SFR 2010-2 


SERVICING AGREEMENT 


by and between 


TPAM, II, LLC, 


a Delaware limited liability company 


iSERVE SERVICING, INC., 


as Servicer 


and 


iSERVE RESIDENTIAL LENDING, LLC, 


as Servicer solely with respect to the Georgia Mortgage Loans 


Dated as of June 25, 2010 


FDIC SFR 2010-2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

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TABLE OF CONTENTS 


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


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


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


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


Section 2.16 Compliance with Real Estate Settlement Procedures Act of 1974; 


compliance with Helping Families Save Their Homes Act of 2009 ........ .! 0 


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


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


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


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


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


Section 2.6 Reserved.......................................................................................................6 


Section2.7 Escrow Accounts .........................................................................................6 


Section2.8 Other Accounts ............................................................................................6 


Section 2.9 Maintenance of Insurance Policies; Errors and Omissions and 


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


Section 2.10 Funding of Operating Expenses...................................................................8 


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


Section 2.12 Insured or Guaranteed Mortgage Loans ......................................................9 


Section 2.13 Loan Modification Program.........................................................................9 


Section 2.14 HAMP Incentive Fees ..................................................................................9 


Section 2.15 Registration with MERS® ...........................................................................9 


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


Section 3.1 Delinquency Control .................................................................................. lO 


Section 3.2 Discretion ofthe Servicer in Responding to Defaults of Borrower...........! 0 


Section 3.3 Acquisition of Acquired Property..............................................................!! 


Section 3.4 Administration of REO Properties............................................................. l2 


ARTICLE IV SUBSERVICING ............................................................................................ 14 


Section 4.1 Retention of Subservicer............................................................................14 


Section 4.2 Subservicing Agreement Requirements.....................................................14 


Section 4.3 Servicer Liable for Subservicers ................................................................17 


Section 4.4 Manager Approval Required ......................................................................17 


Section 4.5 Regulation AB Requirements ....................................................................17 


ARTICLEV REPRESENTATIONS, WARRANTIES AND COVENANTS OF 


THE SERVICER ............................................................................................. 17 


Section 5.1 Representations and Warranties ................................................................. !? 


Section 5.2 Reporting, Books and Records and Compliance Covenants ..................... 19 


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Section 5.3 Audits .........................................................................................................21 


Section 5.4 No Liens .....................................................................................................22 


Section 5.5 Servicer's Duty to Advise; Delivery of Certain Notices ...........................22 


Section 5.6 Notice ofBreach or Change of Control .....................................................23 


Section 5.7 Copies of Documents .................................................................................23 


Section 5.8 Financial Infonnation .................................................................................24 


ARTICLE VI MANAGER CONSENT ..................................................................................24 


Section 6.1 Actions Requiring Manager Consent ........................................................ .24 


Section 6.2 Amendments, Modification and Waivers ..................................................25 


ARTICLE VII DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE ........26 


Section 7.1 Defaults ......................................................................................................26 


Section 7.2 Tennination with Cause .............................................................................27 


Section 7.3 Tennination without Cause ........................................................................28 


Section 7.4 Effective Tennination Date ........................................................................28 


Section 7.5 Accounting.................................................................................................29 


ARTICLE VIII INDEPENDENCE OF PARTIES; INDEMNIFICATION ..............................29 


Section 8.1 Independence of Parties .............................................................................29 


Section 8.2 Indemnification ..........................................................................................29 


Section 8.3 Procedure for Indemnification ...................................................................30 


Section 8.4 Pre-Effective Date Liabilities ....................................................................30 


ARTICLE IX NOTICES.........................................................................................................31 


ARTICLE X GOVERNING LAW; JURISDICTION ..........................................................32 


Section 10.1 Governing Law ..........................................................................................32 


Section 10.2 Jurisdiction; Venue and Service .................................................................33 


Section 10.3 Waiver of Jury Trial ...................................................................................35 


ARTICLE XI MISCELLANEOUS ........................................................................................35 


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


Servicing Rights .........................................................................................35 


Section 11.2 Legal Fees ..................................................................................................36 


Section 11.3 Entire Agreement .......................................................................................36 


Section 11.4 Counterparts; Facsimile Signatures ...........................................................36 


Section 11.5 Headings ....................................................................................................36 


Section 11.6 Compliance with Law ............................................................................... .36 


Section 11.7 Severability ............................................................................................... .36 


Section 11.8 Third Party Beneficiaries ...........................................................................3 7 


Section 11.9 Protection of Confidential Infonnation ......................................................37 


Section II.! 0 Time of Essence .........................................................................................38 


Section 11.11 No Presumption ........................................................................................ .38 


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


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


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Exhibits 

Exhibit A 

Exhibit B 

Exhibit C 

Schedules 

Schedule I 

Schedule 2 

Schedule 3 

Schedule 4 

Schedule 5 

Schedule 6 

SCHEDULES AND EXHIBITS 


Mortgage Loan Schedule 

Electronic Tracking Agreement 

Loan Modification Program 

Fee Schedule 

Servicing Obligations 

Reimbursement of Servicer Advances 

Form ofElectronic Report on the Mortgage Loans and Underlying 

Collateral 

Termination Without Cause 

Business Plan 

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SERVICING AGREEMENT 


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

"Agreement") is made and entered into as ofthe 25th day of June, 20 I0 (the "Effective Date"), 

by and between TPAM, II, LLC, a Delaware limited liability company (including its successors 

and assigns, the "Manager"), iServe Servicing, Inc., a Delaware corporation (including those of 

its successors and assigns as are expressly permitted pursuant to this Agreement, the "Primary 

Servicer"), and iServe Residential Lending, LLC, an Arizona limited liability company, as 

servicer solely with respect to the Georgia Mortgage Loans (as defined herein) (including those 

of its successors and assigns as are expressly permitted pursuant to this Agreement, the "Georgia 

Servicer" and together with the Primary Servicer, the "Servicer"). 

RECITALS 

WHEREAS, 2010-2 SFR Venture, LLC, a Delaware limited liability company (the 

"Company") owns the Mortgage Loans (as defined in the Agreement of Common Definitions) 

described on the Mortgage Loan Schedule attached hereto as Exhibit A (the "Mortgage Loan 

Schedule"); 

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

responsibility to service and manage the Mortgage Loans and related Underlying Collateral (as 

defined in the Agreement of Common Definitions) pursuant to that certain Amended and 

Restated Limited Liability Company Operating Agreement dated as of the Closing Date (the 

"LLC Operating Agreement"), by and between the Company, the Manager, including in its 

separate capacity as a member of the Company (in such capacity as a member, together with its 

successors and assigns, the "Private Owner''), and the Federal Deposit Insurance Corporation 

(in any capacity, the "FDIC"), as receiver for the Failed Banks defined in the Agreement of 

Common Definitions (the FDIC, in its separate capacities as receiver with respect to each such 

receivership, the "Receiver", and the Receiver as the Initial Member under such LLC Operating 

Agreement, including its successors and assigns, the "Initial Member"); and 

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

the Mortgage Loans and Underlying 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, certain terms used in 

this Agreement shall have the meaning and definitions set forth in that certain Agreement 

of Common Definitions dated of even date herewith among the Initial Member, the 

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Company and others. In addition, for purposes of this Agreement, the following terms 

shall have the meanings and definitions hereinafter respectively set forth. 

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

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

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

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

Specified Parent (in the case of the Servicer). 

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

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

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

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

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

the Initial Member. 

"Georgia Mortgage Loans" shall mean each Mortgage Loan or Group ofMortgage 

Loans (as of the applicable Servicing Transfer Date with respect thereto), for which the 

Underlying Collateral is located in the state of Georgia. 

"ground lease" shall have the meaning given in Section 3.4(g). 

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

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

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

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

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

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

United States Department of the Treasury, as in effect from time to time, as more fully described 

in Exhibit C. 

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

"Loan Modification Program" shall mean the loan modification program that meets the 

criteria described in Exhibit C, or any other or additional loan modification program (i) that may 

be required by the FDIC upon written notice to the Company or (ii) as proposed by the Company 

with respect to a group ofMortgage Loans with similar characteristics, if approved in writing by 

the FDIC. 

"Other Accounts" shall have the meaning given in Section 2.8. 

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"Pre-Existing Liabilities" shall have the meaning given in Section 8.4. 

"Servicer Advances" shall mean advances made by or on behalf ofthe Servicer to fund 

Servicing Expenses. 

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

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

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

"Site Assessment" shall have the meaning given in Section 3.3. 

"Specified Date" shall mean the I Olh day of each month, or such other day as is agreed 

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

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

"Termination Notice" shall mean any written notice oftermination required pursuant to 

Article VII. 

Section 1.2 Construction. This Agreement shall be construed and interpreted 

in accordance with the following: 

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

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

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

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

reference specifically provides otherwise. 

(b) The term "or" is not exclusive. 

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

replacement to such Law. 

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

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

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

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

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

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

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

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

provision ofthis Agreement. 

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

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

they are in fact followed by such words. 

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

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

such period. 

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

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

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

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 Mortgage Loan or Group of Mortgage Loans, as of the 

applicable Servicing Transfer Date with respect thereto), the Manager appoints the 

Servicer to service, administer, manage and dispose of the Mortgage Loans (other than 

the Georgia Mortgage Loans) and the related Underlying Collateral on behalf ofand as 

an agent of the Manager. Notwithstanding anything to the contrary in this Section 2.1, 

this Agreement, the Agreement of Common Definitions, or any other Ancillary 

Documents, the Manager appoints the Georgia Servicer to service, administer, manage 

and dispose of the Georgia Mortgage Loans and the related Underlying Collateral on 

behalf of and as an agent of the Manager. Nothing in this Agreement or any other 

Ancillary Documents shall be construed or interpreted to deem the Georgia Servicer as a 

subservicer for the Primary Servicer. The Primary Servicer shall not be deemed the 

servicer for any Georgia Mortgage Loan. 

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 shall take effect 

upon: (i) the receipt by the Servicer of written notice thereof from or on behalf of the 

Manager, or (ii) termination of this Agreement pursuant to Article VII. 

Section 2.3 Servicing Fee. As consideration for servicing the Mortgage Loans 

and the Underlying Collateral, the Manager shall pay the Servicer a servicing fee in the 

amount and at such times as are set forth on the Fee Schedule (the "Servicing Fee"). 

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

perform such duties in connection with the servicing, administration, management and 

disposition of the Mortgage Loans and Underlying Collateral as are set forth on Schedule 

£,,as the same may be amended from time to time by the Manager and the Servicer (the 

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"Servicing Obligations''). The Servicer shall perform its Servicing Obligations (i) in the 

best interests and for the benefit ofthe Company, (ii) in accordance with the terms of the 

Mortgage Loans (and related Mortgage Loan Docwnents), (iii) in accordance with the 

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

Law, including but not limited to, the Real Estate Settlement Procedures Act of 1974, as 

amended, and the Helping Families Save Their Homes Act of2009, as amended, (v) 

subject to Section 5.6, in accordance with the requirements of the LLC Operating 

Agreement, the Custodial and Paying Agency Agreement and the other Ancillary 

Docwnents, (vi) with respect to all Mortgage Loans, in compliance with the Guidelines 

and the Loan Modification Program and (vii) to the extent consistent with the foregoing 

terms, in the same manner in which a prudent servicer would service and administer 

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

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

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

servicer following customary and usual standards of practice of prudent mortgage 

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

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

Mortgage Loan and related Underlying Collateral, in the absence of a customary and 

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

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

requirements in clauses (i) through (vii) collectively, the "Servicing Standard"). In 

addition, the Servicer shall perform its Servicing Obligations without regard to (a) any 

relationship that the Servicer, the Company, the Manager or any Subservicer or any of 

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

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

described in Section 5.Hhl, (b) the Company's, the Manager's, the Servicer's or any 

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

Mortgage Loans and the Underlying Collateral, (c) any relationship that the Servicer or 

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

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

to the Company, the Manager or any oftheir respective Affiliates (other than the 

contractual relationship evidenced by this Agreement or any Subservicing Agreement), 

and (d) the Servicer's or any Subservicer's right to receive compensation (including the 

Servicing Fee) for its services under this Agreement or any Subservicing Agreement. 

Section 2.5 Collection Account. 

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

Proceeds on a daily basis (without deduction or setoffas provided in Section 11.12 hereof) 

within two Business Days after receipt thereof by the Servicer. The Servicer shall not cause 

funds from any other source (other than interest or earnings on the Mortgage Loan Proceeds and 

the proceeds of Excess Liquidity Advances and any other funds expressly permitted to be 

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

to be commingled in the Collection Account. 

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

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

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

the Custodial and Paying Agency Agreement (including the additional terms and conditions set 

forth in the Servicing Obligations) for purposes of payment ofapplicable Operating Expenses 

(including the making of any applicable Funding Draws); provided, however, that if the Servicer 

or any Subservicer erroneously deposits any amounts into the Collection Account, it may 

withdraw such erroneously deposited amount. 

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

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

remitted by wire transfer, in immediately available funds. 

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

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

Section 2.6 Reserved. 

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

the Servicer shall establish and maintain one or more Escrow Accounts. Except as 

otherwise directed by the Manager, the Servicer shall deposit into the applicable Escrow 

Account on a daily basis, within two (2) Business Days of receipt, all collections from the 

Borrowers for the payment of taxes, assessments, hazard insurance premiums, and 

comparable items for the account of the Borrowers, and all other amounts required to be 

deposited in such Escrow Account pursuant to the applicable Mortgage Loan Documents. 

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

extent required by Law or the applicable Mortgage Loan Documents. 

Section 2.8 Other Accounts. At the direction ofthe Manager, the Servicer 

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

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

Collateral Agent, and shall be funded and disbursed only in accordance with such 

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

Section 2.9 Maintenance of Insurance Policies: Errors and Omissions and 

Fidelity Coverage. 

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

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

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

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

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

Agreement), insurance from an insurer reasonably acceptable to the Manager for each Mortgage 

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

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

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

from time to time, is directed by the Manager. 

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

types ofinsurance coverage having such limits as described below: 

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

$10,000,000 per claim and $10,000,000 in the aggregate. The Servicer or 

Subservicer, as applicable, shall notify the Manager promptly upon the reduction 

of or potential reduction of 50% of the limits. The Manager may require that the 

Servicer and each Subservicer purchase additional coverage to provide full 

coverage to the required limits as stated above. "Potential reduction of 50%" 

shall mean any knowledge by the Servicer or Subservicer, as applicable, that a 

claim or the sum of all claims, current or initiated after the effective date of the 

policy would reduce the coverage limits by 50%. 

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

$10,000,000 per claim and $1 0,000,000 in the aggregate. 

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

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

theft, forgery & alteration, wire/funds transfer, computer fraud, and client 

coverage. Such coverage shall insure all employees or any other persons 

authorized by the Servicer or the Subservicer to handle any funds, money, 

documents and papers relating to any Mortgage Loan, and shall protect the 

Servicer or Subservicer, as applicable, against losses arising out of theft, 

embezzlement, fraud, misplacement, and other similar causes. The Manager and 

the Company shall each be named as a Joss payee with respect to claims arising 

out of assets handled under this Agreement or any applicable Servicing 

Agreement or Subservicing Agreement. 

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

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

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

and the Company shall each be named as additional insured. The policy shall 

include a waiver of subrogation in favor ofthe Manager and the Company. 

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

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

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

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

Employer's Liability in an amount not less than $1,000,000. The policy shall 

include a waiver of subrogation in favor ofthe Manager and the Company. 

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

occurrence and in the aggregate. 

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

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

cancellation of thirty (30) days, except for non-payment ofpremium whereby a ten (1 0) day 

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

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

above. 

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

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

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

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

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

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

this Section 2.9 shall be made available to the Manager, the Purchase Money Notes Guarantor 

and the Initial Member or their respective representatives on the Effective Date (and, with 

respect to each Mortgage Loan, on the applicable Servicing Transfer Date with respect thereto), 

and shall otherwise be made available to any of the Manager, the Purchase Money Notes 

Guarantor and the Initial Member and their respective representative upon request. 

Section 2.10 Funding of Operating Expenses. To the extent set forth in, and 

subject to the terms of, this Agreement (including the Servicing Obligations), the Servicer 

shall, on behalfof the Manager, in turn acting on behalf ofthe Company (and from 

Company funds made available by the Manager), pay Operating Expenses as directed by 

the Manager; provided that the making of the same is consistent with the applicable terms 

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

5.6, the applicable terms and conditions in the LLC Operating Agreement and the other 

Ancillary Documents. The Servicer acknowledges that (a) subject to the Custodial and 

Paying Agency Agreement (and any permitted transfer or release of funds as provided 

therein), the Liquidity Account shall be used exclusively for funding of Operating 

Expenses, but only if there are insufficient funds available in the Collection Account; and 

(b) proceeds of Excess Liquidity Advances shall be used exclusively for payment of 

Operating Expenses and for such other purposes as may be expressly permitted pursuant 

to the LLC Operating Agreement. 

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

Servicer shall use its reasonable best efforts to recover from Borrowers and Obligors all 

amounts of Servicing Expenses that are advanced by the Servicer (as permitted or 

required pursuant to the Servicing Obligations) as Servicer Advances to the extent that 

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

Mortgage Loan Documents. All such amounts not recovered from Borrowers or Obligors 

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

forth on Schedule 3, as the same may be amended from time to time by the Manager 

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

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Servicer Advances be deductible from or netted against any Mortgage Loan Proceeds. In 

the event the Servicer is reimbursed for any amount that does not qualify as a Servicing 

Expense, the Servicer shall be obligated to refund such amount to the Manager, or, if so 

directed by the Manager, directly to the Company (to the Collection Account) on the 

Specified Date promptly following the Servicer's receipt ofnotice from the Manager 

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

the Company or deductible from any Mortgage Loan Proceeds. 

Section 2.12 Insured or Guaranteed Mortgage Loans. If any Mortgage Loans 

being serviced pursuant to this Agreement are insured or guaranteed by any 

Governmental Authority, the Servicer acknowledges and agrees that, ifthe Manager so 

directs pursuant to the Servicing Obligations with respect to such Mortgage Loans, it 

shall take any and all actions as may be necessary to insure that such insurance or 

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

upon assumption ofthe Servicing Obligations with respect to the Mortgage Loans 

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

contracts ofinsurance or guaranty. 

Section 2.13 Loan Modification Program. The Servicer shall at its expense 

take any and all steps as may be necessary to qualify for, and to maintain its qualification 

for, the Loan Modification Program. 

Section 2.14 HAMP Incentive Fees. The Servicer shall be entitled to retain for 

its own account any servicer incentive fees paid to it pursuant to the HAMP, if 

applicable. 

Section 2.15 Registration with MERS®. In the event that any ofthe Mortgage 

Loans are (or are required by the Servicing Obligations to be) registered on the MERS® 

System, the Servicer shall maintain (or register, as applicable) such Mortgage Loan on 

the MERS® System and execute and deliver on behalf ofthe Company (including, as 

applicable, on behalf of the Manager, in turn on behalf ofthe Company) any and all 

instruments of assignment and other comparable instruments with respect to such 

assignment or re-recording of a mortgage securing a Mortgage Loan in the name of 

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

respect to each Mortgage Loan that is registered on the MERS® System, (A) the Servicer 

shall be designated as the "servicer" and the "investor" with respect to such Mortgage 

Loan, and, if applicable, the Manager may cause or permit an applicable Subservicer to 

be designated as the "subservicer" with respect to such Mortgage Loan (provided, that, at 

the option ofthe Manager in accordance with the LLC Operating Agreement and so long 

as each applicable designee is and remains a MERS® member in good standing, (I) the 

Company may be designated as the "investor" with respect to any such Mortgage Loan, 

and (2) the Manager may be designated as the "servicer" with respect to any such 

Mortgage Loan, in which case the Servicer shall be designated as the "subservicer" with 

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

having any interest in such Mortgage Loan unless otherwise consented to by the Manager 

(or required pursuant to the Electronic Tracking Agreement). Except as otherwise 

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directed by the Manager (in connection with a voluntary removal by the Manager of any 

Mortgage Loan from the MERS® System pursuant to Section l2.3(g) of the LLC 

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

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

MERS® requirements dictate otherwise. The Servicer shall provide the Manager and the 

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

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

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

any of the Mortgage Loans and to confirm that the Mortgage Loans required to be 

registered on the MERS® System are so registered. For so long as any Mortgage Loan 

remains registered with MERS®, the same shall be subject to an Electronic Tracking 

Agreement in the form of Exhibit B, and, to the extent any such Mortgage Loan is so 

registered with MERS® as ofthe Closing Date, the Servicer, together with the Manager, 

the Collateral Agent and the Initial Member, shall execute such Electronic Tracking 

Agreement on the Closing Date and deliver the same to MERS®. Without limiting the 

foregoing, upon the request of the Manager or the Initial Member, the Servicer shall 

cause MERS® to run a query with respect to any and all specified fields on the MERS® 

System with respect to any or all of the Mortgage Loans registered on the MERS® 

System and provide the results to the Manager and the Initial Member and, ifrequested 

by the Manager or the Initial Member (and subject to any applicable provisions of the 

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

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

reflect its instructions. 

Section 2.16 Compliance with Real Estate Settlement Procedures Act of 1974: 

compliance with Helping Families Save Their Homes Act of2009. For all Mortgage 

Loans, the Servicer shall comply with all requirements ofthe Real Estate Settlement 

Procedures Act of 1974, as may be amended, supplemented or modified from time to 

time, including, but not limited to, providing "hello" letters to Borrowers notifying such 

Borrowers of the transfer of servicing ofthe applicable Mortgage Loan to the Servicer. 

For all Mortgage Loans, the Servicer shall comply with all requirements of the Helping 

Families Save Their Homes Act of2009, as may be amended, supplemented or modified 

from time to time, including, but not limited to, providing notice to Borrowers on behalf 

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

Company. 

ARTICLE III 

LOAN DEFAULTS; ACQUISITION OF COLLATERAL 

Section 3.1 Delinquency Control. Except as otherwise directed by the 

Manager , the Servicer shall maintain a collection department that substantially complies 

with the Servicing Standard and protects the Company's interests in the Mortgage Loans 

and the Underlying Collateral in accordance with the Servicing Standard. 

Section 3.2 Discretion ofthe Servicer in Responding to Defaults ofBorrower. 

Upon the occurrence of an event ofdefault under any ofthe Mortgage Loan Documents, 

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but subject to the other tenus and conditions of this Agreement, including the Servicing 

Obligations ofthe Servicer and such direction as the Manager may otherwise provide that 

is consistent with the Servicer's compliance with the Servicing Standard, the Servicer, 

with the consent of the Manager, shall cause to be determined the response to such 

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

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

protect the interests of the Company in the Mortgage Loan and the Underlying Collateral, 

(b) the declaration and recording of a notice of such default and the acceleration of the 

maturity ofthe Mortgage Loan, (c) the institution of proceedings to foreclose pursuant to 

the Mortgage Loan Documents, Underlying Collateral or Acquired Property securing the 

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

action, (d) the institution of proceedings against any Obligor, (e) the acceptance ofa deed 

in lieu of foreclosure, (f) the purchase ofthe real property Underlying Collateral at a 

foreclosure sale or trustee's sale or the purchase of the personal property Underlying 

Collateral at a Uniform Commercial Code sale, and (g) the institution or continuation of 

proceedings to obtain a deficiency judgment against such Borrower or any Obligor and 

the collection of such judgment. Notwithstanding anything to the contrary contained 

herein, but subject to Section 5.6, the Servicer shall not, in connection with any such 

default or otherwise, take (or refrain from taking) any action if the taking (or refraining

from taking) of such action is inconsistent with the terms ofthe LLC Operating 

Agreement or any other Ancillary Documents without the prior written consent of the 

Manager. 

Section 3.3 Acquisition of Acquired Property. 

(a) Any acquisition of Underlying Collateral shall conform with the terms and 

conditions ofthis Agreement (including the Servicing Obligations of the Servicer). With 

respect to any Mortgage Loan as to which the Servicer has received actual notice of, or has 

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

Collateral, the Servicer shall promptly provide written notice of same to the Manager. Except 

as otherwise directed by the Manager, the Servicer shall not acquire or otherwise cause the 

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

all or any portion of any Underlying Collateral having any actual or threatened Environmental 

Hazard known to the Servicer by foreclosure, deed in lieu of foreclosure, power of sale or sale 

pursuant to the Uniform Commercial Code or otherwise. Prior to acquisition oftitle to any

commercial REO Property (whether by foreclosure, deed in lieu of foreclosure, by power of 

sale or by sale pursuant to the Uniform Commercial Code, or otherwise), the Servicer shall, and 

prior to the acquisition oftitle to any residential REO Property (whether by foreclosure, deed in 

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

otherwise), the Servicer may cause to be commissioned with respect to such REO Property

either (i) a Transaction Screen Process consistent with ASTM Standard E 1528-06, by an 

environmental professional or (ii) such other site inspections and assessments by a Person who 

regularly conducts environmental audits using customary industry standards as would 

customarily be undertaken or obtained by a prudent lender in order to ascertain whether there 

are any actual or threatened Environmental Hazards (a "Site Assessment"), and the cost of such 

Site Assessment shall be deemed to be a Servicing Expense as long as the costs for such Site 

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Assessment were not paid to any Affiliate of the Manager, or any Affiliate of the Servicer or 


any Subservicer 


(c) If title to any Underlying Collateral that constitutes real property is to be 

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

the Uniform Commercial Code, or otherwise, title to such Acquired Property shall be taken by 

and held in the name of an Ownership Entity; provide~ however, that for any Underlying 

Collateral which becomes Acquired Property after the Servicing Transfer Date relating thereto 

and with respect to which there exists any Environmental Hazard, the Ownership Entity that 

holds such Underlying Collateral may hold title only to the relevant Underlying Collateral with 

respect to which the Environmental Hazard exists 

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

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

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

Obligations, comply with the following terms and conditions: 

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

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

Agreement. 

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

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

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

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

performed by the tenants under such leases. 

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

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

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

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

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

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

Collateral Agent and the Initial Member. 

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

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

lot separate from such REO Property, and (ii) with any portion ofan REO Property which may 

be deemed to constitute personal property, or any other procedure whereby the lien of any taxes 

which may be levied against such personal property shall be assessed or levied or charged to 

such REO Property. 

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

REO Property in a good and safe condition and repair (subject to such alterations as the Manager 

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

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and applicable requirements herein and in the Ancillary Documents) and in accordance with 

applicable Law. 

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

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

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

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

Reimbursement and Security Agreement). 

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

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

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

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

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

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

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

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

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

under the provisions of such ground lease. 

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

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

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

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

all other material contracts relating to such construction, and all requirements ofLaw, all 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

with the Servicing Standard. 

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

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

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

request. 

ARTICLE IV 


SUBSERVICING 


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

or more subservicers, including Affiliates ofthe Manager or of the Servicer (individually 

and collectively, "Subservicer''), to subservice all Mortgage Loans or any number of 

individual Mortgage Loan, as applicable, as it may deem necessary and appropriate, 

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

Qualified Servicer. 

Section 4.2 Subservicing Agreement Requirements. Any subservicing 

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

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

Underlying Collateral by the Subservicer in accordance with the Servicing Standard and the 

other terms ofthis Agreement and the LLC Operating Agreement; 

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

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

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

below; 

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

shall each be entitled to exercise termination rights thereunder; 

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

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

Subservicer; 

(e) provide that each ofthe Initial Member and the Manager is a tlrird party 

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

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

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

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

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

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

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

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

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

beneficiary; 

(f) provide that (i) upon removal ofthe Manager as the "Manager" pursuant 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the Underlying Collateral,the Servicing Obligations, the Collection Account, the Escrow 

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

Subservicing Agreement, accounts created under the Custodial and Paying Agency Agreement or 

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

thereunder; 

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

Collection Account on a daily basis (without reduction or setoff as provided in Section 11.12 

hereof) within two Business Days of receipt and that under no circumstances are any funds, other 

than Mortgage Loan Proceeds and interest and earnings thereon and the proceeds of Excess 

Liquidity Advances, to be commingled in the Collection Account; 

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

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

assignment shall be void ab initio; 

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

Subservicer pursuant to Section 7.2 ofthis Agreement; 

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

against the Mortgage Loan Proceeds (or the Company); 

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

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

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

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

that correspond to the provisions of Section 7.l(a), ® {21, @, hl ffi,.(g)., and .(hl of this 

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

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

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

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

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

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

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

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

1J..(hl of this Agreement, or (y) an Insolvency Event with respect to the Subservicer or any of its 

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

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

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

the Existing Servicers, the FDIC, in relation to any particular Mortgage Loan, the relevant Failed 

Bank and any predecessor-in-interest thereof, any Ownership Entities existing as of the 

applicable Servicing Transfer Date, and all of their respective officers, directors, employees, 

agents, attorneys, contractors and representatives, and all of their respective successors, assigns 

and Affiliates (but excluding, in all cases, the Manager) (any such Person, a "Prior Servicer" 

and collectively, the "Prior Servicers"), from any and all claims (including any counterclaim or 

defensive claim), demands, causes of action, judgments or legal proceedings and remedies of 

whatever kind or nature that the Subservicer had, has or might have in the future, whether known 

or unknown, which are related in any manner whatsoever to the servicing of the Mortgage Loans 

by the Prior Servicers prior to the applicable Servicing Transfer Date (other than due to gross 

negligence, violation of law or willful misconduct of such Prior Servicer); 

(p) provide that, to the extent required under Section 2.15 hereof or Section 

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

shall remain registered unless default, foreclosure or similar legal or MERS® requirements 

dictate otherwise; 

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

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

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

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

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

any Borrower or Obligor; and 

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

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

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

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

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

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

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

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

Section 4.3 Servicer Liable for Subservicers. Notwithstanding anything to the 

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

any of its Servicing Obligations or other obligations under this Agreement, and the 

Servicer shall remain responsible and liable for all acts and omissions of each 

Subservicer as fully as if such acts and omissions were those of the Servicer. All actions 

of any Subservicer performed pursuant to the Subservicing Agreement with the Servicer 

shall be performed as an agent of the Servicer. No Subservicer shall be paid any fees or 

indemnified out of any Mortgage Loan Proceeds, it being understood that all fees and 

related costs and liabilities ofretaining any Subservicers shall be the sole responsibility 

ofthe Servicer. 

Section 4.4 Manager Approval Required. Each Subservicing Agreement and 

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

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

written approval ofthe Manager (which approval shall not be unreasonably withheld, 

delayed or conditioned so long as the provisions required under Section 4.2 are not 

modified or deleted). A copy of all Subservicing Agreements, as executed and delivered 

and all amendments thereto, shall be provided to the Manager, and, upon request, to the 

Initial Member. 

Section 4.5 Regulation AB Regnirements. The Servicer shall use 

commercially reasonable efforts to maintain in place, and to confirm, where applicable,

that each Subservicer has in place, policies and procedures to comply with the relevant 

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

and relate to the servicing being conducted under this Agreement, including for purposes

ofpreparation and delivery ofthe annual reports (including the independent accountant 

report) required pursuant to Section 5.2(g) below; provided that the following Regulation 

AB criteria shall not be deemed relevant to the servicing being conducted under this 

Agreement: Section 1122(d)(l)(iii) regarding backup servicer requirements; Sections 

1!22(d)(3)(i-iv) regarding paying agent requirements; and Section 1122(d)(4)(xv) 

regarding external credit enhancement. 

ARTICLEV 

REPRESENTATIONS. WARRANTIES AND COVENANTS OF THE SERVICER 

Section 5.1 Representations and Warranties. The Servicer hereby makes the 

following representations and warranties as ofthe date hereof: 

(a) The Servicer (i) is a corporation, duly organized, validly existing and in 

good standing under the Jaws 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 Mortgage Loans or the nature of the Servicer's activities under this 

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

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

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

in the United States. 

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

each Mortgage Loan, 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 corporate action on the part of the Servicer. 

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

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

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

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

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

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

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

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

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

authorized to do so. 

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

servicing of the Mortgage Loans and the Underlying Collateral under this Agreement, the 

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

fulfillment ofor 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 oftime, 

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 ofits 

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. 

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

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

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

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

whatsoever in any Borrower or Obligor. 

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

remain, a Qualified Servicer. 

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

Servicer covenants to the Manager as follows: 

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

Service information returns related to each Mortgage Loan for all applicable periods 

commencing with the Servicing Transfer Date with respect thereto (or, if later, the Effective 

Date). Information returns include reports on Forms 1098 and 1099 and any other reports 

required by Law. The Servicer shall be responsible for submitting all information returns 

required under applicable Law of any foreign Governmental Authority, to the extent such are 

required to be filed by the Company under such Law, relating to the Mortgage Loans, for the 

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

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

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

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

the Underlying Collateral, and the Company's interests in the Mortgage Loans and the 

Underlying Collateral, including records relating to the Collection Account, the Liquidity 

Account, the Interest Reserve Account, the Special Reserve Account, the Escrow Accounts and 

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

Operating Expenses and collection and remittance of Mortgage Loan Proceeds. The books of 

account shall be maintained in a manner that provides sufficient assurance that: (a) transactions 

are executed in accordance with the general or specific authorization ofthe Manager consistent 

with the provisions of the LLC Operating Agreement; and (b) transactions of the Company are 

recorded in such form and manner as will: (i) permit preparation of federal, state and local 

income and franchise tax returns and information returns in accordance with the LLC Operating 

Agreement and as required by Law; (ii) permit preparation ofthe Company's financial 

statements in accordance with GAAP and the LLC Operating Agreement and the provisions of 

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

Company's assets. 

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

retained until the date that is the later of ten (I 0) years after the Closing Date and three (3) years 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

recurring charges which could become a Lien on any Underlying Collateral. 

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

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

possession or control pertaining to the Mortgage Loans and the Underlying Collateral, including 

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

Agreement) all original and other documentation pertaining to the Mortgage Loans and the 

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

the Mortgage Loans and the Underlying Collateral, and all of the Servicer's (and any 

Subservicer's) internal memoranda pertaining to the Mortgage Loans and the Underlying 

Collateral. 

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

the Specified Date, commencing the first month following the Effective Date, a monthly 

Electronic Report on the Mortgage Loans and Underlying Collateral containing such information 

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

time by the Manager (without the consent of the Initial Member) and the Servicer (the 

"Electronic Report"). The Electronic Report shall include, but not be limited to, the 

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

Agreement, the Distribution Date Report and the Monthly Report, and such other reports and 

information as the Manager shall reasonably require, to the extent such information is reasonably 

available to the Servicer. Notwithstanding the above, with respect to any period prior to the 

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

information otherwise required to be included therein if and to the extent the Initial Member is 

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

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

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

Agreement and the Initial Member fails to timely deliver such information to the Servicer and 

the Manager. 

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

the Manager, on or before March IO'h of each year, or such other day as the Manager and the 

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

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

(or other applicable period as set forth below in this Section 5 .2(0) and of its performance under 

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

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

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

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

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

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

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

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

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

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

any Mortgage Loan, on the Servicing Transfer Date through the end ofthe 2010 calendar year),

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

portion ofthe year (or other applicable period). 

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

and the Servicer agree, commencing in the year 201 I, the Servicer shall, or shall cause each 

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

may direct) at the Servicer's or such Subservicer's expense the annual reports (including the 

independent accountant report) for the prior year (or other applicable period as set forth below)

required under Section I 122 ofRegulation AB (regardless ofwhether any such requirements

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

and Exchange Commission) with respect to the relevant servicing criteria provisions of Section 

1122(d)(l) ofRegulation AB that are applicable to the servicing being conducted under this 

Agreement pursuant to Section 4.5 above. The first such reports shall cover the period

commencing on the Effective Date (and for each Mortgage Loan, covering the period from the 

applicable Servicing Transfer Date) and continuing through the end ofthe 2010 calendar year. 

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

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

prepare and deliver to the Manager, and thereafter periodically update, such Business Plan, or 

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

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

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

Schedule"). Upon reasonable notice by the InHial Member, the Purchase Money Notes 

Guarantor or the Manager, the Servicer shall make its personnel who are familiar with the 

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

purposes of discussing such Business Plan with reP.resentatives of the Initial Member, the 

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

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

Closing Date and the date that is three (3) years after the date on which the final 

Mortgage Loan Proceeds are distributed to the Company, which date shall be established 

by notice to the Servicer from the Manager, the Servicer shall, and shall cause each 

Subservicer to, (a) provide the Manager, the Purchase Money Notes Guarantor and the 

Initial Member and their respective representatives (including any Governmental 

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

right to review all of the books of account, reports and records relating to the Mortgage 

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

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

the rights or obligations hereunder, (b) permit such representatives to make copies of and 

extracts from the same, (c) allow the Manager, the Purchase Money Notes Guarantor and 

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

Manager, the Purchase Money Notes Guarantor or the Initial Member, as applicable, and 

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

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

the Mortgage Loans, the Underlying Collateral, the Servicing Obligations, the Collection 

Account, the Escrow Accounts, and any Other Accounts or any other matters relating to 

this Agreement or the rights or obligations hereunder, with its officers, directors, 

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

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

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

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

incurred by the Servicer in connection with the exercise by the Manager, the Purchase 

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

borne by the Manager, the Purchase Money Notes Guarantor or the Initial Member, as 

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

expenses ofthe Purchase Money Notes Guarantor or the Initial Member pursuant to the 

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

by Manager, the Purchase Money Notes Guarantor or the Initial Member oftheir 

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

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

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

any Lien to be placed on any of the Mortgage Loans, the Underlying Collateral, the 

Mortgage Loan Documents or the Mortgage Loan Proceeds, except, in the case of the 

Underlying Collateral, (x) as permitted under the Mortgage Loan Documents where the 

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

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

with the Collateral Agent's rights as a secured party with respect to the Mortgage Loans, 

the Underlying Collateral and the Mortgage Loan Proceeds. 

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

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

provided to the Manager, the Purchase Money Notes Guarantor and the Initial Member 

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

relating to the Mortgage Loans, the Underlying Collateral, the Servicer and any 

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

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

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

Underlying Collateral, the Collection Account, the Escrow Accounts, any accounts 

created under the Custodial and Paying Agency Agreement, any Other Accounts or any 

Borrower or Obligor that materially and adversely affects the interests of the Company, 

the Purchase Money Notes Guarantor or the Initial Member. Without limiting the 

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generality of the foregoing, the Servicer shall promptly notify the Manager of (i) any

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

the Initial Member arising out of or with respect to any Mortgage Loan, (ii) any material 

notice from any Governmental Authority relating to any Underlying Collateral, or (iii) 

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

or interfere with the effectuation ofany then-applicable Business Plan. In addition, the 

Servicer shall cause to be delivered to the Manager information indicating any possible

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

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

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

Electronic Report, a report with respect to each Mortgage Loan and Underlying 

Collateral (i) in the case of any Mortgage Loan, describing the remedial efforts or 

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

applicable Mortgage Loan, (ii) describing the status of the activities contemplated by the 

Business Plan (which, among other things, identifies any facts or circumstances which 

are reasonably likely to hamper, interfere with, prevent or postpone effectuation of the 

Business Plan), (iii) to the extent requested by the Manager, any materials delivered by

the Borrower to the Company or the Servicer pursuant to the applicable Mortgage Loan 

Documents not theretofore delivered to the Manager (including, without limitation, 

copies of all plans and specifications, construction budgets and construction schedules, 

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

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

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

under the related Mortgage Loan, and (iv) such other information as the Manager

reasonably requests. 

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

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

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

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

Servicer. 

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

and the other Ancillary Documents (or portions thereof) as the Manager has determined 

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

hereunder have been delivered to the Servicer by the Manager, and the Servicer 

acknowledges receipt thereof. The Manager may from time to time deliver to the 

Servicer such amendments, modifications or additional Ancillary Documents (or portions 

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

performance by the Servicer of its obligations hereunder; provided, however, that if the 

Manager fails to deliver such amendments, modifications or additional Ancillary

Documents, the Servicer shall have no responsibility for any obligations with respect to 

any undelivered documents. All references herein to the Servicer's obligations with 

respect to such LLC Operating Agreement and other Ancillary Documents shall, as 

between the Manager and the Servicer (and without limitation ofobligations of the 

Manager, or the rights of the Initial Member or the Purchase Money Notes Guarantor, 

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under this Agreement, the LLC Operating Agreement or the other Ancillary Documents), 

be deemed to refer to the LLC Operating Agreement and other Ancillary Documents (or 

portions thereof) as have been, or from time to time are, delivered to Servicer. 

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

with copies thereof to be delivered by the Servicer to the Purchase Money Notes 

Guarantor and the Initial Member, (i) within forty-five (45) days after the end of each of 

its fiscal quarters, commencing on the Effective Date, and (ii) within ninety (90) days 

after the end of each of its fiscal years, commencing on the Effective Date, a letter 

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

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

Purchase Money Notes Guarantor or the Initial Member may reasonably request from 

time to time). 

ARTICLE VI 


MANAGER CONSENT 


Section 6.1 Actions Requiring Manager Consent. Notwithstanding anything to 

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

taken any of the following actions without the prior written consent ofthe Manager 

(which may require the Manager to obtain the written consent of the Initial Member 

and/or the Purchase Money Notes Guarantor), which consent may be withheld or 

conditioned in the sole and absolute discretion of the Manager: 

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

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

Agreement); 

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

foreclosure or by deed in lieu thereof) of any Mortgage Loan or Underlying 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 ofthe sale or other transfer ofany Mortgage Loans, 

Underlying Collateral or Acquired Property (or any portion thereof); 

(d) the sale of any Mortgage Loan or Underlying 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 Mortgage Loan Proceeds allocable to the Initial Member; 

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

such funds made available through Excess Liquidity Advances), the Liquidity Account, the 

accounts created under the Custodial and Paying Agency Agreement or any Other Accounts 

other than in accordance with the provisions oftills Agreement, the LLC Operating Agreement, 

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the Reimbursement and Security Agreement and the Custodial and Paying Agency Agreement, 

as applicable; 

(f) where applicable, the Servicer or any Subservicer ceases to be a member 

in good standing of MERS®; 

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

Balance of any Mortgage Loan other than Servicing Expenses to the extent that capitalizing such 

Servicing Expenses is or would have been, prior to the conversion of the Mortgage Loan to 

Acquired Property, permitted under the applicable Mortgage Loan Documents; 

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

and management ofthe Underlying Collateral or Acquired Property, (i) approving (x) any 

material modification or amendment to, or cancellation or termination of, any Mortgage Loan 

Documents, (y) plans and specifications, construction budgets or construction schedules with 

respect to the projects which are the subject of such Mortgage Loan (or material modifications to 

any of such items, including any change orders); (ii) forgiving or reducing or forbearing from 

collecting any indebtedness; (iii) releasing any parties liable for the payment ofthe Mortgage 

Loan or the performance of any other obligation relating thereto; (iv) granting any consent under 

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

transfers of any Underlying 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); (v) consenting to any agreement in any Insolvency 

Proceeding relating to any Mortgage Loan, any Borrower or any Obligor with respect to a 

Mortgage Loan, or any Underlying Collateral, including voting for a plan of reorganization; (vi) 

subordinating the liens ofthe Mortgage Loan Document; (vii) amending or waiving any 

provision ofany intercreditor agreement or making any decisions with respect to the Mortgage 

Loans under any intercreditor agreement; or (viii) taking any other action regarding such 

Mortgage Loan, Underlying Collateral or Acquired Property that is prohibited under the LLC 

Operating Agreement or the other Ancillary Documents or otherwise inconsistent with the 

Servicing Standard; or 

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

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

Section 6.2 Amendments. Modification and Waivers. No provision of this 

Agreement may be amended, modified or waived except in writing executed by the 

Manager and the Servicer, and each such amendment and modification shall be subject to 

the prior written consent of the Initial Member or the Purchase Money Notes Guarantor, 

except for those provisions that may be amended by the express terms hereof without the 

Initial Member's consent. In no event shall any such amendment or waiver limit or affect 

the rights of the FDIC or the Purchase Money Notes Guarantor (as a third party 

beneficiary hereunder as specified in Section 11.8} without the express written consent of 

the FDIC and the Purchase Money Notes Guarantor. 

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ARTICLE VII 

DEFAULTS; TERMINATION; TERMINATION WITHOUT CAUSE 

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

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

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

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

under the terms of (i) this Agreement, (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 oflnsolvency Event) (i) with respect to the Servicer or any of its 

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

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

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

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

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

Insolvency Event; or 

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

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

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

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

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

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

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

Manager to the Servicer; or 

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

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

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

Rating or (iii) to cause each Subservicer to meet the applicable characteristics ofa Qualified 

Servicer as required under Section 4.1 and to renew or maintain any permit or license necessary 

to carry out its responsibilities under any Subservicing Agreement, which, in the case of either 

(i), (ii) or (iii), continues unremedied for a period ofthirty (30) days after the date on which 

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

Manager or the Initial Member to the Servicer; or 

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

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

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

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

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

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

through~ by the Servicer to duly observe or perform any other covenants or agreements on the 

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

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

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

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

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

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

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

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

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

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

such failure failure under this Section 7 .I Cfl that relates exclusively to obligations included in 

any applicable Schedule hereto that can be amended or otherwise modified without the consent 

of the Initial Member, then no such consent of the Initial Member shall be required with respect 

to an applicable cure period hereunder so long as such failure hereunder is not, or would not 

result in, a failure by the Manager to comply with its obligations under the LLC Operating 

Agreement and the other Ancillary Documents; or 

c 

(g) the occurrence of any "Event ofDefault," as defined in the LLC Operating 

Agreement; or 

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

Money Notes Guarantor that an "Event of Default" as defined in the Reimbursement and 

Security Agreement has occurred and is continuing; or 

(i) the occurrence ofany 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 .I above, the 

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

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

Member may have at Law (including under the Uniform Commercial Code) or equity, including 

injunctive relief, specific performance or otherwise, may (i) terminate this Agreement by 

providing a Termination Notice to the Servicer, (ii) terminate the Subservicing Agreements by 

providing a written termination notice to the Servicer and the Subservicers, and (iii) otherwise 

enforce this Agreement, in any case, without penalty or payment of any fee. 

(b) The Servicer hereby consents to its immediate and automatic termination 

under this Agreement upon a Default under Section 7.l(b) of this Agreement. 

(c) Upon a default or failure ofthe 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 

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

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

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

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

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

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

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

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

second Termination Notice shall be prominently labeled as the "Second Termination Notice". 

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

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

(90) days after the delivery of the Second Termination Notice to the Manager, the Purchase 

Money Notes Guarantor and the Initial Member, and (ii) the transfer of the Servicing Obligations 

to a successor Servicer. The duty of the Servicer to continue to perform the Servicing 

Obligations as provided in the Second Termination Notice is contingent upon the timely and full 

payment of the Servicing Fee to the Servicer during such period. The Servicer shall cooperate 

fully and completely with the transition of the Servicing Obligations to a successor Servicer in 

order to assure an orderly transfer. 

Section 7.3 Termination without Cause. 

(a) The Manager may, without cause, terminate this Agreement, upon 

providing a Termination Notice to the Servicer, but only as and in accordance with the 

provisions set forth on Schedule 5 as the same may be amended from time to time by the 

Manager (without the Initial Member's consent) and the Servicer. 

(b) The Servicer may, at any time after the first anniversary of the Effective 

Date and thereafter, without cause, terminate this Agreement. No termination of this Agreement 

by the Servicer shall be effective unless the Servicer delivers to the Manager, with a copy to the 

Purchase Money Notes Guarantor and the Initial Member, a Termination Notice, which for the 

purpose of this Section 7.3(b) shall be a notice of the Servicer's intent to terminate this 

Agreement. Such Termination Notice shall be provided at least sixty (60) days prior to any date 

specified by the Servicer as the date of termination ofthe Servicer's Obligations under this 

Agreement. Notwithstanding the foregoing, such Termination Notice shall not be effective 

unless the Termination Notice contains confirmation of the intent and obligation of the Servicer 

to continue to perform its Servicing Obligations until the earlier of(i) ninety (90) days after the 

Termination Notice is given and (ii) such other date on which the Servicing Obligations are 

transferred to a successor Servicer in an orderly manner. The Servicer shall cooperate fully and 

completely with the transition of the Servicing Obligations to a successor Servicer to be 

designated by the Manager, in order to assure an orderly transfer. The Servicer issuing the 

Termination Notice shall be liable for all costs associated with the transfer of Servicing 

Obligations to the successor Servicer, including but not limited to the costs of transporting the 

servicing files and the provision ofany notices to Borrowers. 

Section 7.4 Effective Termination Date. Termination as specified in this 

Article VIII shall be effective at such time as is specified in the Termination Notice. In 

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the event of such tennination, all authority and power ofthe Servicer under this 

Agreement, whether with respect to the Mortgage Loans or otherwise, shall pass to and 

be vested in the Manager or the successor servicer designated by the Manager in the case 

oftennination by the Manager or as designated solely by the Initial Member (or any 

successor "Manager" under the LLC Operating Agreement) in the case of termination by 

the Initial Member (or such successor "Manager" under the LLC Operating Agreement). 

The Servicer agrees to cooperate with the Manager, the Initial Member, any successor 

"Manager" under the LLC Operating Agreement and any successor servicer with respect 

to the timely and orderly transition of its obligations under this Agreement. The Servicer 

shall be liable for all obligations of the Servicer that have accrued under this Agreement 

or at Law prior to such termination. 

Section 7.5 Accounting. Upon termination ofthis Agreement as set forth 

herein, the Servicer shall account for and tum over to the Manager or its designee (or, if 

applicable, pursuant to such instructions as may be provided by the Initial Member or any 

successor "Manager" pursuant to the LLC Operating Agreement) funds collected under 

the terms ofthis Agreement. The Servicer shall provide written notice in conformity 

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

henceforth be serviced by the Manager (or applicable successor "Manager" under the 

LLC Operating Agreement) or any applicable successor Servicer designated by the 

Manager (or any successor "Manager" under the LLC Operating Agreement) or the 

Initial Member as tbe case may be, and transfer its duties as the Servicer to the Manager 

(or successor "Manager" under the LLC Operating Agreement) or such successor 

Servicer. 

ARTICLE VIII 

INDEPENDENCE OF PARTIES; INDEMNIFICATION 

Section 8.1 Independence of Parties. The Servicer shall have the status of, and 

act as, an independent contractor. Nothing herein contained shall be construed to create a 

partnership or joint venture or any similar relationship between the Manager and the 

Servicer. 

Section 8.2 Indemnification. The Servicer agrees to indemnify, defend and 

hold harmless the Company, the Manager, the Purchase Money Notes Guarantor, the 

Initial Member and each oftheir respective Affiliates, directors, officers, employees and 

agents and each oftheir respective successors and assigns (the "Indemnified Parties") 

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

losses, costs, expenses (including attorneys' fees), damages and liabilities of any kind or 

nature whatsoever directly or indirectly resulting from or arising out of or related to (i) 

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

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

Servicer's covenants, agreements or warranties contained in this Agreement, (iii) any act 

taken by the Servicer purportedly pursuant to a power ofattorney granted by tbe Manager 

which act results in a claim related to the unlawful use of such power of attorney, or (iv) 

any failure by the Servicer or any Subservicer to discharge obligations on any Underlying 

FDIC SFR2010·2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

29 

NY2 2053707.4 
Collateral relating to taxes, ground rents or other such recurring charges generally 

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

Underlying Collateral. The Servicer shall promptly notify the Indemnified Party if a 

claim is made with respect to this Agreement or any Mortgage Loans or Underlying 

Collateral, assume (with prior consent of the Indemnified Party) the defense of any such 

claim and pay all expenses in connection therewith, including attorneys' fees, and 

promptly pay, discharge and satisfy any judgment or decree which may be entered 

against it or any Indemnified Party in respect of such claim. No expenses incurred by the 

Servicer or any Subservicer in connection with its obligations under this Section 8.2 shall 

constitute Servicing Expenses or otherwise be deducted from or reimbursed out of 

Mortgage Loan Proceeds. The Servicer shall follow any reasonable written instructions 

received from the Indemnified Party in connection with such claims, it being understood 

that the Indemnified Party shall have no duty to monitor or give instructions with respect 

to such claims. 

Section 8.3 Procedure for Indemnification. Promptly upon receipt of written 

notice of any claim in respect of which indemnity may be sought pursuant to the terms of 

this Agreement, the Indemnified Party will use its best efforts to notify the Servicer in 

writing thereof in sufficient time for the Servicer to respond to such claim. Except to the 

extent that the Servicer is prejudiced thereby, the failure ofthe Indemnified Party to 

promptly notify the Servicer of any such claim shall not relieve the Servicer from any 

liability which it may have to the Indemnified Party in connection therewith. If any claim 

shall be asserted or commenced against the Indemnified Party, the Servicer will be 

entitled to participate therein, and to the extent it may wish to assume the defense, 

conduct or settlement thereof, it shall be entitled to do so with counsel reasonably 

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

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

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

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

approval ofthe Indemnified Party before ceasing to defend against any claim or entering 

into any settlement, adjustment or compromise of such claim involving injunctive or 

similar equitable relief being imposed upon any Indemnified Party or any of its Affiliates. 

After notice from the Manager to the Servicer of its election to assume the defense, 

conduct or settlement thereof, the Servicer will not be liable to the Manager for any legal 

or other expenses consequently incurred by the Manager in connection with the defense, 

conduct or settlement thereof. 

Section 8.4 Pre-Effective Date Liabilities. Notwithstanding anything to the 

contrary herein, but without limitation ofthe release set forth in Section 11.13, it is 

understood and agreed that the Servicer shall not be liable to the Manager or the 

Company for any liabilities or obligations attributable to an act, omission or 

circumstances ofthe Initial Member, the FDIC, the Failed Banks and the Company that 

occurred or existed prior to the Effective Date or, with respect to any particular Mortgage 

Loan, the Servicing Transfer Date applicable thereto (the "Pre-Existing Liabilities"). In 

the event there is asserted against the Company, the Manager, the Servicer or any 

Subservicer any claim or action with respect to any such Pre-Existing Liabilities, the 

FDICSFR2010·2 

Servicing Agreement 

Pool Nos. 24010 and 24021 

30 

NY2 2053707.4 
Servicer or Subservicer, as applicable, shall notifY the Manager and the Initial Member of 

such claim or action in accordance with Article IX. Except as provided otherwise in 

Section 8.2 and 8.3 above (in the event that such claim or action is subject to the 

indemnification obligations of the Servicer pursuant to Section 8.1 above), the Manager 

shall have the right to control and assume the defense of the Company, the Manager, the 

Servicer and the Subservicer with respect to such claim or action at the Manager's 

expense. The Servicer shall be reimbursed by the Manager in connection with the 

foregoing only to the extent ofand 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 ofthe provisions ofthis Agreement shall be in writing and 

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

nationally recognized courier service, or by electronic mail (followed up by a hard copy 

delivered through an alternate manner permitted under this Article IX), in each case mailed or 

delivered to the applicable address or electronic mail address specified in, or in the manner 

provided, in this Article IX below. All such notices, requests, demands and other 

communications shall be deemed to be given or made upon the earlier to occur of (i) actual 

receipt (or refusal thereof) by the relevant party hereto and (ii) (A) ifdelivered by hand or by 

nationally recognized courier service, when signed for (or refused) by or on behalf ofthe 

relevant party hereto; (B) if delivered by mail, four (4) Business Days after deposit in the mails, 

postage prepaid; and (C) ifdelivered by electronic mail (which form of delivery is subject to the 

provisions ofthis paragraph), when delivered and capable ofbeing accessed from the recipient's 

office computer, provided that any notice , request, demand or other communication that is 

received other than during regular business hours ofthe recipient shall be deemed to have been 

given at the opening ofbusiness on the next business day of the recipient. In no event shall a 

voice mail message be effective as a notice, communication or confirmation hereunder. From 

time to time, any party may designate a new address for purposes of notice to it hereunder by 

notice to such effect to the other parties hereto in the manner set forth in this Article IX. 

If to the Manager: TPAM, II, LLC 

2180 Gamet Avenue, Suite 2E 

San Diego, CA 92109 

Attention: Matthew Fistonich 

Email: 

with a copy to: 800 Menlo Avenue, Suite 201 

Menlo Park, CA 94025 

If to the Initial Member or the 

FDIC SFR 2010·2 

Servicin& Agreement 

Pool Nos. 24010 and 24021 

31 

NY2 2053707.4 
Purchase Money Notes Guarantor: 

with a copy to: 

If to the Servicer: 

Manager, Capital Markets & Resolutions 

c/o Federal Deposit Insurance Corporation 

550 17th Street, NW (Room F-7014) 

Washington, D.C. 20429-0002 

Attention: Ralph Malami 

Email: RMalami@FDIC.gov 

Senior Counsel 

FDIC Legal Division 

Litigation and Resolutions Branch, Receivership 

Section 

Special Issues Unit 

3501 Fairfax Drive (Room E-7056) 

Arlington, Virginia 22226 

Attention: David Gearin 

Email: DGearin@fdic.gov 

iServe Servicing, Inc. 

222 W. Las Colings Blvd., Suite 1252 

Irving, TX 75039 

and 

iServe Residential Lending, LLC, 

13520 Evening Creek Dr. North, Suite 400 

San Diego, CA 92128 

Email: 

with a copy to (which shall not iServe Servicing, Inc. 

constitute notice): 13520 Evening Creek Dr. North, Suite 400 

San Diego, CA 92128 

Attenti 

Email: 

t I " I " • lo I • 

ARTICLE X 


GOVERNING LAW; JURISDICTION 


Section 10.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED 

BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF 

FDIC SFR 2010·2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

32 

NY2 2053707.4 
NEW YORK EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE 

THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS 

AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. Nothing in this 

Agreement shall require any unlawful action or inaction by any party hereto. 

Section 10.2 Jurisdiction; Venue and Service. Each of the parties hereto, for 

itself and each of its Affiliates, hereby irrevocably and unconditionally: 

(a) (i) agrees that any suit, action or proceeding instituted against it by any 

other party with respect to this Agreement may be instituted, and that any suit, action or 

proceeding instituted by it against any other party with respect to this Agreement shall be 

instituted, only in the Supreme Court of the State of New York, County of New York, or the U.S. 

District Court for the Southern District ofNew York, as the party instituting such suit, action or 

proceeding may choose (and appellate courts from any of the foregoing), 

(ii) consents and submits, for itself and its property, to the jurisdiction of such 

courts for the purpcse of any such suit, action or proceeding instituted against it by any other 

party and 

(iii) agrees that a final judgment in any such suit, action or proceeding shall be 

conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other 

manner provided by Law; 

(b) agrees that service of all writs, process and summonses in any suit, action 

or proceeding pursuant to Section I 0.2(a) may be effected by the mailing of copies thereof by 

registered or certified mail, postage prepaid, to it at its address for notices pursuant to Article IX 

(with copies to such other Persons as specified therein); provided, however, that nothing 

contained in this Section I 0.2® shall affect the ability of any party to be served process in any 

other manner permitted by Law; 

(c) (i) waives any objection that it may now or hereafter have to the laying of 

venue ofany 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 ofthe foregoing; and 

(d) agrees that nothing contained in this Section 10.2 shall be binding upon or 

construed to constitute consent to jurisdiction by any Failed Bank or the FDIC, in any capacity, 

or constitute a limitation on any removal rights the FDIC, in any capacity, may have. 

Notwithstanding the above, if at any time the Initial Member shall replace the Manager 

hereunder pursuant to the terms ofthe LLC Operating Agreement, the terms of this Section I0.2 

shall be restated as follows: 

Each party, on behalf of itselfand its Affiliates, hereby irrevocably and unconditionally: 

FDIC SFR 2010.2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

33 

NY2 2053707.4 
(a) (i) consents to the jurisdiction of the United States District Court for 

the Southern District of New York and to the jurisdiction of the United States District Court for 

the District of Columbia for any suit, action or proceeding against it or any of its Affiliates 

commenced by the FDIC, in any capacity, arising out of, relating to, or in connection with this 

Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

court or dispute-resolution forum other than the court in which the FDIC, in any capacity, files 

the action, suit or proceeding without the consent of the FDIC; 

(B) assert that venue is improper in either the United States 

District Court for the Southern District ofNew 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 ofits 

Affiliates commenced by the FDIC, in any capacity, arising out of, relating to, or in connection 

with this Agreement, and waives any right to: 

(A) remove or transfer such suit, action or proceeding to any 

other court or dispute-resolution forum without the consent of the FDIC; 

(B) assert that venue is improper in the Supreme Court of the 

State of New York, County of New York; or 

(C) assert that the Supreme Court of the State of New York, 

County of New York is an inconvenient forum; 

(iii) agrees to bring any suit, action or proceeding against the FDIC, in 

any capacity, arising out of, relating to, or in connection with this Agreement, the LLC Operating 

Agreement or any Ancillary Document in only either the United States District Court for the 

Southern District of New York or the United States District Court for the District of Columbia, 

and waives any right to remove or transfer such suit, action or proceeding to any other court or 

dispute-resolution forum without the consent of the FDIC, and agrees to consent thereafter to 

transfer of the suit, action or proceeding to either the United States District Court for the 

Southern District ofNew York or the United States District Court for the District of Columbia at 

the option of the FDIC; and 

(iv) agrees, if the United States District Court for the Southern District 

of New York and the United States District Court for the District of Columbia both lack 

jurisdiction to hear a suit, action or proceeding falling within Section I 0.2(a)(iii), to bring that 

suit, action or proceeding in only the Supreme Court of the State of New York, County of New 

FDIC SFR 201 0·2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

34 

NY2 2053707.4 
York, and waives any right to remove or transfer such suit, action or proceeding to any other 

court or dispute-resolution forum without the consent of the FDIC. 

(b) Each party, on behalfofitself 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, and the FDIC hereby irrevocably and unconditionally agrees that service 

of all writs, process and summonses in any suit, action or proceeding pursuant to Section I0.2(a) 

or Section I 0.2(b) may be effected by the mailing ofcopies thereof by registered or certified 

mail, postage prepaid, to it at its address for notices pursuant to Article IX (with copies to such 

other Persons as specified therein); provided, however, that nothing contained in this Section 

10.2(c) shall affect the right of any party to serve process in any other manner permitted by law. 

(d) Nothing in this Section 10.2 shall constitute consent to jurisdiction in any 

court by the FDIC, other than as expressly provided in Section 10.2(a)(iii) and Section 

10.2(a)(iv), or in any way limit the FDIC's right to remove, transfer, seek to dismiss, or 

otherwise respond to any suit, action, or proceeding against it in any forum. 

Section 10.3 Waiver ofJurv Trial. EACH OF THE PARTIES HERETO, FOR 

ITSELF AND EACH OF ITS AFFILIATES, HEREBY IRREVOCABLY AND 

UNCONDITIONALLY WAlVES ANY RIGHT IT MAY HAVE TO A TRIAL BY 

JURY OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS 

AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED 

BEFORE A JUDGE SITTING WITHOUT A JURY. 

ARTICLE XI 


MISCELLANEOUS 


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

Servicing Rights. 

(a) The Servicer hereby acknowledges that this Agreement constitutes a 

personal services agreement between the Manager and the Servicer. Any ofthe following shall 

constitute an assignment for all purposes ofthis Agreement: (a) any merger, consolidation or 

dissolution involving the Servicer or (b) any transfer of 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 oftime. The Servicer shall not assign any rights or obligations 

hereunder to any other Person other than as is expressly provided in this Agreement. Any 

purported sale, sub-participation or assignment or delegation in violation ofthis Section ll.l(a) 

shall be void ab initio and ofno force or effect whatsoever. 

(b) Under no circumstances shall the Servicer (i) transfer to any Subservicer 

or any other Person any ownership interest in the servicing ofthe Mortgage Loans or any right to 

transfer or sell the servicing ofthe Mortgage Loans (other than in connection with the sale of any 

FDIC SFR 2010-2 

Servicing Agreement 

Pool Nos. 24Cl20 and 24021 

35 

NY2 2053707.4 
Mortgage Loan), or (ii) assign, pledge or otherwise transfer or purport to assign, pledge or 

otherwise transfer any interest to any Subservicer or other Person in the servicing ofthe 

Mortgage Loans (other than in connection with the sale of any Mortgage Loan). Any purported 

assignment, pledge, delegation or other transfer in violation of this Section 11.1 (b) shall be void 

ab initio and of no force or effect whatsoever. 

Section 11.2 Legal Fees. No party to this Agreement shall be responsible for 

the payment of the legal fees or expenses incurred by the other party hereto in connection 

with the negotiation and execution of this Agreement or any subsequent modifications or 

supplements hereto 

Section I1.3 Entire Agreement. This Agreement contains the entire agreement 

between the Manager and the Servicer and supersedes any and all other prior agreements, 

whether oral or written, with respect to the subject matter hereof. 

Section 11.4 Counterparts; Facsimile Signatures. This Agreement may be 

executed in two (2) or more counterparts, each of which shall be deemed an original but 

all of which together shall constitute but one and the same agreement. This Agreement 

and any amendments hereto, to the extent signed and delivered by facsimile or other 

electronic means, shall be treated in all manner and respects as an original agreement and 

shall be considered to have the same binding legal effect as ifit were the original signed 

version thereof delivered in person. No signatory to this Agreement shall raise the use of 

a facsimile machine or other electronic means to deliver a signature or the fact that any 

signature or agreement was transmitted or communicated through the use ofa facsimile 

machine or other electronic means as a defense to the formation or enforceability of a 

contract and each such Person forever waives any such defense. 

Section 11.5 Headings. Paragraph titles or captions contained in this Agreement 

are inserted only as a matter of convenience and for reference and in no way define, limit, 

extend or describe the scope ofthis Agreement or the intent ofany provisions hereof. All 

Section and paragraph references contained herein shall refer to Sections and paragraphs 

in this Agreement unless otherwise specified. 

Section 11.6 Compliance with Law. Except as otherwise specifically provided 

herein, each party to this Agreement shall, at its own cost and expense, obey and comply 

with all applicable Laws, as they may pertain to such party's performance of its 

obligations hereunder. 

Section I 1.7 Severability. Any provision of this Agreement which is prohibited 

or unenforceable in any jurisdiction shall be ineffective, but such ineffectiveness shall be 

limited as follows: (i) if such provision is prohibited or unenforceable in such 

jurisdiction only as to a particular Person or Persons and/or under any particular 

circumstance or circumstances, such provision shall be ineffective, but only in such 

jurisdiction and only with respect to such particular Person or Persons and/or under such 

particular circumstance or circumstances, as the case may be; (ii) without limitation of 

clause (i), such provision shall in any event be ineffective only as to such jurisdiction and 

FDIC SFR 2010·2 

Servicing Agreement 

Pool Nos. 24020 and 2402 J 

36 

NY2 2053707.4 
only to the extent of such prohibition or unenforceability, and such prohibition or 

unenforceability in such jurisdiction shall not invalidate or render unenforceable such 

provision in any other jurisdiction; and (iii) without limitation of clauses (i) or (ii), such 

ineffectiveness shall not invalidate any of the remaining provisions of this Agreement. 

Without limitation ofthe preceding sentence, it is the intent of the parties to this 

Agreement that in the event that in any court proceeding, such court determines that any 

provision of this Agreement is prohibited or unenforceable in any jurisdiction (because of 

the duration or scope (geographic or otherwise) of such provision, or for any other 

reason) such court shall have the power to, and shall, (x) modify such provision 

(including without limitation, to the extent applicable, by limiting the duration or scope 

of such provision and/or the Persons against whom, and/or the circumstances under 

which, such provision shall be effective in such jurisdiction) for purposes of such 

proceeding to the minimum extent necessary so that such provision, as so modified, may 

then be enforced in such proceeding and (y) enforce such provision, as so modified 

pursuant to clause (x), in such proceeding. Nothing in this Section 11.7 is intended to, or 

shall, limit (I) the ability of any party to this Agreement to appeal any court ruling or the 

effect of any favorable ruling on appeal or (2) the intended effect of Section I0.1. 

Section 11.8 Third Partv Beneficiaries. The Initial Member shall be and is 

hereby designated as a third party beneficiary under this Agreement, and, as such, the 

Initial Member is entitled to enforce this Agreement as if the Initial Member were a party 

hereto. The Company, the Purchase Money Notes Guarantor, and the FDIC shall be and 

are hereby designated as third party beneficiaries under this Agreement with respect to 

those provisions of this Agreement which expressly grant rights to such Persons, and, as 

such, each is entitled to enforce such provisions of this Agreement as if such Person were 

a party hereto. Notwithstanding the foregoing, none of the Purchase Money Notes 

Guarantor, the FDIC, the Company and the Initial Member shall have any obligation to 

undertake any of the duties ofthe Manager hereunder or have any liability whatsoever to 

the Servicer, any Subservicer or any other party related to this Agreement. There shall be 

no other third party beneficiaries. The rights of the Purchase Money Notes Guarantor as 

a third party beneficiary hereunder shall terminate at such time as the Purchase Money 

Notes Guarantor notifies the Servicer that the reimbursement obligations in favor of the 

Purchase Money Notes Guarantor under the Reimbursement and Security Agreement 

have been paid in full, but shall be reinstated in the event that the Purchase Money Notes 

Guarantor party notifies the Servicer that such obligations have been reinstated in 

·accordance with its terms. 

Section 11.9 Protection of Confidential Information. The Servicer shall keep 

confidential and shall not divulge to any party, without the Manager's prior written 

consent, any information pertaining to the LLC Operating Agreement, the Mortgage 

Loans or any Borrower or Obligor or the Underlying Collateral thereunder, except as 

required pursuant to this Agreement and except to the extent that it is necessary and 

appropriate for the Servicer to do so in working with legal counsel, auditors, taxing 

authorities, regulatory authorities or any other Governmental Authority or in accordance 

with the Servicing Standard; provided, that, to the extent that disclosure should be 

required by law, rule, regulation (including any securities listing requirements or the 

FOICSFR2010·2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

37 

NY2 2053707.4 
requirements of any self-regulatory organization), subpoena, or in connection with any 

legal or regulatory proceeding (including in connection with or pursuant to any action, 

suit, subpoena, arbitration or other dispute resolution process or other legal proceedings, 

whether civil or criminal, and including before any court or administrative or legislative 

body), the Servicer will use all reasonable efforts to maintain confidentiality and will 

(unless otherwise prohibited by law) notify the Manager and the Initial Member and the 

Purchase Money Notes Guarantor within one (1) Business Day after its knowledge of 

such legally required disclosure so that the Manager, the Initial Member and/or the 

Purchase Money Notes Guarantor may seek an appropriate protective order and/or direct 

the Manager to waive the Servicer's compliance with this Agreement. Notice shall be by 

telephone, by email and in writing. In the absence of a protective order or waiver, the 

Servicer may make such required disclosure if, in the written opinion of its outside 

counsel (which opinion shall be provided to the Manager, the Initial Member and the 

Purchase Money Notes Guarantor prior to disclosure pursuant to this Section 11.9), 

failure to make such disclosure would subject the Servicer to liability for contempt, 

censure or other legal penalty or liability. 

Section 11.10 Time of Essence. Time is hereby declared to be of the essence of 

this Agreement and of every part hereof. 

Section 11.11 No Presumption. This Agreement shall be construed fairly as to 

each party hereto and if at any time any such term or condition is desired or required to 

be interpreted or construed, no consideration shall be given to the issue of who actually 

prepared, drafted or requested any term or condition of this Agreement or any agreement 

or instrument subject hereto. 

Section 11.12 No Right of Setoff. Subject to Section 8.4 hereof, 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 Mortgage Loan 

Proceeds (or the Company). 

Section 11.13 Release of Initial Member and Others. The Servicer hereby 

releases and discharges each Prior Servicer from any and all claims (including any 

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

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

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

whatsoever to the servicing of the Mortgage Loans or Underlying Collateral prior to the 

applicable Servicing Transfer Date by the Prior Servicers, in each case other than for acts 

or omissions constituting gross negligence, violation of law or willful misconduct of such 

Prior Servicer. 

(Remainder ofPage Intentionally Left Blank] 

FDIC SFR 2010-2 

Servicing Agreement 

Pool Nos. 24020 s.nd 24021 

38 

NY2 2053707.4 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of 

the day and year first above written. 

MANAGER: 

TPAMII, LLC, 


a Delaware limited liability company 


By: Tnrning Point Asset Management, LP, · 


a Delaware limited partnership 


By: Turning Point Asset Management, LLC, 


a Delaware limited liability company 


By:-:-:­

Name: 

Title: Manager 

SERVICER: 

iSERVE SERVICING, INC., 


a Delaware corporation 


By:.________________ 


Name: 


Title: 


SERVICER: 


iSERVE RESIDENTIAL LENDING, LLC, 


an Arizona limited liability company 


By:.__________________________ 


Name: 


Title: 


[Signature Page to the Servicing Agreement] 

FDIC SFR 2010·2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

39 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of 

the day and year first above written. 

MANAGER: 

TPAM II, LLC, 

a Delaware limited liability company 


By: Turning Point Asset Management, LP, 


a Delaware limited partnership 


By: Turning Point Asset Management, LLC, 


a Delaware limited liability company 


By: ______________________________ 

Name: Matthew Fistonich 

Title: Manager 

SERVICER: 

SERVICER: 


[Signature Page to the Servicing Agreement] 

FDICSFR20l0·2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

39 

FDIC SFR 2010-2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

NY2 2053707.4 

EXHIBIT A 

MORTGAGE LOAN SCHEDULE 

[See Tab K.l] 

EXHIBIT A 

1 

EXHIBIT 

MORTGAGE LOAN SCHEDULE 

ISce Tab K.1I 

FOIC SFR 2010-2


Servicing Agreement


Pool Hog 24020 and 2402


EXHIBIT 

NY2 2053707.4 
EXHIBITB 

ELECTRONIC TRACKING AGREEMENT 

[See TabU) 

FDIC SFR 2010-2 


Servicing Agreement 


Pool Nos. 24020 and 24021 


EXHIBITB 

I 


NY2 2053707.4 
EXHIBITC 

LOAN MODIFICATION PROGRAM 

The FDIC strongly encourages the Servicer to enroll in the HAMP Mortgage Loan Modification 

Program. The Loan Modification Program for the purpose of this Servicing Agreement shall 

mean the HAMP Mortgage Loan Modification Program described in (I) below; provided that, if 

the Servicer declines to enroll in the HAMP and provides reasonable justification for its decision 

to decline to do so, then the Servicer shall either follow the HAMP Guidelines described in (I) 

below with respect to the Mortgage Loans, or shall follow the FDIC Mortgage Loan 

Modification Program described in (II) below, unless some other Loan Modification Program is 

required or approved by the FDIC in accordance with the terms of the Servicing Agreement. 

I. HAMP MORTGAGE LOAN MODIFICATION PROGRAM 

On March 4, 2009, the United States Department ofthe Treasury announced the Making Home 

Affordable Modification Program (HAMP) guidelines to promote sustainable loan modifications 

for homeowners at risk of losing their homes due to foreclosure. HAMP provides a detailed 

framework for servicers to modifY mortgages on owner-occupied residential properties and 

offers financial incentives to lenders and servicers that participate in the Program. The Program 

also provides financial incentives for homeowners whose mortgages are modified pursuant to 

Program guidelines to remain current on their mortgages after modification. 

The Servicer will take all steps to enroll in HAMP as promptly as possible, and will modifY 

qualifYing loans per the HAMP guidelines. The Servicer will comply with the Home Affordable 

Modification Guidelines as adopted on March 4, 2009, as modified and supplemented by 

Supplemental Directive 09-0 I, Introduction of the Home Affordable Modification Program, 

Supplemental Directive 09-02, Fair Housing Obligations Under the Home Affordable 

Modification Program, and Supplemental Directive 09-03, Home Affordable Modification 

Program Trial Period Guidance and as further modified, supplemented or amended from time to 

time. Further details about HAMP, including program terms and borrower eligibility criteria, are 

available at http://www.hmpadmin.com. 

II. FDIC MORTGAGE LOAN MODIFICATION PROGRAM 

Objective 

The objective ofthis FDIC Mortgage Loan Modification Program ("Program") is to modifY the 

terms of certain residential mortgage loans so as to improve affordability, increase the 

probability of performance, allow borrowers to remain in their homes and increase the value of 

the loans to the FDIC and assignees. The Program provides for the modification of Qualifying 

Loans (as defined below) by reducing the borrower's monthly housing debt to income ratio 

("DTl Ratio") to a target of 31%, never to exceed 38%, at the time ofthe modification and 

eliminating adjustable interest rate and negative amortization features. 

FDIC SFR 2010-2 

Servicing Agreement 

Pool Nos. 24020 and 2402 J 

EXHIBITC 

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NY2 2053707.4 
Qualifying Loans 

In order for a mortgage loan to be a Qualifying Loan it must meet all of the following criteria, 

which must be confirmed by the lender: 

o 	 The collateral securing the mortgage loan is owner-occupied; and 

o 	 The mortgagor has a first priority lien on the collateral; and 

o 	 Either the borrower is at least 60 days delinquent or a default is reasonably 

foreseeable. 

Modification Process 

The lender shall undertake a review of its mortgage loan portfolio to identify Qualifying Loans. 

For each Qualifying Loan, the lender shall determine the net present value ("NPV") ofthe 

modified loan using conservative discount and default rates that reflect their own portfolio 

experience. If it will exceed the NPV of the foreclosed collateral upon disposition, then the 

Qualifying Loan shall be modified so as to reduce the borrower's monthly DTI Ratio to 31% (or 

to the lowest DTI Ratio higher than 31%, but not to exceed 38%, resulting in a NPV exceeding 

the foreclosed collateral upon disposition) at the time of the modification. To achieve this, the 

lender shall use a combination of interest rate reduction, term extension and principal 

forbearance, as necessary. 

The borrower's monthly DTI Ratio shall be a percentage calculated by dividing the borrower's 

monthly housing payment (including principal, interest, taxes and insurance) by the borrower's 

monthly income. For these purposes, (1) the borrower's monthly income shall be the amount of 

the borrower's (along with any co-borrowers') documented and verified gross monthly income, 

and (2) the borrower's monthly housing payment shall be the amount required to pay monthly 

principal and interest plus one-twelfth of the then current annual amount required to pay real 

property taxes and homeowner's insurance with respect to the collateral. 

In order to calculate the monthly principal payment, the lender shall capitalize to the outstanding 

principal balance of the Qualifying Loan the amount of all delinquent interest, delinquent taxes, 

past due insurance premiums, third party fees and (without duplication) escrow advances (such 

amount, the "Capitalized Balance"). 

In order to achieve the goal of reducing the DTI Ratio to 31%, the lender shall take the following 

steps in the following order of priority with respect to each Qualifying Loan: 

1. Reduce the interest rate to the then current Freddie Mac Survey Rate for 30-year fixed 

rate mortgage loans, and adjust the term to 30 years. 

2. If the DTI Ratio is still in excess of 31%, reduce the interest rate further, but no lower 

than 3%, until the DTI ratio of 31% is achieved. 

3. If the DTI Ratio is still in excess of 31% after adjusting the interest rate to 3%, extend the 

remaining term of the loan by 10 years. 

FDIC SFR 2010·2 

Servicing Agreement 


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EXHIBITC 

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NY2 2053707.4 
4. Ifthe DTI Ratio is still in excess of31%, calculate a new monthly payment (the 

"Adjusted Payment Amount") that will result in the borrower's monthly DTI Ratio not 

exceeding 31%. After calculating the Adjusted Payment Amount, the lender shall bifurcate the 

Capitalized Balance into two portions- the amortizing portion and the non-amortizing portion. 

The amortizing portion of the Capitalized Balance shall be the mortgage amount that will fully 

amortize over a 40-year term at an annual interest rate of 3% and monthly payments equal to the 

Adjusted Payment Amount. The non-amortizing portion of the Capitalized Balance shall be the 

difference between the Capitalized Balance and the amortizing portion of the Capitalized 

Balance. The lender shall forbear on collecting the non-amortizing portion ofthe Capitalized 

Balance, and such amount shall be due and payable only upon the earlier of (i) maturity of the 

modified loan, (ii) a sale ofthe property or (iii) a pay-off or refinancing ofthe loan. No interest 

shall be charged on the non-amortizing portion of the Capitalized Balance, but repayment shall 

be secured by a first lien on the collateral. 

5. If, under any ofthe above steps, the NPV ofa modification falls short ofthe NPV of the 

foreclosed collateral upon disposition, the DTI may be increased to the minimum level where the 

NPV ofthe modification exceeds the NPV ofthe foreclosed collateral upon disposition. 

However, under no circumstances will the DTI for the modification exceed 38%. 

At the end of the five (5) year period, the interest rate on the modified loan shall adjust to the 

Freddie Mac Survey Rate as of the date ofthe loan modification, but subject to an annual 

adjustment cap of one percent (I%) per year. At that time, the monthly amount due by the 

borrower will also adjust to amortize fully the remaining Capitalized Balance (or, in any case in 

which the Capitalized Balance was bifurcated, the amortizing portion thereof) over the remaining 

term ofthe modified loan. 

Additional Modification Terms 

In connection with the modification of any Qualifying Loan, the following additional 

requirements shall apply. 

I. The lender shall not charge (and no borrower shall be required to pay) any modification, 

refinance or other similar fees or points in connection with the modification, nor shall any such 

fees, costs or charges be capitalized. 

2. Unpaid late fees and prepayment penalties otherwise chargeable to the borrower shall be 

waived. 

3. Modified loans shall not include any prepayment penalties. 

4. The lender shall establish an escrow account for the payment offuture taxes and 

insurance premiums. 

5. The lender shall provide the FDIC with the NPV for each Qualifying Loan including the 

discount and default rates used. 

FDIC SFR 2010·2 

Servicing Agreemenl 

Pool Nos. 24020 and 24021 

EXHIBITC 

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NY2 2053707.4 
Related Junior Lien Mortgage Loans 

In cases where the lender holds a junior lien mortgage loan that is collateralized by the same 

property that collateralizes a Qualifying Loan that is modified as described above, the junior lien 

mortgage loan shall also be modified to enhance overall affordability to the borrower. At a 

minimwn, the lender shall reduce the interest rate on the junior lien mortgage loan to no more 

than 2% per annum. Further modifications may be made at the lender's discretion as needed to 

support affordability and performance ofthe modified first lien Qualifying Loan. 

Amendments 

The Program may be modified either (i) by the FDIC, upon written notice to the lender of such 

modification, or (ii) as proposed by the lender with respect to a group of loans with similar 

characteristics, if approved in writing by the FDIC. 

FDIC SFR 2010·2 

Servicing Agreement 

Pool Nos. 24020 and 24021 

EXHIBITC 

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NY2 2053707.4 
SCHEDULE 1 

FEE SCHEDULE 

[See Tab J.2] 

FDIC- SFR 2010-2 


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NY2 2053707.4 
FDICSFR2010·2 

Servicing Agreement 

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NY2 2053707.4 

SCHEDULE2 

SERVICING OBLIGATIONS 

[See Tab J.3) 

SCHEDULE2 

1 

SCHEDULE


SERVICING OBLIGATIONS 

ISee Tab J.3 

FDTC SFR 2010-2


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NY2 2053707.4 
FDIC SFR 2010-2 

Servicing Agreement 

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NY2 2053707.4 

SCHEDULE3 

REIMBURSEMENT OF SERVICER ADVANCES 

[See Tab J.4] 

SCHEDULE3 

I 

SCHEDULE


REIMBURSEMENT OF SERVICER ADVANCES 

Tab J.41 

FDIC SFR 2010-2


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SCHEDULE 

NY2 2053707.4 
SCIIEDULE4 


FORM OF ELECTRONIC REPORT ON THE MORTGAGE LOANS AND 


COLLATERAL 


[See Tab J.S] 

FDIC SFR 2010-2 


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1 


NY2 2053707.4 
FDIC SFR 2010-2 

Servicing Agreement 

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NY2 2053707.4 

SCHEDULES 

TERMINATION WITHOUT CAUSE 

[See Tab J.6] 

SCHEDULES 

SCHEDULE 

TERMINATION WITHOUT CAUSE 

Tab J.6 

2010-2


Servicing Agreement


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FDIC SPIt 

NY2 2053707.4 

SCHEDULE


SCHEDULE6 

BUSINESS PLAN 

(To be provided by Servicer and Manager as promptly as possible after the date of this 

Agreement, but in no event later than one hundred and twenty days after such date) 

FDIC- SFR 2010-2 

Servicing Agreement 

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SCHEDULE6 

I 

SCHEDULE


BUSINESS PLAN


To be provided by Servicer and Manager as promptly as possible after the date of this 

in no event Agreement but later than one hundred and after such twenty days date 

FOIC SFR 2010-2 

Servicing Agreement 

Pool Nos 24020 and 2402 

SCHEDULE