII

DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE

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

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

Collection Account, the Escrow Accounts, any accounts created under the Custodial and Paying

Agency Agreement or any Other Accounts any amount required to be so remitted or deposited

under the terms of (i) this Agreement or (ii) the Custodial and Paying Agency Agreement or the

LLC Operating Agreement; or

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

provided for in the definition of Insolvency Event) (i) with respect to the Servicer or any of its

Related Parties, or (ii) with respect to any Subservicer or any of its Related Parties; provided,

that any such Insolvency Event under this clause (ii) (that is not otherwise an Insolvency Event

under clause (i) hereof) shall not be an Event of Default hereunder (but shall in all events be a

default under the applicable Subservicing Agreement) so long as the Servicer shall have fully

replaced such affected Subservicer within thirty (30) days after the occurrence of such

Insolvency Event; or

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

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

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

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

Section 5.2(f) or Section 5.2(g), which failure continues unremedied for a period of twenty-five

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

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

Manager to the Servicer; or

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

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

responsibilities under this Agreement in compliance with Law, or (ii) to have an Acceptable

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Rating or otherwise be approved by the Initial Member or (iii) to cause each Subservicer to meet

the applicable characteristics of a Qualified Servicer as required under Section 4.1 and to renew

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

Subservicing Agreement, which, in the case of either (i), (ii) or (iii), continues unremedied for a

period of thirty (30) days after the date on which written notice of such failure requiring the same

to be remedied shall have been given by the Manager or the Initial Member to the Servicer; or

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

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

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

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

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

(f) any other failure (other than those specified in any of Section 7.1(a)

through (e)) by the Servicer to duly observe or perform any other covenants or agreements on the

part of the Servicer contained in this Agreement or to perform any Servicing Obligation in

compliance with the Servicing Standard, and such failure continues unremedied for a period of

thirty (30) days, or such other period as the Manager, with the consent of the Initial Member, and

the Servicer agree, after the date on which written notice of such failure shall have been given by

the Manager or the Initial Member to the Servicer; provided, however, that in the case of a

failure that cannot be cured within thirty (30) days (or such other period as the Manager, with the

consent of the Initial Member, and the Servicer agree) with the exercise of reasonable diligence,

the cure period shall be extended for an additional thirty (30) days if the Servicer can

demonstrate to the reasonable satisfaction of the Manager and the Initial Member that the

Servicer is diligently pursuing remedial action; and provided, further, that, with respect to any

such failure 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 the 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) the occurrence of any “Event of Default,” as defined in the LLC Operating

Agreement; or

(h) receipt by the Manager or the Servicer of notice from the Purchase

Money Notes Guarantor that an “Event of Default” as defined in the Reimbursement, Security

and Guaranty Agreement has occurred and is continuing; or

(i) 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, the

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

Agreement) or the Initial Member, in addition to any other rights the Manager or the Initial

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Member may have at law (including under the Uniform Commercial Code) or 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) The Servicer hereby consents to its immediate and automatic termination

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

(c) Upon a default or failure of the Manager to perform its obligations under

this Agreement in a material manner, including but not limited to, the failure of the Manager to

pay to the Servicer the Servicing Fee in a full and timely manner, the Servicer, in addition to any

other rights it may have pursuant to this Agreement, at law or in equity, may terminate this

Agreement by providing a Termination Notice to the Manager, with a copy to the Purchase

Money Notes Guarantor and the Initial Member. The Termination Notice shall set forth with

specificity the nature of the default or failure to perform of the Manager and provide the

Manager with no less than thirty (30) days to cure any such default or failure to perform. In the

event that the default or failure to perform is not cured within thirty (30) days after the date of

delivery of the Termination Notice, the Servicer shall provide a second Termination Notice to

the Manager with a copy to the Purchase Money Notes Guarantor and the Initial Member, which

second Termination Notice shall be prominently labeled as the “Second Termination Notice”.

Such Second Termination Notice shall confirm to the Manager that the Servicer shall continue to

perform the Servicing Obligations under this Agreement until the earlier to occur of (i) ninety

(90) days after the delivery of the Second Termination Notice to the Manager, the Purchase

Money Notes Guarantor and the Initial Member, and (ii) the transfer of the Servicing Obligations

to a successor Servicer. The duty of the Servicer to continue to perform the Servicing

Obligations as provided in the Second Termination Notice is contingent upon the timely and full

payment of the Servicing Fee to the Servicer during such period. The Servicer shall cooperate

fully and completely with the transition of the Servicing Obligations to a successor Servicer in

order to assure an orderly transfer.

Section 7.3 Termination without Cause.

(a) The Manager may, without cause, terminate this Agreement, upon

providing a Termination Notice to the Servicer, but only as and in accordance with the

provisions set forth on Schedule 6 as the same may be amended from time to time by the

Manager (without the Initial Member’s consent) and the Servicer.

(b) The Servicer may, at any time after the first anniversary of the Effective

Date and thereafter, 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 the

Purchase Money Notes Guarantor and the Initial Member, a Termination Notice, which for the

purpose of this Section 7.3(b) shall be a notice of the Servicer’s intent to terminate this

Agreement. Such Termination Notice shall be provided at least sixty (60) days prior to any date

specified by the Servicer as the date of termination of the Servicer’s Obligations under this

Agreement. Notwithstanding the foregoing, such Termination Notice shall not be effective

unless the Termination Notice contains confirmation of the intent and obligation of the Servicer

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to continue to perform its Servicing Obligations until the earlier of (i) ninety (90) days after the

Termination Notice is given and (ii) such other date on which the Servicing Obligations are

transferred to a successor Servicer in an orderly manner. Servicer shall cooperate fully and

completely with the transition of the Servicing Obligations to a successor Servicer, to be

designated by the Manager, in order to assure an orderly transfer. The Servicer issuing the

Termination Notice shall be liable for all costs associated with the transfer of Servicing

Obligations to the successor Servicer, including but not limited to the costs of transporting the

servicing files and the provision of any notices to Borrowers.

Section 7.4 Effective Termination Date. Termination as specified in this Article VIII

shall be effective at such time as is specified in the Termination Notice. In the event of such

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

to the Loans or otherwise, shall pass to and be vested in the 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). The Servicer agrees to cooperate with the Manager, the Initial Member,

any successor “Manager” under the Operating Agreement and any successor servicer with

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

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

Law prior to such termination.

Section 7.5 Accounting. Upon termination of this Agreement as set forth herein, the

Servicer shall account for and turn over to the Manager or its designee (or, if applicable, pursuant

to such instructions as may be provided by the Initial Member or any successor “Manager”

pursuant to the LLC Operating Agreement) funds collected under the terms of this Agreement.

The Servicer shall provide written notice in conformance with all applicable Law to the

Borrowers to indicate that their Loans will henceforth be serviced by the Manager (or applicable

successor “Manager” under the LLC Operating Agreement) or any applicable successor Servicer

designated by the Manager (or any successor “Manager” under the LLC Operating Agreement)

or the Initial Member as the case may be, and transfer its duties as the Servicer to the Manager

(or successor “Manager” under the LLC Operating Agreement) or such successor Servicer.

ARTICLE VIII

INDEPENDENCE OF PARTIES; INDEMNIFICATION

Section 8.1 Independence of Parties. The Servicer shall have the status of, and act as,

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

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

Section 8.2 Indemnification. The Servicer agrees to indemnify, defend and hold

harmless the Company, the Manager, the Purchase Money Notes Guarantor, the Initial Member

and each of their respective Affiliates, directors, officers, employees and agents and each of their

respective successors and assigns (the “Indemnified Parties”) from and against any and all

claims, demands, suits, actions, proceedings, assessments, losses, costs, expenses (including

attorneys’ fees), damages and liabilities of any kind or nature whatsoever directly or indirectly

resulting from or arising out of or related to (i) any inaccuracy in any of the Servicer’s warranties

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or representations contained in this Agreement, (ii) any failure by the Servicer to observe or

perform any or all of the Servicer’s covenants, agreements or warranties contained in this

Agreement, (iii) any act taken by the Servicer purportedly pursuant to a power of attorney

granted by the Manager which act results in a claim related to the unlawful use of such power of

attorney, and/or (iv) any failure by the Servicer or any Subservicer to discharge obligations on

any Collateral relating to taxes, ground rents or other such recurring charges generally accepted

by the mortgage servicing industry, which would become a Lien on the Collateral. The Servicer

shall immediately notify the Indemnified Party if a claim is made in connection with the

Servicer’s responsibilities under this Agreement (including the Servicer’s responsibilities in

connection with the Loans and Collateral under this Agreement), assume (with prior consent of

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

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

decree which may be entered against it or any Indemnified Party in respect of such claim. No

expenses incurred by the Servicer or any Subservicer in connection with its obligations under

this Section 8.2 shall constitute Servicing Expenses or otherwise be deducted from or reimbursed

out of Loan Proceeds. The Servicer shall follow any reasonable written instructions received

from the Indemnified Party in connection with such claims, it being understood that the

Indemnified Party shall have no duty to monitor or give instructions with respect to such claims.

Section 8.3 Procedure for Indemnification. Promptly upon receipt of written notice of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 8.4 Pre-Effective Date Liabilities. Notwithstanding anything to the contrary

herein, but without limitation of the release set forth in Section 11.13, it is understood and agreed

that the Servicer shall not be liable to the Manager for any liabilities or obligations attributable to

an act, omission or circumstances of the Initial Member, the FDIC, the Failed Banks and the

Company that occurred or existed prior to the Effective Date or, with respect to any particular

Loan, the Servicing Transfer Date applicable thereto (the “Pre-Existing Liabilities”). In the

event there is asserted against the Company, the Manager, the Servicer or any Subservicer any

claim or action with respect to any such Pre-Existing Liabilities, the Servicer or Subservicer, as

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applicable, shall notify the Manager and the Initial Member of such claim or action in

accordance with Article IX. Except as provided otherwise in Section 8.2 and 8.3 above (in the

event that such claim or action is subject to the indemnification obligations of Servicer pursuant

to Section 8.1 above), the Manager shall have the right to control and assume the defense of the

Company, the Manager, the Servicer and the Subservicer with respect to such claim or action at

the Manager’s expense. The Servicer shall be reimbursed by the Manager in connection with the

foregoing only to the extent of and in accordance with the terms set forth on Schedule 4, as the

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

Member) and the Servicer.

ARTICLE IX

NOTICES

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

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

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

nationally recognized courier service, or by electronic mail (followed up by a hard copy

delivered through an alternate manner permitted under this Article IX), in each case mailed or

delivered to the applicable address or electronic mail address specified in, or in the manner

provided, in this Article IX below. All such notices, requests, demands and other

communications shall be deemed to be given or made upon the earlier to occur of (i) actual

receipt (or refusal thereof) by the relevant party hereto and (ii) (A) if delivered by hand or by

nationally recognized courier service, when signed for (or refused) by or on behalf of the

relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails,

postage prepaid; and (C) if delivered by electronic mail (which form of delivery is subject to the

provisions of this paragraph), when delivered and capable of being accessed from the recipient’s

office computer, provided that any notice , request, demand or other communication that is

received other than during regular business hours of the recipient shall be deemed to have been

given at the opening of business on the next business day of the recipient. In no event shall a

voice mail message be effective as a notice, communication or confirmation hereunder. From

time to time, any party may designate a new address for purposes of notice to it hereunder by

notice to such effect to the other parties hereto in the manner set forth in this Article IX.

If to the Manager: ColFin Axle Funding, LLC

2450 Broadway, 6th Floor

Santa Monica, CA 90404

Attention: Paul Fuhrman

Email:

with a copy to: Colony Capital, LLC

660 Madison Avenue

New York, NY 10065

Attention: Ron Sanders

Email:

If to the Initial Member or the

Purchase Money Notes Guarantor:

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Manager, Capital Markets & Resolutions

c/o Federal Deposit Insurance Corporation

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

Washington, D.C. 20429-0002

Attention: Ralph Malami

Email: RMalami@fdic.gov

with a copy to:	 Senior Counsel

FDIC Legal Division

Litigation and Resolutions Branch, Receivership

Section

Special Issues Unit

3501 Fairfax Drive (Room E-7056)

Arlington, Virginia 22226

Attention: David Gearin

Email: DGearin@fdic.gov

If to the Servicer:	 SitusServ L.P.

4665 Southwest Freeway

Houston, TX 77027

Attention: Bruce Nelson

Email:

with a copy to:	 SitusServ L.P.

4665 Southwest Freeway

Houston, TX 77027

Attention: Stan Obloy

Email:

ARTICLE X

GOVERNING LAW; JURISDICTION

Section 10.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY

AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK

EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW

OF ANOTHER JURISDICTION. Nothing in this Agreement shall require any unlawful action

or inaction by any party hereto.

Section 10.2 Jurisdiction; Venue and Service. Each of the parties hereto, for itself and

each of its Affiliates, hereby irrevocably and unconditionally:

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

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

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

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instituted, only in the Supreme Court of the State of New York, County of New York, or the U.S.

District Court for the Southern District of New York, as the party instituting such suit, action or

proceeding may choose (and appellate courts from any of the foregoing),

(ii) consents and submits, for itself and its property, to the jurisdiction of such

courts for the purpose of any such suit, action or proceeding instituted against it by any other

party and

(iii) agrees that a final judgment in any such suit, action or proceeding shall be

conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other

manner provided by Law;

(b) agrees that service of all writs, process and summonses in any suit, action

or proceeding pursuant to Section 10.2(a) may be effected by the mailing of copies thereof by

registered or certified mail, postage prepaid, to it at its address for notices pursuant to Article IX

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

contained in this Section 10.2(b) shall affect the ability of any party to be served process in any

other manner permitted by Law;

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

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

any court specified in Section 10.2(a), (ii) waives any claim that any such suit, action or

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

not to plead or claim either of the foregoing; and

(d) agrees that nothing contained in this Section 10.2 shall be binding upon or

construed to constitute consent to jurisdiction by any Failed Bank or the FDIC, in any capacity,

or constitute a limitation on any removal rights the FDIC, in any capacity, may have.

Notwithstanding the above, if at any time the Initial Member shall replace the Manager

hereunder pursuant to the terms of the LLC Operating Agreement, the terms of this Section 10.2

shall be restated as follows:

“The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and

unconditionally:

(a) (i) consents to the jurisdiction of the United States District Court for

the Southern District of New York and to the jurisdiction of the United States District Court for

the District of Columbia for any suit, action or proceeding against it or any of its Affiliates

commenced by the FDIC, in any capacity, arising out of, relating to, or in connection with this

Agreement, and waives any right to:

(A) remove or transfer such suit, action or proceeding to any

court or dispute-resolution forum other than the court in which the FDIC, in any capacity, files

the action, suit or proceeding without the consent of the FDIC;

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(B) assert that venue is improper in either the United States

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

District of Columbia; or

(C) assert that the United States District Court for the Southern

District of New York or the United States District Court for the District of Columbia is an

inconvenient forum;

(ii) consents to the jurisdiction of the Supreme Court of the State of

New York, County of New York, for any suit, action or proceeding against it or any of its

Affiliates commenced by the FDIC, in any capacity, arising out of, relating to, or in connection

with this Agreement, and waives any right to:

(A) remove or transfer such suit, action or proceeding to any

other court or dispute-resolution forum without the consent of the FDIC;

(B) assert that venue is improper in the Supreme Court of the

State of New York, County of New York; or

(C) assert that the Supreme Court of the State of New York,

County of New York is an inconvenient forum;

(iii) agrees to bring any suit, action or proceeding against the FDIC, in

any capacity, arising out of, relating to, or in connection with this Agreement, the LLC Operating

Agreement or any Ancillary Document in only either the United States District Court for the

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

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

of New York and the United States District Court for the District of Columbia both lack

jurisdiction to hear a suit, action or proceeding falling within Section 10.2(a)(iii), to bring that

suit, action or proceeding in only the Supreme Court of the State of New York, County of New

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

court or dispute-resolution forum without the consent of the FDIC; and

(v) agrees that any final judgment entered against it in any suit, action

or proceeding falling within Section 10.2(a) may be enforced in any court of competent

jurisdiction.

(b) The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and

unconditionally agrees that any final judgment entered against it in any suit, action or proceeding

falling within Section 10.2(a) may be enforced in any court of competent jurisdiction.

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(c) Subject to the provisions of Section 10.2(d), the Servicer, on behalf of

itself and its Affiliates, and the FDIC hereby irrevocably and unconditionally agrees that service

of all writs, process and summonses in any suit, action or proceeding pursuant to Section 10.2(a)

or Section 10.2(b) may be effected by the mailing of copies thereof by registered or certified

mail, postage prepaid, to it at its address for notices pursuant to Article IX (with copies to such

other Persons as specified therein); provided, however, that nothing contained in this Section

10.2(c) shall affect the right of any party to serve process in any other manner permitted by law.

(d) Nothing in this Section 10.2 shall constitute consent to jurisdiction in any

court by the FDIC, other than as expressly provided in Section 10.2(a)(iii) and Section

10.2(a)(iv), or in any way limit the FDIC’s right to remove, transfer, seek to dismiss, or

otherwise respond to any suit, action, or proceeding against it in any forum.

Section 10.3 Waiver of Jury Trial. EACH OF THE PARTIES HERETO, FOR ITSELF

AND EACH OF ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY

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

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

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

ARTICLE XI

MISCELLANEOUS

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

Servicing Rights.

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

personal services agreement between the Manager and the Servicer. Any of the following shall

constitute an assignment for all purposes of this Agreement: (a) any merger, consolidation or

dissolution involving the Servicer or (b) any transfer or all or substantially all of the assets of the

Servicer, notwithstanding whether any of the foregoing transactions occur at one time or in the

aggregate over a period of time. The Servicer shall not assign any rights or obligations

hereunder to any other Person other than as is expressly provided in this Agreement. In

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

sell or assign its rights hereunder to service such Loan. Any purported sale, sub-participation or

assignment or delegation in violation of this Section 11.1(a) shall be void ab initio and of no

force or effect whatsoever.

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

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

or sell the servicing to the Loans (other than in connection with the sale of any Loan), or (ii)

assign, pledge or otherwise transfer or purport to assign, pledge or otherwise transfer any interest

to any Subservicer or other Person in the servicing of the Loans (other than in connection with

the sale of any Loan). Any purported assignment, pledge, delegation or other transfer in

violation of this Section 11.1(b) shall be void ab initio and of no force or effect whatsoever.

Section 11.2 Legal Fees. No party to this Agreement shall be responsible for the

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

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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 (2) or more counterparts, each of which shall be deemed an original but all of which together

shall constitute but one and the same agreement. This Agreement and any amendments hereto,

to the extent signed and delivered by facsimile or other electronic means, shall be treated in all

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

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

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

signature or the fact that any signature or agreement was transmitted or communicated through

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

enforceability of a contract and each such Person forever waives any such defense.

Section 11.5 Headings. Paragraph titles or captions contained in this Agreement are

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

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

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

unless otherwise specified.

Section 11.6 Compliance with Law. Except as otherwise specifically provided herein,

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

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

Section 11.7 Severability. Any provision of this Agreement which is prohibited or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

against whom, and/or the circumstances under which, such provision shall be effective in such

jurisdiction) for purposes of such proceeding to the minimum extent necessary so that such

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provision, as so modified, may then be enforced in such proceeding and (y) enforce such

provision, as so modified pursuant to clause (x), in such proceeding. Nothing in this Section

11.7 is intended to, or shall, limit (1) the ability of any party to this Agreement to appeal any

court ruling or the effect of any favorable ruling on appeal or (2) the intended effect of Section

10.1.

Section 11.8 Third Party Beneficiaries. The Initial Member shall be and is hereby

designated as a third party beneficiary under this Agreement, and, as such, the Initial Member is

entitled to enforce this Agreement as if the Initial Member were a party hereto. The Company,

the Purchase Money Notes Guarantor, 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. Notwithstanding the

foregoing, none of the 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 to the Servicer, any Subservicer or any other party related to this

Agreement. There shall be no other third party beneficiaries. The rights of the Purchase Money

Notes Guarantor as a third party beneficiary hereunder shall terminate at such time as the

Purchase Money Notes Guarantor notifies the Servicer that the reimbursement obligations in

favor of the Purchase Money Notes Guarantor under the Reimbursement, Security and Guaranty

Agreement have been paid in full, but shall be reinstated in the event that the Purchase Money

Notes Guarantor party notifies the Servicer that such obligations have been reinstated in

accordance with its terms.

Section 11.9 Protection of Confidential Information. The Servicer shall keep

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

information pertaining to the LLC Operating Agreement, the Loans or any Borrower or Obligor

or the Collateral thereunder, except as required pursuant to this Agreement and except to the

extent that it is necessary and appropriate for the Servicer to do so in working with legal counsel,

auditors, taxing authorities, regulatory authorities or any other Governmental Authority or in

accordance with the Servicing Standard; provided, that, to the extent that disclosure should be

required by law, rule, regulation (including any securities listing requirements or the

requirements of any self-regulatory organization), subpoena, or in connection with any legal or

regulatory proceeding (including in connection with or pursuant to any action, suit, subpoena,

arbitration or other dispute resolution process or other legal proceedings, whether civil or

criminal, and including before any court or administrative or legislative body), the Servicer will

use all reasonable efforts to maintain confidentiality and will (unless otherwise prohibited by

law) notify the Manager and the Initial Member and the Purchase Money Notes Guarantor within

one (1) Business Day after its knowledge of such legally required disclosure so that the Manager,

the Initial Member and/or the Purchase Money Notes Guarantor may seek an appropriate

protective order and/or direct the Manager to waiver the Servicer’s compliance with this

Agreement. Notice shall be by telephone, by email and in writing. In the absence of a protective

order or waiver, the Servicer may make such required disclosure if, in the written opinion of its

outside counsel (which opinion shall be provided to the Manager, the Initial Member and the

Purchase Money Notes Guarantor prior to disclosure pursuant to this Section 11.9), failure to

make such disclosure would subject the Servicer to liability for contempt, censure or other legal

penalty or liability.

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Section 11.10 Time of Essence. Time is hereby declared to be of the essence of this

Agreement and of every part hereof.

Section 11.11 No Presumption. This Agreement shall be construed fairly as to each

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

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

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

hereto.

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

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

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

deduction) against the Loan Proceeds (or the Company).

Section 11.13 Release of Initial Member and Others. The Servicer hereby releases and

discharges each Prior Servicer from any and all claims (including any counterclaim or defensive

claim), demands, causes of action, judgments or legal proceedings and remedies of whatever

kind or nature that the Servicer had, has or might have in the future, whether known or unknown,

which are related in any manner whatsoever to the servicing of the Loans or Collateral 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 of Page Intentionally Left Blank]

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EXHIBIT A
 

LOAN SCHEDULE
 

[Attached]

A-1

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
EXHIBIT B

ELECTRONIC TRACKING AGREEMENT

Not applicable. 

B-1

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
SCHEDULE 1

LIST OF VARIOUS FAILED FINANCIAL INSTITUTIONS

Bank Name City State Fund Closing Date

Silver State Bank Henderson NV 10013 September 5, 2008

First Georgia Community

Bank Jackson GA 10025 December 5, 2008

Bank of Clark County Vancouver WA 10029 January 16, 2009

Ocala National Bank Ocala FL 10032 January 30, 2009

First City Bank Stockbridge GA 10047 March 20, 2009

Omni National Bank Atlanta GA 10048 March 27, 2009

New Frontier Bank Greeley CO 10050 April 10, 2009

American Southern Bank Kennesaw GA 10053 April 24, 2009

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

First Bank of Idaho Ketchum ID 10055 April 24, 2009

Michigan Heritage Bank Farmington Hills MI 10056 April 24, 2009

America West Bank Layton UT 10057 May 1, 2009

Citizens Community Bank Ridgewood NJ 10058 May 1, 2009

Silverton Bank Atlanta GA 10059 May 1, 2009

Westsound Bank Bremerton WA 10060 May 8, 2009

Bank of Lincolnwood Lincolnwood IL 10064 June 5, 2009

Community Bank of West

Georgia Villa Rica GA 10068 June 26, 2009

Integrity Bank Jupiter FL 10095 July 31, 2009

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

Community Bank of Arizona Phoenix AZ 10101 August 14, 2009

Union Bank Chandler AZ 10102 August 14, 2009

Corus Bank Chicago IL 10117 September 11, 2009

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
SCHEDULE 2

FEE SCHEDULE

[To be provided by Servicer and Manager]

SCHEDULE 2

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
SCHEDULE 3

SERVICING OBLIGATIONS

[To be provided by Servicer and Manager]

SCHEDULE 3

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
SCHEDULE 4

REIMBURSEMENT OF SERVICER ADVANCES

[To be provided by Servicer and Manager]

SCHEDULE 4

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
SCHEDULE 5

FORM OF ELECTRONIC REPORT ON THE LOANS AND COLLATERAL

[To be provided by Servicer and Manager]

SCHEDULE 5

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
SCHEDULE 6

TERMINATION WITHOUT CAUSE

[To be provided by Servicer and Manager]

SCHEDULE 6

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
SCHEDULE 7

BUSINESS PLANS AND CONSOLIDATED BUSINESS PLANS

[To be provided by Servicer and Manager]

SCHEDULE 7

Multibank Structured Transaction 2010-1 CRE

Servicing Agreement

OHS East:160711160.7
 

 

 

 


 

	
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