•• 

SERVICING AGREEMENT 


by and between 


ANB VENTURE, LLC 


and 


KINGSTON MANAGEMENT SERVICES LLC 


Dated as of January 12, 2009 

ANB Servicing A&>reement 

EXECUTION VERSION 
TABLE OF CONTENTS 


ARTICLE! DEFINITIONS AND CONSTRUCTION .......................................................... I 


Section 1.01 Definitions................................................................................................... I 


ARTICLE II SERVICING OBLIGATIONS OF THE SERVICER ........................................ 9 


Section 2.01 Appointment and Acceptance as Servicer .................................................. 9 


Section 2.05 Collection Account ................................................................................... I 0 


Section 2.06 Escrow Accounts ...................................................................................... I 0 


Section 2.07 Other Accounts ......................................................................................... I 0 


Section 2.08 Maintenance oflnsurance Policies; Errors and Omissions and Fidelity 


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


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


Section 2.04 Servicing Obligations and Servicing Standard ........................................... 9 


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


Section 2.09 Expenses ................................................................................................... 11 


Section 2.10 Insured or Guaranteed Loans .................................................................... 11 


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


Section 3.0 I Delinquency Control ................................................................................. 12 


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


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


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


Section 4.01 Retention of Subservicer........................................................................... 12 


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


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


Section 4.04 Company Approval Required ................................................................... 14 


ARTICLEV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE 


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


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


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


Section 5.03 Audits ........................................................................................................ 17 


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


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


Section 5.06 Notice of Breach ....................................................................................... 18 


ARTICLE VI PARTICIPANT CONSENT ............................................................................. 18 


Section 6.01 Actions Requiring Participant Consent... .................................................. 18 


Section 6.02 Participant Approval Required; Amendments, Modification and 


Waivers ..................................................................................................... 19 


ARTICLE VII DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE ........ 19 


Section 7.01 Defaults ..................................................................................................... 19 


Section 7.02 Termination with Cause ............................................................................ 20 


ANB Servicing Agreement 

EXECUTION VERSION 
Section 7.03 Termination Without Cause ...................................................................... 21 


Section 7.04 Effective Date ........................................................................................... 21 


Section 7.05 Accounting ................................................................................................ 21 


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


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


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


Section 8.03 Procedure for Indemnification .................................................................. 22 


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


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


Section I 0.01 Govemin g Law ......................................................................................... 24 


Section I 0.02 Ju risdiction; Venue and Service ................................................................ 24 


Section I 0.03 Waiver of Jury Trial... ............................................................................... 24 


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


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


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


Section 11.02 L ega! Fees ................................................................................................. 25 


Section 11.03 Entire A greement.. .................................................................................... 25 


Section 11.04 Counterparts; Facsimile Signatures .......................................................... 25 


Section 11.05 Headin gs ................................................................................................... 25 


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


Section 11.07 Compliance with Law ............................................................................... 26 


Section 11.08 Severabilit y ............................................................................................... 26 


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


Section 11.10 Protection of Confidential Information ..................................................... 27 


Section 11.11 Time of Essence ........................................................................................ 27 


Section 11.12 No Presumption ........................................................................................ 27 


Section 11.13 No Right of Setoff ..................................................................................... 27 


ANB Servicing Agreement 

EXECUTION VERSION 

11 
Exhibits 


Exhibit A 


Exhibit B 


Schedules 

Schedule I 

Schedule 2 

Schedule 3 

Schedule 4 

SCHEDULES AND EXHIBITS 

Loan Schedule 

Fee Schedule 

Servicing Obligations 

Reimbursement of Servicer Advances 

Termination Without Cause 

Form of Electronic Report on the Loans and CollateraJ 1 

1 Shall be inserted as Exhibit at such point in time as the identical Exhibit for Loans and Collateral attached to the 

Participation Agreement is complete. 

ANB Servicing Agreemen! 

EXECUTION VERSION 

111 
SERVICING AGREEMENT 

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

"Agreement") is made and entered into as of the 12th day of January, 2009, by and between 

ANB VENTURE, LLC, a Delaware limited liability company (including its successors and 

assigns, "Company"), and Kingston Management Services LLC, a Nevada limited liability 

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

this Agreement, the "Servicer"). 

RECITALS 

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

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

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

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

"Participation Agreement") dated as of the 12'h day of January, 2009, by and between the 

Company and the Federal Deposit Insurance Corporation (the "FDIC"), as receiver ("Receiver") 

for ANB Financial, N .A., including its successors and assigns, ("Participant"); and 

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

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

consistent with the requirements of this Agreement; 

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

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

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

follows: 

ARTICLE I 

DEFINITIONS AND CONSTRUCTION 

Section 1.01 Definitions. For purposes of this Agreement, the following terms shall 

have the meanings and definitions hereinafter respectively set forth in this Section 1.01. 

"Acceptable Rating" shall mean any of the top three rating categories that may be 

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

"Acquired Collateral" shall mean Collateral to which title is acquired by or on behalf of 

the Company or any other ownership entity by foreclosure, by deed in lieu of foreclosure, by 

power of sale or by sale pursuant to the Uniform Commercial Code, in any such case in 

accordance with the Loan Documents and this Agreement. 

"Affiliate" shall mean, with respect to any specified Person, (i) any other Person directly 

or indirectly controlling or controlled by or under common control with such specified Person, 

(ii) any Person owning or controlling ten percent (10%) or more of the outstanding voting 

securities, voting equity interests, or beneficial interests of the Person specified, (iii) any officer, 

ANB Servicing Agreement 

EXECUTION VERSION 
director, partner, member, trustee, employee or promoter of the Person specified or any 

Immediate Family Member of such officer, director, partner, member, trustee, employee or 

promoter, (iv) any corporation, partnership, limited liability company or trust for which any 

Person referred to in clause (ii) or (iii) acts in that capacity, or (v) any Person who is an officer, 

director, general partner, managing member, trustee or holder of I 0% or more of outstanding 

voting securities, voting equity interests or beneficial interests of any Person described in clauses 

(i) through (iv). Notwithstanding the foregoing, for purposes ofthis Agreement, Participant shall 

not be deemed to be an Affiliate of either the Company or any Affiliate ofthe Company. For the 

purposes ofthis definition, the term "control" (including the phrases "controlled by" and 

"under common control witb") when used with respect to any specified Person means the 

possession, direct or indirect, of the power to direct or cause the direction of the management and 

policies of such Person, whether through the ownership of voting securities or interests, by 

contract or otherwise. In addition to the foregoing, references to the term "Affiliates" include, 

with respect to any specified Person, only such other Persons which from time to time constitute 

Affiliates of such specified Person, and do not include, at any particular time, other Persons that 

may have been, but at such time have ceased to be, "Affiliates" of such specified Person, except 

to the extent that any such reference specifically provides otherwise. 

"Agreement" shall have the meaning given in the preamble and shall include all exhibits 

and schedules, all of which are incorporated into and made a part of this Agreement. 

"Authorized Funding Draw" shall mean any principal advance with respect to a Loan 

listed, up to the maximum aggregate amount of principal advances set forth in the column of the 

Loan Schedule entitled "Maximum Authorized Funding Draw"), including any such advances 

made by Participant prior to the Servicing Transfer Date; provided, however, that (i) if required 

by applicable Law or if otherwise deemed necessary by the Servicer in accordance with 

instructions from the Company, an endorsement to the title policy insuring the Loan, which 

endorsement shall be in form and content acceptable to the Servicer in accordance with 

instructions from the Company, is obtained that (a) brings down the effective date of the title 

policy to the date on which the applicable Authorized Funding Draw it covers is made, (b) 

increases the liability limit ofthe title policy by an amount equal to the principal amount of such 

Authorized Funding Draw, and (c) contains no new exceptions to title; (ii) notwithstanding the 

Servicing Standard, the Servicer in accordance with instructions from the Company shall make 

or permit an Authorized Funding Draw if the Unpaid Principal Balance of the Loan exceeds the 

value of the Collateral only if the Servicer in accordance with instructions from the Company 

determines, in its reasonable judgment, that the Borrower is reasonably likely to be able to repay 

the Loan or that the making of the Authorized Funding Draw is in the best interests (in terms of 

maximizing the value of the Loan) of the Company and Participant; and (iii) such advance is 

made in accordance with the terms of the Loan and the Loan Documents, provided however, if 

any term with respect to the Loan or the Loan Documents precludes such advance in the event of 

a Borrower default, such term may be waived if the Servicer, in accordance with instructions 

from the Company, or the Company determines, in its reasonable judgment, that such waiver is 

in the best interests of the Company and Participant in terms of maximizing the value of the 

Loan. 

"Borrower" shall mean the borrower with respect to a Loan. 

ANB Servicing Agreement 

EXECUTION VERSION 

2 

"Borrower Reimbursable Costs" shall mean, collectively, (i) any and all out-of-pocket 

fees, costs, expenses and indemnified amounts which a Borrower is obligated to pay to any 

Person or to reimburse to the lender pursuant to the applicable Note or any other Loan 

Documents, including Escrow Advances, and (ii) any and all reasonable out-of-pocket expenses 

necessary to protect or preserve the value of the Collateral securing a Loan or the priority of the 

Liens and security interests created by the Loan Documents relating thereto, including taxes, 

insurance premiums (including forced place insurance premiums), payment of ground rent, the 

costs of prevention of waste, repairs and maintenance, foreclosure expenses, and legal fees and 

expenses relating to foreclosure or other litigation with respect to the Loans; provided, however, 

that Borrower Reimbursable Costs shall not include (w) Authorized Funding Draws; (x) 

overhead or administrative costs incurred by the Servicer or any other Person, or (y) servicing, 

management or similar fees paid to the Servicer or any other Person. 

"Business Day" shall mean any day except a Saturday, Sunday or other day on which 

commercial banks in Washington, D.C. or United States federal government offices are required 

or authorized by Law to close. 

"Collateral" shall mean any and all real or personal property, whether tangible or 

intangible, securing or pledged to secure a Loan, including any account, equipment, guarantee or 

contract right, or other interest that is the subject of any Collateral Document, and as the context 

requires, includes Acquired Collateral. 

"Collateral Document" shall mean all pledge agreements, security agreements, personal 

or corporate guaranties, deeds oftrust, mortgages, contracts for the sale of real property, 

assignments, collateral agreements or other agreements or documents of any kind, whether 

originals or copies, whether similar to or different from those enumerated, securing in any 

manner the performance or payment by any Borrower of its obligations or the obligations of any 

other Borrower under any of the Loans or Notes evidencing the Loans. 

"Collection Account" shall have the meaning given in Section 2.05. 

"Company" shall have the meaning given in the preamble. 

"Custodian" shall mean Wells Fargo Bank, N .A. 

"Default" shall have the meaning given in Section 7 .01. 

"Eligible Account" shall mean a segregated trust or custodial account or accounts 

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

benefit ofthe Company and Participant as required by Article II. 

"Eligible Institution" shall mean a Person that is not an Affiliate of the Company and 

that is a federally insured depository institution that is well capitalized; provided that an Affiliate 

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

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

be withdrawn by the FDIC upon written notification to the Company, in which case such 

Affiliate of the Company shall no longer constitute an Eligible Institution as of the receipt of 

AN13 Servicing Agreement 

EXECUTION VERSION 

3 

such notice and any accounts maintained pursuant to this Agreement at such institution shall be 

moved to an Eligible Institution within three (3) Business Days after the receipt of such notice. 

"Effective Date" shall mean January 12,2009. 

"Environmental Hazards" shall mean the presence at, in or under any real property 

constituting part ofthe Collateral (whether held in fee simple estate or subject to a ground lease, 

or otherwise, and including any improvements whether by buildings or facilities, and any 

personal property, fixtures, leases and other property or rights pertaining thereto) of any 

"hazardous substance," as defined in Section 101(14) of the Comprehensive Environmental 

Response, Compensation and Liability Act of 1980,42 U.S.C. §9601(14), or any petroleum 

(including crude oil or any fraction thereof that is liquid at standard conditions of temperature 

and pressure), at a level or in an amount that requires remediation or abatement under applicable 

environmental Law. 

"Escrow Account" shall have the meaning given in Section 2.06. 

"Escrow Advance" shall mean any advance made to pay taxes or insurance premiums or 

any other cost or expense that, but for a shortfall in the Borrower's escrow account, is payable 

using funds in the Borrower's escrow account. 

"Failed Bank" shall mean ANB Financial, N.A. 

"Fannie Mae" shall mean Federal National Mortgage Association of the United States, 

or any successor thereto. 

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

successor thereto. 

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

by the Company and the Servicer without the consent of Participant. 

"GAAP" shall mean United States generally accepted accounting principles as in effect 

from time to time. 

"Governmental Authority" shall mean any United States or non-United States national, 

federal, state, local, municipal or provincial or international government or any political 

subdivision of any governmental, regulatory or administrative authority, agency or commission, 

or judicial or arbitral body. 

"Guarantors" shall mean, collectively, the guarantors of all or any portion of any Loan 

or all or any of any Borrower's obligations set forth and described in the Loan Documents. 

"Immediate Family Member" shall mean, with respect to any individual, his or her 

spouse, parents, parents-in-law, descendents, nephews, nieces, brothers, sisters, brothers-in-law, 

sisters-in-law, children (whether natural or adopted), children-in-law, grandchildren and 

grandchildren-in-law. 

ANB Servicing Agreement 

EXECUTION VERSION 

4 

"Indemnified Parties" shall have the meaning given in Section 8.02. 

"Insolvency Event" shall mean, with respect to any specified Person, the occurrence of 

any of the following events: 

(I) the specified Person makes an assignment for the benefit of creditors; 

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

Proceeding; 

(3) the specified Person is adjudged bankrupt or insolvent or there is entered 

against the specified Person an order for relief in any Insolvency Proceeding; 

(4) the specified Person files a petition or answer seeking for the specified 

Person any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or 

similar relief under any Law; 

(5) the specified Person seeks, consents to, or acquiesces in the appointment 

of a trustee, receiver or liquidator ofthe specified Person or of all or any substantial part of the 

specified Person's properties; 

(6) the specified Person files an answer or other pleading admitting or failing 

to contest the material allegations of a petition filed against the specified Person in any 

proceeding described in clauses (I) through (5); 

(7) the specified Person becomes unable to pay its obligations as they become 

due, or the sum of such specified Person's debts is greater than all of such Person's property, at a 

fair valuation; or 

(8) within ninety (90) days of any proceeding against the specified Person 

seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or 

similar relief under any Law if the proceeding has not been dismissed, or within ninety (90) days 

after the appointment of a trustee, receiver or liquidator for the specified Person or all or any 

substantial part of the specified Person's properties without the specified Person's agreement or 

acquiescence, which appointment is not vacated or stayed, or if the appointment is stayed, for 

ninety (90) days after the expiration of the stay if the appointment is not vacated. 

"Insolvency Proceeding" shall mean any proceeding under Title 11 of the United States 

Code (II U .S.C. §§ 10 I, et seq.) or any proceeding under the Law of any jurisdiction involving 

any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar 

relief. 

"Interest Rate" shall mean the rate at which the outstanding principal balance of a Loan 

bears interest, as more particularly set forth in a Note, including, without limitation, any default 

interest rate, if applicable. 

ANB Servicing Agreement 

EXECUTION VERSION 

5 

"Law" shall mean any applicable statute, law, ordinance, regulation, rule, code, 


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


Authority. 


"Lien" shall mean any pledges, security interests, charges, restrictions on or conditions to 

transfer, voting or exercise or enjoyment of any right or beneficial interest, options, rights of first 

refusal and other liens, claims or encumbrances of any nature whatsoever. 

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

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

interests and co-lending interests in any listed loans, as applicable, and includes with respect to 

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

powers or Liens of the Company in or under the Collateral Documents; (iii) any contract for deed 

or installment land contract and the real property which is subject to any such contract for deed 

or installment land contract; and (iv) any lease and the related leased property. 

"Loan Documents" shall mean all documents, agreements, certificates, instruments and 

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

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

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

part of a Loan or evidencing any transaction contemplated thereby, and all Modifications thereto. 

"Loan Participation" shall mean any asset subject to a shared credit, participation or 

similar inter-creditor agreement under which the Failed Bank or the Receiver was the lead or 

agent financial depository institution or otherwise managed or held the credit or sold 

participations, or under which the Failed Bank or the Receiver was a participating financial 

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

"Loan Participation Agreement" shall mean an agreement under which the Failed Bank 

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

shared credit, or sold participations, or under which the Failed Bank or the Receiver was a 

participating financial depository institution or purchased participations in a credit managed by 

another Person. 

"Loan Proceeds" shall mean (i) any and all proceeds (net of such proceeds as are 

payable to others under any Loan Participation Agreement) with respect to any or all of the 

Loans and any or all of the Collateral that is received at any time after the Servicing Transfer 

Date, including principal, interest, prepayment fees, premiums and charges, extension and exit 

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

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

related Collateral in accordance with the terms of the Loan Documents, proceeds from sales or 

other dispositions of any or all ofthe Loans or the Collateral, any proceeds from making a draw 

under any letter of credit or certificate of deposit held with respect to any Loan, provided that 

such draw is permitted by the terms of the Loan Documents, and any recoveries of Receiver 

Advances or other recoveries from Borrowers or Guarantors of any kind or nature with respect to 

the Loans, and (ii) any interest or other earnings accrued and paid on any of the foregoing while 

held in the Collection Account or any Other Accounts. 

ANB Servicing Agreemcn! 

EXECUTION VERSION 

6 

"Loan Schedule" shall have the meaning given in the first Recital ofthis Agreement and 

as set forth in Exhibit A. 

"Modification" shall mean any extension, renewal, substitution, replacement, 

supplement, amendment or modification of any agreement, certificate, document, instrument or 

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

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

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

related Note. 

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

agreement, shared credit or participation agreement, intercreditor agreement, reimbursement 

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

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

"Other Accounts" shall have the meaning given in Section 2.07. 

"Participant" shall have the meaning given in the second Recital ofthis Agreement. 

"Participation Agreement" shall have the meaning given in the second Recital of this 

Agreement. 

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

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

company, trust, estate, unincorporated organization, governmental or regulatory body or other 

entity. 

"Post-Acquisition Costs" shall mean, collectively, any and all reasonable out-of-pocket 

fees, costs, expenses and indemnified amounts incurred from and after acquisition of Acquired 

Collateral, including any and all direct expenses related to the preservation, operation, 

demolition, management and sale of the Acquired Collateral; provided, however, that PostAcquisition Costs shall not include (x) overhead or administrative costs incurred by the 

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

or any other Person. 

"Qualified Servicer" shall mean any Person that (i) is properly licensed, if a license is 

required, and qualified to conduct business in each jurisdiction in which such licenses and 

qualifications to conduct business are necessary for the servicing of the Loans and management 

of the Collateral and the Acquired Collateral, (ii) has the management capacity and experience to 

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

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

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

to borrowers, to monitor construction, and to approve and disburse construction draws, and (iii) 

either (x) has an Acceptable Rating as a mortgage loan servicer or special servicer or (y) is an 

FDIC-insured depository institution or an Affiliate of an FDIC-insured depository institution, 

and (iv) in the case of any mortgage loan servicer or special servicer that does not have an 

ANB Servicing Agreemen! 

EXECUTION VERSION 

7 

Acceptable Rating, is acceptable to and approved by Participant (such approval not to be 

unreasonably withheld, delayed or conditioned). 

"Rating Agencies" shall mean each of Moody's Investors Service, Inc., Standard & 

Poor's Rating Services, a division of The McGraw-Hill Companies, Inc., Fitch IBCA, Inc. and 

such other rating agencies as are nationally recognized. 

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

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

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

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

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

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

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

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

financial advisers; (b) fees and expenses of the Custodian; (c) Authorized Funding Draws; and 

(d) to the extent not covered by any of clauses (a) through (c), any and all legal fees and 

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

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

Loans, and (y) arise out ofthe acts or omissions of the Failed Bank or the Receiver in connection 

with the origination or servicing of such Loans prior to the Servicing Transfer Date. 

"Servicer Remittance Date" shall mean the I O'h day of each month, unless the Company 

and the Servicer agree on another date. If such day is not a Business Day, the Servicer 

Remittance Date shall be the immediately preceding Business Day. 

"Servicing Fee" shall have the meaning given in Section 2.03 and as set forth in Exhibit 

B. 

"Servicing Obligations" shall have the meaning given in Section 2.04 and as set forth in 

Schedule 1. 

"Servicing Standard" shall have the meaning given in Section 2.04. 

"Servicing Transfer Date" shall be February 4, 2009, or such other date as is agreed to 

by the Servicer and the Company. 

"Site Assessment" shall have the meaning given in Section 3.03. 

"Subservicer" shall have the meaning given in Section 4.01. 

"Subservicing Agreement" shall have the meaning given in Section 4.02. 

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

Article VII. 

ANB Servicing Agreement 

EXECUTION VERSION 

8 

"Uniform Commercial Code" shall mean, with respect to each discrete element or 


category ofthe personal property Collateral, the Uniform Commercial Code in effect in the 


applicable jurisdiction, as the same may be amended from time to time. 


"Unpaid Principal Balance" shall mean, at any time, an amount equal to the then 

aggregated outstanding principal balance of the Loans and, for each Loan with respect to which 

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

time as the Acquired Collateral (or any portion thereof) is liquidated, the unpaid principal 

balance of the related Loan (adjusted pro rata for partial collateral sales, debt forgiveness or 

retained indebtedness) at the time at which such Loan was converted to Acquired Collateral plus 

any outstanding balance remaining on such Loan which is evidenced by a modification 

agreement or a replacement or successor promissory note executed by the Borrower. 

ARTICLE II 


SERVICING OBLIGATIONS OF THE SERVICER 


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

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

behalf of and as an agent of the Company. 

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

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

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

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

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

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

pursuant to Article VII. 

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

Remittance Date, the Servicer shall be paid such monthly servicing fee as is set forth on the Fee 

Schedule (the "Servicing Fee"). 

Section 2.04 Servicing Obligations and Servicing Standard. The Servicer shall take 

such actions in connection with the servicing, administration, management and disposition of the 

Loans and Collateral as are set forth on Schedule 1 (as the same may be amended from time to 

time by the Company and the Servicer without Participant's consent) (the "Servicing 

Obligations"). The Servicer shall be obligated to service the Loans and the Collateral in 

accordance with the provisions of this Section 2.04 and (i) in the best interests and for the benefit 

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

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

accordance with all applicable Law, and, (v) to the extent consistent with the foregoing terms, in 

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

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

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

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

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

administering similar loans and properties on an arms' length basis (collectively, the "Servicing 

ANB Servicing Agreement 

EXECUTION VERSION 

9 

Standard"). The Servicer shall perform its Servicing Obligations without regard to (i) any 

relationship that the Servicer, the Company or any Subservicer or any oftheir respective 

Affiliates may have to any Borrower, Guarantor or other obligor or any of their respective 

Affiliates, including any other banking or lending relationship, (ii) the Servicer's or any 

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

Collateral, (iii) any relationship that any Subservicer or any of its Affiliates may have to each 

other or the Servicer or any of its Affiliates (other than the contractual relationship evidenced by 

this Agreement or any Subservicing Agreement), (iv) any relationship that the Servicer or any of 

its Affiliates may have to the Company or any of its Affiliates (other than the contractual 

relationship evidenced by this Agreement), and (v) the Servicer's or any Subservicer's right to 

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

Subservicing Agreement. 

Section 2.05 Collection Account. Except as otherwise directed by the Company: 

(a) on or prior to the Servicing Transfer Date, the Servicer shall establish 

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

benefit of the Company and Participant and shall be for the purpose of holding and 

distributing the Loan Proceeds (the "Collection Account"); the Servicer shall deposit into the 

Collection Account all Loan Proceeds on a daily basis; no funds from any other source (other 

than interest or earnings on the Loan Proceeds) shall be commingled in the Collection 

Account; or 

(b) the Servicer shall remit all amounts on deposit in the Collection 


Account to the Company by the Servicer Remittance Date of each month; or 


(c) any and all amounts on deposit in (or that are required to have been 

deposited into) the Collection Account (including interest and earnings thereon) shall be 

withdrawn and disbursed strictly in accordance with this Agreement; or 

(d) any and all amounts due the Company under this Agreement shall be 

remitted by wire transfer, in immediately available funds to such account or accounts as the 

Company may, from time to time, direct. 

Section 2.06 Escrow Accounts. Except as otherwise directed by the Company, the 

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

entitled in trust for the benefit ofthe Company and Participant ("Escrow Account"). Except as 

otherwise directed by the Company, the Servicer shall deposit into the Escrow Account on a 

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

insurance premiums, and comparable items for the account of the Borrowers and the Servicer 

shall pay to the Borrowers interest on funds in Escrow Accounts to the extent required by law. 

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

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

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

and shall be funded and disbursed only in accordance with such instructions as are provided by 

the Company ("Other Accounts"). 

ANB Servicing Agreement 

EXECUTION VERSION 

10 

Section 2.08 Maintenance oflnsurance Policies; Errors and Omissions and Fidelity 


Coverage. 


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

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

Company for each Loan with respect to which the Borrower has failed to maintain required 

insurance, fire, hurricane, flood and hazard insurance with extended coverage as is customary 

in the area in which the Collateral is located and in such amounts and with such deductibles as, 

from time to time, is directed by the Company. 

(b) The Servicer and each Subservicer shall at all times maintain in effect a 

blanket fidelity bond and an errors and omissions insurance policy affording, in each case, 

coverage with respect to all officers, directors, employees and other Persons acting on behalf 

of the Servicer or the Subservicer, as applicable, and covering errors and omissions in the 

performance of the Servicer's or the Subservicer's, as applicable, obligations under this 

Agreement or any Subservicing Agreement. The errors and omissions insurance policy and 

the fidelity bond shall be in such form and amount that would meet the requirements of Fannie 

Mae if Fannie Mae were the purchaser of the Loans, as appropriate. The Servicer and each 

Subservicer shall provide the Company with certificates evidencing such coverage. 

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


maintained pursuant to this Section 2.08 shall be made available to the Company and its 


representatives upon request. 


Section 2.09 Expenses. Except as otherwise directed by the Company, the Servicer 

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

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

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

only in accordance with the terms set forth on Schedule 2, as the same may be amended from 

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

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

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

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

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

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

Section 2.10 Insured or Guaranteed Loans. If any Loans being serviced pursuant to this 

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

acknowledges and agrees that if the Company so directs pursuant to the Servicing Obligations set 

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

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

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

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

insurance or guaranty. 

ANB Servicing Agreemen! 

EXECUTION VERSION 

II 

ARTICLE III 


LOAN DEFAULTS; ACQUISITION OF COLLATERAL 


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

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

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

Standard with Borrowers who are delinquent or in default. 

Section 3.02 Discretion of the Company in Responding to Defaults ofBorrower. Upon 

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

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

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

compliance with the Servicing Standard, the Servicer shall cause to be determined the response 

to such default and course of action with respect to such default, including (a) the selection of 

attorneys to be used in connection with any action, whether judicial or otherwise, to protect the 

respective interests ofthe Company and Participant in the Loan and the Collateral, (b) the 

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

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

pursuant to the power of sale contained therein or through a judicial action, (d) the institution of 

proceedings against any Guarantor, (e) the acceptance of a deed in lieu of foreclosure, (f) the 

purchase of the real property Collateral at a foreclosure sale or trustee's sale or the purchase of 

the personal property Collateral at a Uniform Commercial Code sale, and (g) the institution or 

continuation of proceedings to obtain a deficiency judgment against such Borrower or any 

Guarantor and the collection on such judgment. 

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

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

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

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

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

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

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

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

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

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

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

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

portion of such Collateral having any actual or threatened Environmental Hazards by 

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

Commercial Code or otherwise. 

ARTICLE IV 


SUBSERVICING 


Section 4.0 I Retention of Subservicer. The Servicer may engage or retain subservicers, 

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

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

ANB Servicing Agreement 

EXECUTION VERSION 

12 

in clause (i), (iv) and (v) and, to the extent applicable to the services to be performed by such 

Subservicer, clauses (ii) and (iii) of the definition of Qualified Servicer. 

Section 4.02 Subservicing Agreement Requirements. Any subservicing agreement with 

any Subservicer ("Subservicing Agreement") shall, among other things: 

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


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


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


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


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


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


rights thereunder; 


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

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

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

thereunder and entitled to enforce such Subservicing Agreement; 

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

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

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

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

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

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

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

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

payment of any fee; 

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

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

records of any Subservicer and that all Subservicers shall make available their respective 

officers, directors, employees, accountants and attorneys to Participant's and the Company's 

(and each of their respective representatives') questions or to discuss any matter relating to the 

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

Servicing Obligations delegated to the Subservicer, the Collection Account, the Escrow Account, 

or any Other Accounts established or maintained pursuant to this Agreement or any Subservicing 

Agreement or any matters relating to the Subservicing Agreement or the rights or obligations 

thereunder; 

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

daily basis and that under no circumstances are funds, other than Loan Proceeds and recoveries 

on Servicer Advances and interest and earnings thereon, to be deposited into the Collection 

Account; 

ANB Servicing Agreement 

EXECUTION VERSION 

13 

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

pursuant to Section 7.02 of this Agreement; 

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

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

initio; 

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

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

Subservicer is obligated to comply with the Servicing Obligations of the Scrvicer hereunder as 

have been delegated to the Subservicer; 

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

the provisions of Sections 7.0l(a), (b), (c), (e), (f) and (h) of this Agreement, and (ii) provide 

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

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

the provision that parallels Section 7.0l(c), only with respect to the provisions that parallel 

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

provided for in Section 7.01 of this Agreement; and (y) to enforce the rights of the Servicer 

under such Subservicing Agreement; and 

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

Subservicing Agreement upon a Default under Section 7.0l(b) of this Agreement and under a 

similar provision related to it and its Affiliates to be incorporated into the Subservicing 

Agreement. 

Section 4.03 Servicer Liable for Subservicers. Notwithstanding anything to the 

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

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

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

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

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

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

Section 4.04 Company Approval Required. Each Subservicing Agreement and all 

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

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

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

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

amendments thereto, shall be provided to the Company. 

ANB Servicing Agreement 

EXECUTION VERSION 

14 

ARTICLE V 

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER 

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

representations and warranties as ofthe date hereof: 

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

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

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

states and other jurisdictions where the Loans or the nature ofthe Servicer' s activities under 

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

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

perform its obligations hereunder; and (iv) has established and shall maintain its principal 

place of business in the United States. 

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

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

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

requisite action on the part of the Servicer. 

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

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

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

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

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

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

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

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

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

duly authorized to do so. 

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

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

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

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

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

the Servicer; (ii) conflict with, result in a breach, violation or acceleration of, or result in a 

default (or an event which, with notice or lapse of time, or both, would constitute a default) 

under the terms of any agreement or other instrument to which the Servicer is a party or by 

which it may be bound; or (iii) constitute a violation of any Law applicable to the Servicer, 

and the Servicer is not in breach or violation of any agreement or instrument, or in violation of 

any Law of any Governmental Authority having jurisdiction over it which breach or violation 

may impair the Servicer's ability to perform or meet any of its obligations under this 

Agreement. 

ANB Servicing Agreement 

EXECUTION VERSION 

15 

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

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

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

financial condition of the Servicer. 

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

Governmental Authority required for the execution, delivery and performance by the Servicer 

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

contemplated by this Agreement has been obtained and is effective. 

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

shall, at any time, (i) be a partner or joint venturer with any Borrower, (ii) be an agent of any 

Borrower, or allow any Borrower to be an agent of the Servicer or any Subservicer, or (iii) 

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

Loan or any of the Collateral. 

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

covenants to the Company as follows: 

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

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

the Servicing Transfer Date. Information returns include reports on Forms I 098 and I 099 and 

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

information returns required under applicable Law of any foreign Governmental Authority, to 

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

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

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

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

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

records regarding the Loans and the Collateral, and the Company's interests in the Loans and 

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

maintained in connection with the Loans and Servicer Advances. 

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

and retained until the date that is the later of ten (I 0) years after the Effective Date of this 

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

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

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

Participant or either of their 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 Company and Participant), in each instance upon two (2) Business Days' prior notice to 

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

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

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

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

ANB Servicing Agreement 

EXECUTION VERSION 

16 

or files relating to the Loans and, upon the request of the Company, shall allow the Company, 

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

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

charges generally accepted by the mortgage servicing industry, which would become a Lien 

on the security property. 

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

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

possession or control pertaining to the Loans and the Collateral, including all original and 

other documentation pertaining to the Loans and the Collateral, all documentation relating, to 

items of income and expense pertaining to the Loans and the Collateral, and all ofthe 

Servicer's (and Subservicer's) internal memoranda pertaining to the Loans and the Collateral. 

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

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

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

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

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

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

the Company, on or before March 10 of each year, unless the Company and the Servicer agree 

on another date, commencing in the year 2010, an officer's certificate stating, as to the signer 

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

portion thereof) and of its performance under this Agreement (or, as applicable, any 

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

of such officer's knowledge and belief, based on such review, such party has fulfilled all of its 

obligations under this Agreement (or, as applicable, any Subservicing Agreement) in all 

material respects throughout such year or portion thereof or, if there has been a failure to 

fulfill any such obligation in any material respect, specifYing each such failure and the nature 

and status thereof. In the event any Subservicer was terminated, resigned or otherwise 

performed in such capacity for only part of a year, such party shall provide such annual 

compliance certificate with respect to such portion of the year. 

(g) On or before March I 0 of each year, unless the Company and the 

Servicer agree on another date, commencing in the year 2010, the Scrvicer shall cause each 

Subservicer, each at its own expense or the expense of the Servicer, to provide a report on an 

assessment of compliance with the servicing requirements in this Agreement that contains (i) a 

statement by such party of its responsibility for assessing compliance with such servicing 

requirements, (ii) a statement that such party used such servicing requirements to assess 

compliance with such servicing requirements, and (iii) such party's assessment of compliance 

with such servicing requirements for the preceding calendar year, including if there has been 

any material instance of noncompliance with such servicing requirements, a discussion of each 

such failure and the nature and status thereof and the Servicer shall simultaneously deliver the 

annual compliance report to the Company. 

Section 5.03 Audits. Until the later of the date that is ten (l 0) years after the Effective 

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

ANB Servicing Agreement 

EXECUTION VERSION 

17 

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

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

any of its representatives (including any government agency or instrumentality), during normal 

business hours and on reasonable notice, with access to all of the books of account, reports and 

records relating to the Loans or any Collateral or the servicing thereof, the Collection Account, 

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

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

such books to be audited by accountants selected by the Company, and (d) allow the Company or 

any of its representatives to discuss the Servicer's and Subservicer's affairs, finances and 

accounts, as they relate to the Loans, the Collateral, the Servicing, the Collection Account, the 

Escrow Account, and any Other Accounts established pursuant to this Agreement or any other 

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

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

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

Subservicers, and attorneys. 

Section 5.04 No Liens. The Servicer shall not place or permit (voluntarily or 

involuntarily) any Lien to be placed on any of the Loans, the Loan Documents or the Loan 

Proceeds, and shall not take any action to interfere with Participant's rights as a secured party 

with respect to the Loans Collateral and Loan Proceeds. 

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

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

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

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

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

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

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

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

the generality of the foregoing, the Servicer shall immediately notify the Company of any claim, 

threatened claim or litigation against the Company arising out of any Loan and shall cause to be 

delivered to the Company information indicating any possible Environmental Hazards with 

respect to any Collateral. 

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

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

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

the Servicer. 

ARTICLE VI 


PARTICIPANT CONSENT 


Section 6.01 Actions Requiring Participant Consent. Notwithstanding anything to the 

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

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

sole and absolute discretion: 

ANB Servicing Agreement 

EXECUTION VERSION 

18 

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


thereof) to any Affiliate of the Company, the Servicer, any Affiliate ofServicer, any 


Subservicer, or any Affiliate of any Subservicer; 


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

any portion thereof); 

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

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

Participation Agreement; 

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

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

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

permitted to be capitalized pursuant to the Participation Agreement, any Authorized Funding 

Draws advancing additional funds that would increase the Unpaid Principal Balance; or 

(f) reimbursement for any expense or cost incurred (or paid) to any 

Affiliate of the Company, any Affiliate of the Servicer or any Afliliate of any Subservicer. 

Section 6.02 Participant Approval Required; Amendments, Modification and Waivers. 

No provision of this Agreement may be amended, modified or waived except in writing executed 

by the Company and the Servicer and, except for those provisions that may be amended without 

the Participant's consent, as and to the extent expressly provided in this Agreement, each such 

amendment and modification shall be subject to the prior written consent of the Participant 

(which consent shall not be unreasonably withheld, delayed or conditioned). 

ARTICLE VII 

DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE 

Section 7.0 I 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, the Escrow Account or any Other Accounts any amount required to be so 

remitted or deposited under the terms of this Agreement in any case which continues 

unremedied until 12:00 p.m. New York time on the Business Day immediately following the 

date upon which written notice of such failure, requiring the same to be remedied, has been 

given by the Company to the Servicer; or 

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

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

therof, or any Subservicer or any Affiliate thereof; or 

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

5.02(c) which continue unremedied for a period of five (5) days (or such other period on 

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

failure, requiring the same to be remedied, has been given by the Company to the Servicer, or 

ANB Servicing Agreement 

EXECUTION VERSION 

19 

(ii) Section 5.02(t) or Section 5.02(g) which failure continues umemedied for a period of 

twenty-five (25) days (or such other period on which the Company and the Servicer agree) on 

which written notice of such failure, requiring the same to be remedied, has been given by the 

Company to the Servicer; or 

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

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

required to be made to the Company under the terms of this Agreement, as set forth in the 

monthly cash flow and distribution report, in either case, which continues unremedied until 

12:00 p.m. New York time on the Business Day immediately following the date upon which 

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

Company to the Servicer; or 

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

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

out its responsibilities under this Agreement in compliance with applicable Law, or (ii) to 

cause each Subservicer to be a Qualified Servicer and to renew or maintain any permit or 

license necessary to carry out is responsibilities in any Subservicing Agreement, which, in 

either case, continues unremedied for a period of thirty (30) days after the date on which 

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

Company to the Servicer; or 

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

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

which written notice of such failure, requiring the same to be remedied, has been given by the 

Company to the Servicer; or 

(g) the failure of the Servicer to cause the Subservicers to comply with the 

terms oftheir Subservicing Agreements with the Servicer, the occurrence of a default or 

material breach by such Subservicers under their Subservicing Agreements and the failure of 

the Servicer to replace the Subservicers upon any of such events in accordance with the terms 

governing material breach or default under the Subservicing Agreements; or 

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

(a) through (g)) ofthe Servicer to duly observe or perform in any material respect (i) any 

other covenants or agreements ofthe Servicer contained in this Agreement or (ii) any 

Servicing Obligations in compliance with the Servicing Standard set forth in this Agreement, 

and such failure continues umemedied for a period of thirty (30) Business Days (or such other 

period on which the Company and the Servicer agree) after the date on which written notice of 

such failure, requiring the same to be remedied, has been given by the Company to the 

Servicer; provided, however, that in the case of a failure that cannot be cured within thirty (30) 

Business Days, the cure period shall be extended for an additional thirty (30) days ifthe 

Servicer can demonstrate to the reasonable satisfaction of the Company that the Servicer is 

diligently pursuing remedial action. 

Section 7.02 Termination with Cause. 

ANB Servicing Agreement 

EXECUTION VERSION 

20 

(a) Upon the occurrence of any Default pursuant to this Agreement 

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

Company, in addition to any other rights the Company may have pursuant to this Agreement, 

at Law (including the Uniform Commercial Code), equity, including injunctive relief, specific 

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

to the Servicer. 

(b) Upon the occurrence of a Default pursuant to Sections 7.0l(a), (b), (c) 

(with respect to Sections 5.02(f) and (g) referred to therein), (e) and (f) and (h) ofthis 

Agreement (in each case, without any cure period other than as may be provided for in 

Section 7.01 above), Participant, in addition to any other rights Participant may have at law, 

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

providing a Termination Notice to the Servicer and may terminate the Subservicing 

Agreements by providing a written termination notice to the Subservicers. The Servicer 

agrees that Participant is entitled to enforce this Agreement upon the occurrence of the 

Defaults set forth in Sections 7.0I(a), (b), (c) (with respect to Sections 5.02(f) and (g) referred 

to therein), (e), (f) and (h), without penalty or payment or any fee. 

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

Agreement by Participant upon a Default under Section 7.0l(b) of this Agreement. 

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

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

as and in accordance with the provisions set forth on Schedule 3, as the same may be amended 

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

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

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

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

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

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

Participant in the case oftermination by Participant. The Servicer agrees to cooperate with the 

Company, Participant and such successor servicer with the timely and orderly transition of its 

obligations under this Agreement. The Servicer shall be liable for all obligations ofthe Servicer 

that have accrued under this Agreement or at Law prior to such termination. 

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

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

funds collected under the terms ofthis Agreement. The Servicer shall provide written notice in 

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

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

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

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

ANB Servicing Agreement 

EXEC!JffON VERSION 

21 

ARTICLE VIII 

INDEPENDENCE OF PARTIES; INDEMNIFICATION 

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

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

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

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

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

employees and agents and each oftheir respective successors and assigns (the "Indemnified 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

monitor or give instructions with respect to such claims. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ANB Servicing Agreemen! 

EXECUTION VERSION 

22 

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

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

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

ARTICLE IX 

NOTICES 

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

given or delivered under or by reason ofthe provisions ofthis Agreement shall be in writing and 

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

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

If to the Company: 477 Shoup Avenue, Suite 207 

Idaho Falls, ID 83402 

Attention: David 0. Kingston 

with a copy to: 477 Shoup Avenue, Suite 207 

Idaho Falls, ID 83402 

Attention: Kari M. Campos 

If to Participant: 	 Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 171

h Street, NW (Room F-7008) 

Washington, D.C. 20429-0002 

Attention: George Alexander 

with a copy to: 	 Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

If to the Servicer: 	 Kingston Management Services LLC 

14 Inverness Dr. East, Suite F 160 

Englewood, CO 80112 

Attention: Charlie Muenzberg 

with a copy to: 	 477 Shoup Avenue, Suite 207 

Idaho Falls, ID 83402 

Attention: Kari M. Campos 

Any such notice shall become effective when received (or receipt is refused) by the addressee, 

provided that any notice or communication that is received (or refused) other than during regular 

business hours of the recipient shall be deemed to have been given at the opening of business on 

ANB Servicing Agreement 

f:.I{ECUTION VERSION 

23 

the next Business Day ofthe recipient. From time to time, any Person may designate a new 

address for purposes of notice hereunder by notice to such effect to the other Persons identified 

above. 

ARTICLE X 

GOVERNING LAW; JURISDICTION 

Section 10.01 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY 

AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK 

EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER 

THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW 

OF ANOTHER JURISDICTION. Nothing in this Agreement shall require any unlawful action 

or inaction by any party hereto. 

Section I 0.02 Jurisdiction; Venue and Service. Each of the parties hereto, for itself and 

each of its Affiliates, hereby irrevocably and unconditionally: 

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

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

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

instituted, only in the Supreme Court ofthe State ofNew York, County of New York, or the 

U.S. District Court for the Southern District of New York or the United States District Court 

for the District of Columbia (and appellate courts from any of the foregoing) as the party 

instituting such suit, action or proceeding may in its sole discretion elect, (ii) consents and 

submits, for itself and its property, to the jurisdiction of such courts for the purpose of any 

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

final judgment in any such suit, action or proceeding shall be conclusive and may be enforced 

in other jurisdictions by suit on the judgment or in any other manner provided by Law; 

(b) agrees that service of all writs, process and summonses in any suit, 

action or proceeding pursuant to Section 10.02(a) may be effected by the mailing of copies 

thereof by registered or certified mail, postage prepaid, to the Servicer at its address for 

notices pursuant to Article IX (with copies to such other Persons as specified therein); 

provided, however, that nothing contained in this Section 10.02(a) shall affect the ability of 

the Servicer to be served process in any other manner permitted by Law; 

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

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

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

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

agrees not to plead or claim either ofthe foregoing. 

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

AND EACH OF ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY 

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

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

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

ANB Servicing Agreement 

EXECUTION VERSION 

24 

ARTICLE XI 

MISCELLANEOUS 

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

Servicing Rights. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

hereto. 

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

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

written, with respect to the subject matter hereof. 

Section 11.04 Counterparts; Facsimile Signatures. This Agreement may be executed in 

two (2) or more counterparts, each of which shall be deemed an original but all of which together 

shall constitute but one and the same agreement. This Agreement and any amendments hereto, 

to the extent signed and delivered by means of a facsimile machine, shall be treated in all manner 

and respects as an original agreement and shall be considered to have the same binding legal 

effect as if it were the original signed version thereof delivered in person. No signatory to this 

Agreement shall raise the use of a facsimile machine to deliver a signature or the fact that any 

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

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

any such defense. 

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

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

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

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

unless otherwise specified. 

ANB Servicing Agreement 

EXECUTION VERSION 

25 

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

accordance with the following: 

(a) The term "or" is not exclusive. 

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


replacement to such Law. 


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

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

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

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

replacement thereto, as amended, modified and supplemented from time to time in accordance 

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

(d) Unless otherwise specified, the words "hereof," "herein" and 

"hereunder" and words of similar import shall refer to this Agreement as a whole and not to 

any particular provision of this Agreement. 

(e) The words "include" and "including" and words of similar import are 

not limiting, and shall be construed to be followed by the words "without limitation," whether 

or not they are in fact followed by such words. 

(f) The word "during" when used with respect to a period of time shall be 

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

such period. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Agreement. Without limitation ofthe 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 

ANB Servicing Agreemenl 

EXECUTION VERSION 

26 

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

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

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

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

against whom, and/or the circumstances under which, such provision shall be effective in such 

jurisdiction) for purposes of such proceeding to the minimum extent necessary so that such 

provision, as so modified, may then be enforced in such proceeding and (y) enforce such 

provision, as so modified pursuant to clause (x), in such proceeding. Nothing in this Section 

11.08 is intended to, or shall, limit (I) the ability of any party to this Agreement to appeal any 

court ruling or the effect of any favorable ruling on appeal or (2) the intended effect of Section 

10.01. 

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

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

Agreement as if Participant were a party hereto. Notwithstanding the foregoing, Participant shall 

have no obligation to undertake any of the duties of the Company hereunder and shall have no 

liability whatsoever to the Servicer, any Subservicer or any other party related to this Agreement. 

There shall be no other third party beneficiaries. Nothing contained in Section 10.02 of this 

Agreement shall be construed to constitute consent to jurisdiction by the Failed Bank or the 

FDIC, in any capacity. 

Section 11.10 Protection of Confidential Information. The Servicer shall keep 

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

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

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

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

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

Standard. 

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

Agreement and of every part hereof. 

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

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

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

requested any term or condition ofthis Agreement or any agreement or instrument subject 

hereto. 

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

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

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

deduction) against the Loan Proceeds. 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK) 

ANB Servicing Agreement 

EXECUTION VERSION 

27 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed 

as of the day and year first above written. 

COMPANY: 

ANB VENTURE, LLC, a Delaware limited 

liability company 

By: KMS SPE LLC, its Manager 

By: Kingston Properties L.P., its Manager 

By: DK Enterprises, Inc., its General 

Pa

SERVICER: 

KINGSTON MANAGEMENT SERVICES 

LLC, a Nevada limited liability company 

By: Kingston Properties L.P., its Manager 

., its General Partner 

Na

Title: President 


ANB Servicing Agreement 

EXECUTION VERSION 

28 

EXHIBIT A 


LOAN SCHEDULE 


(Attached] 


See Tab 23 

ANB Servicing Agreement 

EXECUTION VERSION 
EXHIBITB 


FEE SCHEDULE 


[To be completed by Company and Servicer] 


ANB Servicing Agreement 

EXECUTION VERSION 

2 

EXHIBITB 

FEE SCHEDULE 

Pursuant to the terms of Section 2.03 of this Agreement, the Servicer shall be paid such 

monthly servicing fee as is set forth below: 

I. 	 The Servicer shall receive an amount equal to one-twelfth (1112'h) of the annual 

rate of 26 basis points as applied to Unpaid Principal Balance calculated as of the 

first day ofthe immediately preceding month, beginning Discharge in a timely 

manner each and every obligation which the Loan Documents provide is to be 

performed by the lender thereunder, on its own behalf and on behalf ofthe 

Participant; 

Capitalized terms not otherwise defined in this Servicing Agreement are defined in the 

Participation and Servicing Agreement By and between ANB Venture, LLC and dated as 

of January 12, 2009. 
SCHEDULE 1 


SERVICING OBLIGATIONS 


[To be completed by Company and Servicer in accordance with Article V of the 

Participation Agreement] 

ANB Servicing Agreement 

EXECUTION VERSION 

1 

SCHEDULE I 

SERVICING OBLIGATIONS 

Pursuant to the terms of Section 2.04 ofthis Agreement, the Servicer shall, unless 

otherwise agreed to in writing between the Company and the Servicer, take the following 

actions, in connection with the servicing, administration, management and disposition of 

the Loans and Collateral: 

I. 	 Discharge in a timely manner each and every obligation which the Loan 

Documents provide is to be performed by the lender thereunder, on its own behalf 

and on behalf of the Company; 

2. 	 Incur costs (including Borrower Reimbursable Costs and Post-Acquisition Costs) 

in accordance with the provisions of the Loan Documents; 

3. 	 Cause to be maintained for the Collateral (including any Acquired Collateral) 

with respect to each Loan with respect to which the Borrower has failed to 

maintain required insurance, fire, hurricane, flood and hazard insurance with 

extended coverage as is customary in the area in which the Collateral is located 

and in such amounts and with such deductibles as the Servicer may, in the 

exercise of its reasonable discretion, determine are prudent; 

4. 	 Ensure compliance with the terms and conditions of each insurer under any 

hazard policies and preparing and presenting claims under any policy in a timely 

fashion in accordance with the terms of the policy; 

5. 	 Supervise and coordinate the construction, ownership, management, leasing and 

preservation of the Collateral and Acquired Collateral, as well as all other matters 

involved in the administration, preservation and ultimate disposition of the 

Collateral and the Acquired Collateral; 

6. 	 To the extent consistent with the foregoing, seek to maximize the timely and 

complete recovery of principal and interest on the Loans and otherwise to 

maximize the value of the Loans, the Collateral and the Acquired Collateral; 

7. 	 Make all Authorized Funding Draws pursuant to the Loan Documents and this 

Agreement; 

8. 	 Except as otherwise set forth in this Agreement, make decisions under, and 

enforce and perform in accordance with, the Loan Documents all Joan 

administration, inspections, review of financial data and other matters involved in 

the servicing, administration and management of the Loans, the Collateral and the 

Acquired Collateral; and 

9. Ensure that all filings required to maintain perfection in any Collateral remain up 

to date and in force, including UCC financing statements. 
Capitalized terms not otherwise defined in this Servicing Agreement are defined in the 

Participation and Servicing Agreement By and between ANB Venture, LLC and dated as 

of January 12,2009. 
SCHEDULE2 

REIMBURSEMENT OF SERVICER ADVANCES 

[To be completed by Company and Servicer] 

ANB Servicing Agreement 

EXECUTION VERSION 

2 

SCHEDULE2 

REIMBURSEMENT OF SERVICER ADVANCES 

Pursuant to the terms of Section 2.09, Borrower Reimbursable Costs not recovered from 

Borrowers or Guarantors and all other Servicer Advances shall be reimbursed as follows: 

The Servicer may be reimbursed for Servicer Advances from the Company, to the 

extent Company has sufficient Loan Proceeds. The Servicer shall not otherwise 

be entitled to reimbursement or payment of Servicer Advances. Each month, the 

Servicer shall be reimbursed in the following order of priority: 

(i) first, to pay Authorized Funding Draw paid by Servicer ; and 

(ii) then, to reimburse the Servicer for Working Capital Advances, but 

only to the extent the same were used to pay costs or expenses constituting 

Servicer Advances; and 

(iii) then, to pay the Servicer the Servicer Fee as set forth on Exhibit B; 

and 

(iv) then, to reimburse the Servicer for any Servicer Advances due and 

owing as of the current month (without duplication of any amounts paid 

pursuant to clauses (i), (ii), (iii) or (iv) above). 

Capitalized terms not otherwise defined in this Servicing Agreement are defined in the 

Participation and Servicing Agreement By and between ANB Venture, LLC and dated as 

of January 12, 2009. 
SCHEDULE3 


TERMINATION WITHOUT CAUSE 


[To be provided by Company and Servicer] 


ANB Servicin~ Agreement 

EXECUTION VERSION 

3 

SCHEDULE3 

TERMINATION WITHOUT CAUSE 

Pursuant to the terms of Section 7.03, upon termination without cause, Servicer shall be 

paid its pro-rata Servicer Fee and reimbursed for all Servicer Advances incurred through 

the date specified in the Termination Notice. Company shall pay no other penalty or pay 

any other fee. 

Capitalized terms not otherwise defined in this Servicing Agreement are defined in the 

Participation and Servicing Agreement By and between ANB Venture, LLC and dated as 

of January 12,2009. 
SCHEDULE4 


FORM OF ELECTRONIC REPORT ON THE LOANS AND COLLATERAL 


[To be provided by Company and Servicer) 


ANB Servicing Agreement 

EXECUTION VERSION 

4 

SCHEDULE4 


FORM OF ELECTRONIC REPORTS ON THE LOANS AND COLLATERAL 

MONTHLY REPORTS 

Data File 

Requested Information in attached list 

Monthly Loan and REO Rollforward Report:- by# and$ 

Loans 

By#: 

Beginning number ofloans 

-Pay-offs 

- REO transfers 

= Ending number ofloans 

By$: 

Beginning pool balance (Unpaid Principal Balance ("UPB")) 

+ Commitments funded 


- Payments received, 


- UPB, transfers to REO 


-Write down of principal (Other) 


= Ending pool balance (UPB) 


REO 

By#: 

Beginning number of REO properties 

+ Transfers in 

-Sales 

= Ending number 

By$: 

Beginning UPB of REO properties 

+Capitalized Post-Acquisition Costs 

+ UPB on REO transfers in 

-Net liquidation proceeds 

-Reimbursement ofPost Acquisition Expenses 

+/-Realized Gain (Losses) 

= EndingUPB 

Delinquency Report 
# and $ by delinquency classification: Current, < 30, 30-60 days, 61-90 days, > 90 days, 

in foreclosure, in bankruptcy, REO 

Breakout of> 60 day delinquencies by collateral type,# and$ 

Breakout of> 60 day delinquencies by state,# and$ 

Significant Litigation Report 

Provide a litigation summary report describing any claim or counterclaim ("claim") filed 

against the Company and/or the Servicer with respect to assets subject to this Agreement, 

the actions taken to defend such claim, and an estimate of the projected exposure for: a) 

any claim in which the Company or the Servicer expects to incur more than $10,000 in 

Company Advances to defend such claim, b) any claim in which multiple plaintiffs have 

joined in filing an action against the Company and/or the Servicer or the same law firm 

has filed individual claims on behalf ofmore than one plaintiff, and c) any claim(s) 

regardless ofthe dollar amount, naming: (i) the Receiver or, (ii) the Failed Bank (ANB 

Financial, N.A.) and/or (iii) FDIC in any capacity, as defendant(s). Activity should be 

updated quarterly. 

Environmelllal Exposure Report 

Provide a report identifying any assets in which the Site Assessment identified an 

Environmental Hazard together with information on the nature ofthe hazard, additional 

tests performed, and the cost of correcting the hazard identified in the Site Assessment. 

REO Report 

Listing of REO properties held to include original loan number, date of ownership, 

description, collateral type, address, UPB (of the loan prior to foreclosure), net book 

value, listing date, estimated sale date, appraisal amount, original list price, current list 

price cumulative Post-Acquisition Costs incurred, broker name, and comments 

Modification Report 

Listing ofloans modified, to include borrower name, loan balance and terms before 

modification, Joan balance and terms after modification 

Liquidation Report 

Listing ofloans and REO properties liquidated, to include borrower name, UPB, 

cumulative Post-Acquisition Costs, net liquidation proceeds, realized loss amount 

Short Sale Report 

Listing of loans for which short sales were accepted, to include borrower name, UPB, 

payoff accepted, realized Joss amount 
Judgment Report 

Listing ofJudgments obtained, to include borrower name, Judgment amount, current 

month and cumulative payments received, remaining balance 

AS AVAILABLE 

Reporting Requirements 

Data File from servicing system to be provided in Excel 

(or such other data fields that the Participant may request related to Company assets 

utilizing systems maintained by the Servicer or Subservicer) 

Data Fields Required by 

property 

Loan Number 

2nd Loan Number 

Combined Loan Amount 

1st Loan Amt 

2nd Loan Amt 

Type of Loan 

(Residential/Commercial) 

Combined UPB or Disb Amt 

I st Loan UPB or Disb 

2nd Ln UPB or Disb Amt 

Amt Pending Disb (Authorized 

Funding Draws) 

Original Rate 

Current Rate 

Term 

Note 

CPMod 

1st Due 

Next Due 

Maturity 

Margin 

Index 

Street 

City 

ST 

ZIP 

Original Appraisal 

Lien 

Credit Score 

CoBwr Score 

Units 
Prop Class 

PurpType 

Occ 

Documentation 

Int Only 

Int Only End 

PM! Cert 

Basis 

PIPymt 

T!Pymt 

2nd T&I Bal 

TI Balance 

Last CP Insp 

CP%Comp 

coo 

BPO Date 

BPO Value As Is 

BPO Value Repair or Complete 

BPO Prop Condition 

Last Dlq Insp 

Inspection Type 

lnsp Order 

Inspection Comments 

Updated Score 

Type 

Prod 

Product Description 

1st Mtg Loan 

Builder 

Sq Ft 

Int Type 

lnv 

Grp 

FC 

Consumer Indicator 

Bankruptcy Date 

Capitalized terms not otherwise defined in this Servicing Agreement are defined in the 

Participation and Servicing Agreement By and between ANB Venture, LLC and dated as 

ofJanuary 12, 2009.