Execution Copy 

SIG CRE 2023 Venture LLC 

SERVICING AGREEMENT 

by and between 

HANCOCK JV BIDCO L.L.C. 

and 

HANCOCK SERVICER L.L.C. 

Dated as of December 14, 2023 

SIG CRE 2023 Venture LLC 

Servicing Agreement 

Version 08-2022 
TABLE OF CONTENTS 

Page 

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

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

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

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

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

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

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

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

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

Section 2.6 Working Capital Reserve Account. .............................................................4 

Section 2.7 [Intentionally Omitted]. ...............................................................................5 

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

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

Section 2.10 Maintenance of Insurance Policies ..............................................................5 

Section 2.11 Funding of Working Capital Expenses and Certain Other Payments..........6 

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

Section 2.13 Insured or Guaranteed Assets ......................................................................6 

ARTICLE III LOAN DEFAULTS; ACQUISITION OF COLLATERAL..............................7 

Section 3.1 Delinquency Control....................................................................................7 

Section 3.2 Discretion of the Servicer in Responding to Defaults of Borrower.............7 

Section 3.3 Acquisition of Acquired Property ................................................................7 

Section 3.4 Administration of Acquired REO Properties...............................................8 

ARTICLE IV SUBSERVICING ............................................................................................10 

Section 4.1 Retention of Subservicer............................................................................10 

Section 4.2 Subservicing Agreement Requirements.....................................................10 

Section 4.3 Right to Engage JDC Contractors..............................................................11 

Section 4.4 Servicer Liable for Subservicers and JDC Contractors .............................11 

Section 4.5 Manager Approval Required......................................................................12 

Section 4.6 Regulation AB Requirements ....................................................................12 

ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF 

THE SERVICER .............................................................................................12 

Section 5.1 Representations and Warranties.................................................................12 

Section 5.2 Reporting, Books and Records and Compliance Covenants .....................14 

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

Section 5.4 No Liens.....................................................................................................18 

Section 5.5 Servicer’s Duty to Advise; Delivery of Certain Notices ...........................19 

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

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Section 5.7 Copies of Documents.................................................................................20 

Section 5.8 Financial Information.................................................................................20 

ARTICLE VI MANAGER CONSENT..................................................................................20 

Section 6.1 Actions Requiring Manager Consent.........................................................20 

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

ARTICLE VII DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE........22 

Section 7.1 Defaults......................................................................................................22 

Section 7.2 Termination with Cause.............................................................................24 

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

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

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

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

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

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

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

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

ARTICLE X GOVERNING LAW; JURISDICTION ..........................................................30 

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

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

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

ARTICLE XI MISCELLANEOUS ........................................................................................33 

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

Servicing Rights.........................................................................................33 

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

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

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

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

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

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

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

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

Section 11.10 Time of Essence.........................................................................................37 

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

Section 11.12 No Right of Setoff......................................................................................38 

Section 11.13 Release of Initial Member and Others .......................................................38 

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SCHEDULES AND EXHIBITS 

Exhibits 

Exhibit A Asset Schedule 

Schedules 

Schedule 1 Fee Schedule 

Schedule 2 Servicing Obligations 

Schedule 3 Reimbursement of Servicer Advances 

Schedule 4 Form of Electronic Report on the Assets and Collateral 

Schedule 5 Termination Without Cause 

Schedule 6 Business Plan Schedule 

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SERVICING AGREEMENT 

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

“Agreement”) is made and entered into as of the 14th day of December, 2023 (the “Effective 

Date”), by and between Hancock JV Bidco L.L.C., a Delaware limited liability company 

(including its successors and assigns, the “Manager”), and Hancock Servicer L.L.C., a Delaware 

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

pursuant to this Agreement, the “Servicer”). 

RECITALS 

WHEREAS, SIG CRE 2023 Venture LLC (the “Company”) owns the Assets described 

on the Asset Schedule attached hereto as Exhibit A (the “Asset Schedule”); 

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

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

Operating Agreement; and 

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

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

times, consistent with the requirements of this Agreement; 

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

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

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

follows: 

ARTICLE I 

DEFINITIONS AND CONSTRUCTION 

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

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

meanings and definitions given, or referred to, in the Agreement of Common Terms and 

Definitions, and (ii) the following terms have the meanings and definitions hereinafter respectively 

set forth. 

“Agreement” has the meaning given in the preamble of this Agreement. 

“Agreement of Common Terms and Definitions” means the Agreement of Common 

Terms and Definitions, dated as of the date hereof, by and among the Company, the Manager, the 

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

“Asset Schedule” has the meaning given in the recitals of this Agreement. 

“Business Plan Schedule” has the meaning given in Section 5.2(h). 

“Company” has the meaning given in the recitals of this Agreement. 

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“Default” has the meaning given in Section 7.1. 

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

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

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

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

“Indemnified Parties” has the meaning given in Section 8.2. 

“Manager” has the meaning given in the preamble of this Agreement. 

“Other Company Accounts” has the meaning given in Section 2.9. 

“Pre-Existing Liabilities” has the meaning given in Section 8.3. 

“Servicer” has the meaning given in the preamble of this Agreement. 

“Servicing” means servicing, administering, managing and disposing of the Assets and the 

Collateral, and the terms “Service” and “Serviced” have correlative meanings. 

“Servicing Fee” has the meaning given in Section 2.3. 

“Servicing Obligations” has the meaning given in Section 2.4. 

“Servicing Standard” has the meaning given in Section 2.4. 

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

Article VII. 

“Third Party Claim” has the meaning given in Section 8.2. 

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

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

of Common Terms and Definitions) to any other Transaction Document (including as to any term 

defined therein) means and refers to such Transaction Document as amended or otherwise 

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

ARTICLE II 

SERVICING OBLIGATIONS OF THE SERVICER 

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

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

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

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

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

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

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

set forth below and as may be necessary to effectuate the Servicer’s obligations under this 

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

the limited power of attorney will take effect upon: (i) the receipt by the Servicer of written notice 

thereof from or on behalf of the Manager, or (ii) termination of this Agreement pursuant to Article 

VII. 

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

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

“Servicing Fee”). 

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

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

from time to time by the Manager and the Servicer (the “Servicing Obligations”). The Servicer 

must perform its Servicing Obligations (i) in the best interests and for the benefit of the Company, 

(ii) subject to Section 3.4(h) (to the extent applicable with respect to any Acquired REO Property), 

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

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

(v) subject to Section 5.7, in accordance with the requirements of the LLC Operating Agreement, 

the Custodial and Paying Agency Agreement and the other Transaction Documents, and (vi) to the 

extent consistent with the foregoing terms, in the same manner in which a prudent servicer would 

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

similar properties for its own portfolio or for other Persons, whichever standard is higher, but using 

no less care and diligence than would be customarily employed by a prudent servicer following 

customary and usual standards of practice of prudent mortgage lenders, loan servicers and asset 

managers servicing, managing and administering similar loans and properties on an arms’ length 

basis, provided that, with respect to each Loan and related Collateral, in the absence of a customary 

and usual standard of practice, the Servicer must comply with the applicable Fannie Mae 

Guidelines, if any, with respect to similar loans or properties in similar situations (the requirements 

in clauses (i) through (vi) collectively, the “Servicing Standard”). In addition, the Servicer must 

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

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

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

banking or lending relationship and any other relationship described in Section 5.1(h), (x) the 

obligations of the Company, the Manager, the Servicer or any Subservicer to make disbursements 

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

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

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

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

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

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

this Agreement or any Subservicing Agreement. 

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Section 2.5 Collection Account. 

(a) Except as to permitted uses of Asset Proceeds pursuant to Section 12.7(a) 

of the LLC Operating Agreement and any monthly deposits and netting of Servicing Expenses 

expressly permitted by the Manager (in accordance with Section 12.7(b) of the LLC Operating 

Agreement), the Servicer must deposit (and cause each Subservicer and JDC Contractor to so 

deposit) into the Collection Account all Asset Proceeds (without deduction or setoff) within two 

Business Days after receipt thereof by the Servicer (or such Subservicer or JDC Contractor). No 

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

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

Advances and other funds expressly permitted to be deposited into the Collection Account 

pursuant to the Custodial and Paying Agency Agreement) may be commingled in the Collection 

Account. 

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

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

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

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

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

Funding Draws); provided, however, that if the Servicer or any Subservicer erroneously deposits 

any amounts into the Collection Account, it may request that the Manager withdraw such 

erroneously deposited amounts in accordance with Section 3.1(c) of the Custodial and Paying 

Agency Agreement. 

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

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

must be remitted by wire transfer, in immediately available funds. 

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

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

Section 2.6 Working Capital Reserve Account. 

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

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

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

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

WCR Account Deposit for purposes of funding Working Capital Expenses of the Company in 

accordance with the LLC Operating Agreement and the Custodial and Paying Agency Agreement. 

Except as otherwise directed by the Manager, the Servicer must not cause (and must ensure that 

no Subservicer causes) funds from any other source (other than interest or earnings on the Working 

Capital Reserve) to be commingled in the Working Capital Reserve Account (it being understood 

that deposits into such Working Capital Reserve Account must be made only pursuant to the 

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

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

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

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

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

Expenses. 

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

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

Agent. 

Section 2.7 [Intentionally Omitted]. 

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

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

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

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

Except as otherwise directed by the Manager, the Servicer will (and will cause each Subservicer 

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

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

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

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

required by Law or the applicable Asset Documents. 

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

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

(as Company Accounts) as may be directed by the Manager, each of which will be held in trust for 

the benefit of the Company and the PMN Agent, and must be funded and disbursed only in 

accordance with such instructions as are provided by the Manager (“Other Company Accounts”). 

Section 2.10 Maintenance of Insurance Policies. 

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

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

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

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

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

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

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

Insurance Schedule). 

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

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

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

insurance certificates required of the Manager, the Company, the Servicer or any such Subservicer 

pursuant to the Insurance Schedule. Copies of fidelity bonds and insurance policies required to be 

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maintained by the Servicer (or any Subservicer) must be made available (and delivered) to the 

Manager, the Required Consenting Parties or their respective representatives on the Effective Date 

(and, with respect to each Asset, on or before the applicable Servicing Transfer Date with respect 

thereto), and must otherwise be made available (and delivered) to the Manager, each Required 

Consenting Party and each Purchase Money Notes Guarantor, and their respective representatives, 

upon request. 

Section 2.11 Funding of Working Capital Expenses and Certain Other Payments. To the 

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

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

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

to so pay) applicable Working Capital Expenses (including making applicable Required Funding 

Draws, it being understood that the Servicing Obligations may set forth rights and limitations of 

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

in connection with the making of Required Funding Draws); provided that in each case the 

payment of the same is consistent with the applicable terms and conditions in the Custodial and 

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

LLC Operating Agreement and the other Transaction Documents. Servicer acknowledges that 

funds in the Company Accounts, and proceeds of Excess Working Capital Advances, must be used 

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

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

the other Transaction Documents. 

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

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

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

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

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

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

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

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

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

netted against any Asset Proceeds, unless expressly permitted by the Manager in accordance with 

Section 12.7 of the LLC Operating Agreement. In the event the Servicer is reimbursed for any 

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

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

Collection Account) on the Specified Date immediately following the Servicer’s receipt of notice 

from the Manager requesting the same. No Servicer Advances will bear interest chargeable in any 

way to the Company or deductible from any Asset Proceeds. 

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

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

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

such Assets, it will take any and all actions as may be necessary to insure that such insurance or 

guarantees remain in full force and effect. The Servicer acknowledges and agrees that, upon 

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assumption of the Servicing Obligations with respect to the Assets pursuant to this Agreement, it 

agrees to fulfill all of the Company’s obligations under the contracts of insurance or guaranty. 

ARTICLE III 

LOAN DEFAULTS; ACQUISITION OF COLLATERAL 

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

Servicer, either itself or through a Subservicer, will maintain (and cause each applicable 

Subservicer to maintain) a collection department that complies with the Servicing Standard and 

protects the Company’s interests in the Assets and the Collateral in accordance with the Servicing 

Standard. For the avoidance of doubt, in the event that this obligation is satisfied through the 

maintenance of a collection department through a Subservicer, if such Subservicer is terminated 

or its mainteance of a collection department fails to meet the Servicing Standard at any time, the 

Servicer will continute to have an obligation to maintain a collection department. 

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

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

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

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

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

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

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

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

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

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

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

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

Obligor, (e) the acceptance of a deed in lieu of foreclosure, (f) the purchase of the real property 

Collateral at a foreclosure sale or trustee’s sale or the purchase of the personal property Collateral 

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

against such Borrower or any Obligor and the collection of such judgment, and (h) subject to 

Section 4.3, the engagement of any JDC Contractor to service a JDC Loan. Notwithstanding 

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

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

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

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

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

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

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

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

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

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

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

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

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Servicer must cause a Site Assessment to be commissioned with respect to such Collateral, and 

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

were not paid to any Affiliate of the Manager or any Affiliate of the Servicer or any Subservicer. 

Except as is otherwise directed by the Manager, the Servicer or any Subservicer must not acquire 

or otherwise cause the Company or any Subsidiary or other entity in which the Company owns 

any interest to acquire all or any portion of any Collateral having any actual or threatened 

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

to the UCC or otherwise. If title to any Collateral that constitutes real property is to be acquired 

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

otherwise, title to such Acquired REO Property will be taken by and held in the name of one or 

more Ownership Entities; provided, however, that for any Collateral which becomes Acquired 

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

Hazard, the Ownership Entity that holds such Acquired REO Property may not hold title to any 

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

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

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

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

Servicer will obtain (or will have obtained), during the period commencing six months prior to 

such acquisition and ending on the earlier of (i) sixty days after such acquisition or (ii) such earlier 

date as may be required in connection with the relevant exercise of remedies so as to comply with 

applicable Law and preserve rights to collect any Deficiency Balance), an updated Appraisal for 

determination of the Appraised Value (to serve as the basis for the initial Net Fair Value) of such 

Acquired Property. 

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

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

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

Obligations, comply with the following terms and conditions: 

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

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

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

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

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

properties similar to the applicable Acquired REO Property, the material obligations to be 

performed by the tenants under such leases. 

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

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

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

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

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

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

Required Consenting Parties. 

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

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

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

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

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

assessed or levied or charged to such Acquired REO Property. 

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

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

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

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

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

accordance with applicable Law. 

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

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

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

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

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

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

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

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

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

provisions of such Ground Lease. 

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

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

each Ownership Entity to pursue with diligence the applicable construction or development of the 

Acquired REO Property owned by such Ownership Entity (i) in accordance with the construction, 

development, construction management (if any) and all other material contracts relating to such 

construction or development, all requirements of Law, all restrictions, covenants and easements 

affecting such Acquired REO Property, and all applicable governmental approvals, (ii) (A) in the 

case of any such construction or development other than Permitted Development, in substantial 

compliance with the plans and specifications therefor as in existence on the Closing Date and as 

thereafter modified by the Manager in its business judgment exercised in accordance with the LLC 

Operating Agreement and the other Transaction Documents, and the related Business Plan, and 

(B) in the case of any Permitted Development, in accordance with the requirements of (and only 

to the extent expressly permitted pursuant to) the Permitted Development Addendum to the LLC 

Operating Agreement, (iii) in a good and workmanlike manner and free of defects, (iv) in a manner 

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

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

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

Documents. 

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(h) In operating, managing, leasing or disposing of any Acquired REO 

Property, the Servicer will act in accordance with the Servicing Standard and in the best interests 

of the Members and creditors of the Company (including the FDIC in its various capacities); and, 

in connection with its compliance with the foregoing, the Servicer will not be required to act in 

accordance with Sections 3.4(b)-(f) (or, subject to Section 3.4(i), an applicable Assumed Property 

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

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

exercise of its reasonable discretion or (B) otherwise violates the Servicing Standard; provided, 

the Servicer will provide written notice to each of the Manager and the Initial Member prior to any 

such permitted failure to act specifying the relevant requirements involved and reasons for the 

Servicer so failing to act in accordance with the same. 

(i) The Servicer will at all times cause the Company and each Ownership 

Entity to comply with all Assumed Property Obligations; provided, that, in the event compliance 

(by the Company or an applicable Ownership Entity) with any such Assumed Property Obligation 

would directly conflict with another requirement in the Transaction Documents (notwithstanding 

use of best efforts by the Servicer and any Subservicer, as applicable, to avoid such conflict and 

remain in compliance with the Transaction Documents), (A) the Servicer will promptly notify the 

Manager, the Initial Member and each other applicable Required Consenting Party (to the extent 

a waiver of such conflict would require the consent of such Required Consenting Party), of such 

or any conflict or potential conflict resulting from an Ownership Entity acquiring title to an 

Acquired Property, (B) the Servicer will not be required to comply with such Assumed Property 

Obligation if such non-compliance is permitted pursuant to the standard set forth in Section 3.4(h) 

above, and (C) to the extent such conflict remains unresolved after application of the foregoing 

clause (B), the provisions of Section 5.4(i)(iii) of the Servicing Addendum to the LLC Operating 

Agreement will apply to such conflict. 

(j) The Servicer must furnish to the Manager, the PMN Agent and the Initial 

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

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

request. 

ARTICLE IV 

SUBSERVICING 

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

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

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

Qualified Servicer. 

Section 4.2 Subservicing Agreement Requirements. Any Subservicing Agreement with 

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

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

must comply with the requirements set forth in Section 3 of the Servicing Addendum to the LLC 

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

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requirements so set forth in such Section 3 of the Servicing Addendum to the LLC Operating 

Agreement, the Servicer agrees that: 

(a) for purposes of Section 3.1(e) of the Servicing Addendum to the LLC 

Operating Agreement, any such Subservicing Agreement must include rights in favor of the FDIC, 

each Purchase Money Notes Guarantor, the PMN Agent and the Company that are equivalent to 

the rights granted to such Persons hereunder; and 

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

outlined in Section 3 of the Servicing Addendum to the LLC Operating Agreement, any such 

Subservicing Agreement must (i) provide that the Subservicer consents to its immediate 

termination under the Subservicing Agreement pursuant to Section 7.2 and Section 7.3 of this 

Agreement, (ii) provide that the Subservicer consents to its immediate termination under the 

Subservicing Agreement upon the occurrence of any of (x) a Default under Section 7.1(b) of this 

Agreement, or (y) an Insolvency Event with respect to the Subservicer, (iii) provide that the 

occurrence of any Insolvency Event with respect to the Subservicer constitutes a default under the 

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

to actions of the Subservicer) that correspond to the provisions of Sections 7.1(a), (b), (c), (d), (e), 

(f), (g), (h), (i) and (j) of this Agreement, and contain provisions that correspond to Sections 7.2, 

7.4, and 7.5 of this Agreement, and (v) without limitation of the foregoing, provide that each of 

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

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

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

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

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

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

Nothing contained in any Subservicing Agreement may alter any obligation of the Servicer under 

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

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

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

applicable, will apply. 

Section 4.3 Right to Engage JDC Contractors. The Servicer may engage a JDC 

Contractor (or permit any Subservicer to engage a JDC Contractor) subject to the prior written 

consent of the Manager and the further deviations and requirements set forth in Section 4 of the 

Servicing Addendum to the LLC Operating Agreement. 

Section 4.4 Servicer Liable for Subservicers and JDC Contractors. Notwithstanding 

anything to the contrary contained herein, the use of any Subservicer or JDC Contractor will not 

release the Servicer from any of its Servicing Obligations or other obligations under this 

Agreement, and the Servicer will remain responsible and liable for all acts and omissions of each 

Subservicer and JDC Contractor as fully as if such acts and omissions were those of the Servicer. 

All actions of any Subservicer or JDC Contractor performed pursuant to any Subservicing 

Agreement or relevant subcontract with a JDC Contractor must be performed as an agent of the 

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Servicer. No Subservicer will be paid any fees or indemnified out of any Asset Proceeds, it being 

understood that all fees and related costs and liabilities of retaining any Subservicers will be the 

sole responsibility of the Servicer. 

Section 4.5 Manager Approval Required. Each Subservicing Agreement and JDC 

Agreement, and all Modifications thereto, and the selection of the Subservicer (regardless of 

whether the Subservicer is an Affiliate of the Servicer) or JDC Contractor is subject to the prior 

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

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

copy of all Subservicing Agreements and JDC Agreements, as executed and delivered and all 

amendments thereto, will be provided to the Manager and each Required Consenting Party. 

Section 4.6 Regulation AB Requirements. The Servicer must use commercially 

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

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

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

generally required pursuant to §§ 1122(d)(1)(i) and (ii) of Regulation AB), and (ii) to comply, and 

confirm, where applicable, that each Subservicer complies, with §§ 1122(d)(2)(i) through (vii), 

and §§ 1122(d)(4)(i) through (xiv) of Regulation AB, it being understood that any such 

requirements of Regulation AB referenced herein will be deemed applicable to the Servicing 

conducted hereunder (and under any Subservicing Agreement) regardless of whether such 

requirements apply, by their terms, only to companies registered or required to file reports with 

the Securities and Exchange Commission. 

ARTICLE V 

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER 

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

representations and warranties as of the date hereof: 

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

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

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

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

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

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

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

continental United States. 

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

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

contemplated by, this Agreement, and this Agreement has been duly authorized by all requisite 

action on the part of the Servicer. 

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

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

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

other similar Laws affecting the enforcement of creditors’ rights generally, and by general 

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

equity or at law); and all requisite organizational action has been taken by the Servicer to make 

this Agreement and all agreements contemplated hereby to which the Servicer is or will be a party 

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

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

authorized to do so. 

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

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

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

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

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

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

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

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

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

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

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

obligations under this Agreement. 

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

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

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

this Agreement or the financial condition of the Servicer. 

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

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

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

Agreement has been obtained and is effective. 

(h) None of the Servicer, any Subservicer, any JDC Contractor or their 

respective Affiliates will, at any time, without the prior written approval of the Manager, the Initial 

Member and the PMN Agent, (i) be an Affiliate of or a partner or joint venturer with any Borrower 

or Obligor, (ii) be an agent of any Borrower or Obligor, or allow any Borrower or Obligor to be 

an agent of the Servicer or any Subservicer or any such Affiliate of either, or (iii) have any interest 

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

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

in the case of any Loan Participation, any interest in the underlying loan or collateral with respect 

thereto). 

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

remain, a Qualified Servicer. 

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

covenants to the Manager as follows: 

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

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

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

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

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

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

Law, relating to the Assets, for the calendar or tax year in which the Effective Date falls and 

thereafter. 

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

Servicer’s principal place of business (which must at all times be in the continental United States), 

a complete and accurate set of files, books and records (including records transferred by the 

Manager to the Servicer), or if a Subservicer is retained, complete and accurate duplicate copies 

thereof, regarding the Assets and the Collateral, and the Company’s and the relevant secured 

parties’ interests in the Assets and the Collateral, including records relating to the Company 

Accounts (including any Other Company Accounts maintained in connection with the Assets), the 

Escrow Accounts, Servicer Advances, Funding Draws, Working Capital Expenses and collection 

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

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

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

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

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

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

information returns in accordance with the LLC Operating Agreement and as required by Law, (y) 

permit preparation of the Company’s financial statements in accordance with GAAP and as 

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

Company’s assets; (C) regarding the prevention or timely detection of any unauthorized, and nonde minimis, acquisition, use or disposition of assets of the Company or any Ownership Entity; and 

(D) that any material information regarding the business or affairs of the Company is accumulated, 

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

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

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

respect thereto), and the making of any sale or other Disposition of an Asset (including any Bulk 

Sale). 

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

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

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

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

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

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

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

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

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

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

Acquired REO Property, (C) accurate records, in reasonable detail, of all determinations as to 

whether (or not) to transfer (or cause to be transferred) funds out of, into, or between, Accounts 

(to the extent that the Manager has discretion with respect thereto), and the basis (and back-up 

documentation) for all such determinations, (D) accurate records, in reasonable detail, of all 

determinations as to whether (or not) to effect any proposed sale or other Disposition of an Asset 

(including any Bulk Sale), and the basis (and back-up documentation) of such determination, and 

(E) accurate records, in reasonable detail, of all other determinations that are material to the 

Company. 

(c) The Servicer must cause all books and records required at any time to be 

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

hereby acknowledges and agrees that the same will at all times be property of the Company), and 

to be maintained and retained until the date that is the later of six years after the Closing Date and 

three years after the Final Distribution, which date will be established by notice to such effect to 

the Servicer by the Manager. All such books and records (including any such books and records 

maintained by a Subservicer or any JDC Contractor engaged by or through the Servicer, and to the 

extent holding or relating to such books and records, any servicing system maintained by such 

Person) must be available during such period for inspection by the Manager, the FDIC, the PMN 

Agent, each Purchase Money Notes Guarantor and the Initial Member (and their respective 

representatives, including any applicable Governmental Authority) at all reasonable times during 

business hours on any Business Days (or, in the case of any such inspection after the term hereof, 

at such other location as is provided by notice to the Manager, the FDIC, the PMN Agent, each 

Purchase Money Notes Guarantor and the Initial Member, as applicable), in each instance upon 

not less than two Business Days’ prior notice to the Servicer. Upon request by the Manager, the 

Servicer, at the sole cost and expense of the Manager, must promptly send copies (the number of 

copies of which must be reasonable) of such books and records to the Manager. The Servicer must 

(and must cause each Subservicer and JDC Contractor to) provide the Manager with reasonable 

advance notice of the Servicer’s (or any such Subservicer’s or JDC Contractor’s) intention to 

destroy or dispose of any documents or files relating to the Assets and, upon the request of the 

Manager, will allow the Manager, at its own expense, to recover the same from the Servicer (or 

such Subservicer or JDC Contractor). 

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

complete and accurate set of records (i) encompass all files in the Servicer’s (or any Subservicer’s 

or JDC Contractor’s) custody, possession or control pertaining to the Assets and the Collateral, 

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

Agency Agreement) all original and other documentation (or, to the extent any original 

documentation must be given to any other Person, copies of such original documentation) 

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

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expense pertaining to the Assets and the Collateral, and all of the Servicer’s (and any Subservicer’s 

and any JDC Contractor’s) internal memoranda pertaining to the Assets and the Collateral, and (ii) 

will survive the dissolution and termination of the Company, for the remainder, if any, of the period 

specified in the first sentence of Section 5.2(c) above. 

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

Specified Date, commencing with the first month that commences after the last Servicing Transfer 

Date (or such other date as may be set forth in the Servicing Obligations), a monthly electronic 

report on the Assets and Collateral containing such information and substantially in the form set 

forth on Schedule 4 as the same may be amended from time to time by the Manager (without the 

consent of any Required Consenting Party) and the Servicer (the “Electronic Report”). The 

Electronic Report will include, but not be limited to, the information required for the Manager to 

prepare, in accordance with the LLC Operating Agreement, the Cash Flow and Distribution Report 

and the Monthly Report, and such other reports and information as the Manager reasonably 

requires, to the extent such information is reasonably available to the Servicer (or any Subservicer 

or JDC Contractor). Notwithstanding the above, with respect to any period prior to the applicable 

Servicing Transfer Date, the applicable Electronic Reports may exclude certain of the information 

otherwise required to be included therein if and to the extent the Initial Member (or the Transferor) 

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

being able to provide such information) to the Servicer and the Manager pursuant to the interim 

servicing and asset management support obligation set forth in Section 3.3 of the Transfer 

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

the Servicer and the Manager. 

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

Manager and each Required Consenting Party, on or before March 10 of each year, or such other 

day as the Manager and the Servicer may agree, commencing in the year 2025, an annual officer’s 

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

preceding Fiscal Year (or other applicable period as set forth below in this Section 5.2(f)) and of 

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

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

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

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

applicable period as set forth below in this Section 5.2(f)), if there has been a failure to fulfill any 

such obligation in any material respect, specifying each such failure and the nature and status 

thereof. The first such officer’s certificate will, with respect to any Asset, cover the period 

commencing on the Servicing Transfer Date and continuing through the end of the 2024 Fiscal 

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

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

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

through the end of the 2024 Fiscal Year), such party will provide an officer’s certificate pursuant 

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

the Servicer or any such Subservicer has engaged a JDC Contractor, each such officer’s certificate 

pursuant to this Section 5.2 must cover, or otherwise be accompanied by a separate such officer 

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certificate from, the JDC Contractor (including in respect of its applicable Assignment of JDC 

Agreement). 

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

the Servicer agree, commencing in the year 2025, the Servicer will, and will cause each 

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

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

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

respect to the prior Fiscal Year (or other applicable period as set forth below), such firm has 

examined certain records and documents relating to compliance with the servicing requirements 

in this Agreement and that, on the basis of such examination conducted substantially in compliance 

with either the Uniform Single Attestation Program for Mortgage Bankers or item 1122 of 

Regulation AB, such firm is of the opinion that the Servicer or applicable Subservicer’s activities 

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

pursuant to Section 4.6 above, Regulation AB), or that such examination has disclosed no material 

items of noncompliance except for (i) such exceptions as such firm believes to be immaterial, and 

(ii) such other exceptions as are set forth in the report. The first such reports will cover the period 

commencing on the Effective Date (and for each Asset, covering the period from the applicable 

Servicing Transfer Date) and continuing through the end of the 2024 Fiscal Year. 

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

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

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

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

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

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

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

Servicer must make its (and each applicable Subservicer’s and JDC Contractor’s) personnel who 

are familiar with the Business Plans (or relevant portions thereof) available during normal business 

hours for the purposes of discussing such Business Plans with representatives of such Required 

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

(i) Reporting Service. The Manager has the right to require the Servicer to 

utilize one or more Reporting Services selected, and separately engaged by, the Initial Member 

(subject to the requirements in the LLC Operating Agreement) in respect of any or all reports and 

other information or notices required to be delivered by the Servicer (or any Subservicer or JDC 

Contractor) hereunder. Such use of a Reporting Service may involve, in respect of any or all such 

reports and other information or notices (as determined by the Manager subject to the requirements 

in the LLC Operating Agreement) (A) use of a secure website, portal or other electronic means in 

connection with or for delivery thereof, (B) use of specified software, formatting and procedures 

for gathering, organizing or transmitting the same, and (C) subject to any applicable requirements 

in the Transaction Documents, changes to the form and content thereof and means of delivery of 

notice of any such changes. 

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

and the date that is three years after the Final Distribution, which date will be established by notice 

to such effect to the Servicer by the Manager, the Servicer must, and must cause each Subservicer 

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

Member and their respective representatives (including any Governmental Authority), during 

normal business hours and on reasonable notice, with access to and the right to review all of the 

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

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

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

the LLC Operating Agreement or any matters relating to this Agreement or the rights or obligations 

hereunder or under the other Transaction Documents, (b) permit such representatives to make 

copies of and extracts from the same, (c) allow the Manager, the PMN Agent, any Purchase Money 

Notes Guarantor or the Initial Member to cause such books to be audited by accountants selected 

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

as applicable, and (d) allow the representatives of the Manager, the PMN Agent, any Purchase 

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

any JDC Contractor’s affairs, finances and accounts, as they relate to the Assets, the Collateral, 

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

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

and thereunder, with any such Servicer’s, any such Subservicer’s and any such JDC Contractor’s 

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

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

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

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

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

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

the PMN Agent, such Purchase Money Notes Guarantor or the Initial Member, as applicable (and 

in all events subject to any obligation of the Manager to bear such expenses of the PMN Agent, 

such Purchase Money Notes Guarantor or the Initial Member pursuant to the LLC Operating 

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

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

pursuant to this Section 5.3 as a result of or during the continuance of a Default by the Servicer 

hereunder (including any such Default relating or attributable to any Subservicer or any JDC 

Contractor) will in all cases be borne by the Servicer. 

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

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

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

of the Assets, the Collateral, the Asset Documents, or the Asset Proceeds, except for the Liens in 

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

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

may permit from time to time; and the Servicer will not take any action to interfere with the PMN 

Agent’s rights as a secured party with respect to Assets, the Collateral and the Asset Proceeds. 

Notwithstanding the foregoing, (i) with respect to any Mortgaged Property included in the 

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Collateral, the Servicer will not be required pursuant to this Section 5.4 to cause the Company to 

discharge (or pay or advance funds on behalf of any Borrower for payment of) any Lien arising by 

operation of Law as a result of the applicable Borrower’s failure to pay ground rents, Taxes, 

assessments, water rates, sewer rents, and other similar charges with respect to such Mortgaged 

Property, so long as the Servicer has determined in accordance with the Servicing Standard (and 

has maintained applicable records of such determination pursuant to Section 5.2) that the amount 

of such Lien (or applicable aggregate amount required to be paid by the Servicer so as to discharge 

the same) exceeds the net recoverable amount to the Company with respect to such Mortgaged 

Property, provided that, so long as such Lien remains in effect, the Company will not acquire title 

to such Mortgaged Property or otherwise have any liability with respect to such Lien, and (ii) in 

each case, to the extent the Servicer is required to make any applicable payment pursuant to the 

foregoing, such payment will be from Company funds available (or made available by the 

Manager) for such payment (and, except as provided otherwise in the Servicing Obligations or 

with respect to a Lien arising as a result of actions or omissions of the Servicer in violation of other 

applicable provisions of this Agreement, the Servicer will not be required to use its own funds, or 

make any Servicer Advances, to prevent or discharge any such Lien). 

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

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

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

such information relating to the Assets, the Collateral, the Servicer, any Subservicer and any JDC 

Contractor as the Manager may reasonably request from time to time and, in any case, will ensure 

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

or JDC Contractor becomes aware relating to the Assets, any of the Collateral, the Company 

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

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

materially and adversely affects the interests of the Company or any Required Consenting Party. 

Without limiting the generality of the foregoing, the Servicer will immediately notify the Manager 

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

the Initial Member (including as Transferor and Prior Transferor) arising out of or with respect to 

any Asset, (ii) any material notice from any Governmental Authority relating to any Collateral, 

(iii) any occurrence which could reasonably be expected to result in cost overruns with respect to 

any Loan or Acquired Property for which Required Funding Draws or permitted development or 

construction expenses have been, or are contemplated to be, made or incurred, or (iv) any other 

occurrence which would reasonably be expected to materially hamper, prevent or interfere with 

the effectuation of any then-applicable Business Plan. In addition, the Servicer must cause to be 

delivered to the Manager information indicating any possible Environmental Hazard with respect 

to any Collateral. Further, the Servicer must cause to be furnished to the Manager, each month on 

the Specified Date, commencing the first month following the Effective Date and together with 

the Electronic Report, a report with respect to each Asset and Collateral (A) containing a summary 

of the progress made, to the extent applicable, in the construction, marketing and leasing of the 

applicable project since the last such report, (B) in the case of any Asset, describing the remedial 

efforts or enforcement actions, if any, being undertaken by the Servicer with respect to the 

applicable Asset, (C) describing the status of the activities contemplated by the Business Plans 

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(which, among other things, identifies any facts or circumstances which are reasonably likely to 

hamper, interfere with, prevent or postpone effectuation of the applicable Business Plans), (D) to 

the extent applicable, containing an itemized statement of costs and expenses remaining to be paid 

in order to complete construction of the applicable project (including capitalized interest, real 

estate Taxes and other soft costs), (E) to the extent requested by the Manager, any materials 

delivered by the Borrower to the Company or the Servicer pursuant to the applicable Asset 

Documents not theretofore delivered to the Manager (including, copies of all plans and 

specifications, construction budgets and construction schedules, construction contracts, architect’s 

agreements, leasing and brokerage agreements, management agreements (and modifications to 

each of the foregoing) and materials delivered by the applicable Borrower in connection with each 

request for an advance under the related Loan and (F) such other information as the Manager 

reasonably requests. 

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

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

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

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

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

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

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

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

from time to time deliver to the Servicer such Modifications or additional Transaction Documents 

(or portions of any thereof) as Manager may determine to be so necessary for the continued 

performance by Servicer of its obligations hereunder. All references herein to the Servicer’s 

obligations with respect to such LLC Operating Agreement and other Transaction Documents will, 

as between the Manager and the Servicer (and without limitation of obligations of the Manager, or 

the rights of the Initial Member or the PMN Agent under this Agreement, the LLC Operating 

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

Agreement and other Transaction Documents (or portions thereof) as have been, or from time to 

time are, delivered to Servicer. 

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

copies thereof to be delivered by the Servicer to each Required Consenting Party, (i) within fortyfive days after the end of each of its fiscal quarters, commencing on the Effective Date, and (ii) 

within ninety days after the end of each of its fiscal years, commencing on the Effective Date, a 

letter certified by an officer of the Servicer that details certain agreed upon financial trends and 

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

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

ARTICLE VI 

MANAGER CONSENT 

Section 6.1 Actions Requiring Manager Consent. Notwithstanding anything to the 

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

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

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

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

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

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

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

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

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

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

Subservicer, or any Affiliate of any Subservicer; 

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

Acquired Property (or any portion thereof); 

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

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

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

the Asset Proceeds allocable to the Initial Member; 

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

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

or from Excess Working Capital Advances) or any other Company Account or any other account 

created under the Custodial and Paying Agency Agreement other than in accordance with the 

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

Guaranty Agreement and the Custodial and Paying Agency Agreement; 

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

Balance of any Asset other than (i) Required Funding Draws or (ii) Servicing Expenses to the 

extent that capitalizing such Servicing Expenses is or would have been, prior to the conversion of 

the Loan to Acquired Property, permitted under the applicable Asset Documents; 

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

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

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

are the subject of such Asset (or material modifications to any of such items, including any change 

orders); (ii) waiving or forbearing from exercising any of the lender’s rights under, or any 

conditions precedent to the funding of any advances under, such Loan; (iii) forgiving or reducing 

or forbearing from collecting any indebtedness; (iv) releasing any parties liable for the payment of 

the Asset or the performance of any other obligation relating thereto; (v) granting any consent 

under any Asset Documents (including, with respect to any proposed transfers of any Collateral or 

transfers, pledges or changes in management of any direct or indirect interests in any Borrower, 

proposed alterations, proposed settlements of insurance claims, condemnation claims or 

deficiencies or proposed applications of insurance proceeds or condemnation awards); (vi) 

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consenting to any agreement in any Insolvency Proceeding relating to any Asset, any Borrower or 

any Obligor with respect to a Loan, or any Collateral, including voting for a plan of reorganization; 

(vii) subordinating the liens of any Asset Document; (viii) amending or waiving any provision of 

any intercreditor agreement or making any decisions with respect to the Assets under any 

intercreditor agreement; or (ix) taking any other action regarding such Asset, Collateral or 

Acquired Property that is prohibited under the LLC Operating Agreement or the other Transaction 

Documents or otherwise inconsistent with the Servicing Standard; or 

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

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

Section 6.2 Amendments, Modification and Waivers. No provision of this Agreement 

may be amended, modified or waived except in writing executed by the Manager and the Servicer, 

and each such amendment and modification will be subject to the prior written consent of each 

Required Consenting Party, except for those provisions that may be amended by the express terms 

hereof without the consent of the Required Consenting Parties. In no event will any such 

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

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

such third party beneficiary is, and remains, a third party beneficiary hereunder pursuant to Section 

11.8), and/or any Related Person in relation to such third party beneficiary, without the express 

written consent of such third party beneficiary. In respect of provisions in this Agreement that 

may be amended without the consent of the Required Consenting Parties (including Schedules 1 

through 6 to this Agreement), (a) in no event will any such provisions (including as amended) 

result in a right for the Manager or the Servicer to deviate from the requirements in the remaining 

provisions in this Agreement and the other Transaction Documents (including in respect of 

payments to Affiliates), and (b) in the event of any conflict between such provisions and the 

remaining provisions herein or in any other Transaction Document, such remaining provisions 

herein and in the other Transaction Documents will prevail. 

ARTICLE VII 

DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE 

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

(a) any failure by the Servicer to remit (as and when required) to the Company 

or deposit in the Collection Account, any other Company Account, the Escrow Accounts or any 

other accounts created under the Custodial and Paying Agency Agreement any amount required to 

be so remitted or deposited under the terms of (i) this Agreement, (ii) the Custodial and Paying 

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

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

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

respect to any Subservicer or JDC Contractor; provided, that if such Subservicer or JDC Contractor 

is not an Affiliate of the Servicer, then such Insolvency Event under this clause (ii) will not be a 

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Default hereunder so long as the Servicer will have fully replaced such affected Subservicer or 

JDC Contractor within thirty days after the occurrence of such Insolvency Event; or 

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

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

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

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

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

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

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

Servicer; or 

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

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

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

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

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

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

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

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

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

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

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

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

governing material breach or default under the applicable Subservicing Agreement; or (ii) with 

respect to any JDC Agreement, the occurrence of any “Default” as defined in the related 

Assignment of JDC Agreement attributable to the Servicer, any Subservicer or the applicable JDC 

Contractor, or the failure by the Servicer to terminate or replace (or cause the termination or 

replacement of) such JDC Contractor upon the occurrence of any such event attributable to such 

JDC Contractor; or 

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

(e), or (g) through (k)) by the Servicer to perform its obligations under, and otherwise to comply 

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

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

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

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

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

cannot be cured within thirty days (or such other period as the Manager, with the consent of the 

Initial Member, and the Servicer agree) with the exercise of reasonable diligence, but which by its 

nature is curable, the cure period will be extended for an additional thirty days if the Servicer can 

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

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

under this Section 7.1(f) that relates exclusively to obligations included in any applicable Schedule 

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hereto that can be amended or otherwise modified without the consent of the Initial Member, then 

no such consent of the Initial Member will be required with respect to an applicable cure period 

hereunder so long as such failure hereunder is not, or would not result in, a failure by the Manager 

to comply with its obligations under the LLC Operating Agreement and the other Transaction 

Documents; or 

(g) any Dissolution Event (without any cure period other than as may be 

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

respect to any Subservicer or JDC Contractor engaged by the Servicer or any Subservicer; 

provided, that any such Dissolution Event under this clause (ii) will not be a Default hereunder so 

long as the Servicer will have fully replaced (or, as applicable, caused the replacement of) such 

affected Subservicer or JDC Contractor within thirty days after the occurrence of such Dissolution 

Event; or 

(h) the occurrence of any “Event of Default,” as defined in the LLC Operating 

Agreement; or 

(i) receipt by the Manager or the Servicer, from the PMN Agent, of notice that 

an “Event of Default” as defined in the Reimbursement, Security and Guaranty Agreement, has 

occurred and is continuing; or 

(j) any failure by the Servicer to duly observe or perform its obligations in 

Section 11.9; provided, that in the event that any such failure of the Servicer is due to the failure 

of any Subservicer or JDC Contractor to comply with the provisions of Section 11.9, then it will 

not be a Default under this clause (j) so long as Servicer replaces such Subservicer or JDC 

Contractor within thirty days after the occurrence of such Subservicer’s or JDC Contractor’s 

failure to duly observe or perform Servicer’s obligation under Section 11.9; or 

(k) the occurrence of any Restricted Servicer Change of Control. 

Section 7.2 Termination with Cause. 

(a) Upon the occurrence of a Default pursuant to this Agreement, in each case, 

without any cure period other than as may be provided for in Section 7.1 above, each of the 

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

Agreement), the Initial Member and the PMN Agent, in addition to any other rights the Manager, 

the Initial Member or the PMN Agent, may have at Law (including under the Uniform Commercial 

Code) or equity, including injunctive relief, specific performance or otherwise, may (i) terminate 

this Agreement by providing a Termination Notice to the Servicer, (ii) terminate the Subservicing 

Agreements by providing a written termination notice to the Servicer and the applicable 

Subservicers, (iii) terminate any JDC Agreement and otherwise exercise any applicable rights 

under the Assignment of JDC Agreement subject to the terms thereof, and (iv) otherwise enforce 

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

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(b) In addition to the rights set forth above in Section 7.2(a), (i) upon the 

removal of the Manager as the “Manager” pursuant to the LLC Operating Agreement and/or notice 

from the Initial Member or the Manager of the occurrence of any Event of Default (as defined in 

the LLC Operating Agreement) under the LLC Operating Agreement, or notice from the PMN 

Agent of the occurrence of any Event of Default (as defined in the Reimbursement, Security and 

Guaranty Agreement), each of the Initial Member (and any successor “Manager” to the Manager 

under the LLC Operating Agreement) and the PMN Agent may exercise all of the rights of the 

Manager under this Agreement and further cause the termination or assignment from the Manager 

to any other Person of this Agreement (or, in lieu of such assignment, and including in the event 

of any rejection by the Manager of the Servicing Agreement in connection with any Insolvency 

Proceeding, require the Servicer to enter into a new Servicing Agreement (on substantially the 

same terms and conditions as set forth in this Agreement) with such other Person), without penalty 

or payment of any fee, and (ii) upon the occurrence of any Default under this Agreement, each of 

the Manager (or applicable successor “Manager” to the Manager under the LLC Operating 

Agreement), the Initial Member and the PMN Agent may exercise all of the rights of (A) the 

Manager under this Agreement and cause the termination or assignment to any other Person of this 

Agreement (or, in lieu of such assignment, and including in the event of any rejection by the 

Manager of the Servicing Agreement in connection with any Insolvency Proceeding, require the 

Servicer to enter into a new Servicing Agreement (on substantially the same terms and conditions 

as set forth in this Agreement) with such other Person), without penalty or payment of any fee, and 

(B) the Servicer under any Subservicing Agreement and cause the termination or assignment to 

any other Person of such Subservicing Agreement (or, in lieu of such assignment, and including 

in the event of any rejection by the Servicer of such Subservicing Agreement in connection with 

any Insolvency Proceeding, require the Subservicer to enter into a new Subservicing Agreement 

(on substantially the same terms and conditions as such Subservicing Agreement) with such other 

Person), without penalty or payment of any fee. 

(c) The Servicer hereby consents to its immediate and automatic termination 

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

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

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

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

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

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

Consenting Party. The Termination Notice must set forth with specificity the nature of the default 

or failure to perform of the Manager and provide the Manager with no less than thirty days to cure 

any such default or failure to perform. In the event that the default or failure to perform is not 

cured within thirty days after the date of delivery of the Termination Notice, the Servicer must 

provide a second Termination Notice to the Manager with a copy to each Required Consenting 

Party, which second Termination Notice must be prominently labeled as the “Second Termination 

Notice”. Such second Termination Notice must confirm to the Manager that the Servicer will 

continue to perform the Servicing Obligations under this Agreement until the earlier to occur of 

(i) ninety days after the delivery of such second Termination Notice to the Manager and each 

Required Consenting Party, and (ii) the transfer of the Servicing Obligations to a successor 

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Servicer (approved by each Required Consenting Party). The duty of the Servicer to continue to 

perform the Servicing Obligations as provided in the second Termination Notice is contingent 

upon the timely and full payment of the Servicing Fee to the Servicer during such period. The 

Servicer must cooperate fully and completely with the transition of the Servicing Obligations to a 

successor Servicer in order to assure an orderly transfer. 

(e) Anything to the contrary set forth herein notwithstanding, (i) any exercise 

of remedies under this Agreement (or any Subservicing Agreement) by the Manager is subject to 

the applicable rights of the Initial Member and the PMN Agent under the Transaction Documents 

and applicable Law (including the Uniform Commercial Code), and (ii) in no event will the 

Manager have a right to terminate this Agreement following the occurrence and during the 

continuation of any Default under Section 7.1(h) above (regardless of whether other Defaults then 

exist) without the prior written consent of the Initial Member, or following the occurrence and 

during the continuation of any Default under Section 7.1(i) above (regardless of whether other 

Defaults then exist) without the prior written consent of the PMN Agent. 

Section 7.3 Termination without Cause. 

(a) The Manager may, without cause, terminate this Agreement, upon 

providing a Termination Notice to the Servicer, but only as and in accordance with the provisions 

set forth on Schedule 5 as the same may be amended from time to time by the Manager (without 

the consent of any Required Consenting Party) and the Servicer. 

(b) The Servicer may, at any time after the first anniversary of the Effective 

Date, without cause, terminate this Agreement. No termination of this Agreement by the Servicer 

will be effective unless the Servicer delivers to the Manager, with a copy to each Required 

Consenting Party, a Termination Notice, which for the purpose of this Section 7.3(b) will be a 

notice of the Servicer’s intent to terminate this Agreement. Such Termination Notice must be 

provided at least sixty days prior to any date specified by the Servicer as the date of termination 

of the Servicer’s Servicing Obligations under this Agreement. Notwithstanding the foregoing, 

such Termination Notice will not be effective unless the Termination Notice contains confirmation 

of the intent and obligation of the Servicer to continue to perform its Servicing Obligations until 

the earlier of (i) ninety days after the Termination Notice is given and (ii) such other date on which 

the Servicing Obligations are transferred to a successor Servicer in an orderly manner. The 

Servicer must cooperate fully and completely with the transition of the Servicing Obligations to a 

successor Servicer, to be designated by the Manager, in order to assure an orderly transfer. The 

Servicer issuing the Termination Notice will be liable for all costs and expenses associated with 

the transfer of Servicing Obligations to the successor Servicer, including but not limited to the 

costs and expenses of transporting the Servicing files and the provision of any notices to any 

Borrowers. 

Section 7.4 Effective Termination Date. Termination as specified in this Article VII 

will be effective at such time as is permitted hereunder and specified in the Termination Notice. 

In the event of such termination, all authority and power of the Servicer under this Agreement, 

whether with respect to the Assets or otherwise, will pass to and be vested in the Manager or the 

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successor servicer designated by the Manager in the case of termination by the Manager, or as 

designated solely by the Initial Member (or any successor “Manager” under the LLC Operating 

Agreement) in the case of termination by the Initial Member (or such successor “Manager” under 

the LLC Operating Agreement), or as designated by solely by the PMN Agent in the case of 

termination by the PMN Agent. The Servicer agrees to cooperate with the Manager, the Initial 

Member, any successor “Manager” under the Operating Agreement, the PMN Agent and any 

successor servicer with respect to the timely and orderly transition of its obligations under this 

Agreement. The Servicer will be liable for all obligations of the Servicer that have accrued or 

arisen under this Agreement or at Law prior to such termination. 

Section 7.5 Accounting. Upon termination or assignment of this Agreement as set forth 

herein, the Servicer must account for and turn over to the Manager or its designee (or, if 

applicable,(i) pursuant to such instructions as may be provided by the Initial Member or any 

successor “Manager” pursuant to the LLC Operating Agreement or (ii) pursuant to such 

instructions as may be provided by the PMN Agent) funds collected under the terms of this 

Agreement. The Servicer must provide written notice in conformance with all applicable Law to 

the Borrowers to indicate that their Assets will henceforth be Serviced by the Manager (or 

applicable successor “Manager” under the LLC Operating Agreement) or any applicable successor 

Servicer designated by the Manager (or any successor “Manager” under the LLC Operating 

Agreement), the Initial Member or the PMN Agent, as the case may be, and transfer its duties as 

the Servicer to the Manager (or successor “Manager” under the LLC Operating Agreement) or 

such successor Servicer. 

ARTICLE VIII 

INDEPENDENCE OF PARTIES; INDEMNIFICATION 

Section 8.1 Independence of Parties. The Servicer will have the status of, and act as, an 

independent contractor. Nothing herein contained will be construed to create a partnership or joint 

venture or any similar relationship between the Manager and the Servicer. 

Section 8.2 Indemnification. 

(a) The Servicer must indemnify and hold harmless the Company, the Manager, 

the PMN Agent, each Purchase Money Notes Guarantor, the Initial Member, the Receiver and the 

FDIC, and their respective Related Persons (all of the foregoing, collectively, the “Indemnified 

Parties”) from and against any and all Losses whatsoever directly or indirectly resulting from, 

connected with, arising out of or related to (i) any breach of or inaccuracy in any of the Servicer’s 

representations or warranties contained in this Agreement, (ii) any failure of the Servicer to timely 

perform its obligations under, and otherwise to comply with and observe the provisions of, this 

Agreement, or (iii) any act taken by the Servicer purportedly pursuant to a power of attorney 

granted by the Manager which act results in a claim related to the unlawful use of such power of 

attorney. The Servicer’s obligations under this Section 8.2 will survive the termination of this 

Agreement (and any termination of the Servicer pursuant to the provisions of this Agreement), 

and, with respect to any specified third party beneficiary of this Agreement (and its Related 

Persons) will also survive such third party beneficiary otherwise ceasing generally to constitutes 

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such a third party beneficiary. Each Indemnified Party must deliver notice, of any claim or demand 

made by any Person against such Indemnified Party for which such Indemnified Party may seek 

indemnification under this Section 8.2 (a “Third Party Claim”), to the Servicer promptly after 

receipt by such Indemnified Party of written notice of the Third Party Claim, describing such Third 

Party Claim in reasonable detail. The failure or delay to provide such notice, however, will not 

release the Servicer from any of its obligations under this Section 8.2 except to the extent that it is 

materially prejudiced by such failure or delay. The Servicer acknowledges and agrees that it will 

have no recourse against the Company for any amounts the Servicer is required to pay pursuant to 

this Section 8.2, and in no event will expenses incurred by the Servicer or any Subservicer in 

connection with its obligations under this Section 8.2 constitute Servicing Expenses or otherwise 

be deducted from or reimbursed out of Asset Proceeds. 

(b) If the Servicer confirms in writing to the Indemnified Party within fifteen 

days after receipt of a Third Party Claim the Servicer’s responsibility to indemnify and hold 

harmless the Indemnified Party therefor, the Servicer may elect to assume control over the 

compromise or defense of such Third Party Claim at the Servicer’s sole expense and with counsel 

selected by the Servicer, which counsel must be reasonably satisfactory to the Indemnified Party, 

provided that (i) the Indemnified Party may, if such Indemnified Party so desires, employ counsel 

at such Indemnified Party’s own expense to assist in the handling (but not control the defense) of 

any Third Party Claim; (ii) the Servicer must keep the Indemnified Party advised of all material 

events with respect to any Third Party Claim; (iii) the Servicer must obtain the prior written 

approval of the Indemnified Party before ceasing to defend against any Third Party Claim or 

entering into any settlement, adjustment or compromise of such Third Party Claim involving 

injunctive or similar equitable relief being imposed upon the Indemnified Party or any of its 

Affiliates; and (iv) the Servicer will not, without the prior written consent of the Indemnified Party, 

settle or compromise or consent to the entry of any judgment in any pending or threatened action 

in respect of which indemnification may be sought hereunder (whether or not any such 

Indemnified Party is a party to such action), unless such settlement, compromise or consent by its 

terms obligates the Servicer to satisfy the full amount of the liability in connection with such Third 

Party Claim and includes an unconditional release of such Indemnified Party from all liability 

arising out of such Third Party Claim. 

(c) Notwithstanding anything contained herein to the contrary, the Servicer will 

not be entitled to control (and if the Indemnified Party so desires, it will have sole control over) 

the defense, settlement, adjustment or compromise of (but the Servicer will nevertheless be 

required to pay all Losses incurred by the Indemnified Party in connection with such defense, 

settlement or compromise): (i) any Third Party Claim that seeks an order, injunction or other 

equitable relief against the Indemnified Party or any of its Affiliates; (ii) any action in which both 

the Servicer or any Affiliate of the Servicer, on one hand, and the Indemnified Party, on the other 

hand, are named as parties and either the Servicer (or such Affiliate) or the Indemnified Party 

determines with advice of counsel that there may be one or more legal defenses available to it that 

are different from or additional to those available to the other party or that a conflict of interest 

between such parties may exist in respect of such action; and (iii) with respect to any such Third 

Party Claim against the FDIC (in any capacity), any matter that raises or implicates any issue 

relating to any power, right or obligation of the FDIC under any Law. In addition to the foregoing, 

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if the Servicer elects not to assume the compromise or defense of any Third Party Claim, fails to 

timely and properly notify the Indemnified Party of its election as herein provided, or, at any time 

after assuming such defense, fails to diligently defend against such Third Party Claim in good 

faith, the Indemnified Party may pay, settle, compromise or defend against such Third Party Claim 

(but the Servicer will nevertheless be required to pay all Losses incurred by the Indemnified Party 

in connection with such payment, settlement, compromise or defense). In connection with any 

defense of a Third Party Claim (whether by the Servicer or the Indemnified Party), all of the parties 

hereto must, and must cause their respective Affiliates to, cooperate in the defense or prosecution 

thereof and to in good faith retain and furnish such records, information and testimony, and attend 

such conferences, discovery proceedings, hearings, trials and appeals, as may be reasonably 

requested by a party hereto in connection therewith. The Servicer must promptly pay, discharge 

and satisfy any judgment or decree which may be entered against it or any Indemnified Party in 

respect of such claim subject to indemnification hereunder. 

Section 8.3 Pre-Effective Date Liabilities. Notwithstanding anything to the contrary 

herein, but without limitation of the release set forth in Section 11.13, it is understood and agreed 

that the Servicer will not be liable to the Manager for any liabilities or obligations attributable to 

an act, omission or circumstances of the Initial Member (including as Transferor and Prior 

Transferor), the FDIC, the Failed Bank, the Prior Failed Bank and the Company that occurred or 

existed prior to the Effective Date or, with respect to any particular Asset, the Servicing Transfer 

Date applicable thereto (the “Pre-Existing Liabilities”). In the event there is asserted against the 

Company, the Manager, the Servicer or any Subservicer any claim or action with respect to any 

such Pre-Existing Liabilities, the Servicer or Subservicer, as applicable, must notify the Manager 

and the Initial Member of such claim or action in accordance with Article IX. Except as provided 

otherwise in Section 8.2 above (in the event that such claim or action is subject to the 

indemnification obligations of Servicer pursuant to Section 8.2 above), the Manager will have the 

right to control and assume the defense of the Company, the Manager, the Servicer and the 

Subservicer with respect to such claim or action at the Manager’s expense. The Servicer will be 

reimbursed by the Manager in connection with the foregoing only to the extent of and in 

accordance with the terms set forth on Schedule 3, as the same may be amended from time to time 

by the Manager (without the consent of the Initial Member) and the Servicer. 

ARTICLE IX 

NOTICES 

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

or delivered under or by reason of the provisions of this Agreement must be delivered in 

accordance with (and subject to) the provisions of the Notice Schedule (which Notice Schedule is 

hereby incorporated by reference); provided, that (i) for purposes of such Notice Schedule, the 

initial notice address for the Servicer will be as set forth below, and (ii) service of any writ, process 

or summons in any suit, action or proceeding arising out of, relating to, or in connection with this 

Agreement or any Transaction Document will be subject to the applicable provisions in Section 

10.2. The Servicer must send a copy of any notice by it under this Agreement of any change of 

address or electronic mail address for purposes of this Agreement (and the Notice Schedule) to 

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(ii) consents and submits, for itself and its property, to the jurisdiction of such 

courts for the purpose of any such suit, action or proceeding instituted against it by any other party, 

(iii) agrees, in any suit, action or proceeding that is brought in the Supreme Court 

of the State of New York for New York County in accordance with the above provisions of this 

Section 10.2(a), to request that such suit, action or proceeding be referred to the Commercial 

Division of such Court, and 

(iv) agrees that a final judgment in any such suit, action or proceeding will be 

conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other 

manner provided by Law; 

(b) agrees that service of all writs, process and summonses in any suit, action 

or proceeding pursuant to Section 10.2(a) may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to it at its address for notices pursuant to Article IX 

(with copies to such other Persons as specified therein); provided, however, that the foregoing will 

not affect the right of any party to serve process in any other manner permitted by Law; 

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

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

court specified in Section 10.2(a), (ii) waives any claim that any such suit, action or proceeding 

brought in any such court has been brought in an inconvenient forum and (iii) agrees not to plead 

or claim either of the foregoing; and 

(d) agrees that nothing contained in this Section 10.2 will be binding upon or 

construed to constitute consent to jurisdiction by the Failed Bank, the Prior Failed Bank or the 

FDIC, in any capacity (including as Transferor and Prior Transferor), or constitute a limitation on 

any removal rights the FDIC, in any capacity, may have. 

Notwithstanding the above, with respect to any proceedings initiated by the FDIC (in any 

capacity) as a third party beneficiary, or if at any time the FDIC (in any capacity) is a party hereto 

as the “Manager” (as a result of an applicable replacement of the “Manager” pursuant to the terms 

of the LLC Operating Agreement), the terms of this Section 10.2 will be restated as follows: 

“The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and unconditionally: 

(a) (i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

commenced by the FDIC, in any capacity, arising out of, relating to, or in connection with this 

Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the FDIC, in any capacity, files the 

action, suit or proceeding without the consent of the FDIC; 

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(B) assert that venue is improper in either the United States 

District Court for the Southern District of New York or the United States District Court for the 

District of Columbia; or 

(C) assert that the United States District Court for the Southern 

District of New York or the United States District Court for the District of Columbia is an 

inconvenient forum; 

(ii) consents to the jurisdiction of the Supreme Court of the State of New York, 

County of New York, for any suit, action or proceeding against it or any of its Affiliates 

commenced by the FDIC, in any capacity, arising out of, relating to, or in connection with this 

Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the FDIC; 

(B) assert that venue is improper in the Supreme Court of the 

State of New York, County of New York; or 

(C) assert that the Supreme Court of the State of New York, 

County of New York is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding by it or any of its Affiliates 

against the FDIC, in any capacity, arising out of, relating to, or in connection with this Agreement, 

the LLC Operating Agreement or any other Transaction Document in only either the United States 

District Court for the Southern District of New York or the United States District Court for the 

District of Columbia, and waives any right to remove or transfer such suit, action or proceeding to 

any other court or dispute-resolution forum without the consent of the FDIC, and agrees to consent 

thereafter to transfer of the suit, action or proceeding to either the United States District Court for 

the Southern District of New York or the United States District Court for the District of Columbia 

at the option of the FDIC; 

(iv) agrees, if the United States District Court for the Southern District of New 

York and the United States District Court for the District of Columbia both lack jurisdiction to 

hear a suit, action or proceeding falling within Section 10.2(a)(iii), to bring that suit, action or 

proceeding in only the Supreme Court of the State of New York, County of New York, and waives 

any right to remove or transfer such suit, action or proceeding to any other court or disputeresolution forum without the consent of the FDIC; and 

(v) agrees, in any suit, action or proceeding that is brought in the Supreme Court 

of the State of New York for New York County in accordance with the above provisions of this 

Section 10.2(a), to request that such suit, action or proceeding be referred to the Commercial 

Division of such Court. 

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(b) The Servicer, on behalf of itself and its Affiliates, hereby irrevocably and 

unconditionally agrees that any final judgment entered against it in any suit, action or proceeding 

falling within Section 10.2(a) may be enforced in any court of competent jurisdiction. 

(c) Subject to the provisions of Section 10.2(d), the Servicer, on behalf of itself 

and its Affiliates, hereby irrevocably and unconditionally agrees that service of all writs, process 

and summonses in any suit, action or proceeding pursuant to Section 10.2(a) or Section 10.2(b) 

may be effected by the mailing of copies thereof by registered or certified mail, postage prepaid, 

to it at its address for notices pursuant to Article IX (and the Notice Schedule) (with copies to such 

other Persons as specified therein); provided, however, that the foregoing will not affect the right 

of any party to serve process in any other manner permitted by Law. The Servicer, on behalf of 

itself and its Affiliates, further agrees that any such service of writs, process or summonses in any 

suit, action or proceeding pursuant to Section 10.2(a) or Section 10.2(b) on FDIC (in any capacity) 

will be in accordance with requirements of applicable Law (including 12 CFR § 309.7(a)), with 

additional delivery of a copy of such writ, process or summons to the FDIC (in its applicable 

capacity(ies)) pursuant to the notice provisions in the Notice Schedule. 

(d) Nothing in this Section 10.2 will constitute (i) consent to jurisdiction in any 

court by the FDIC (in any capacity), other than as expressly provided in Section 10.2(a)(iii) and 

Section 10.2(a)(iv), or (ii) a waiver or limitation of any provision in the Federal Deposit Insurance 

Act or other applicable law relating to commencement, jurisdiction, venue, limitations, 

administrative exhaustion, judicial review, removal, remand, continuation or enforcement 

(including as to limitations on attachment or execution upon assets in the possession of the FDIC) 

of actions by or against the FDIC (in any capacity), or in which the FDIC (in any capacity) is a 

party, including 12 U.S.C. §§ 1819(b), 1821(c), 1821(d), and 1821(j).” 

Section 10.3 Waiver of Jury Trial. EACH OF THE PARTIES HERETO, FOR ITSELF 

AND EACH OF ITS AFFILIATES, HEREBY IRREVOCABLY AND UNCONDITIONALLY 

WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING 

OUT OF OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH 

DISPUTE IS TO BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. 

ARTICLE XI 

MISCELLANEOUS 

Section 11.1 

Servicing Rights. 

No Assignment by Servicer; No Transfer of Ownership Interests in 

(a) The Servicer hereby acknowledges that this Agreement constitutes a 

personal services agreement between the Manager and the Servicer. Any of the following 

constitutes an assignment for all purposes of this Agreement: (i) any merger, consolidation or 

dissolution involving the Servicer or (ii) any transfer or all or substantially all of the assets of the 

Servicer, notwithstanding whether any of the foregoing transactions occur at one time or in the 

aggregate over a period of time. The Servicer may not assign any rights or obligations hereunder 

to any other Person other than as is expressly provided in this Agreement. Any purported sale, 

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sub-participation or assignment or delegation in violation of this Section 11.1(a) will be void ab 

initio and of no force or effect whatsoever. 

(b) Under no circumstances will the Servicer (i) transfer to any Subservicer, 

any JDC Contractor or any other Person any ownership interest in the Servicing or any right to 

transfer or sell the Servicing, or (ii) assign, pledge or otherwise transfer or purport to assign, pledge 

or otherwise transfer any interest to any Subservicer, any JDC Contractor or other Person in the 

Servicing. Any purported assignment, pledge, delegation or other transfer in violation of this 

Section 11.1(b) will be void ab initio and of no force or effect whatsoever. For the avoidance of 

doubt, upon any sale of any Asset by the Company (including by the Servicer on behalf of the 

Manager on behalf of the Company) in accordance with the terms hereof and the other Transaction 

Documents, such Asset will prospectively cease to constitute an “Asset” for any purpose of this 

Agreement, provided that nothing in this sentence releases the Servicer from any liability or 

obligation hereunder with respect to such Asset in relation to the period prior to such sale. 

Section 11.2 Legal Fees. No party to this Agreement will be responsible for the payment 

of the legal fees or expenses incurred by the other party hereto in connection with the negotiation 

and execution of this Agreement or any subsequent modifications or supplements hereto. 

Section 11.3 Entire Agreement. This Agreement, together with the exhibits and 

schedules hereto, contains the entire agreement between the Manager and the Servicer and 

supersedes any and all other prior agreements, whether oral or written, with respect to the subject 

matter hereof. 

Section 11.4 Counterparts; Facsimile Signatures. This Agreement may be executed in 

any number of counterparts, each of which will be deemed to be an original and all of which, when 

taken together, will constitute one and the same agreement. This Agreement and any amendments 

hereto, to the extent signed and delivered by facsimile, e-mail, or other form of electronic 

transmission (including electronic document execution platforms such as DocuSign and Adobe 

Sign) of an executed counterpart of this Agreement will be deemed to constitute due and sufficient 

delivery of such counterpart. No signatory to this Agreement may raise the use of a telecopier 

machine, facsimile machine, e-mail, or other form of electronic transmission (including electronic 

document execution platforms such as DocuSign and Adobe Sign) for delivery of any counterpart 

to this Agreement as a defense to the formation or enforceability of a contract and each such Person 

forever waives any such defense. 

Section 11.5 Headings. The table of contents and the article, section, or paragraph titles 

or captions contained in this Agreement are inserted only as a matter of convenience and for 

reference and in no way define, limit, extend or describe the scope of this Agreement or the intent 

of any provisions hereof. All Article, Section and paragraph references contained herein refer to 

Articles, Sections and paragraphs in this Agreement unless otherwise specified. 

Section 11.6 Compliance with Law. Each party to this Agreement, at its own expense 

unless otherwise specifically provided herein, is to obey and comply with all applicable Laws, as 

they may pertain to such party’s performance of its obligations hereunder. 

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Section 11.7 Severability. If any provision of this Agreement is determined to be invalid, 

illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not 

render such provision invalid, illegal, or unenforceable in any other jurisdiction or, as long as the 

essential terms and conditions of this Agreement for each party remain valid, affect any other term 

or provision of this Agreement. If any provision held to be invalid, illegal, or unenforceable is 

invalid, illegal, or unenforceable only as to a particular Person or Persons and/or under any 

particular circumstance or circumstances, such provision will be ineffective only with respect to 

such particular Person or Persons and/or under such particular circumstance or circumstances, as 

the case may be. Without limitation of the preceding sentence, in the event a court determines that 

any provision of this Agreement is invalid, illegal or unenforceable (because of the duration or 

scope (geographic or otherwise) of such provision, or for any other reason) such court will have 

the power to, and be entitled to (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 will be effective in such jurisdiction 

for purposes of such proceeding to the minimum extent necessary so that such provision, as so 

modified, may then be enforced in such proceeding and (y) enforce such provision, as so modified 

pursuant to clause (x), in such proceeding. Nothing in this Section 11.7 is intended to, or will, 

limit (1) the ability of any party to this Agreement to appeal any court ruling or the effect of any 

favorable ruling on appeal or (2) the intended effect of Section 10.1. 

Section 11.8 Third Party Beneficiaries. The Initial Member (including as Transferor and 

Prior Transferor) and, as to those provisions of this Agreement which expressly grant rights to its 

Related Persons, such Related Persons, will be and is each hereby designated as a third party 

beneficiary under this Agreement; and, in connection with the foregoing, the Initial Member is 

entitled to enforce this Agreement, for itself and on behalf of its Related Persons, as if the Initial 

Member were a party hereto. The Company, the PMN Agent, each Purchase Money Notes 

Guarantor, the Receiver and the FDIC (and, as applicable, the respective Related Persons to any 

such specified Person pursuant to the foregoing) will be and are hereby designated as third party 

beneficiaries under this Agreement with respect to those provisions of this Agreement which 

expressly grant rights to such Persons (or respective Related Persons), and, as such, each is entitled 

to enforce such provisions of this Agreement (for itself and on behalf of its respective Related 

Persons) as if such Person were a party hereto; provided, that, with respect to the PMN Agent, 

upon the occurrence of the PMN Satisfaction Date, and with respect to each Purchase Money Notes 

Guarantor, upon the occurrence of the Guaranteed Purchase Money Notes Satisfaction Date in 

respect of such Purchase Money Notes Guarantor (and in each case subject to any rights of such 

Person that, by their terms or nature, survive such date), such Person will cease to have any of the 

specified rights set forth herein with respect to consents/approvals, the exercise of remedies 

following a Default and receipt of reports and other information with respect to the continued 

operation of the Business, in each case (x) to the extent relating exclusively to the period following 

such PMN Satisfaction Date or Guaranteed Purchase Money Notes Satisfaction Date, as 

applicable, and (y) except as to any rights or remedies relating to (or the exercise or non-exercise 

of which rights or remedies would affect) the repayment of the Purchase Money Notes in 

accordance with the terms hereof and of the other Transaction Documents, as determined by the 

PMN Agent and each Purchase Money Notes Guarantor, in each case in its sole discretion, and (z) 

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as to the PMN Agent, in the event the PMN Satisfaction Date has occurred pursuant to clause (b) 

of the definition of such term, unless and until the PMN Satisfaction Date thereafter is no longer 

deemed to have occurred (in which event, until any subsequent occurrence of the PMN Satisfaction 

Date, all of such specified rights set forth herein automatically will be restored). Notwithstanding 

the foregoing, none of the PMN Agent, any Purchase Money Notes Guarantor, the FDIC, the 

Company and the Initial Member will have any obligation to undertake any of the duties of the 

Manager hereunder and or have any liability whatsoever (including for payment of any costs, 

expenses, indemnities or otherwise) to the Servicer, any Subservicer or any other party related to 

this Agreement. For the avoidance of doubt, the Manager is entering into this Agreement in its 

individual capacity and not on behalf of the Company. There are no other third party beneficiaries 

to this Agreement. 

Section 11.9 Protection of Confidential Information. 

(a) The Servicer must keep confidential (and must cause any Subservicer and 

JDC Contractor to keep confidential), and will not divulge (and must cause any Subservicer and 

any JDC Contractor to not divulge) to any party without the Manager’s prior written consent, any 

information pertaining to the LLC Operating Agreement, the Assets or any Borrower or Obligor 

or the Collateral, except as required pursuant to this Agreement and except to the extent that it is 

necessary and appropriate for the Servicer, a Subservicer or a JDC Contractor, as applicable, to do 

so in working with legal counsel, auditors, taxing authorities, regulatory authorities or any other 

Governmental Authority or in accordance with the Servicing Standard; provided, that, to the extent 

that disclosure should be required by Law (including any securities listing requirements or the 

requirements of any self-regulatory organization), subpoena, or in connection with any legal or 

regulatory proceeding (including in connection with or pursuant to any action, suit, subpoena, 

arbitration or other dispute resolution process or other legal proceedings, whether civil or criminal, 

and including before any court or administrative or legislative body), the Servicer must, and must 

cause all Subservicers and JDC Contractors to, use all reasonable efforts to maintain 

confidentiality and must (unless otherwise prohibited by Law) notify the Manager, the PMN Agent 

and the Initial Member within one Business Day after its knowledge of such legally required 

disclosure so that the Manager, the PMN Agent and/or the Initial Member may seek an appropriate 

protective order and/or (in the case of the Manager) direct the Manager to waive the Servicer’s, 

Subservicer’s or JDC Contractor’s, as the case may be, compliance with this Agreement. Notice 

will be by telephone, by email and in writing. In the absence of a protective order or waiver, the 

Servicer and any applicable Subservicer may make such required disclosure if, in the written 

opinion of Servicer’s outside counsel (which opinion will be provided to the Manager, the PMN 

Agent and the Initial Member prior to disclosure pursuant to this Section 11.9), failure to make 

such disclosure would subject the Servicer, the Subservicer or the JDC Contractor, as the case may 

be, to liability for contempt, censure or other legal penalty or liability. 

(b) Security of Customer Information. The Servicer must comply, and ensure 

(or as to any such Person that is not an Affiliate of the Servicer, use commercially reasonable 

efforts to ensure) that each Subservicer and each JDC Contractor engaged by or through it 

complies, with all applicable Laws regarding the privacy and security of Customer Information. 

In furtherance of the foregoing, and in each case in accordance with applicable Law and prudent 

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industry practices and the additional applicable provisions, if any, set forth in the Servicing 

Obligations, the Servicer must: 

(i) adopt, and ensure that each Subservicer and each JDC Contractor engaged 

by or through it adopts, reasonable and appropriate administrative, physical, and technical 

measures, to ensure and maintain the privacy and security of Customer Information; 

(ii) maintain, and require each Subservicer and each JDC Contractor engaged 

by or through it to enter into, written obligations that ensure and maintain the privacy and security 

of Customer Information, including, at a minimum, that it, each Subservicer or JDC Contractor 

maintain (A) a written information security program that includes appropriate policies, procedures 

and risk assessments that are reviewed at least annually, (B) appropriate security protections with 

respect to systems, servers, work stations, and mobile devices, including appropriate access 

controls that permit access to Customer Information only to authorized persons who reasonably 

require access for the performance of their applicable responsibilities, (C) appropriate policies, 

procedures, and employee training to protect against reasonably anticipated unauthorized uses and 

disclosures of Customer Information, (D) appropriate monitoring of systems and procedures to 

detect actual or attempted attacks on or intrusions into systems or servers containing Customer 

Information, including response programs that specify actions to be taken when unauthorized 

access to Customer Information is suspected or detected, and (E) appropriate procedures for the 

secure disposal or destruction of Customer Information; 

(iii) ensure, in the event of a Computer Security Incident at or affecting 

Customer Information maintained by it, or a Subservicer or a JDC Contractor engaged by or 

through it, that such Person (A) notifies the Manager (on behalf of itself and the Company) and 

each of the Private Owner and each Required Consenting Party, within thirty-six hours of 

becoming aware of such Computer Security Incident, (B) complies with applicable notification 

laws or requirements, (C) investigates the Computer Security Incident and takes appropriate 

remedial actions, and (D) coordinates and cooperates with the Manager, the Private Owner and 

each Required Consenting Party to the extent applicable (including if requested by any such 

Person); 

(iv) ensure that any Customer Information transmitted electronically by it (or by 

any a Subservicer or a JDC Contractor engaged by or through it) is appropriately encrypted; and 

(v) promptly make available to the Manager, the Initial Member and the PMN 

Agent information regarding the policies and procedures for protection of Customer Information 

described in this Section 11.9(b) (and in the Servicing Obligations) as requested by any of them 

from time to time. 

Section 11.10 Time of Essence. Time is hereby declared to be of the essence of this 

Agreement and of every part hereof. 

Section 11.11 No Presumption. This Agreement will 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 

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construed, no consideration is to be given to the issue of, and no presumption or burden of proof 

is to arise favoring or disfavoring any party as a result of, who actually prepared, drafted or 

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

This Agreement will be deemed conclusively to have been reviewed by the parties thereto and 

their respective legal counsel. 

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

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

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

against the Asset Proceeds (or the Company). 

Section 11.13 Release of Initial Member and Others. The Servicer hereby releases and 

discharges each Prior Servicer from any and all claims (including any counterclaim or defensive 

claim), demands, causes of action, judgments or legal proceedings and remedies of whatever kind 

or nature that the Servicer had, has or might have in the future, whether known or unknown, which 

are related in any manner whatsoever to the Servicing (prior to the applicable Servicing Transfer 

Date) by the Prior Servicers, in each case other than for acts or omissions constituting gross 

negligence, violation of Law or willful misconduct of such Prior Servicer. 

[Remainder of Page Intentionally Left Blank] 

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EXHIBIT A 

ASSET SCHEDULE 

A-1 

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SCHEDULE 2 

Servicing Obligations 

Schedule 2 – Page 1
Schedule 2 – Page 2
Schedule 2 – Page 3
Schedule 2 – Page 4
Schedule 2 – Page 5
Schedule 2 – Page 6
Schedule 2 – Page 7
Schedule 2 – Page 8
 

 

 

 

 

 

SCHEDULE 3 

Reimbursement of Servicer of Servicer Advances 

Servicer shall be entitled to receive reimbursement for any out-of-pocket Servicer Advances 

(which, for the avoidance of doubt, may include, without limitation, Servicer Advances relating to 

Pre-Existing Liabilities to the extent reasonably incurred) which it incurs to the extent such 

Servicer Advances constitute Servicing Expenses (other than Interim Servicing Expenses) and/or 

Pre-Approved Charges that are reimbursable to, and have been reimbursed to, the Manager by the 

Company under and pursuant to the LLC Operating Agreement (and in the case of Pre-Existing 

Liabilities, Section 4.5(c)(iv) of the Asset Transfer Agreement). 

Schedule 3 – Page 1 
SCHEDULE 4 

Form of Electronic Report on the Assets and Collateral 

Schedule 4 - Page 1 
 

 

 

 

 

SCHEDULE 5 

Additional Termination Rights 

Neither the Manager nor the Servicer may terminate this Agreement other than as and to the extent 

provided elsewhere in this Agreement so long as any Subservicing Agreement between the 

Servicer and any Affiliate of the Rialto Partners remains in effect. Subject to the foregoing, the 

Manager may terminate this Agreement at any time upon written notice to the Servicer, but subject 

to any requirements relating thereto under the Transaction Documents (including any consent of 

the Initial Member if so required). 

Schedule 5 - Page 1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE 6 

Business Plan 

The Business Plan to be delivered pursuant to Section 5.2(h) of this Agreement, and any updates 

thereto, shall be in the initial form agreed by the parties and include no less than the information 

required to be included therein pursuant to Section 7.7 of the LLC Operating Agreement (including 

the projected cash flow information in the form attached hereto), with such changes as are 

requested by (i) the Required Consenting Parties pursuant to Section 7.7(g) of the LLC Operating 

Agreement and (ii) the Blackstone Partners pursuant to the Private Owner Parent Partnership 

Agreement; provided that, (x) each such Business Plan, or update thereto must be delivered to the 

Manager and the Blackstone Partners for review and comment no later than twenty (20) Business 

Days, and each update thereto must be delivered to the Manager and the Blackstone Partners for 

review and comment no later than ten (10) Business Days , in each case prior to the date on which 

delivery of the Business Plan (or any update thereto) to the Initial Member is required under the 

LLC Operating Agreement, or if no such required date of delivery is provided in the LLC 

Operating Agreement, then no later than twenty (20) Business Days following the date of request 

for such update or such other period as reasonably agreed between Servicer and Manager, and (y) 

following delivery of any Business Plan to the Initial Member, Servicer shall join in any meetings 

with the Initial Member as requested by the Manager from time to time to review and discuss the 

Business Plan or any portion thereof, including changes thereto suggested by the Initial Member, 

and shall update and deliver to the Initial Member a final version of such Business Plan reflecting 

such changes as the Manager, with the consent of the Blackstone Partners, considers to be 

appropriate in its sole judgment. 

Schedule 6 - Page 1