2011-SIP-1 RADC Structured Transaction 

Executed Copy 

SERVICING AGREEMENT 

by and between 

HRC SVC POOL II ACQUISITION LLC 

and 

27TH AND UNIVERSITY LLC 

Dated as of August 4, 2011 

2011-SIP-1 RADC Structured Transaction 

Servicing Agreement 

Version 3. I 
TABLE OF CONTENTS 


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


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


Section 1.2. Construction ...............................................................................................2 


ARTICLE II SERVICING OBLIGATIONS OF THE SERVICER .......................................2 


Section 2.1. 
 Appointment and Acceptance as Servicer. .................................................2 


.........................................................................2 


..............................................................................................3 


.....................................................................................3 


....................................................................................4 


........................................................... .4 


.............................................................5 


........................................................................................5 


...........................................................................................5 


Section 2.2. 
 Limited Power of Attorney 

Section 2.3. 
 Servicing Fee 

Section 2.4. 
 Servicing Standard 

Section 2.5. 
 Collection Account. 

Section 2.6. 
 Working Capital Reserve Account. 

Section 2.7. 
 Horizontal Development Account. 

Section 2.8. 
 Escrow Accounts 

Section 2.9. 
 Other Accounts 

Section 2.11. 

Section 2.12. 


Section 2. 13. 
 Insured or Guaranteed Assets .....................................................................8 


Section 2.14. 
 Registration with MERS ............................................................................8


Maintenance of Insurance Policies; Errors and Omissions and 


Fidelity Coverage .......................................................................................5 


Funding of Working Capital Expenses and Certain Other 


Payments; Permitted Vertical Completion Expenses; Permitted 


Expenses ..................................................................................................... ? 


Section 2.10. 


Horizontal Development Expenses ............................................................7 


ARTICLE III LOAN DEFAULTS; ACQUISITION OF COLLATERAL ..............................9 


Section 3.1. Delinquency Control ..................................................................................9 


Section 3.2. Discretion ofthe Servicer in Responding to Defaults of Borrower ...........9 


Section 3.3. Acquisition of Acquired Property ............................................................ 1 0 


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


ARTICLE IV SUBSERVICING ............................................................................................ 12 


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


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


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


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


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


ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF 


THE SERVICER ............................................................................................. 14 


Section 5 .1. Representations and Warranties ............................................................... 14 


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


Section 5.3. Audits ....................................................................................................... 18 


20ll-SIP-1 RADC Structured Transaction 

Servicing Agreement 

Version 3.! 
Section 5.4. No Liens ................................................................................................... 19 


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


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


Section 5.7. Copies of Documents ...............................................................................21 


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


ARTICLE VI MANAGER CONSENT ..................................................................................21 


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


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


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


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


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


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


Section 7.4. Effective Termination Date ......................................................................26 


Section 7.5. Accounting ...............................................................................................26 


ARTICLE VIII INDEPENDENCE OF PARTIES; INDEMNIFICATION ..............................27 


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


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


Section 8.3. Pre-Effective Date Liabilities ...................................................................28 


ARTICLE IX NOTICES .........................................................................................................29 


ARTICLE X GOVERNING LAW; JURISDICTION ..........................................................31 


Section 1 0.1. Governing Law .........................................................................................31 


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


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


ARTICLE XI MISCELLANEOUS ........................................................................................34 


Section 11.1. No Assignment by Servicer; No Transfer of Ownership Interests 


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


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


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


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


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


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


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


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


Section 11.9. Protection of Confidential Information ....................................................36 


Section 11.1 0. Time of Essence .......................................................................................36 


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


Section 11.12. No Right ofSetoff....................................................................................37 


Section 11.13. Release oflnitial Member and Others ...................................................... 3 7 


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20ll-SIP-l RADC Structured Transaction 

Servicing Agreement 

Version 3.1 
SCHEDULES AND EXHIBITS 


Exhibits 


Exhibit A 


Exhibit B 


Schedules 

Schedule I 

Schedule 2 

Schedule 3 

Schedule 4 

Schedule 5 

Schedule 6 

Asset Schedule 

Form of Electronic Tracking Agreement 

Fee Schedule 

Servicing Obligations 

Reimbursement of Servicer Advances 

Form of Electronic Report on the Assets and Collateral 

Termination Without Cause 

Business Plan Schedule 

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2011-SIP-l RADC Structured Transaction 

Servicing Agreement 

Version 3. I 
SERVICING AGREEMENT 


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

"Agreement") is made and entered into as of the 4th day of August, 2011 (the "Effective 

Date"), by and between HRC SVC Pool II Acquisition LLC, a Delaware limited liability 

company (including its successors and assigns, the "Manager"), and 27th and University LLC, a 

Delaware limited liability company (including those of its successors and assigns as are 

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

RECITALS 

WHEREAS, 2011-SIP-1 RADC Venture, LLC (the "Company") owns the Assets 

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

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

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

Operating Agreement; and 

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

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

times, consistent with the requirements of this Agreement; 

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

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

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

follows: 

ARTICLE I 


DEFINITIONS AND CONSTRUCTION 


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

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

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

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

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

"Agreement of Definitions" shall mean the Agreement of Definitions - 20 11-SIP-1 

RADC Structured Transaction, dated as of the date hereof, by and among the Company, the 

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

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

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

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

"Default" shall have the meaning given in Section 7.1. 

20ll-SIP-l RADC Structured Transaction 

Servicing Agreement 

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


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


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


by the Manager and the Servicer without the consent ofthe Initial Member. 

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

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

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

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

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

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

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

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

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

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

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

ARTICLE VII. 

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

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

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

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

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

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

ARTICLE II 


SERVICING OBLIGATIONS OF THE SERVICER 


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

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

Transfer Date with respect thereto), the Manager appoints the Servicer to service, administer, 

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

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

Servicer a limited power of attorney to execute all documents on its behalf (including as the 

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Servicing Agreement 

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

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

obligations under this Agreement until such time as the Manager revokes said limited power of 

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

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

Agreement pursuant to ARTICLE VII. 

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

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

Schedule (the "Servicing Fee"). 

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

perform such duties in connection with the Servicing as are set forth on Schedule 2, as the same 

may be amended from time to time by the Manager and the Servicer (the "Servicing 

Obligations"). The Servicer shall perform its Servicing Obligations (i) in the best interests and 

for the benefit of the Company, (ii) in accordance with the terms of the Assets (and related Asset 

Documents), (iii) in accordance with the terms of this Agreement (including this ARTICLE II), 

(iv) in accordance with all applicable Laws, (v) subject to Section 5.7, in accordance with the 

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

and the other Transaction Documents, 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 

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

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

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

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

lending relationship and any other relationship described in Section 5.1(h), (x) the Company's, 

the Manager's, the Servicer's or any Subservicer's obligation to make disbursements and 

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

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

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

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

relationship evidenced by this Agreement or any Subservicing Agreement), and (z) the 

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

its services under this Agreement or any Subservicing Agreement. 

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Section 2.5. Collection Account. 

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

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

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

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

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

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

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

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

to be commingled in the Collection Account. 

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

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

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

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

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

applicable Required Funding Draws) and Permitted Vertical Completion Expenses (including the 

making of Permitted Vertical Development 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 (or any Subservicer) to the Collection Account under this 

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

Section 2.6. Working Capital Reserve Account. 

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

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

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

the Working Capital Reserve into the Working Capital Reserve Account in an initial amount of 

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

Vertical Completion Expenses of the Company in accordance with the LLC Operating 

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

the Manager, the Servicer shall not cause (and shall ensure that no Subservicer causes) funds 

from any other source (other than interest or earnings on the Working Capital Reserve) to be 

commingled in the Working Capital Reserve Account (it being understood that deposits into 

such Working Capital Reserve Account shall be made only pursuant to the Custodial and Paying 

Agency Agreement and the LLC Operating Agreement). 

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

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

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

conditions set forth in the Servicing Obligations). 

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2011-SIP-l RADC Structured Transaction 

Servicing Agreement 

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Section 2.7. Horizontal Development Account. 

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

Agency Agreement, the Company has established the Horizontal Development Account to be 

maintained with the Paying Agent, for the purposes of funding, Permitted Horizontal 

Development. Except as otherwise directed by the Manager, the Servicer shall not cause (and 

shall ensure that no Subservicer causes) funds from any other source (other than interest or 

earnings on the amount held therein) to be commingled in the Horizontal Development Account 

(it being understood that deposits into such Horizontal Development Account shall be made only 

pursuant to the Custodial and Paying Agency Agreement and the LLC Operating Agreement). 

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

deposit in the Horizontal Development Account (including any interest and earnings thereon) 

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

conditions set forth in the Servicing Obligations) for payment of applicable Permitted Horizontal 

Development Expenses. 

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

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

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

amounts deposited or required to be deposited therein by the applicable Borrower. Except as 

otherwise directed by the Manager, the Servicer shall (and shall cause each Subservicer to) 

deposit into the applicable Escrow Account on a daily basis, within two Business Days of 

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

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

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

extent required by Law or the applicable Asset Documents. 

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

shall (itself or through applicable Subservicers) 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 shall be funded and disbursed only in accordance with such instructions as 

are provided by the Manager ("Other Accounts"). 

Section 2.1 0. 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, and any Acquired Property, as required under the LLC Operating 

Agreement. Such insurance shall be issued by an insurer reasonably acceptable to the Manager 

for each Asset for 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. 

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2011-SIP-l RADC Structured Transaction 

Servicing Agreement 

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(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 Servicer or 

Subservicer, as applicable, shall notify the Manager immediately upon the 

reduction of or potential reduction of 50% of the 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 the effective date of the 

policy, 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 per claim and $10,000,000 in the aggregate, covering employee 

theft, forgery and 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 Asset, and shall protect the Servicer or Subservicer, as applicable, 

against losses arising out of theft, embezzlement, fraud, misplacement, or 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 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. The policy shall 

include a waiver of subrogation in favor ofthe 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. The policy shall 

include a waiver of subrogation in favor ofthe 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 prior written 

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Servicing Agreement 

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notice of cancellation of thirty days, except for non-payment of premium whereby a ten 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. 

(c) The Servicer shall notify (or shall cause each Subservicer to notify) the 

Manager and the Initial Member immediately of the cancellation or nonrenewal or the receipt of 

a notice of cancellation or nonrenewal of any fidelity bond or insurance policy required to be 

maintained pursuant to this Section 2.10 and the efforts made to obtain replacement coverage. 

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

Initial Member and the Manager with certificates evidencing all fidelity bonds and insurance 

policies required to be maintained pursuant to this Section 2.10, on the Effective Date (and, with 

respect to each Asset, the applicable Servicing Transfer Date with respect thereto) and each 

anniversary of the Closing Date thereafter, and otherwise upon request of the Initial Member or 

the Manager. Copies of fidelity bonds and insurance policies required to be maintained pursuant 

to this Section 2.10 shall be made available to the Manager and the Initial Member, or their 

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

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

available to each of the Manager and the Initial Member, and its respective representatives, upon 

request. 

Section 2.11. Funding of Working Capital Expenses and Certain Other 

Payments; Permitted Vertical Completion Expenses; Permitted Horizontal Development 

Expenses. To the extent set forth in, and subject to the terms of, this Agreement (including the 

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

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

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

Completion Expenses (including making applicable Required Funding Draws and Permitted 

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

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

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

and Permitted Vertical Development Funding Draws), and pay (or request the payment by the 

Paying Agent, from funds in the Horizontal Development Account, of) Permitted Horizontal 

Development Expenses; provided that the payment of the same is consistent with the applicable 

terms and conditions in the Custodial and Paying Agency Agreement and, subject to Section 5.7, 

the applicable terms and conditions in the LLC Operating Agreement and the other Transaction 

Documents. Servicer acknowledges that funds in the Company Accounts, and proceeds of 

Excess Working Capital Advances and Discretionary Funding Advances, shall be used 

exclusively as provided in (and subject to the terms of) the Custodial and Paying Agency 

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

and the other Transaction Documents. 

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

Servicer shall use (and case each applicable Subservicer to so use) its reasonable best efforts to 

recover from Borrowers and Obligors all amounts of Servicing Expenses that are advanced by 

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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 Asset Documents. All such amounts not recovered from Borrowers or 

Obligors and all other Servicer Advances shall be reimbursed only in accordance with the terms 

set forth on Schedule 3, as the same may be amended from time to time by the Manager (without 

the consent of the Initial Member) and the Servicer. In no event may any Servicer Advances be 

deducted from or netted against any Asset Proceeds. In the event the Servicer is reimbursed for 

any amount that does not qualify as a Servicing Expense, the Servicer shall be obligated to 

refund such amount to the Manager, or, if so directed by the Manager, directly to the Company 

(to the Collection Account) on the Specified Date immediately following the Servicer's receipt 

of notice from the Manager requesting the same. No Servicer Advances shall bear interest 

chargeable in any way to the Company or deductible from any Asset Proceeds. 

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

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

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

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

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

acknowledges and agrees that, upon assumption of the Servicing Obligations with respect to the 

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

contracts of insurance or guaranty. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ARTICLE III 


LOAN DEFAULTS; ACQUISITION OF COLLATERAL 


Section 3 .1. Delinquency Control. Except as otherwise directed by the 

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

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

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

Section 3 .2. Discretion of the Servicer in Responding to Defaults of Borrower. 

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

other terms and conditions ofthis 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 

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

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

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

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

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

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

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

acceptance of a deed in lieu of foreclosure, (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 UCC 

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

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

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

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

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

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

the Manager. 

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

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

Obligations of the Servicer). With respect to any Asset as to which the Servicer has received 

actual notice of, or has actual knowledge of, any Environmental Hazard with respect to the 

related Collateral, the Servicer shall immediately provide written notice of same to the Manager. 

In addition, if the Manager so directs (and if required pursuant to the LLC Operating 

Agreement), prior to the acquisition of title (whether by foreclosure, deed in lieu of foreclosure, 

by power of sale or by sale pursuant to the Uniform Commercial Code, or otherwise) to any 

Acquired REO Property, the Servicer shall cause a Site Assessment to be commissioned with 

respect to such Collateral, and the costs of such Site Assessment shall be deemed to be Servicing 

Expenses as long as such costs were not paid to any Affiliate of the Manager or any Affiliate of 

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

any Subservicer shall not acquire or otherwise cause the Company or any Subsidiary or other 

entity in which the Company owns any interest to acquire all or any portion of any Collateral 

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

foreclosure, power of sale or sale pursuant to the UCC or otherwise. If title to any Collateral that 

constitutes real property is to be acquired by foreclosure, by deed in lieu of foreclosure, by power 

of sale or by sale pursuant to the UCC, or otherwise, title to such Acquired REO Property shall 

be taken by and held in the name of an Ownership Entity; provided, however, that for any 

Collateral which becomes Acquired REO Property after the applicable Servicing Transfer Date 

which contains an Environmental Hazard, the Ownership Entity that holds such Acquired REO 

Property may not hold title to any other Acquired REO Property. In connection with any such 

acquisition of title to Acquired Property by the Company (or any Ownership Entity) occurring 

after the Closing Date (by foreclosure, by deed in lieu of foreclosure, by power of sale or by sale 

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

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

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

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

exercise of remedies so as to comply with applicable Law and preserve rights to collect any 

Deficiency Balance), an updated Appraisal for determination of the Appraised Value (to serve as 

the basis for the initial Net Fair Value) of such Acquired Property. 

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

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

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

Obligations, comply with the following terms and conditions: 

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

insurance in compliance with applicable requirements herein and in the 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 

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

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

to be performed by the tenants under such leases. 

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

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

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

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

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

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

the Initial Member. 

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

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

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

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

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

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

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

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

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

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

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

and in accordance with applicable Law. 

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

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

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

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

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

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

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

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

of the Manager and the Initial Member unless such subordination is required under the 

provisions of such Ground Lease. 

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

permitted construction with respect to Acquired REO Property, then the Servicer shall cause 

each Ownership Entity to pursue with diligence the construction of the Acquired 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 Acquired REO 

Property, and all applicable governmental approvals, (ii) in the case of any Substantially 

Complete Vertical Development, in substantial compliance with the plans and specifications 

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

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

Transaction Documents, and, in the case of any Permitted Horizontal Development, in 

accordance with the applicable approved Horizontal Development Plan, (iii) in a good and 

workmanlike manner and free of defects, (iv) in a manner such that such Acquired REO Property 

remains free from any Liens, claims or assessments (actual or contingent) for any material, labor 

or other item furnished in connection therewith, and (v) in conformance with all other applicable 

requirements set forth herein and in the other Transaction Documents. 

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

(i) in operating, managing, leasing or disposing of any Acquired REO Property, the Servicer 

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

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

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

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

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

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

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

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

(i) The Servicer shall furnish to the Manager and the Initial Member such 

reports regarding the construction, leasing and sales efforts of or relating to the Acquired REO 

Property as the Manager 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, as it may deem 

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

definition of Qualified Servicer. 

Section 4.2. Subservicing Agreement Requirements. Any Subservicing 

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

accordance with the Servicing Standard and the other terms of this Agreement and the LLC 

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

LLC Operating Agreement. Without limitation of the foregoing, and to further clarify certain 

requirements so set forth in such Section 12.1 (b) of the LLC Operating Agreement, the Servicer 

agrees that: 

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

such Subservicing Agreement shall include rights in favor of the FDIC and the Company that are 

equivalent to the rights granted to such Persons hereunder; and 

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

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

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

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

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

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

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

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

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

the Subservicer) that correspond to the provisions of Section 7.1(a), (Q}, (£), (4}, (~, (!.}, (g}, .(hl 

and (j} of this Agreement, and contain provisions that correspond to Section 7 .2, 7 .4, and 7.5 of 

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

and the Initial Member has the right (x) to terminate the Subservicing Agreement by providing 

written notice upon the occurrence of any default so required to be included therein, without any 

cure period other than as may be provided for in such default provisions under such Subservicing 

Agreement (which cure periods shall be no longer than the cure provisions in the corresponding 

provisions of Section 7.1 ofthis Agreement, if any), and (y) otherwise to enforce the rights ofthe 

Servicer under the Subservicing Agreement. Nothing contained in any Subservicing Agreement 

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

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

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

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

Section 4.3. Servicer Liable for Subservicers. Notwithstanding anything to the 

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

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

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

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

pursuant to any Subservicing Agreement shall be performed as an agent of the Servicer. No 

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

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

responsibility of the Servicer. 

Section 4.4. Manager Approval Required. Each Subservicing Agreement and 

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

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

Manager (which approval shall not be 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 and the Initial Member. 

Section 4.5. Regulation AB Requirements. The Servicer shall use 

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

has in place, policies and procedures instituted to monitor any performance or other triggers and 

events of default in accordance with the applicable Asset Documents and the Servicing 

Obligations (as generally required pursuant to Section 1122(d)(l)(i) and (ii) ofRegulation AB), 

and (ii) to comply, and confirm, where applicable, that each Subservicer complies, with 

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

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

deemed applicable to the Servicing conducted hereunder (and under any Subservicing 

Agreement) regardless of whether such requirements apply, by their terms, only to companies 

registered or required to file reports with the Securities and Exchange Commission. 

ARTICLE V 


REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER 


Section 5 .1. Representations and Warranties. The Servicer hereby makes the 

following representations and warranties as of the date hereof: 

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

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

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

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

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

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

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

in the United States. 

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

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

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

all requisite action on the part ofthe Servicer. 

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

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

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

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

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

proceeding in equity or at law); and all requisite organizational action has been taken by the 

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

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

conditions. 

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

authorized to do so. 

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

Servicing, the consummation of any other of the transactions contemplated by this Agreement, 

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

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

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

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

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

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

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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 ofthe Servicer. 

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

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

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

this Agreement has been obtained and is effective. 

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

at any time, without the prior written approval of the Manager and the Initial Member, (i) be an 

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

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

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

or Obligor or other obligor with respect to any Asset or any of the Collateral. 

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

remain, a Qualified Servicer. 

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

Servicer covenants to the Manager as follows: 

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

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

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

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

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

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

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

falls and thereafter. 

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

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

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

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

Collateral, including records relating to the Company Accounts, the Escrow Accounts and any 

Other Accounts maintained in connection with the Assets, Servicer Advances, Funding Draws, 

Working Capital Expenses, Permitted Vertical Completion Expenses, Permitted Horizontal 

Development Expenses and collection and remittance of Asset Proceeds and all other amounts 

disbursed from any Company Account. The books of account shall be maintained in a manner 

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that provides sufficient assurance: (A) that transactions of the Company are executed in 

accordance with, and only in accordance with, the general or specific authorization of the 

Manager consistent with the provisions of the LLC Operating Agreement; (B) that transactions 

of the Company are recorded in such form and manner as will (x) permit preparation of federal, 

state and local income and franchise Tax returns and information returns in accordance with the 

LLC Operating Agreement and as required by Law, (y)permit preparation of the Company's 

financial statements in accordance with GAAP and as otherwise set forth in the LLC Operating 

Agreement, and (z) maintain accountability for the Company's assets; (C) regarding the 

prevention or timely detection of any unauthorized, and non-de minimus, acquisition, use or 

disposition of assets of the Company or any Ownership Entity; and (D) that any material 

information regarding the business or affairs of the Company is accumulated, recorded, 

processed, summarized and reported to the Manager in a timely manner. For purposes of the 

preceding sentence "transactions of the Company" include (without limitation) all transfers of 

funds out of, into, or between, Accounts (to the extent that the Company has discretion with 

respect thereto), and the making of any Bulk Sale. 

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

to cause to be kept and maintained a complete and accurate set of records as set forth in Section 

5.2(b)(i) in any event shall include the obligation to cause each of the following to be 

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

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

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

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

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

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

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

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

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

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

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

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

and the basis (and back-up documentation) of such determination, and (E) accurate records, in 

reasonable detail, of all other determinations that are material to the Company. 

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

maintained pursuant to Section 5.2Cb) to be maintained and retained until the date that is the later 

of ten years after the Closing Date and three years after the Final Distribution Date, which date 

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

records shall be available during such period for inspection by the Manager, the FDIC 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 and the Initial Member, as applicable), in each instance upon not less than 

two Business Days' prior notice to the Servicer. Upon request by the Manager, the Servicer, at 

the sole cost and expense of the Manager, shall promptly send copies (the number of copies of 

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which shall be reasonable) of such books and records to the Manager. The Servicer shall (and 

shall cause each Subservicer to) provide the Manager with reasonable advance notice of the 

Servicer's (or any such Subservicer's) intention to destroy or dispose of any documents or files 

relating to the Assets and, upon the request of the Manager, shall allow the Manager, at its own 

expense, to recover the same from the Servicer (or such Subservicer). 

(d) The covenants set forth in Section 5 .2(b) and (£l above to maintain a 

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

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

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

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

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

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

pertaining to the Assets and the Collateral. 

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

the Specified Date, commencing with September 20 11 (or such other date as may be set forth in 

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

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

amended from time to time by the Manager (without the consent of 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 Cash Flow and Distribution Report and the Monthly Report, and such other 

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

is reasonably available to the Servicer (or any Subservicer). Notwithstanding the above, with 

respect to any period prior to the applicable Servicing Transfer Date, the applicable Electronic 

Reports may exclude certain of the information otherwise required to be included therein if and 

to the extent the Initial Member (or the Transferor) is obligated to provide such information (or 

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

the Servicer and the Manager pursuant to the interim servicing and asset management support 

obligation set forth in Section 3.3 of the Contribution Agreement and the Initial Member (or 

Transferor) fails to timely deliver such information to the Servicer and the Manager. 

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

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

the Manager and the Servicer may agree, commencing in the year 2012, an annual officer's 

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

preceding Fiscal Year (or other applicable period as set forth below in this Section 5 .2(t)) and of 

its performance under this Agreement (or, as applicable, any Subservicing Agreement) has been 

made under such officer's supervision, and (ii) to the best of such officer's knowledge and belief, 

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

applicable, any Subservicing Agreement) in all material respects throughout such year (or other 

applicable period as set forth below in this Section 5 .2(t)), 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 Asset, shall cover the period 

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commencing on the Servicing Transfer Date and continuing through the end of the 20 1I Fiscal 

Year. In the event the Servicer or any Subservicer has been terminated, resigned or otherwise 

performed in such capacity for only part of a year (or other applicable period, as the case may be, 

with respect to the period commencing, with respect to any Asset, on the Servicing Transfer Date 

through the end of the 2011 Fiscal Year), such party shall provide an officer's certificate 

pursuant to this Section 5.2 with respect to such portion of the year (or other applicable period). 

(g) On or before March 10 of each year, or such other day as the Manager and 

the Servicer agree, commencing in the year 20 I2, the Servicer shall, and shall cause each 

Subservicer to, provide to the Manager and the Initial Member (and to such other Person as the 

Manager may direct) a report prepared by a nationally recognized firm of independent certified 

public accountants to the effect that, with respect to the prior Fiscal Year (or other applicable 

period as set forth below), such firm has examined certain records and documents relating to 

compliance with the servicing requirements in this Agreement and that, on the basis of such 

examination conducted substantially in compliance with either the Uniform Single Attestation 

Program for Mortgage Bankers or item II22 of Regulation AB, such firm is of the opinion that 

the Servicer or applicable Subservicer's activities have been conducted in compliance with this 

Agreement (including, to the extent applicable pursuant to Section 4.3 above, Regulation AB), or 

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

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

in the report. The first such reports shall cover the period commencing on the Effective Date 

(and for each Asset, covering the period from the applicable Servicing Transfer Date) and 

continuing through the end of the 20 II Fiscal Year. 

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

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

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

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

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

Manager and the Servicer without the consent of the Initial Member (the "Business Plan 

Schedule"). Upon reasonable notice by the Initial Member or the Manager, the Servicer shall 

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

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

discussing such Business Plans with representatives of the Initial Member and/or the Manager 

and responding to questions therefrom. 

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

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

established by notice to such effect to the Servicer by the Manager, the Servicer shall, and shall 

cause each Subservicer to, (a) provide the Manager and the Initial Member and their respective 

representatives (including any Governmental Authority), during normal business hours and on 

reasonable notice, with access to and the right to review all of the books of account, reports and 

records relating to the Assets or any Collateral, the Servicing Obligations, the Company 

Accounts, the Escrow Accounts, any Other Accounts, disbursements under the Custodial and 

Paying Agency Agreement, distributions under the LLC Operating Agreement or any matters 

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relating to this Agreement or the rights or obligations hereunder or under the other Transaction 

Documents, (b) permit such representatives to make copies of and extracts from the same, 

(c) allow the Manager or the Initial Member to cause such books to be audited by accountants 

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

the Manager or the Initial Member to discuss any Servicer's and any Subservicer's affairs, 

finances and accounts, as they relate to the Assets, the Collateral, the Servicing Obligations, the 

Company Accounts, the Escrow Accounts or any Other Accounts or any other matters relating to 

this Agreement, the other Transaction Documents, or the rights or obligations hereunder and 

thereunder, with any such Servicer's and any such Subservicer's officers, directors, employees, 

attorneys and accountants (and by this provision the Servicer hereby authorizes such accountants 

to discuss such affairs, finances and accounts with such representatives). Any expense incurred 

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

Servicer in connection with the exercise by the Manager or the Initial Member of its rights in this 

Section 5.3 shall be borne by the Manager or the Initial Member, as applicable (and in all events 

subject to any obligation of the Manager to bear such expenses of the Initial Member pursuant to 

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

the Manager or the Initial Member of their respective rights pursuant to this Section 5.3 as a 

result of or during the continuance of a Default by the Servicer hereunder (including any such 

Default relating or attributable to any Subservicer) shall in all cases be borne by the Servicer. 

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

(including for this purpose any knowledge that the Servicer would have obtained if it had 

complied with the Servicing Standard) permit (voluntarily or involuntarily) to be placed, or to 

exist, any Lien on any of the Assets, the Collateral, the Asset Documents, or the Asset Proceeds, 

except for, in the case of Collateral or Acquired Property, such Permitted Liens as the Manager 

may permit from time to time. Notwithstanding the foregoing, (i) with respect to any Mortgaged 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

actions or omissions of the Servicer in violation of other applicable provisions of this 

Agreement, the Servicer shall not be required to use its own funds, or make any Servicer 

Advances, to prevent or discharge any such Lien). 

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

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

the Manager or the Initial Member, the Servicer shall cause to be delivered to the Manager such 

information relating to the Assets, the Collateral, the Servicer and any Subservicer as the 

Manager may reasonably request from time to time and, in any case, shall ensure that the 

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

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

Accounts, any other 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 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 (including as Transferor) 

arising out of or with respect to any Asset, (ii) any material notice from any Governmental 

Authority relating to any Collateral, (iii) any occurrence which could reasonably be expected to 

result in cost overruns with respect to any Loan or Acquired Property for which Required 

Funding Draws or Permitted Vertical Development 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 

Plan. In addition, the Servicer shall cause to be delivered to the Manager information indicating 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

perform any warranty, representation, covenant or agreement required to be observed and 

performed by it as the Servicer, and (ii) any Change of Control with respect to the Servicer. 

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

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

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

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

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

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

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

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

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

of obligations of the Manager, or the rights of the Initial Member under this Agreement, the LLC 

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

Operating Agreement and other Transaction Documents (or portions thereof) as have been, or 

from time to time are, delivered to Servicer. 

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

with copies thereof to be delivered by the Servicer to the Initial Member, (i) within forty-five 

days after the end of each of its fiscal quarters, commencing on the Effective Date, and 

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

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

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

or 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 written consent of the Initial Member), which consent may be withheld or 

conditioned in the sole and absolute discretion of the Manager: 

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

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

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

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

portion thereof) to, or any other transaction with (whether or not at usual and customary rates), 

any Affiliate of the Company, the Manager, the Servicer, any Affiliate of the Servicer, any 

Subservicer, or any Affiliate of any Subservicer; 

(c) the financing of the sale or other transfer of any Assets, Collateral or 

Acquired Property (or any portion thereof); 

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

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

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

the Asset Proceeds allocable to the Initial Member; 

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

such funds made available through transfers of funds from the Working Capital Reserve Account 

or from Discretionary Funding Advances or Excess Working Capital Advances) or any other 

Company Account, any other account created under the Custodial and Paying Agency 

Agreement or any Other Account other than in accordance with the provisions of this 

Agreement, the LLC Operating Agreement and the Custodial and Paying Agency Agreement; 

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

Balance of any Asset other than (i) Required Funding Draws, (ii) Permitted Vertical Completion 

Expenses, (iii) Permitted Horizontal Development Expenses with respect to Acquired REO 

Property, or (iv) Servicing Expenses to the extent that capitalizing such Servicing Expenses is or 

would have been, prior to the conversion of the Loan to Acquired Property, permitted under the 

applicable Asset Documents; 

(g) in connection with its Servicing, (i) approving (x) any material 

modification or amendment to, or cancellation or termination of, any Asset Documents, or 

(y) plans and specifications, construction budgets or construction schedules with respect to the 

projects which are the subject of such Asset (or material modifications to any of such items, 

including any change orders); (ii) waiving or forbearing from exercising any of the lender's 

rights under, or any conditions precedent to the funding of any advances under, such Loan; 

(iii) forgiving or reducing or forbearing from collecting any indebtedness; (iv) releasing any 

parties liable for the payment of the Asset or the performance of any other obligation relating 

thereto; (v) granting any consent under any Asset Documents (including, with respect to any 

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

or indirect interests in any Borrower, proposed alterations, proposed settlements of insurance 

claims, condemnation claims or deficiencies or proposed applications of insurance proceeds or 

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

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

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

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

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

such Asset, Collateral or Acquired Property that is prohibited under the LLC Operating 

Agreement or the other Transaction Documents or otherwise inconsistent with the Servicing 

Standard; or 

(h) reimbursement for any expense or cost incurred (or paid) to any Affiliate 

of the Company, any Affiliate ofthe 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 consent of the Initial Member. In no event shall any such amendment 

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or waiver limit or affect the rights or benefits expressly granted in this Agreement to any third 

party beneficiary of this Agreement other than the Initial Member (to the extent such third party 

beneficiary is, and remains, a third party beneficiary hereunder pursuant to Section 11.8), and/or 

any Related Person in relation to such third party beneficiary, without the express written 

consent ofsuch third party beneficiary. 

ARTICLE VII 


DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE 


Section 7 .1. Defaults. A default ("Default") means the occurrence of: 

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

Collection Account, any other Company Account, the Escrow Accounts, any other 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, (ii) the Custodial 

and Paying Agency Agreement or (iii) the LLC Operating Agreement; or 

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

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

respect to any Subservicer; provided, that if such Subservicer is not an Affiliate of the Servicer, 

then such Insolvency Event under this clause (ii) shall not be a Default hereunder (but shall in all 

events be a default under the applicable Subservicing Agreement) so long as the Servicer shall 

have fully replaced such affected Subservicer within thirty days after the occurrence of such 

Insolvency Event; or 

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

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

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

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

2]_(f} or Section 5.2(g), which failure continues unremedied for a period of twenty-five days, or 

such other period as the Manager and the Servicer agree, after the date on which written notice of 

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

Servicer; or 

(d) any failure by the Servicer at any time (i) to be a Qualified Servicer or to 

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

Agreement in compliance with Law, or (ii) to cause each Subservicer to meet the applicable 

characteristics of a Qualified Servicer as required under Section 4.1 and to renew or maintain any 

permit or license necessary to carry out its responsibilities under any Subservicing Agreement, 

which, in the case of either (i) or (ii), continues unremedied for a period of thirty days after the 

date on which written notice of such failure requiring the same to be remedied shall have been 

given by the Manager or the Initial Member to the Servicer; or 

(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 

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

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

(f) any other failure (other than those specified in any of Section 7.l(a) 

through W, or .(g} through [kl) by the Servicer to perform its obligations under, and otherwise to 

comply with and observe the provisions of, this Agreement or to perform any Servicing 

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

a period of thirty days, or such other period as the Manager, with the consent of the Initial 

Member, and the Servicer agree, after the date on which written notice of such failure shall have 

been given by the Manager or the Initial Member to the Servicer; provided, however, that in the 

case of a failure that cannot be cured within thirty days (or such other period as the Manager, 

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

diligence, but which by its nature is curable, the cure period shall be extended for an additional 

thirty days if the Servicer can demonstrate to the reasonable satisfaction of the Manager and the 

Initial Member that the Servicer is diligently pursuing remedial action; and provided, further, 

that, with respect to any such failure under this Section 7. I(f) that relates exclusively to 

obligations included in any applicable Schedule hereto that can be amended or otherwise 

modified without the consent of the Initial Member, then no such consent of the Initial Member 

shall be required with respect to an applicable cure period hereunder so long as such failure 

hereunder is not, or would not result in, a failure by the Manager to comply with its obligations 

under the LLC Operating Agreement and the other Transaction Documents; or 

(g) any Dissolution Event (without any cure period other than as may be 

provided for in the definition of Dissolution Event) (i) with respect to the Servicer or (ii) with 

respect to any Subservicer; provided, that any such Dissolution Event under this clause (ii) shall 

not be a Default hereunder (but shall in all events be a default under the applicable Subservicing 

Agreement) so long as the Servicer shall have fully replaced such affected Subservicer within 

thirty days after the occurrence of such Dissolution Event; 

(h) the occurrence of any "Event of Default," as defined in the LLC Operating 

Agreement; or 

(i) [intentionally omitted]; or 

(j) any failure by the Servicer to duly observe or perform its obligations in 

Section 11.9; provided, that in the event that any such failure of the Servicer is due to the failure 

of any Subservicer to comply with the provisions of Section 11.9, then it shall not be a Default 

under this clause (j) (but shall in all events be a default under the applicable Subservicing 

Agreement) so long as Servicer shall have replaced such Subservicer within thirty days after the 

occurrence of such Subservicer's failure to duly observe or perform Servicer's obligation under 

Section 11.9; or 

(k) the occurrence of any Restricted Servicer Change of Control. 

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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 

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) In addition to the rights set forth above in Section 7.2(a), (i) upon the 

removal of the Manager as the "Manager" pursuant to the LLC Operating Agreement and/or 

notice from the Initial Member or the Manager of the occurrence of any Event of Default (as 

defined in the LLC Operating Agreement) under the LLC Operating Agreement, the Initial 

Member (or any successor "Manager" to the Manager under the LLC Operating Agreement) may 

exercise all of the rights of the Manager under this Agreement and further cause the termination 

or assignment of this Agreement from the Manager to any other Person, without penalty or 

payment of any fee, and (ii) upon the occurrence of any Default under this Agreement, the 

Manager (or applicable successor "Manager" to the Manager under the LLC Operating 

Agreement), 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. 

(c) The Servicer hereby consents to its immediate and automatic termination 

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

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

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

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

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

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

any such default or failure to perform. In the event that the default or failure to perform is not 

cured within thirty days after the date of delivery of the Termination Notice, the Servicer shall 

provide a second Termination Notice to the Manager with a copy to 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 

days after the delivery of such second Termination Notice to the Manager 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 

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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 5 as the same may be amended from time to time by the 

Manager (without the consent of the Initial Member) and the Servicer. 

(b) The Servicer may, at any time after the first anniversary of the Effective 

Date, without cause, terminate this Agreement. No termination of this Agreement by the 

Servicer shall be effective unless the Servicer delivers to the Manager, with a copy to 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 days prior to any date specified by the Servicer as the date of termination of the 

Servicer's Obligations under this Agreement. Notwithstanding the foregoing, such Termination 

Notice shall not be effective unless the Termination Notice contains confirmation of the intent 

and obligation of the Servicer to continue to perform its Servicing Obligations until the earlier of 

(i) ninety days after the Termination Notice is given and (ii) such other date on which the 

Servicing Obligations are transferred to a successor Servicer in an orderly manner. Servicer 

shall cooperate fully and completely with the transition of the Servicing Obligations to a 

successor Servicer, to be designated by the Manager, in order to assure an orderly transfer. The 

Servicer issuing the Termination Notice shall be liable for all costs 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 any Borrowers. 

Section 7.4. Effective Termination Date. Termination as specified in this 

ARTICLE VII shall be effective at such time as is specified in the Termination Notice. In the 

event of such termination, all authority and power of the Servicer under this Agreement, whether 

with respect to the Assets or otherwise, shall pass to and be vested in the Manager or the 

successor servicer designated by the Manager in the case of termination by the Manager, or as 

designated by 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 or assignment 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 

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of this Agreement. The Servicer shall provide written notice in conformance with all applicable 

Law to the Borrowers to indicate that their Assets will henceforth be Serviced by the Manager 

(or applicable successor "Manager" under the LLC Operating Agreement) or any applicable 

successor Servicer designated by the Manager (or any successor "Manager" under the LLC 

Operating Agreement) 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. 

(a) The Servicer shall indemnify and hold harmless the Company, the 

Manager, the Initial Member, the Receiver and the FDIC, and their respective Related Persons 

(all of the foregoing, collectively, the "Indemnified Parties") from and against any and all 

Losses whatsoever directly or indirectly resulting from, connected with, arising out of or related 

to (i) any breach of or inaccuracy in any of the Servicer's repreresenations or warranties 

contained in this Agreement, (ii) any failure of the Servicer to perform its obligations under, and 

otherwise to comply with and observe the provisions of, this Agreement, or (iii) any act taken by 

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

results in a claim related to the unlawful use of such power of attorney. The Servicer's 

obligations under this Section 8.2 shall survive termination of this Agreement, and, with respect 

to any third party beneficiary of this Agreement (and its Related Persons) shall also survive such 

third party beneficiary otherwise ceasing generally to constitutes such a third party beneficiary. 

Each Indemnified Party shall deliver notice, of any claim or demand made by any Person against 

such Indemnified Party for which such Indemnified Party may seek indemnification under this 

Section 8.2 (a "Third Party Claim"), to the Servicer promptly after receipt by such Indemnified 

Party of written notice of the Third Party Claim, describing such Third Party Claim in reasonable 

detail. The failure or delay to provide such notice, however, shall not release the Servicer from 

any of its obligations under this Section 8.2 except to the extent that it is materially prejudiced by 

such failure or delay. The Servicer acknowledges and agrees that it shall have no recourse 

against the Company for any amounts the Servicer is required to pay pursuant to this Section 8.2, 

and in no event shall expenses incurred by the Servicer or any Subservicer in connection with its 

obligations under this Section 8.2 constitute Servicing Expenses or otherwise be deducted from 

or reimbursed out of Asset Proceeds. 

(b) If the Servicer confirms in writing to the Indemnified Party within fifteen 

days after receipt of a Third Party Claim the Servicer's responsibility to indemnify and hold 

harmless the Indemnified Party therefor, the Servicer may elect to assume control over the 

compromise or defense of such Third Party Claim at the Servicer's sole expense and with 

counsel selected by the Servicer, which counsel must be reasonably satisfactory to the 

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Indemnified Party, provided that (i) the Indemnified Party may, if such Indemnified Party so 

desires, employ counsel at such Indemnified Party's own expense to assist in the handling (but 

not control the defense) of any Third Party Claim; (ii) the Servicer shall keep the Indemnified 

Party advised of all material events with respect to any Third Party Claim; (iii) the Servicer shall 

obtain the prior written approval of the Indemnified Party before ceasing to defend against any 

Third Party Claim or entering into any settlement, adjustment or compromise of such Third Party 

Claim involving injunctive or similar equitable relief being imposed upon the Indemnified Party 

or any of its Affiliates; and (iv) the Servicer will not, without the prior written consent of the 

Indemnified Party, settle or compromise or consent to the entry of any judgment in any pending 

or threatened action in respect of which indemnification may be sought hereunder (whether or 

not any such Indemnified Party is a party to such action), unless such settlement, compromise or 

consent by its terms obligates the Servicer to satisfy the full amount of the liability in connection 

with such Third Party Claim and includes an unconditional release of such Indemnified Party 

from all liability arising out of such Third Party Claim. 

(c) Notwithstanding anything contained herein to the contrary, the Servicer 

shall not be entitled to control (and if the Indemnified Party so desires, it shall have sole control 

over) the defense, settlement, adjustment or compromise of (but the Servicer shall nevertheless 

be required to pay all Losses incurred by the Indemnified Party in connection with such defense, 

settlement or compromise): (i) any Third Party Claim that seeks an order, injunction or other 

equitable relief against the Indemnified Party or any of its Affiliates; (ii) any action in which 

both the Servicer or any Affiliate of the Servicer, on one hand, and the Indemnified Party, on the 

other hand, are named as parties and either the Servicer (or such Affiliate) or the Indemnified 

Party determines with advice of counsel that there may be one or more legal defenses available 

to it that are different from or additional to those available to the other party or that a conflict of 

interest between such parties may exist in respect of such action; and (iii) with respect to any 

such Third Party Claim against the FDIC (in any capacity), any matter that raises or implicates 

any issue relating to any power, right or obligation of the FDIC under any Law. In addition to 

the foregoing, if the Servicer elects not to assume the compromise or defense of any Third Party 

Claim, fails to timely and properly notify the Indemnified Party of its election as herein 

provided, or, at any time after assuming such defense, fails to diligently defend against such 

Third Party Claim in good faith, the Indemnified Party may pay, settle, compromise or defend 

against such Third Party Claim (but the Servicer shall nevertheless be required to pay all Losses 

incurred by the Indemnified Party in connection with such payment, settlement, compromise or 

defense). In connection with any defense of a Third Party Claim (whether by the Servicer or the 

Indemnified Party), all of the parties hereto shall, and shall cause their respective Affiliates to, 

cooperate in the defense or prosecution thereof and to in good faith retain and furnish such 

records, information and testimony, and attend such conferences, discovery proceedings, 

hearings, trials and appeals, as may be reasonably requested by a party hereto in connection 

therewith. The Servicer shall promptly pay, discharge and satisfy any judgment or decree which 

may be entered against it or any Indemnified Party in respect of such claim subject to 

indemnification hereunder. 

Section 8.3. Pre-Effective Date Liabilities. Notwithstanding anything to the 

contrary herein, but without limitation of the release set forth in Section 11.13, it is understood 

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and agreed that the Servicer shall not be liable to the Manager for any liabilities or obligations 

attributable to an act, omission or circumstances of the Initial Member (including as Transferor), 

the FDIC, the Failed Bank and the Company that occurred or existed prior to the Effective Date 

or, with respect to any particular Asset, the Servicing Transfer Date applicable thereto (the "PreExisting 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 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 above (in the event that such claim or action is subject to the indemnification obligations of 

Servicer pursuant to Section 8.2 above), the Manager shall have the right to control and assume 

the defense of the Company, the Manager, the Servicer and the Subservicer with respect to such 

claim or action at the Manager's expense. The Servicer shall be reimbursed by the Manager in 

connection with the foregoing only to the extent of and in accordance with the terms set forth on 

Schedule 3, as the same may be amended from time to time by the Manager (without the consent 

ofthe Initial Member) and the Servicer. 

ARTICLE IX 


NOTICES 


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

given or delivered under or by reason of the provisions of this Agreement shall be 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 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. 

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If to the Manager: 

with a copy to: 

If to the Initial Member: 

with a copy to: 

If to the Servicer: 

with a copy to: 

HRC SVC Pool II Acquisition LLC 

c/o Hudson Realty Capital LLC 

250 Park A venue South, 3rd Floor 

New York, NY 10003 

Attention: Renee Lewis and Andrew Bloom 

Sidley Austin LLP 


787 Seventh Avenue 


New York, NY 10019 


Assistant Director- Structured Transactions 

Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email: rmalami@fdic.gov 

Supervisory Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room D-7102) 

Arlington, Virginia 22226 

Attention: Kathleen Russo 

Email: krusso@fdic.gov 

27th and University LLC 

c/o Hudson Realty Capital LLC 

250 Park A venue South, 3rd Floor 

New York, NY 10003 

Sidley Austin LLP 

787 Seventh Avenue 

New York, NY 10019 

Attention: Mark A. Poo 

Email Address: 

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ARTICLE X 


GOVERNING LAW; JURISDICTION 


Section IO.l. Governing Law. EACH PARTY TO THIS AGREEMENT 

AGREES AND ELECTS THAT, IN ACCORDANCE WITH SECTION 5-I401 OF THE 

GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, THIS AGREEMENT IS 

TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF 

THE STATE OF NEW YORK, EXCLUDING ANY CONFLICT OF LAWS RULE OR 

PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF 

THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION AND EACH PARTY 

TO THIS AGREEMENT UNCONDITIONALLY AND IRREVOCABLY W AlVES ANY 

CLAIM TO ASSERT THAT THE LAWS OF ANY OTHER JURISDICTION GOVERN THIS 

AGREEMENT. Nothing in this Agreement shall require any unlawful action or inaction by any 

party hereto. 

Section 10.2. Jurisdiction; Venue and Service. Each of the Manager and the 

Servicer, in each case 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, or any third-party beneficiary other than the FDIC (in any capacity), with respect to 

this Agreement may be instituted, and that any suit, action or proceeding instituted by it against 

any other party with respect to this Agreement shall be instituted, only in the Supreme Court of 

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

ofNew 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 I 0.2(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 1 0 .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 I 0.2(a), (ii) waives any claim that any such suit, action or 

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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 1 0.2 shall be binding upon or 

construed to constitute consent to jurisdiction by the Failed Bank or the FDIC, in any capacity, or 

constitute a limitation on any removal rights the FDIC, in any capacity, may have. 

Notwithstanding the above, with respect to any proceedings initiated by the FDIC (in any 

capacity) as a third party beneficiary, or if at any time the FDIC (in any capacity) shall be a party 

hereto as the "Manager" (as a result of an applicable replacement of the "Manager" pursuant to 

the terms of the LLC Operating Agreement), the terms of this Section 10.2 shall be restated as 

follows: 

"The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and 

unconditionally: 

(a) (i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

commenced by the FDIC, in any capacity, arising out of, relating to, or in connection with this 

Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the FDIC, in any capacity, files 

the action, suit or proceeding without the consent of the FDIC; 

(B) assert that venue is improper in either the United States 

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

District of Columbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of 

New York, County of New York, for any suit, action or proceeding against it or any of its 

Affiliates commenced by the FDIC, in any capacity, arising out of, relating to, or in connection 

with this Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the FDIC; 

(B) assert that venue is improper in the Supreme Court of the 

State ofNew York, County ofNew York; or 

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(C) assert that the Supreme Court of the State of New York, 

County ofNew York is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding against the FDIC, in 

any capacity, arising out of, relating to, or in connection with this Agreement, the LLC Operating 

Agreement or any other Transaction Document in only either the United States District Court for 

the Southern District 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; and 

(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 1 0.2(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. 

(b) The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and 

unconditionally agrees that any final judgment entered against it in any suit, action or proceeding 

falling within Section 1 0.2(a) may be enforced in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 10.2(d), the Servicer, on behalf of 

itself and its Affiliates, 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 1 0.2(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. 

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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: (i) any merger, consolidation or 

dissolution involving the Servicer or (ii) any transfer or all or substantially all of the assets of the 

Servicer, notwithstanding whether any of the foregoing transactions occur at one time or in the 

aggregate over a period of time. The Servicer shall not assign any rights or obligations 

hereunder to any other Person other than as is expressly provided in this Agreement. Any 

purported sale, sub-participation or assignment or delegation in violation of this Section 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 or any right to transfer or sell the 

Servicing, or (ii) assign, pledge or otherwise transfer or purport to assign, pledge or otherwise 

transfer any interest to any Subservicer or other Person in the Servicing. Any purported 

assignment, pledge, delegation or other transfer in violation of this Section 11.1 (b) shall be void 

ab initio and of no force or effect whatsoever. For the avoidance of doubt, upon any sale of any 

Asset by the Company (including by the Servicer on behalf of the Manager on behalf of the 

Company) in accordance with the terms hereof and the other Transaction Documents, such Asset 

shall prospectively cease to constitute an "Asset" for any purpose of this Agreement, provided 

that nothing in this sentence releases the Servicer from any liability or obligation hereunder with 

respect to such Asset in relation to the period prior to such sale. 

Section 11.2. Legal Fees. No party to this Agreement shall be responsible for 

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

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

hereto. 

Section 11.3. Entire Agreement. This Agreement contains the entire agreement 

between the Manager and the Servicer and supersedes any and all other prior agreements, 

whether oral or written, with respect to the subject matter hereof. 

Section 11.4. Counterparts; Facsimile Signatures. This Agreement may be 

executed in two or more counterparts, each of which shall be deemed an original but all of which 

together shall constitute but one and the same agreement. This Agreement and any amendments 

hereto, to the extent signed and delivered by facsimile or other electronic means, shall be treated 

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

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

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

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

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

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Version 3.1 
the formation or enforceability of a contract and each such Person forever waives any such 

defense. 

Section 11.5. Headings. Paragraph titles or captions contained in this Agreement 

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

or describe the scope of this Agreement or the intent of any provisions hereof. All Article, 

Section and paragraph references contained herein shall refer to Articles, Sections and 

paragraphs in this Agreement unless otherwise specified. 

Section 11.6. Compliance with Law. Except as otherwise specifically provided 

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

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

Section 11.7. Severability. Any provision of this Agreement which is prohibited 

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

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

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

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

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

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

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

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

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

or @, such ineffectiveness shall not invalidate any of the remaining provisions of this 

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

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

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

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

court shall have the power to, and shall, (x) modify such provision (including, to the extent 

applicable, by limiting the duration or scope of such provision and/or the Persons against whom, 

and/or the circumstances under which, such provision shall be effective in such jurisdiction) for 

purposes of such proceeding to the minimum extent necessary so that such provision, as so 

modified, may then be enforced in such proceeding and (y) enforce such provision, as so 

modified pursuant to clause (x), in such proceeding. Nothing in this Section 11.7 is intended to, 

or shall, limit ( 1) the ability of any party to this Agreement to appeal any court ruling or the 

effect of any favorable ruling on appeal or (2) the intended effect of Section 1 0.1. 

Section 11.8. Third Party Beneficiaries. The Initial Member (including as 

Transferor) shall be and is hereby designated as a third party beneficiary under this Agreement, 

and, as such, the Initial Member is entitled to enforce this Agreement as if the Initial Member 

were a party hereto. The Company, the Receiver and the FDIC shall be and are hereby 

designated as third party beneficiaries under this Agreement with respect to those provisions of 

this Agreement which expressly grant rights to such Persons, and, as such, each is entitled to 

enforce such provisions of this Agreement as if such Person were a party hereto. 

Notwithstanding the foregoing, none of 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 

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liability whatsoever to the Servicer, any Subservicer or any other party related to this Agreement. 

There shall be no other third party beneficiaries. 

Section 11.9. Protection of Confidential Information. 

(a) The Servicer shall keep confidential (and shall cause any Subservicer to 

keep confidential), and shall not divulge (and shall cause any Subservicer to not divulge) to any 

party without the Manager's prior written consent, any information pertaining to the LLC 

Operating Agreement, the Assets or any Borrower or Obligor or the Collateral, except as 

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

for the Servicer or a Subservicer, as applicable, to do so in working with legal counsel, auditors, 

taxing authorities, regulatory authorities or any other Governmental Authority or in accordance 

with the Servicing Standard; provided, that, to the extent that disclosure should be required by 

law, 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 shall, and shall cause all 

Subservicers to, use all reasonable efforts to maintain confidentiality and shall (unless otherwise 

prohibited by Law) notify the Manager and the Initial Member within one Business Day after its 

knowledge of such legally required disclosure so that the Manager and/or the Initial Member 

may seek an appropriate protective order and/or (in the case of the Manager) direct the Manager 

to waive the Servicer's or Subservicer's, as the case may be, compliance with this Agreement. 

Notice shall be by telephone, by email and in writing. In the absence of a protective order or 

waiver, the Servicer and any applicable Subservicer may make such required disclosure if, in the 

written opinion of Servicer's outside counsel (which opinion shall be provided to the Manager 

and the Initial Member prior to disclosure pursuant to this Section 11.9), failure to make such 

disclosure would subject the Servicer or the Subservicer, as the case may be, to liability for 

contempt, censure or other legal penalty or liability. 

(b) The Servicer shall, and shall cause each Subservicer to, (i) comply with all 

applicable Laws regarding the privacy or security of Customer Information, and (ii) maintain and 

comply with policies and procedures for protection of Customer Information in a way that is 

designed to ensure such compliance with applicable Laws (including by obtaining information 

technology audits and maintaining monitoring software on internal accounting systems and the 

systems of applicable Servicers, Subservicers and other third-party vendors generating, 

maintaining or otherwise having access to any Customer Information). The Servicer shall, and 

shall cause each Subservicer to, promptly make available to the Initial Member information 

regarding such policies and procedures as requested by either of them from time to time. The 

Servicer further agrees that any Customer Information transmitted electronically by it shall be 

encrypted. 

Section 11.1 0. Time of Essence. Time is hereby declared to be of the essence of 

this Agreement and of every part hereof. 

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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 Asset Proceeds (or the Company). 

Section 11.13. Release of Initial Member and Others. The Servicer hereby 

releases and discharges each Prior Servicer from any and all claims (including any counterclaim 

or defensive claim), demands, causes of action, judgments or legal proceedings and remedies of 

whatever kind or nature that the Servicer had, has or might have in the future, whether known or 

unknown, which are related in any manner whatsoever to the Servicing (prior to the applicable 

Servicing Transfer Date) by the Prior Servicers, in each case other than for acts or omissions 

constituting gross negligence, violation of law or willful misconduct of such Prior Servicer. 

[Remainder ofPage Intentionally Left Blank] 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

as of the day and year first above written. 

MANAGER: 

SERVICER: 

27TH AND UNIVERSITY LLC 

-

B !'. I . . . ' • 

Name. 


Title: Authorized Signatory 


[Signature Page to Servicing Agreement- Page l of I] 

2011-SIP-1 RADC Structured Transaction 

Servicing Agreement 

Version 3.1 
EXHIBIT B 


FORM OF ELECTRONIC TRACKING AGREEMENT 


[intentionally omitted] 

B-1 


20ll-SIP-I RADC Structured Transaction 

Servicing Agreement 

Version 3. I 
EXHIBIT B 


FORM OF ELECTRONIC TRACKING AGREEMENT 


[intentionally omitted] 

B-1 


20ll-SIP-I RADC Structured Transaction 

Servicing Agreement 

Version 3. I 
EXHIBIT A 


ASSET SCHEDULE 


A-1 


20ll-SIP-l RADC Structured Transaction 

Servicing Agreement 

Version 3.1 
SCHEDULE I 


FEE SCHEDULE 


SCHEDULE I 

2011-SIP-1 RADC Structured Transaction 

Servicing Agreement 

Version 3.1 
SCHEDULE2 


SERVICING OBLIGATIONS 


Please See Attached. 

SCHEDULE 2 

2011-SlP-l RADC Structured Transaction 

Servicing Agreement 

Version 3.1 
SCHEDULE3 


REIMBURSEMENT OF SERVICER ADVANCES 


Manager does not expect to request Servicer to make advances. Manager and Servicer 

will agree on terms of reimbursement prior to the making of any Servicer Advances. 

SCHEDULE 3 

2011-SIP-l RADC Structured Transaction 

Servicing Agreement 

Version 3.1 
SCHEDULE4 


FORM OF ELECTRONIC REPORT ON THE LOANS AND COLLATERAL 


Please see Exhibit B to the LLC Operating Agreement. 

SCHEDULE 4 

20ll-SIP-l RADC Structured Transaction 

Servicing Agreement 

Version 3.1 
SCHEDULES 

TERMINATION WITHOUT CAUSE 

The Manager may, without cause, terminate this Agreement upon providing a 

Termination Notice to the Servicer not less than 30 days prior to the date on which such 

termination is to become effective. 

SCHEDULE 5 

20ll-SIP-l RADC Structured Transaction 

Servicing Agreement 

Version 3.1 
SCHEDULE6 


BUSINESS PLAN SCHEDULE 


The Business Plan Schedule will be in accordance with the requirements of Section 7.7 of 

the LLC Operating Agreement. 

SCIIEDULE 6 

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Servicing Agreement 

Version 3.1